Cayman’s Summary Court and Magistrate Valdis Foldats are working through hearing hundreds of curfew violation cases that have accumulated since the beginning of lockdown measures in March.
While Foldats has indicated he will treat similar violations with similar punishments, regardless of whether the breaches were made during soft curfew or hard curfew hours, not all breaches are made the same.
So far, punishments have consisted mostly of $500 fines or community service, but for serious breaches, offenders risk imprisonment of up to one year or a $3,000 fine.
What factors distinguish the severity of curfew violations? It all depends on the level of harm and culpability identified by the court. Chief Justice Anthony Smellie issued sentencing guidelines to provide some guidance.
The first standard evaluated by the court is the harm caused by the violation. In a public health context, we can also understand the level of harm as correlated to the potential degree of public exposure or health risk associated with the transgression. ‘Lesser harm’ is described as a breach that causes little or no actual harm or risk of harm. On the opposite end of the spectrum, an offence of ‘greater harm’ is one that causes significant harm or risk of harm, such as harm to public health. Such breaches may demonstrate continued risk of serious criminal or anti-social behaviour, distress to members of the public, or deployment of a significant level of police resources.
The second standard relates to culpability, the level of guilt or blame that falls on the defendant. ‘Lower culpability’ is understood as a minor breach that involves minimal activity or that is committed for a short duration. Such breaches may involve a genuine misunderstanding of the curfew restrictions, but as Foldats has explained to defendants in his court, ignorance of the law is not a defence and violators will still be held accountable. Other factors that may lower the level of culpability include having a reason that falls just short of a reasonable excuse, such as an emergency, or playing a subordinate role in group activity.
‘Higher culpability’ involves a deliberate breach of curfew regulations, a violation that enables another offence or crime, a breach involving significant activity over a prolonged period, attempting to avoid detection, or playing a leading role in group activity.
Beyond the level of harm and culpability determined from an offence, there are several factors that can reduce or increase the level of severity considered during sentencing.
Mitigating factors, which reduce the seriousness of a sentence, include no previous conviction or no relevant or recent convictions, previous good character, remorse, voluntary admission of the breach, such as pleading guilty, and being the sole or primary caregiver of dependent relatives. Other factors such as age, maturity or mental capacity of the offender are also taken into account.
Factors that increase the seriousness of a breach include previous convictions, a history of violations of court orders or police bail, or committing an offence while on bail or under supervision. The judge may also determine a more serious punishment if a breach continued after a warning was issued, if the breach was motivated by personal gain, or if drugs or alcohol were involved.
The timing and location of the offence may also influence the judge’s decision.
So, how do these factors play out in sentencing? Guidelines break down offences into three levels of severity.
Level 1, the most serious level, means a greater level of harm and higher culpability has been found, which comes with a sentencing range of three months to one year in custody. The starting point for Level 1 convictions is six months in custody.
In Level 2, the offence is found to either entail greater harm and lower culpability, or lesser harm and higher culpability. This level can incur a fine or up to three months in custody. The starting point for sentencing is a community order.
The least severe category, Level 3, comes with lesser harm and lower culpability. Such offences can result in a discharge or community order. The starting point is a fine.