In June 2017, a small exotic possum called a “sugar glider” escaped from its container and startled passengers on a Cayman Airways flight from Miami.
Following months of public speculation, and eventually the airing of facts in open court, Jimel Martyn McLean (the son of East End MLA Arden McLean) and Sabrina Robin Walton pleaded guilty to the charge of importing a live animal without a license.
In February of this year, Summary Court Magistrate Valdis Foldats ordered them to pay costs of $200 each and ruled that they were to have “no conviction recorded” against them.
In 2014, George Town Central MLA Kenneth Bryan, who was the political assistant to Premier Alden McLaughlin at the time, was arrested for disorderly conduct and assaulting police outside a nightclub. His charge of common assault does not suggest physical assault of an officer.
He pleaded not guilty and went to trial, where the charges were found to have been proved. The magistrate hearing the case did not proceed to conviction, but placed Mr. Bryan on probation for one year and ordered him to pay $100 in costs for each day of his trial – $400 in total.
In May 2015, radio talk show host Austin Harris, now an MLA for Prospect, admitted to assaulting a woman at a party and damaging a window. Mr. Harris said he was “severely intoxicated” at the time and could not remember anything about the incident.
When he appeared in court, he said he had given up alcohol and sought counseling for anger management since the incident 14 months earlier.
The magistrate said Mr. Harris had previous good character and had taken positive, voluntary steps to address the issues that led to the offenses. No conviction was recorded.
In practical terms, “no conviction recorded” means that defendants retain their clean police record and have no criminal history, even after pleading guilty or being found guilty of the offense for which they had been charged. With a clean slate, defendants, for example, remain eligible to run for public office.
The decision not to record a conviction is at the discretion of the presiding magistrate or judge. It is an option that Cayman Islands courts exercise in a small proportion of cases, but can happen hundreds of times per year.
In 2017, when nearly 6,800 criminal and traffic offenses were registered with the court, 245 offenses (a ratio of about 3.6 percent) were disposed of in the Summary Courts by way of “no conviction recorded.”
The Cayman Compass does not have figures from another year to permit an exact comparison, but a 2011 study of prevalent crime showed that, in 2010, the Summary Courts disposed of 459 charges, not including traffic. Of those 459, there were “no conviction recorded” 28 times – 6.1 percent.
“We usually expect that when someone pleads guilty, the court will convict that person and move to sentence,” said defense attorney Jonathon Hughes, pointing to Cayman’s Criminal Procedure Code.
However, that code contains the important word “unless.” It states: “If the accused person admits the charge, his admissions shall be recorded and the court shall convict him and pass sentence upon or make an order against him unless, after hearing anything which may be said by or on behalf of the accused, whether in mitigation or otherwise, there shall appear to the court to be sufficient cause to the contrary.”
What would be a sufficient cause to go contrary to the expected sequence of guilty plea, details of offense, mitigation, and sentencing?
Another law, Cayman’s Penal Code, elaborates on that power of the court.
The Cayman Compass spoke on the subject with seven attorneys in the private sector, whose practice includes criminal defense. All of them cited the Penal Code’s section 41, which allows the court to discharge a defendant without punishment.
Where an offense has been proved – as by a guilty plea – but the court is of the opinion that it would be inexpedient to inflict any punishment, the court may, without proceeding to conviction, discharge the accused person either absolutely or on condition that he commit no offense for a period of up to three years.
Section 41 sets out what factors a court may consider when deciding whether it would be inexpedient to inflict punishment. They are:
- The character of the accused.
- The antecedents [previous history] of the accused.
- His/her age.
- His/her health or mental condition.
- The trivial nature of the offense.
- The extenuating circumstances in which the offense was committed.
How did these factors apply to the sugar glider case?
Attorneys Nicholas Dixey and Richard Barton outlined what they had planned to say on behalf of the two defendants, starting with the fact that they were of good character and had no previous convictions. But their main argument had to do with extenuating circumstances.
The point was made in court that the animal had been declared on the female defendant’s customs form, so there was no attempt to bring the animal in secretly.
“The couple were held in custody for 24 hours on suspicion of smuggling, even though there was never sufficient evidence to charge this,” Mr. Dixey said. During that time, they “had been warned and, arguably, given the impression that this was the end of the matter – only then to face prosecution.”
As Mr. Barton said at the sentencing hearing, he believed that the warnings and detention were enough to merit an argument of abuse of process if the matter had gone to trial.
The defendants first appeared in court charged with importing an alien animal without a license, but the Crown advised that there was no definition of “alien” in the Animals Law, so pleas were accepted to importing a live animal without a license.
The sugar glider was certainly different from the typical offenses for which applications are made to have “no conviction recorded.”
The bases on which attorneys will ask for this special result are variations on the same theme.
Attorney Amelia Fosuhene explained, “I tend to apply for this outcome in circumstances where an offender has no previous convictions and the offense is not so serious. I have requested that courts impose such a sentence in cases involving minor drug offenses, thefts and sometimes more serious cases where the offense is old or the offender has turned over a new leaf since the commission of the offense.”
Mr. Hughes put the law in plain language. The character and antecedents of the defendant means, essentially, “Has this person been in trouble before?” If the answer was yes, in his experience, it was very rare for no conviction to be recorded.
If the person has not been in trouble before, then he considers the nature of the offense and the circumstances in which it was committed.
“Is this behavior out of character and is it relatively minor?” he asks.
An attorney who wished to remain anonymous set out the circumstances in which he would ask for no conviction to be recorded: “I would do it where there was a person of previous good character, for a minor offense where the very fact of a conviction would have consequences disproportionate to the gravity of the offending. The defendant would have to have demonstrated genuine remorse for his/her offending.”
He pointed out that such a disposal is very useful “for young offenders who might have career opportunities (or educational opportunities abroad) severely damaged by having a criminal record.”
Another attorney who asked not to be named analyzed factors that seemed important in recent decisions.
- Usually, the defendant would have to plead guilty and do so at an early stage.
- The defendant would have no previous convictions and be of general exemplary character.
- The offense would have to be minor or such that no harm was caused.
- There would have to be low to no risk of re-offending.
- The mitigation would be just short of providing a defense – for example, self-defense gone too far.
- The effect of the conviction on the record of the offender would be out of proportion with the nature/harm of the offense committed.
This attorney pointed out that the decision not to record a conviction is really a matter for the court’s discretion and it is never guaranteed.
The general conclusion was that this special result “is often given when it is felt that the sentencing objectives of deterrence and punishment have already been met by the arrest, charging and court process, which for many defendants of good character is very humbling.”
The flip side of having no conviction recorded is the consequence when a conviction is recorded.
Mr. Dixey said he thought that the courts fully appreciate that a criminal record can have a significant prejudicial effect on people’s lives.
“Obvious examples include their present job status or future employment opportunities, the ability to attend further educational institutions or professional bodies, the ability to obtain visas to travel overseas, or to have a work permit renewed.
“Criminal convictions, particularly at the wrong time of life, can ruin a person’s prospects and may even result in future offending. The recording of the conviction onto the individual’s criminal record is often far more onerous than the financial penalty that the offense attracts – and is not commensurate with the minor nature of the offense itself,” Mr. Dixey said.
He added that even though convictions do become spent eventually, “by then the damage may already have been done.”
Veteran attorney John Furniss was asked about the circumstances in which he would ask for no conviction to be recorded. His succinct reply: “Every case turns on its own merits.”
The defendant who receives this special result does not get off scot-free, Mr. Furniss pointed out. The person charged with consuming ganja may be asked to pay for the series of tests he or she has had to take before being dealt with. The person who has damaged property may be directed to pay compensation. Court costs may also be imposed. The defendant will seldom get this result during a single court appearance, he noted. There may be further mentions to monitor behavior and appointments for preparation of a pre-sentence report.
There are consequences beyond the individual for whom the special result is sought, Mr. Furniss added.
Ms. Fosuhene made the point that this disposal “assists society in preventing the criminalization of its young people, especially when they make silly mistakes.”
Mr. Barton commented, “People harp on about perceived injustice, but fail to consider the societal impact of ‘convicting’ more citizens for essentially offenses for which a second chance should genuinely be considered.”
More convictions lead to more unemployment, he argued. In the end, law-abiding citizens may face the burden of facilitating the convicted persons’ detention in prison or their dependence on welfare, Mr. Barton explained.
Overall, his experience has been that the vast majority, if not all, people receiving this special result have not re-offended, “which confirms to me that the right decision was made to begin with.”
Only one attorney had any reservation about special results: “The use of them for offenders convicted of violent crimes [in particular, domestic abuse] or sexual offenses should not be encouraged and, in my view, … they have sometimes been used in inappropriate cases in the past.”
Magistrates, judges and legal practitioners have been working on practical and meaningful approaches to dealing with offenders, Mr. Furniss said. Their recommendations have resulted in laws that make sentencing more likely to achieve its objectives: punishment, deterrence and rehabilitation.
The Legislative Assembly passed the Drug Rehabilitation Court Law in 2006, providing the foundation for a structured program that allows an addict to get professional help while making the effort to be a productive member of society. The Alternative Sentencing Law was passed in 2008 to provide the courts with more options. Both laws allow for a disposal with no conviction recorded.
Looking ahead, Mr. Dixey referred to the most recent legislation – The Cautions (Adult) Law of 2017.
“Many of the situations where it would be appropriate not to record a conviction will in future probably be dealt with by way of police caution,” he said. “When this law comes into force, hopefully we will see fewer ‘no conviction’ cases before the courts, and this will also ease the case-load pressure.”
Undoubtedly applications for “no conviction recorded” will still be made and will succeed. Attorneys in those instances will almost certainly express to their clients the caution Mr. Hughes has for defendants who achieve such results: “It is right that a judge or magistrate should have a degree of discretion in minor cases, so that bright futures are not spoiled by silly mistakes …. Beware, however, if the court gives you this one chance, there will not be a second one.”