Magistrate Valdis Foldats imposed a sentence of 34 and a half months for burglary this week, but not until he determined what kind of building defendant John Michale Schirn had burgled.
After hearing submissions from Crown Counsel Greg Walcolm and defense attorney Jonathon Hughes, he agreed that the building was “a hybrid” – both residential and non-residential. Schirn had previously pleaded guilty to entering as a trespasser with intent to steal from a premises that was the manager’s office at a tourism complex. But the building housing the office was also the residence of the housekeeper, with only a door separating the two areas.
As the magistrate pointed out, the Penal Code does not have building categories: it simply refers to burglary of any building or part of a building. But sentencing guidelines do distinguish between residential and non-residential, also called commercial.
The starting point for a residential burglary would be five years, with a range of three to seven. A commercial burglary sentence would start at two years, with a range from community service to four years.
In this case, Schirn and an accomplice went to the premises in the early hours of Aug. 2 this year. They gained entry by breaking a window. The housekeeper, in an adjoining suite, heard the noise and called 911.
Two officers attended in time to see the intruders exit from a window, and chased them. One got away. Schirn did not.
The magistrate paused in his sentencing remarks to commend the officers. He imagined the fear and anxiety they had to overcome in order to give chase to two unidentified, masked burglars – one of whom had claimed to have a gun.
“These were brave acts, given the recent rash of gun crimes,” he said.
Mr. Hughes had argued that Schirn did not intend to enter a residence; he intended to steal from an office. But ignorance of the layout of the building carried little weight – a burglar takes his building as he finds it, the magistrate commented, and lack of knowledge as to whether it is a residence should not shield him from the consequences of his criminal behavior.
In this case, the office was connected to a dwelling and, in fact, the housekeeper was disturbed. A residential burglary, also referred to as domestic, is always serious because the victim’s sense of security has been violated, the magistrate pointed out. It is even more serious if it happens at night and the victim is in the house, he noted. The owner of a commercial property may lose financially, but the occupant of a residential premises may suffer physically and/or psychologically.
The magistrate also emphasized that the premises was at a tourist complex, so there was a real risk of occupants returning from their various activities and being confronted by burglars.
This was an aggravating factor, he said, and the courts must do what they can to ensure that Cayman does not get a reputation as a crime-infested destination, with catastrophic effects on the tourism industry.
Other aggravating features included the wearing of masks and gloves and the turning away of the security camera from the office. These showed significant planning, he said.
Schirn’s personal circumstances also had to be taken into account. At 29, he had a conviction for burglary in 2011. It occurred at his father’s premises and the two had since “patched things up,” which was laudable, the magistrate said, but added that the defendant had not learned from his term of imprisonment for that offense.
When arrested, Schirn had a substantial sum of money on his person; he explained it was from the sale of a car. No money was stolen from the burgled premises.
Mr. Hughes said Schirn did not need the money but had gone along with his friend’s proposal to commit the burglary because of peer pressure. The magistrate said he disagreed that there was any coercion, intimidation or exploitation.
Peer pressure has greater weight for a child or teen, but if a person is an adult and has friends who are criminally minded, “you have chosen the wrong friends,” the magistrate said.
He increased a sentence of three and a half years to four and a half because of the aggravating features. He gave a full one-third discount for Schirn’s guilty plea, for a sentence of three years. He then considered that Schirn’s time on bail had been curtailed by a 7 p.m. to 6 a.m. curfew, so he allowed half credit for those 12 weeks. The result was a reduction by six weeks to a total of 34 and a half months.