Another issue is compensation for stolen money not recovered
Sentenced in December to 16 months imprisonment after pleading guilty to theft from his employer, Sanjay Burrell had his jail term reduced to 12 months after a successful appeal in March. The argument was that he should have received credit for his willingness to give evidence against a co-accused, Martha Levy.
Burrell did give evidence in June; the trial judge found it to be weak and inconsistent. Ms Levy was found not guilty. (See story here.)
The theft from Reggae Money Express in January 2011 was disguised as a purported armed robbery, with Joseph Lloyd Suberan enlisted by Burrell to enter the premises with an imitation firearm and act as if he were forcing Burrell to hand over the money.
At the sentencing hearing, Justice Alexander Henderson commented on Burrell’s young age (22), his loss of profession as an accountant and his positive letters of reference. He started his sentencing consideration at two years and then gave one-third credit for the guilty plea, with 16 months the result.
Attorney John Furniss argued in the Court of Appeal that the judge did not say anything about giving Burrell a discount for his willingness to testify against Ms Levy, who also worked at Reggae Money Express.
Crown Counsel Michael Snape accepted that discounts should be given because co-operation had to be encouraged. He pointed out that it might be said Burrell’s sentence had been somewhat lenient.
Court President Sir John Chadwick replied that it might be said the sentencing judge started too low, but it was difficult to criticise the one-third discount for the guilty plea. There would then have to be something further, even if minimal, for the additional cooperation.
In announcing the court’s ruling, the president said Justice Henderson appeared to have overlooked the assistance Burrell said he had provided and was providing.
Sentences are routinely discounted to reflect pleas of guilty, he pointed out. Where a defendant cooperates by testifying or expressing willingness to testify or gives a witness statement, further discount will be given.
One question that arose was whether the appropriate course is to wait until after the trial of the co-accused before sentence is passed on the defendant who is cooperating with authorities. Waiting allows the sentencing court to ascertain the full facts of the case and the value of the assistance, Sir John said. But sentencing in advance avoids the suggestion that the offender’s evidence is tainted by a desire to get a reduction in the sentence that will ultimately be passed on him.
That is the dilemma that confronts a judge and he has discretion, but in this case the judge did not deal with it. He should have recognised Burrell’s cooperation by an overt discount. The Court of Appeal said further discount was called for and it could not be less than one-sixth. The judges settled on four months, bringing Burrell’s total sentence to 12 months.
Another issue was the compensation order made by Justice Henderson.
The amount stolen was CI$62,667 and US$24,252. Neither Burrell nor Suberan benefitted from the theft because the money was hidden by a third man, O’Brian Emmanuel Wright, who pleaded guilty to being an accessory after the fact. When police recovered the hidden funds, CI$23,068 was unaccounted for.
Justice Henderson ordered that each man repay one-third of the stolen money still missing. But the Court of Appeal said the question of repayment should have been left until after Ms Levy’s trial; otherwise it seemed there was no room for an order against her if she were convicted. The Court of Appeal quashed Justice Henderson’s repayment order and sent it back to Grand Court for further consideration.