Defence says another appeal will be lodged
Marlene Bovell-Swanson was returned to prison on Tuesday to continue the 21-month sentence she received almost two years ago for thefts totalling $6,000 from the Cayman Islands Crisis Centre while she acted as its director.
That term was imposed by Chief Magistrate Margaret Ramsay-Hale, who found Bovell-Swanson guilty after trial in Summary Court (Caymanian Compass, 4 February 2009). Later Bovell-Swanson was granted bail pending appeal. The matter went to Grand Court in December 2009, to the Court of Appeal in August 2010 and then back to the Grand Court in November.
At that time, Justice Alex Henderson dismissed the appeal against conviction. He heard arguments about sentencing on Monday from Defence Attorney Anthony Akiwumi and Senior Crown Counsel John Masters.
The judge summed up the case in his decision Tuesday morning. Bovell-Swanson, a graduate of the Cayman Islands Law School, wrote three cheques to herself using her middle and maiden names, Ingrid Welch, and then giving them to crisis centre directors for their signatures. She gave evidence in her trial that board of directors chairman Len Layman entered into this illegitimate agreement with her to allow her to take extra money for consultancy services but to keep it a secret from other board members. Mr. Layman gave evidence there was no such agreement.
The chief magistrate accepted Mr. Layman’s evidence and disbelieved Bovell-Swanson. (During trial, when Bovell-Swanson was cross–examined by Mr. Masters, she said the board members knew about the alleged agreement but chose to report the matter to police. Asked if they had a vendetta against her, she replied, “It may appear so.”)
Justice Henderson said the directors had trusted Bovell-Swanson to make out cheques and she had taken advantage of that trust, which was an aggravating feature. She had impugned the integrity of Mr. Layman; this was also an aggravating feature. The chief magistrate found that $6,000 was a significant loss to the crisis centre because it depended on public charity, and Justice Henderson agreed there was a risk the centre would have greater difficulty in raising funds.
Mr. Akiwumi described Bovell-Swanson, now 46, as “an extremely broken woman” who would now not be able to practise law because of her convictions. The appeal process had been a time of strain on her, he said, and she had been confined to the Cayman Islands while on bail. The attorney also argued that 21 months was disproportionate to the amount stolen, citing cases involving larger amounts and shorter sentences.
Mr. Masters cited guidelines from the 1985 case of Barrick -an employee who was implicitly trusted, who used his position to take money in a series of “mean offences”, who gave no help to police and fought the case.
The guidelines have been adopted by the Cayman Islands Court of Appeal for cases of breach of trust and include factors to be considered: quality and degree of trust, including rank; period of theft; use to which money was put; effect on victim; effect on fellow employees; effect on public confidence; effect on the defendant and his/her own history; special mitigation, if any.
Justice Henderson emphasised that when a person in a position of trust steals, the sentence will be imprisonment unless there are exceptional circumstances. No such circumstances were mentioned in Bovell-Swanson’s case, he noted. Further, the sentence should act as a deterrent. An appeal can be allowed only if the sentence was wrong in principle or clearly excessive, he pointed out. Neither was the case here and he dismissed the appeal. He added that the three months already served should be taken into account.
Mr. Akiwumi then asked for bail pending appeal, saying he was entitled to appeal on a point of law. Mr. Masters said there could be no bail hearing until grounds of appeal were filed. He also asked for a compensation order for $6,000.
Justice Henderson said the directors had trusted Bovell to make out cheques and she had taken advantage of that trust, which was an aggravating feature.