The Cayman Islands Court of Appeal last week declined to interfere with a prison sentence of 18 months handed down to Kurt W. Hamann in 2016.
The Grand Court had imposed the sentence as part of a supervision order that included 240 hours of community service, random testing for drug use, and counseling for both anger management and drug use. The prison term was suspended for two years.
The sentence was imposed after Mr. Hamann pleaded guilty to assault causing grievous bodily harm. The complainant had been hit in the face with a rock and required surgery for his injuries. Several months later, he continued to suffer impaired vision in one eye.
When attorney John Furniss presented the appeal, court president Sir John Goldring said he thought the sentence was “very merciful.”
Mr. Furniss explained that the Crown had accepted a plea to simple wounding rather than wounding with intent to cause such serious harm. He thought the sentencing judge had in mind the fact that Mr. Hamann had no previous criminal history. The sentencing took place the same month that Mr. Hamann turned 24.
In September 2017, 15 months after the suspended sentence was imposed, Mr. Hamann was in a traffic stop and police officers found ganja in his vehicle. He was found to be driving under the influence of drugs, driving without being qualified and without insurance. The vehicle license had expired and there was no certificate of road worthiness.
The possession and consumption of ganja plus the driving offenses meant that Mr. Hamann had to return to Grand Court for a review of his suspended sentence.
Mr. Furniss advised that of the 240 hours of community service ordered, Mr. Hamann had done only 11 hours. Further, he had not complied with orders to provide urine samples for drug testing.
In Grand Court, on April 26 this year, he received a sentence of six months for driving under the influence of drugs, with concurrent sentences for the other offenses. The 18-month suspended sentence was activated, for a total of 24 months immediate imprisonment.
Mr. Furniss noted that six months was the maximum sentence for a first offense of driving under the influence of alcohol or drugs, and it was not unusual for persons to be fined instead or given a very short term in custody. He suggested that the six months could have been made to run concurrent and the total of 24 months sentence was manifestly excessive.
Justice Dennis Morrison gave the court’s decision after conferring with Justice Goldring and Justice Richard Field.
He noted the history of the case, Mr. Hamann’s guilty pleas to the driving and drug charges, and his probation officer’s recommendation that the suspended sentence supervision order be revoked.
He agreed with Mr. Furniss that the new offenses were not violent: they were different in nature from Mr. Hamann’s first offending.
Justice Morrison referred to the law. When a person on suspended sentence commits a new offense, the judge has four options: he can order the sentence to take effect; he can impose a lesser term; he can substitute a period of suspension; or he can choose to make no order.
He emphasized that when a judge proposes to activate a suspended sentence in full, the defendant’s record of compliance is a factor to be taken into account.
In the court’s view, Justice Morrison said, Mr. Hamann’s “dismal record of compliance” was “obviously relevant.”
He said the sentence activation was a matter entirely within the judge’s discretion “and we are quite satisfied that there is no basis on which this court could properly interfere.”
The only remaining question was whether the six-month consecutive sentence was excessive. He pointed out that Mr. Hamann did plead guilty and so would have been entitled to perhaps a one-third discount. For that reason, the six months was reduced to four months, resulting in a total of 22 months imprisonment.