Convicted bank employee Luis Errol Castillo received a two-year suspended sentence in December, but on Friday the Court of Appeal sent him to prison for 12 months.
Senior Crown Counsel Gail Johnson argued the appeal against Castillo’s sentence on the basis that it was unduly lenient.
She quoted from the Court of Appeal’s recent judgment in two cases of theft where a breach of trust was involved – ‘Even for a first offence the appropriate sentence is one of immediate imprisonment unless exceptional circumstances are shown…. In light of the economy of the Cayman Islands, the sentence imposed by the courts in cases of theft, involving breach of trust, should be one which would act as an effective deterrent.’
Ms Johnson said there were no exceptional circumstances in Castillo’s case and no mitigating features that would warrant a suspended sentence.
Castillo pleaded guilty to obtaining by deception just over $26,700 from FirstCaribbean International Bank, where he was a supervisor. His offences occurred between December 2005 and February 2006.
He would write cheques from his accounts at two other local banks for deposit into his FirstCaribbean account. When he collected deposited cheques from tellers at the end of the day, he would intercept his own cheques before they were sent back to the originating banks for clearing.
When questioned, he said he was short of money after Hurricane Ivan. That storm caused widespread destruction in Grand Cayman in September 2004.
The Grand Court judge who suspended Castillo’s sentence received details about his personal circumstances from Defence Attorney Nicholas Dixey and a pre-sentence report that was not read aloud. Noting his age of 57and the fact that he has Type II diabetes, the judge said even one day in prison would be a tragedy for him (Caymanian Compass, 12 December).
On Friday, Mr. Dixey told the court that Castillo had paid full compensation to the bank.
He described many defendants as being sorry they got caught or sorry they would be going to prison. In Castillo’s case, there was genuine remorse manifested by his emotional and physical suffering. He was distressed that he had brought shame on his family and community. He suffered from depression and sleeplessness and his blood pressure was affected. His weight had dropped from 175 pounds to 153 and, as the sentencing judge had noted, he has diabetes.
Court president Justice Edward Zacca said diabetes can be controlled. Many people have it. It did not follow that a custodial stay would affect diabetes.
Earlier he asked if Mr. Dixey were submitting that ill health is an exceptional circumstance.
‘I don’t know if you can say that ill health never amounts to an exceptional circumstance,’ he commented. He referred to a situation in which a defendant might be dying.
Mr. Dixey said he would be the first to concede that Castillo had been extremely fortunate in the sentence he received, but that did not mean the judge was wrong or that the sentence should be changed. Just as a defendant has to show that his sentence was unduly harsh or excessive in order to win his appeal, so the Crown should have to show that Castillo’s sentence was unduly lenient, not just lenient, the attorney argued.
He pointed out that Castillo’s anxiety has been prolonged since December, when the Crown gave notice of its intention to appeal the sentence. His depression has been exacerbated.
‘He has been suffering when he might have been getting better,’ Mr. Dixey said.
After an adjournment to consider the matter, Justice Zacca gave the court’s decision. He said the judges had found there were no extenuating circumstances in Castillo’s case and a custodial sentence ought to have been imposed.
However, the court took into account that eight months had passed and may be seen as already served. In light of the circumstances of this case, and having regard for all the facts, the court found that 12 months was the appropriate sentence.
The Crown had also sought confiscation in addition to compensation, but the court made no such order.
Hearing the appeal with Justice Zacca were Justices Ian Forte and Elliott Mottley.