Theft by a person in a position of trust will usually be punished by an immediate term of imprisonment, Defence Attorney Marlene Smith agreed last week.
But she asked the court to consider the particular circumstances of her client, Jose Gonzales-Camacho, who had stolen money to pay for his sister’s and nephew’s medical treatment.
Camacho pleaded guilty to stealing a total of US$16,264.96 in four sums between September and December 2003.
Magistrate Grace Donalds referred to the exceptional circumstances of this case when she imposed a sentence of 18 months imprisonment, suspended for two years, in combination with a compensation order.
Details of the thefts were provided by Crown Counsel Tanya Lobban.
Camacho, 38, was born in Costa Rica but has lived in Cayman a considerable number of years and has Caymanian status. He worked at a local bank.
The bank was responsible for the administration of a named fund. In March 2003, the decision was made to refund money to investors in four equal payments staggered over one year.
Camacho was one of the persons responsible for refunding the money.
In May 2005, one of the investors complained to the bank that she had not received a payment. Investigations showed four suspicious wire transfer payments into the account of Camacho’s sister in Costa Rica.
The defendant was spoken to and admitted transferring the money to his sister for medical treatment.
Ms Smith emphasised that the money was not taken for any personal frivolity. She also pointed out that Camacho had continued to work at the bank for another year and a half after the thefts and never took another cent.
She provided to the court medical reports for the defendant’s sister and the boy, both of whom had cancer. To make matters worse, Camacho’s mother had died of cancer a few months previously. ‘He felt he had no choice,’ Ms Smith said.
She noted that Camacho had no previous convictions and she handed up character references from people in the community who spoke well of him.
The magistrate took a brief adjournment. When court resumed she explained that she had wanted to quote exactly from the 1985 UK case that is considered the guideline for breach of trust offences – the Crown and Barrick.
In that case, the judge said that when a person in a position of trust uses that position to defraud employers, he will usually be a person of hitherto impeccably good character.
It is practically certain that such a [person will never offend again and, in the nature of things, will never secure similar employment, with all that means in terms of disgrace for himself and hardship for his family.
In general, the magistrate quoted, a term of immediate imprisonment is inevitable save in very exceptional circumstances or when the amount of money stolen is small.
Despite the great punishment offenders bring on themselves, the courts should nevertheless pass sufficiently substantial term of imprisonment to mark publicly the gravity of the offence.
The magistrate indicated that she had cited this guideline because it was important, in a jurisdiction like Cayman, that the courts should not be seen as treating such offences lightly.
Despite the rather stern warning to sentencing courts given by the judge in the Barrick guideline case, in the particular case of Camacho, she said she would impose a fully suspended sentence along with the compensation order. The hope was that the victim would thereby be fully compensated.
The magistrate ordered Camacho to pay $500 per month, on a specific date, until $US$14,264.96 is repaid. He is to pay that sum or serve six months imprisonment. The defendant had previously paid back $2,000.