The test is the thinking of “right-minded,” informed members of the public.
Charles Felix Webster received a two-year reduction in his 10-year sentence for what is considered to be Cayman’s first case of abduction.
Webster and Allan Sywell Kelly were found guilty after a judge-alone trial in 2011 for the abduction and wrongful confinement of a man in March 2010. The two men were also convicted of blackmail for attempting to obtain US$500,000 from the mother of their victim in exchange for his release.
Webster, now 31, presented his arguments last week to the Court of Appeal in the form of what president Sir John Chadwick called a “clear and comprehensive memorandum” explaining why 10 years was unduly high compared to another defendant’s five years.
The maximum penalty for abduction is life imprisonment.
In his limited oral presentations, Webster told the court it was unfair that the two men who planned the abduction were walking free while he was in prison. The man who was sentenced to five years, Wespie Wilfred Mullings Ramoon, has been released. The fourth man, Richard Hurlstone, absconded on bail. His sureties were subsequently ordered to pay $40,000.
Hurlstone, brother-in-law of the abducted man, was considered to be the mastermind of the plan.
Mullings pleaded guilty and gave evidence for the Crown at the preliminary inquiry and at the trial. His attorney John Furniss had urged the court to consider a discount of one-half to two-thirds for the early guilty plea and assistance.
Director of Public Prosecutions Cheryll Richards, then solicitor general, confirmed that Mullings had fully cooperated with police from the moment he was arrested.
Both Webster and Kelly admitted taking part in the abduction/confinement but offered a defense of duress – that they acted out of fear for their lives and for the safety of their families. Justice Karl Harrison rejected that defense and found that Mullings had never threatened or pulled a gun on either of them. He concluded they acted for financial gain.
In handing down sentences, Justice Harrison said the penalties had to be very heavy. These offenses were foreign to Cayman, he noted; they could not be allowed to spread and cause anxiety. In the case before him, the trauma experienced by the victim would take a long time to erase, he observed.
He agreed that the mastermind of the abduction/ransom plan should receive the highest sentence, which he would have started at 15 years, with other participants receiving less according to their roles in the enterprise.
The trial judge summarized the case in his verdict. He said Hurlstone spoke to Mullings about starting a new business of “kidnapping” in Cayman and the first victim would be his brother-in-law.(Kidnapping means taking any person beyond the limits of the Cayman Islands without his consent or taking a young person out of the keeping of a lawful guardian without the guardian’s consent. Abduction is compelling a person to go from any place by force, or inducing him to go by some deceitful means.)
Justice Harrison said Hurlstone convinced Mullings his plan could work; and meetings Kelly and Webster voluntarily attended meetings about the scheme; and each man was promised $25,000.
Webster induced the victim to go to a home in North Side, where Mullings and Kelly were waiting. The young man was grabbed, kicked, choked, punched and finally subdued. His hands and feet were tied and his eyes covered. Force was used to remove his jewelry.He was held for more than 24 hours. Webster then drove the victim’s truck to another part of the island.
The victim finally was able to escape after freeing himself of the duct tape binding his hands.
At the appeal hearing, Senior Crown Counsel Tanya Lobban pointed out that the sentences were meant to be a deterrent to others.
Justice Chadwick agreed, but added that the same point also applied to Mullings.
While Webster enticed the victim into a trap and was involved in his brutal treatment, the same thing could be said of Mullings, the president said.
Justice Chadwick said he wanted to make it plain that, he would not have thought it appropriate to interfere with the 10-year sentence if it were not for the disparity between the sentences of Webster and Mullings.
But there is a test to be applied, he noted: Would right-minded members of the public with full knowledge of all the relevant facts and circumstances, learning of this sentence, consider that something had gone wrong with the administration of justice?
He said there was little doubt that Mullings was entitled to substantial discount for his plea and testifying, but should that discount have been as much as 50 percent?
The appeal court took the view that the public would think something had gone wrong.
If five years was appropriate for Mullings, that would indicate a starting point of eight years, perhaps, and there was no reason why Webster should be sentenced at a higher starting point, the president explained. To take care of this discrepancy, the court reduced Webster’s sentence to eight years. The sentence for blackmail was reduced from six years to four and a half, to run concurrently.
Other sentences for assault, robbery and threatening violence were not altered.
The court president said there was little doubt that Webster’s co-defendant was entitled to substantial discount for his plea and testifying, but should that discount have been as much as 50 per cent?