Court affirms prison for employee theft

Woman in current case excepted

The Cayman Islands Court of Appeal,
after hearing an appeal by the Crown last week, confirmed that an offence of
theft from an employer by an employee in a position of trust will normally
attract a sentence of imprisonment.

Referring to 2002 guidelines, Court
President Sir John Chadwick noted that for a first offence, a term of one to
four years can be expected. The Court of Appeal had issued a judgment in 2007
affirming this sentencing principle. 

Only when the circumstances of a
case are truly exceptional can a defendant expect a sentence other than
custodial, the president restated.

He did so in the Crown’s appeal
against the Grand Court sentence of Lanisia Barnes, who was ordered to perform
240 hours of community service and placed on probation for three years. Justice
Chadwick said the appropriate sentence in her case would have been two years,
but the court did not impose that term now.

Crown Counsel Kirsty-Ann Gunn had
argued that the sentence was unduly lenient. The total amount stolen from the
bank where Barnes was employed in a managerial position was $62,057.08, between
August 2004 and September 2006.

Exceptional circumstances

The Grand Court judge heard that
Barnes had pleaded guilty and had paid back the money. He found there were exceptional
circumstances in her case because of a health condition — a seizure disorder
akin to epilepsy that could be exacerbated by stress.  The judge wondered if sending her to prison
would accelerate the ending of her life.

In appealing the sentence, Mrs.
Gunn said insufficient medical evidence had been presented to the judge to
indicate that prison would have that effect. The appropriate sentence, she
agreed, would have been 18 to 30 months.

Barnes, whose attorney was not
available, told the court she had already completed 97 hours of community
service “and it is something I want to continue.” She elaborated on the state
of her health.

“We’re not making a medical
assessment,” Justice Chadwick told her. He pointed out that she could have
obtained a full medical report before her sentencing hearing.

Barnes said she sold her house to
pay back the money. Nothing was left over because the house was sold for less
than it was worth in order to get a quick sale, and then the mortgage had to be
paid off.

After a break to consider the
matter with Justices Elliott Mottley and Abdulah Conteh, the court president
announced that the sentence was plainly unduly lenient. He said the material
presented to the sentencing judge did not support the conclusion that the
ending of Barnes’ life would be accelerated by imprisonment. The judge had no
basis on which to depart from the oft-repeated principle that the offence
should warrant custody.

Appropriate sentence considered

The sentence in this case should
have been two years, Justice Chadwick indicated. Barnes had exploited her
position to obtain money for her own use.

“It should be made clear that cases
of this nature will usually attract a custodial sentence and this was not a
case to depart from that principle,” he said.

In those circumstances, the Crown’s
appeal was allowed. The question then was what was the appropriate sentence for
this case now?

The court had to consider whether
there was any need to send Barnes to prison after she had been led to think she
would not be going to prison. The judges had found it a difficult question, but
decided is was not necessary. The court had considered details of her personal
circumstances, including the fact that she had already completed a substantial
portion of her community service and there was no reason to think she would not
continue to assist the programmes she had been working with.

The appropriate sentence now was 12
months imprisonment, suspended, with the probation order left in place. This
would allow Barnes to continue rebuilding her life. Imprisonment at this stage
would be unduly harsh, the court said.

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