Jail a must for breach of trust

Mental health issues not an exceptional circumstance, magistrate says

A woman who pleaded guilty to stealing from her employer must spend time in prison although she is being treated for mental illness, Magistrate Valdis Foldats said on Friday.

She was sentenced to six months’ imprisonment and three years of probation.

The Cayman Compass is not naming the woman.

The woman had previously pleaded guilty to the theft of $14,936 from her employer between December 2010 and January 2011, just weeks after being hired as assistant office manager in a small business.

The court heard that her employer went on vacation and left her with several pre-signed checks, which she then had to take to a co-signer before they were issued. When the employer returned, she saw data missing from the check stubs and reviewed all transactions. The employee had altered some of the checks before she carried them to the co-signer.

For example, on one occasion she changed her salary check from $500 to $1,500.

The sentencing hearing began on Sept. 19, when she was brought to court from the Mental Health Unit, where she had been staying.

Crown Counsel Tanya Lobban and defense attorney Prathna Bodden agreed this was a breach of trust offense that, according to sentencing principles, attracted a prison sentence ranging from a short period up to 18 months for a first offense.

Ms. Lobban pointed out that the 33-year-old woman had previous convictions for dishonesty and compensation was still outstanding. She had been sentenced to 12 months’ imprisonment in 2006 and had been placed on probation in 2009.

Ms. Bodden emphasized that the woman was undergoing treatment for mental illness. “We don’t have a suitable facility for her here,” the attorney pointed out. “If we had, we could remand her there and she would be in custody. I submit that being incarcerated anywhere is a punishment – even your own house [because] it’s imposing on your liberty.”

A member of staff from the Mental Health Unit was asked to attend and assist the court. He said the woman had been in his care for the previous four weeks.

“During that time, there has been some movement toward remorse,” he said. “I believe she will need to continue in therapy quite a while more …. Her fear of going to Fairbanks [Women’s Prison] may have been the catalyst that allowed her to begin the journey in cognitive behavioral therapy.”
Based on further discussion and numerous reports available to him, the magistrate said he had all the tools for sentencing but he was still struggling. “This is one of the most unusual cases we’ve had,” he stated. He adjourned the matter for one week to consider his decision.

In passing sentence, he said the law is clear – unless there are exceptional circumstances or the amount of money is small, a custodial sentence must be imposed for breach of trust offenses.

Cayman’s Court of Appeal has stated that “exceptional circumstances” cannot be those that are routinely encountered, but they need not be unique or unprecedented, he noted.

Going through the questions typically asked in breach of trust cases, he said the woman was not at the highest level of trust in the company, but she had been given independence and access to the means of committing the offense. The theft was a series of deliberate decisions, not just one impulsive act. She claimed she did not know what she had done with the money, but acknowledged she did things “I know I shouldn’t be doing.”

Addressing her mental illness issue, he referred to the evidence of the Mental Health Unit staff member: he felt she should face some consequences for her offending, but he also hoped the threat of jail would give her motivation to continue therapy.

The magistrate cited a U.K. case in which a mentally ill woman received a prison sentence for a first offense of theft; the sentence was reduced on appeal from two years to 15 months. In the U.K., mental health issues are not an exceptional circumstance, he concluded.

“Clearly, a purpose-built mental health facility would be the ideal therapeutic environment, but we do not have such a facility. The absence is not an exceptional circumstance – it is an unfortunate reality,” he said.

With a tariff of up to 18 months for a theft of this amount, the magistrate started at 12 months. But because of the woman’s previous convictions, he raised it to 21 months. His next concern was whether that had to be immediate custody.

He said a jail term had to be imposed to protect the public from other people who might be tempted to steal. But he would suspend part of her sentence because, in the long run, the public would be better served by the woman’s rehabilitation.

From the 21 months, he gave her a one-third discount for her guilty plea, taking the sentence to 14 months. He then suspended eight months of that so she would have the continuing threat of incarceration while she continues therapy after her release.

Meanwhile, she will be receiving visits twice a month while in Northward from one of two mental health workers.

She received a consecutive sentence, also suspended, for damaging her helper’s passport by tearing out pages and causing the helper to overstay by not putting in a work permit renewal, although she told the woman she had done so.

The total sentence is six months’ immediate imprisonment and one year suspended for two years.

The magistrate also placed her on probation for three years with conditions that she attend counseling and mental health appointments as directed. “I can’t order her to engage in treatment, but this order will at least ensure her attendance at these sessions,” he concluded.

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