Suspended sentence for employee theft

After reviewing the guidelines for sentences in cases of theft by an employee, Justice Priya Levers imposed a suspended sentence on a woman who admitted stealing over $13,000.

The Cayman Islands Court of Appeal has recently affirmed guidelines that set out appropriate terms of imprisonment unless there are exceptional circumstances.

Those guidelines were referred to last month after the Crown Counsel told the court how the defendant wrote company cheques payable to herself and then cashed them or deposited them in her account.

She was charged with six counts of theft and nine counts of dishonestly obtaining a money transfer. The total amount stolen was $13,869.93.

According to guidelines, a sentence of six to 12 months would be appropriate, the Crown Counsel said.

After further discussion, Justice Levers declared, ‘Guidelines make me a robot. I am not a robot and I never will be.’

She referred to the opinion of the late Justice Ira Rowe, a former member of the Court of Appeal. He had said that when a judge asks for an expert report, the judge must take cognizance of it.

In the case before her, expert reports came in the form of assessments from a psychologist and psychiatrist, along with a social inquiry report. The judge thought the contents amounted to exceptional circumstances, but said this was a difficult case to deal with off the top of her head. ‘Whatever I do, I’d like to justify it in writing,’ she said.

In handing down her written ruling, she said guidelines provide great authority, but she did not believe they must be read as if they were law. In practice, they should be applied with some degree of flexibility. ‘The overriding objective must be fairness bearing in mind the needs of the community.’

She believed she must be mindful of the guidelines, but also mindful of reports submitted to the court at the court’s request.

The background of the defendant showed that she had been subject to abuse at an early age. Now in an adult relationship, she was the subject of abuse. She apparently committed the thefts after giving birth and there was evidence she suffered from post-partum depression.

The psychologist said she might benefit from an anti-depressant. Probation and the social inquiry report suggested that she maintain employment, continue to attend counselling and any appropriate psycho-educational groups, and attend a stress management group.

The judge cited facts in the defendant’s favour, many of which were put forward by Defence Attorney Nicholas Dixey.

First was the consideration she deserved for her guilty pleas and the fact that she had paid the money back. Then she found another job and voluntarily told her new employer about her pending court case.

The judge quoted from the employer’s letter to the court: ‘We know she receives counselling and meets with her probation officer on a regular basis in trying to make amends.’

The judge said the defendant showed a step towards rehabilitation when she was forthright with her employers.

The final factor the judge considered was the defendant’s children. ‘Everyone including judges, all the services, every organisation that assists the community, must ensure that whatever happens in people’s life, the children are protected and cared for,’ she said.

After referring to the family circumstances in this case, she concluded: if the court were to follow sentencing guidelines strictly and sentence the mother to prison, it must ask itself, what are the consequences?

In view of all these factors, the judge imposed a sentence on one year imprisonment, suspended for one year, with a recommendation that the defendant continue probation for two years as a condition of the suspension.

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