Judge views $946 stolen as ‘small amount’
A former civil servant convicted of theft had her prison sentence suspended after attorney Crister Brady argued her appeal in Grand Court.
Lavania Olivia Hume-Ebanks, 31, was a clerical officer in the Lands and Survey Department when the incidents occurred that led to charges against her of theft and false accounting. After a trial that concluded in March 2014, Magistrate Kirsty-Ann Gunn found her not guilty of 13 charges of false accounting but guilty of three, stealing amounts that totaled $946.
The magistrate imposed a sentence of four months imprisonment, noting that the offenses were a breach of trust. She also considered that the amount stolen was not small.
The best-known sentencing authority for breaches of trust, the 1985 U.K. case of Barrick, explains that, in general, an immediate custodial sentence “is inevitable save in very exceptional circumstances or where the amount of money obtained is small.”
Justice Malcolm Swift, who heard the appeal on Tuesday, said there were no exceptional circumstances in this case. “Surprisingly, there is a limited body of authority dealing with the issue of what amounts to a ‘small’ sum of money for the purpose of avoiding an immediate custodial sentence,” the judge commented.
He noted that the magistrate had accepted $946 as being on the very borderline of custody. “However, she then proceeded to draw the following conclusions: First, that $946 was not a small amount when judged against the income or school expenses of an ordinary Cayman resident; Second, that the level of trust placed in the appellant by her employer, coupled with the fact that she was a public officer, raised the case into the custody bracket.
“Was that the correct approach?” the judge asked. “In my opinion, it was not.”
In his judgment, the question of whether a sum is small “is not to be decided with reference to the perceptions of the public or against levels of trust placed in a public official.”
Mr. Crister and Crown counsel Toyin Salako had referred to previous cases in which the issue of a “small amount of money” was raised.
In 1998, Chief Justice Anthony Smellie dealt with a breach of trust case. He said, “The offense involved what was by any measure a small amount of some $1,250. That brings the offense well within the exceptions recognized (in Barrick) as not requiring immediate imprisonment,” he said.
In a 2009 Grand Court case involving theft by an employee, $180 was considered small and the sentence was community service after a guilty plea.
In a 2009 Summary Court case, a young bank teller was sentenced to four months immediate imprisonment after pleading guilty to theft of $2,000 from a customer’s account. Justice Swift said it did not appear that anyone in that case had suggested the amount was small. It seemed to him that, once it was determined that the offense fell within the lowest sentencing range as explained in accepted authorities, a bank teller was in a high position of trust and the sentence was justified.
In a 2012 case, an officer in the Immigration Department received a suspended sentence after pleading guilty to thefts totaling $2,600.
Justice Swift said he was guided by these cases and they drove him to conclude that the $946 Hume-Ebanks was found to have stolen must be considered as small for the purposes of the guideline case of Barrick.
Once the amount is categorized as small, “the case is to be treated as if very exceptional circumstances apply, with the effect that an immediate sentence of imprisonment is no longer inevitable,” Justice Swift said.
For Hume-Ebanks, the aggravating factors were her position of trust and the theft of public money. The judge commented that the offense was not going to dramatically affect the economy of the Cayman Islands – an important factor in a Court of Appeal decision – and the effect on fellow employees was limited, except for the perception that the cash accounting system was easily abused.
In mitigation, Mr. Brady pointed to his client’s lower income as a result of losing her job with the civil service and the effect of the conviction on her reputation in a small community.
Justice Swift also referred to factors in a social inquiry report, saying there was “sufficient mitigatory material” to justify a suspended sentence.
He said the sentence of 16 weeks was not too high, but he suspended it for 18 months.