Woman jailed for theft from employer

Judge invites discussion of compensation order for $44,000

Hellen Moirca Ebanks, 32, started a 20-month prison term last week after pleading guilty to stealing $44,805.89 from her employer over a three-year period.

Justice Alexander Henderson imposed the sentence after hearing facts and mitigation the week before. As part of the sentence he was going to order compensation, saying it was right for the offender to pay back what was stolen, but he wondered how the order would be enforced.

Defence attorney Guy Dillaway-Parry told the court, “She simply can’t pay it back. She doesn’t have it and doesn’t have means of getting it.”

Justice Henderson asked him and Crown Counsel Michael Snape to look into legal guidelines and precedents.

After hearing their submissions last Monday, he concluded that the employer should sue the defendant in a civil court. “It seems to me the civil process is better attuned to the task of collecting the debt from someone who cannot make the immediate payment,” he said.

It was pointed out earlier that a civil court has the power to seize property or garnish wages when Ebanks gets out of prison and finds another job. The civil court can also address the issue of how long it might take to pay back the money.

In contrast, the Penal Code sets six months as the maximum sentence that could be ordered for non-payment of compensation.

Details of Ebanks’ offences of theft and false accounting were summarised by Mr. Snape at the first hearing. He said she had been employed by attorney Samuel Jackson since 2004 as office manager and legal assistant. In February 2010, while she was on holiday, Mr. Jackson needed to go into her office to find a computer password.

He saw a bundle of receipts that were meant to go into clients’ files. The receipts were dated between 2007 and 2009.

Mr. Snape explained that the receipt system involved having one copy in the receipt book, one in the file and one given to the client.

Mr. Jackson looked at the company accounts to see if the clients’ payments had been banked. They had not been.

When Ebanks returned to work, Mr. Jackson confronted her. After an initial denial, she accepted taking some of the money.

It was agreed that, between 2007 and 2009, she had failed to deposit and had kept for herself $63,978. During that time, she had also made some repayments. Mr. Snape said the figure on the indictment reflected the amount taken and not paid back.

The loss was not covered by insurance, Mr. Snape pointed out.

Mr. Dillaway-Parry said Ebanks’ social inquiry report was exceptionally positive, showing genuine contrition and “the lowest risk of re-offending I’ve ever seen.”

Justice Henderson commented that, for most white-collar crime, sentences are imposed not so much to deter the offender from re-offending, but to deter others from engaging in similar behaviour.

Mr. Dilliway-Parry said a unique aspect of the case was Ebanks’ intention to return the money. Justice Henderson did not agree. He said he heard that submission in three-fourths of the cases that had come before him. He did accept that subjectively at some level offenders believe they will be returning the money some day.

He also accepted the defence point that Ebanks had a system to keep track of what she had taken and paid back.

Mr. Dilliway-Parry cited sentencing guidelines and the amount of money stolen. He said the amount would be affected by inflation since other courts had pronounced sentences in the 1980s and 1990s.

He urged the court to consider a sentence near the 12-month figure and suggested it could be suspended.

Justice Henderson said one of the things he had to take into account was public confidence in financial institutions here. The financial services industry is the lifeblood of the Cayman Islands and some law firms were almost entirely dependent an overseas clients, he observed.

He pointed out that Ebanks was in a position of trust. Sentencing in such cases was not a mathematical exercise. A precedent case from 1998 suggested that for internal theft of amounts between 17,500 pounds and 100,000 pounds, the sentence should be between two and three years. It seemed to him that Ebanks’ theft fell in that range.

“If I am wrong, I am nevertheless of the view that theft from a law firm by the office manager of a significant amount of money over a significant period of time would ordinarily merit a starting point between two to three years,” he reasoned.

He further considered that there were no mitigating factors other than the guilty plea. With a starting point of two and a half years, he gave a one-third discount, resulting in sentence of one year, eight months.

On the question of compensation he said, “I consider it a wise and just part of the sentence. If she were not to pay it back the sentence would be longer.”

Justice Henderson suggested that, if legislation permitted, she could start making monthly payments three months after she is released, with some enforcement provision judicially so that if she were working and keeping all the money, she would be returned to prison.

He said the defence had made a valid point – if he simply ordered compensation, he would be adding to her sentence.

The question was worth looking into, he added, because “There is a veritable epidemic on this country of internal theft.”

In delaying the start of Ebanks’ incarceration, he said, “We need to do our best to find a form of order permitted by the legislature.”

After proceedings resumed on Monday, Justice Henderson commented, “If you steal $44,000 from some one, you owe them $44,000.”

Mr. Snape and Mr. Dilliway-Parry told the court they accepted that, as a general rule, there should be some inquiry as to the means available to pay.

After hearing further submissions, Justice Henderson cited a United Kingdom case stating it would be wrong in principle to make a compensation order when the defendant lacks means to meet it. His view was that compensation should be considered an integral part of imposing punishment.

He concluded that a compensation order should only be made when there is reason to believe there are funds available to satisfy the order. Otherwise, the complainant should be left to his civil remedies.