Defendant rejects sentence

A supermarket cashier convicted of theft and forgery told the court on Friday that she was not prepared to abide by the terms of a probation order.

Yamalys Ebanks had pleaded not guilty to six charges involving the use of someone else’s debit card. A jury found her not guilty of four, guilty of two. Sentencing was adjourned so that a social inquiry report could be prepared (Caymanian Compass, 3 November).

On Friday, Defence Attorney Nicholas Dixey spoke in mitigation, urging the court to say that the small amount involved – $200 – did not warrant imprisonment.

He said the offence was not a breach of trust because such matters are generally characterised by long periods of fraudulent activity. In contrast, Ebanks’ offence was a one-off, opportunistic and not premeditated.

Mr. Dixey advised the court that Ebanks had another job handling money and her employer trusted her.

Mr. Justice Alexander Henderson reminded the defendant that her co-accused had pleaded guilty and had received nine months probation with a curfew that amounted to house arrest.

He said he was not inclined to sentence Ebanks to community service. Cayman is a small community with a very strong record of community service, he observed. A great number of people who have not committed crimes contribute a great deal of community service on a regular basis.

The judge said he was not sure it was a penalty to order Ebanks to do what other people were doing voluntarily.

Ebanks, he noted, was a young Caymanian of Cuban origin, pregnant, with no previous convictions.

He had to consider the impact of her offence on her fellow employees and the confidence of the public.

He said he was satisfied that she should be placed on probation for 12 months, with the following terms: that she keep the peace and be of good behaviour, appear before the court as required, make restitution of $200, and remain within her residence at all times, with exceptions.

Those exceptions would allow Ebanks to leave her home from 8am to 6pm on days of employment, four hours on Sundays for church, three hours each Wednesday for shopping, and any time for medical reasons.

Crown Counsel Tanya Lobban advised that the defendant must agree to being placed on probation.

Meanwhile, Mr. Dixey was conferring with his client through an interpreter. He told the court he had been given clear instructions that the sentence was to be appealed, so he was asking that it be suspended until then.

The judge then asked the defendant if she was prepared to abide by the terms he had set out. Her answer was no.

The judge pointed out that, as the Crown had advised, he could not impose the sentence of probation. If he did not impose it, there was nothing for Mr. Dixey to appeal.

Mr. Dixey suggested that the judge could impose alternate conditions.

Mr. Justice Henderson said he was not gong to get into the business of bargaining over conditions; he thought that highly inappropriate.

He adjourned sentencing for one week, with the comment that he had not encountered this situation before.

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