Chaz Leo Powery, 25, was sentenced last week to four years imprisonment after a Grand Court jury found him guilty of robbery.
The jury rejected his defence of duress that he had committed the crime out of fear of being killed because he owed money for drugs.
The incident leading to the robbery charge occurred in the early hours of 20 December, 2012, when a man and woman were walking in West Bay from a friend’s house to their home.
In the area of the four-way stop, they saw a number of men standing by two cars. Some of the men shouted to them in a way that concerned them. They tried to ignore the men and kept walking up Town Hall Road. Then a car pulled up ahead of them, a man got out, ran around a nearby building and the car drove off.
Then the woman felt someone come up behind her and put a knife to her throat. She had money and a phone in her bag and thought it was strange that the man didn’t go for her bag. She was afraid the attack might be sexual and was very frightened. Her attacker dragged her towards the sea front and threw her over a wall that was about knee-high. He was on top of her with the knife at her throat.
Closed circuit television was operating in the area and captured the image of the defendant and what happened. CCTV showed the woman’s friend following and waving his arms as the attacker dragged her. The man had a phone and was trying to call the police.
When the attacker saw this, he jumped up. The woman’s friend shouted at her to run and she did. She was aware that she was leaving her friend and gradually made her way back to him, using the cover of trees to avoid being seen by the attacker. She found her friend with blood on his face and a cut nose. His shoulder bag had been taken; its contents included $350. A passer-by stopped to help the couple and called police.
Powery was arrested that same day. He had two interviews with police, with his attorney at one of them.
At his trial, Powery gave evidence. He said he had been out with friends the night of the incident, ending up at a night club. There was a conversation about drugs and Powery got the message that some could be given on credit with payment to be made the next day.
Later, looking for a ride home, he got a lift to the four-way stop in West Bay. The man who had supplied the drugs was in a vehicle nearby. Powery said the man wanted his $100 “now”. When Powery said he didn’t have it, the man pulled a gun, handed Powery a knife, and told him, “Go rob those people. Don’t be a —– or I’ll kill you and your family.”
Powery said he did the robbery, was sorry, but did it because he was in fear of his life. He agreed he had never seen the man with a gun before and did not know his correct name. He told the judge and jury that he did not mention this death threat in his interview with police because he had lost faith in the sergeant.
In his first interview he tried to shift some of the blame onto his victims by saying there had been a drug deal and what he was doing was trying to recover the drugs.
Justice Michael Mettyear instructed jurors that they could not equate lies with guilt. He said the law recognises that people may lie for innocent reasons such as embarrassment or panic.
Crown Counsel Kenneth Ferguson submitted that Powery lied simply to lessen the degree of his responsibility.
Mr. Ferguson also suggested that Powery lied about being threatened. He said what must have happened is that after his second interview he learned that to succeed with a defence of duress, there had to be a death threat.
The judge explained duress in detail and said jurors should ask themselves four questions: Was Powery threatened with death to himself or his family if he didn’t carry out the robbery? If jurors were sure he was not threatened, then Powery was guilty. If they were not sure they were to go to the next question: did Powery honestly and reasonably believe that the threat would be carried out immediately or imminently if he did not comply?
If they were sure he did not believe this, the verdict would be guilty. If they were not sure, they would then ask themselves: Was the threat the direct cause of Powery carrying out the robbery?
If they were sure he would have carried out the robbery whether he was threatened or not, then duress was excluded and Powery was guilty.
If on the other hand jurors concluded that the threat was or may have been the real reason for the robbery, they had one more question: Would a reasonable person with ordinary robustness of character have done what Powery did?
If jurors thought there was an opportunity to escape in the darkness after being dropped off and a reasonable person would have taken that opportunity, then Powery was guilty. If, on the other hand, they concluded that a reasonable person might not have taken the opportunity to escape because of fear, then the verdict would be not guilty.
Justice Mettyear reminded jurors of the evidence from the couple, which was not in dispute.
After the verdict, the judge invited jurors to stay for the sentencing if they wished. They did.
Defence attorney John Furniss said it had been some time since Cayman had a spate of street robberies. Sentencing guidelines called for a starting point of four years after trial, with a range from two to seven years. Given Powery’s good work record and no previous convictions for violence, he urged the court to stay at the four year mark.
Justice Mettyear referred to Powery’s behaviour as appalling and ghastly. “It must have been a terrifying thing to be happening to this couple walking home…,”
He said he was persuaded that Powery did the robbery because he had a drug habit, he had been drinking too much and he was with a crowd that wound him up to do it. Then he had made things worse by telling stupid lies.
The judge said passing a sentence is not about plucking a figure out of the air; it’s about trying to be fair and consistent.