Two Grand Court cases, a little over a month apart, illustrate the range of sentences that have been imposed for a seemingly similar offence. The charge was defilement. The plea was guilty. The first defendant was placed on probation. The second defendant was sent to Northward Prison for six years.
Was one sentence unduly lenient? Was the other harsh and excessive?
In the first case, the girl was 12 and the defendant was 17. It was his first offence, he cooperated with authorities and entered an early guilty plea. The probation was for two years, with a curfew that would keep him home at night but allow him to work during the day.
In the second case, the girl was 12 and the defendant was 36. He had a previous conviction for the same offence. He initially pleaded not guilty to six charges, putting the girl in the position of having to give evidence in court, then changed his plea just one week before trial.
Obviously, the circumstances of the cases were different. It should be no surprise that the sentences were different also.
Grand Court judges and the Summary Court magistrates see numerous cases that look alike on the charge sheets. But when they hear the details, different features stand out. These different features must affect the way each case is dealt with. One exception is murder, for which the penalty is mandatory imprisonment for life.
“The exercise of sentencing is never an easy one,” Chief Justice Anthony Smellie said at the ceremonial opening of Grand Court for 2002. “There inevitably exists a tension between the public interest in deterring the offender and others who might offend, and the important objective of tailoring the sentence to ensure that the offender is given a proper opportunity for rehabilitation.”
Seven years earlier, then-Chief Justice George Harre used the same occasion to discuss the factors judges and magistrates take into account when passing sentence. The Caymanian Compass reported that portion of his address almost in its entirety. Among the points he made:
Before any question of sentencing arises, the defendant will either have pleaded not guilty and heard a verdict pronounced against him after trial, or he will have admitted his offence by pleading guilty.
If it is known in advance that he is pleading guilty, all the Prosecution has to do is outline the circumstances of the offence without calling evidence. Then the defendant will get some credit in his sentence for not wasting the court’s time. Having heard either the evidence or the outline of circumstances, the judge must then make his own decision as the degree of seriousness of what took place, as criminal offences may range from extremely serious to relatively minor. “That does not affect legal guilt, but it obviously affects sentence,” Mr. Harre said.
Before sentencing, the judge will hear about the defendant’s criminal record or whether he is of previous good character and any other relevant factors in his personal background. These are told to the judge as “a plea in mitigation”, he explained.
In addition, the court may receive a social worker’s report and, if appropriate, a report from a medical doctor or psychiatrist. All this takes place within a framework of sentencing policy. Modern sentencing legislation, in the system Cayman has inherited, gives judges extensive discretion, with few exceptions, Mr. Harre said 16 years ago. As far as imprisonment goes, criminal laws generally authorise maximum terms far longer than are normally imposed. But, the judge commented about maximum penalties, “they are for the worst possible offence by the worst possible offender, which explains why they are so rarely imposed.”
Sentences passed over the years will be found to show a pattern, which is known as the tariff. But there are always different and conflicting criteria confronting the judge.
A sentence therefore can represent a complex approach: taking into account deterrence of future offences, denouncing the offence, giving the offender a chance to make amends, reforming the offender, he summarised.
Three years later, just before his retirement as Chief Justice, Mr. Harre announced a set of tariffs for sentencing in Cayman. Those tariffs were reaffirmed in 2002, which is when Chief Justice Smellie used the occasion to elaborate on sentencing practices.
In deciding the appropriate sentences, Justice Algernon Smith noted the aggravating factors: carrying weapons, using threatening words and the seeming prevalence of this type of offence. Mitigating factors were cooperation and admission of guilt at an early stage. The general policy is to encourage guilty pleas, partly because they save time and money and spare witnesses from having to attend court. A guilty plea may be evidence of contrition, he noted.
He cited authority for the idea that a sentencing court must be particularly careful to examine each case to ensure that if a custodial sentence is necessary, the sentence is as short as possible consistent only with the duty to protect the interest of the public and to punish and deter the criminal.
Justice Smith read extensively from social inquiry reports on each defendant and quoted from letters they wrote expressing remorse. None had previous convictions.
Other considerations have arisen over time. Justice Charles Quin recently sentenced a young man to four years imprisonment for robbing a small shop and carrying an imitation firearm at the time.
He said the business community and the public in general need protection.
Whether the gun was real or imitation was not a major factor in sentencing because the amount of fear it would cause the victim was likely to be the same.
Further, he stated, the court had to take into account the escalation of this type of offence in Cayman.
There are other considerations as well. One is a victim impact statement.
There have been a few cases, usually of rape, in which the judge is provided with a statement that details the physical and emotional trauma caused by the incident. Another kind of victim impact statement was written by the husband of a woman killed in a road accident. The driver pleaded guilty to causing death by dangerous driving and the indication was that he would be jailed for one year. Instead, the husband of the deceased woman noted that the driver’s wife was an invalid, confined to a wheelchair. He thought the best outcome would be for the defendant to remain free and discharge his debt to society by caring for his wife to the best of his ability. The judge reduced the prison term.
The tariffs introduced in 2002 can be viewed on the website caymanjudicial-legalinfo.ky. Click on courts and then, in the contents column on the side, find “Sentencing Guidelines”.
Cases from other jurisdictions can be helpful to the judge, and both Defence and Crown Counsel may refer to them because of the comprehensive way in which they consider possible aggravating and mitigating factors. Probably the most frequently used in Cayman is the 1985 case of R v Barrick, which deals with theft by a person in a position of trust; locally the defendant is usually an employee. The Cayman Islands Court of Appeal has adopted the principles set out in Barrick on at least two occasions.
The cases of Milberry (2003) and Billam (1986) have been cited in sentencing hearings for sex offences. Causing death by dangerous driving is another offence for which aggravating and mitigating features have been usefully set out; attorneys have used the 2004 case of Cooksley.
Sentencing and sentencing approaches continue to evolve. The introduction of the Drug Rehabilitation Court provided courts with tools to help addicts break the cycle of committing crime to feed their habit, getting caught, going to prison, coming out and starting all over again. In recent years the Summary Court, in conjunction with the Department of Community Rehabilitation, has run informal programmes for domestic violence intervention, offenders with mental health issues and people charged with driving under the influence of alcohol.
How these cases are ultimately disposed of depends largely on the participation and attitude of the defendant.
As Chief Justice Harre said so long ago about drug-related offences: “Addiction to an illegal drug does indeed become an affliction, in the nature of an illness. But it is an illness brought on by a deliberate decision to break the law. We do not forget that.”
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