The offender who declined to be placed on probation has been sentenced to serve six weeks in prison. Her attorney gave notice of appeal.
Yamalis Ebanks, 21, did not agree to being placed on probation for 12 months because one condition involved a curfew that amounted to house arrest. She could have left home for work, shopping, church and medical reasons (Caymanian Compass, 14 December).
A jury convicted Ebanks of stealing $200 from her employer and forging a name on a debit card receipt.
On Friday, Mr. Justice Alexander Henderson said he had already made the deliberation that Ebanks fell into the relatively small group of offenders who committed a breach of trust but were suitable for a non-custodial sentence.
Defence Attorney Nicholas Dixey submitted that, where a condition of probation required an offender to spend all of her free time at home, the home is turned into a prison.
Mr. Dixey cited a 1999 case of theft from an employer in which the judge had said the court’s aim in sentencing was rehabilitation, not retribution.
Mr. Justice Henderson said retribution was a harsh word. The law assumes the sentence will be a deterrent to the offender and to other persons.
On behalf of Ebanks, the attorney expressed concern that the judge had felt constrained to give her a sentence similar to the one given a co-defendant, who had pleaded guilty.
The judge agreed that was a factor.
After these issues were aired, the judge said he had taken into account Ebanks’ age, the small amount and the fact that this was her first offence.
Through counsel, Ebanks had objected to house arrest and said she would comply with a sentence that suited her better, such as community service.
House arrest is a punitive measure used by the court as an alternative to prison, he said. Mr. Dixey seemed to think it wrong to impose this punishment on Ebanks.
The judge did not agree, but probation cannot be imposed without the consent of the person being sentenced. There were only two alternatives, he pointed out.
One was a fine, which he thought inadequate for the offence.
That left him with little choice except imprisonment. To do otherwise would lead to a situation in which anyone could reject the terms of probation and ask for better terms – and expect to receive them, he indicated.
He therefore imposed the six-week sentence and ordered restitution of $200 to the employer or a further week in default.
Mr. Dixey gave oral notice of appeal. He said it was a matter of principle and perhaps further guidance was needed from the Court of Appeal.
Mr. Justice Henderson suggested that the notice of appeal be put in writing and he would be prepared to deal with it that same day. He also advised that Mr. Dixey was free to take the matter before some other judge.