The sentence of Dave Bryan, convicted in 2012 of obtaining more than $300,000 from Foster’s Food Fair by deception, was reduced this week after an appeal, the scheduling of a retrial and a new guilty plea.
Bryan, part-owner of a bakery, had been sentenced to seven years. He served two years, 10 months and 23 days before his successful appeal and then successful application for bail. On Tuesday, Justice Malcolm Swift ruled that special circumstances applied in this case and Bryan would not serve further time in custody. He also stated that the sentence should not be used as a precedent.
Bryan had been charged with obtaining $309,981.37 by deception from Foster’s Food Fair IGA between January 2007 and May 2008 by submitting invoices for more products, including bread and Easter buns, than were actually delivered.
He chose to be tried by judge alone and Justice Charles Quin found him guilty on April 3, 2012. The sentence was five years for the obtaining by deception. Bryan received one year consecutive for a related charge of trying to take out a loan fraudulently by forging his business partner’s signature.
In August 2013, the Cayman Islands Court of Appeal quashed the guilty verdict for the obtaining charge. The court said Justice Quin’s decision had to be regarded as unsafe because he had not been told that a Crown witness had been promised he would not be prosecuted if he gave evidence against Bryan. The judge had regarded this witness as telling the truth. There was also material inappropriately admitted into evidence.
The Court of Appeal directed that a new trial be held. Attorney Margeta Facey-Clarke, who had argued the appeal, applied for him to be bailed pending retrial.
After considering sentencing guidelines and cases cited to him, Justice Swift took as his starting point three-and-a-half years, subject to amendment because of aggravating and mitigating circumstances.
The aggravating factors included the effect on other people.
The only mitigating factor, apart from his guilty plea, was the fact that he had previously been a man of good character.
On the basis of these factors, Justice Swift raised his starting point to four-and-a-half years.
He then considered, that “…it takes courage to plead guilty after having been released from a long sentence and knowing that a court cannot, before hearing argument, indicate that a plea discount will definitely be applied or to change the composition of existing sentences.”
Justice Swift then assessed the discount for the guilty plea to be 20 percent, which he rounded up to 11 months, so that the sentence was reduced to three years seven months.
“There is no other mitigation,” the judge said. “However, it would be perfectly proper for me to re-visit the consecutive sentences and, applying the double jeopardy principle, and, as an act of mercy, consider making all sentences concurrent in order to achieve the practical result of ensuring the defendant does not have to return to prison while preserving the need to recognize the gravity of his offending by imposing a severe sentence on count one [the deception charge].
“This I have decided to do,” the judge said. “The sentence of three years and seven months’ imprisonment will run concurrently to all other sentences imposed. This is not a green light for defendants to think they can commit offenses on bail and receive concurrent sentences. On the contrary, it is only in these special circumstances that this curse is possible.”
Calculations of time to be served resulted in Bryan not serving further time in custody, which was the purpose of the sentence imposed, the judge said. He ended by emphasizing that this sentence was specific to this case and “should not be used as a precedent in other cases, none of which are ever likely to replicate these facts.”
Justice Quin directed in 2012 that Bryan be deported after serving his sentence. It was not clear at press time whether that order was still in effect.
Justice Swift said he had been told that the time Bryan actually served was the equivalent of a four year sentence.