IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
SCA NO：#0011/2020
JESSICA ANDREA SWINAMER
THE QUEEN
Appearances：
Ms. Jessica Swinamer，Appellant，In Person
Ms. Ann Mulligan，for the Respondent/Crown
Before：
Dame Linda Dobbs (Acting Judge)
Hearing date：
5th August 2020
HEADNOTE
Criminal Law - Appeal from the Summary Court Against Sentence imposed by Magistrate - Charges：Using an ICT network to defraud，abuse，annoy，threaten or harass - Damage to Property - Attempting to Obstruct the course of justice - Ground of Appeal：Manifestly excessive，insofar as the Magistrate declined to record "no conviction"
JUDGMENT
This is a faithful transcription of the provided document, using Markdown for headings and paragraph structure, HTML for tables, and LaTeX for math (though there are no math expressions in this document).
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INTRODUCTION
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1.
On 12 November 2019, the Appellant, Miss Jessica Swinamer, pleaded guilty in the
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Summary Court to the following charges
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a.
2 x damage to property, contrary to s.267(1)(a) of the Penal Code (2013 Revision)
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(maximum sentence $5000 fine/5 years’ imprisonment);
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b.
2 x using an ICT network to defraud, abuse, annoy, threaten or harass, contrary to
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s.90(1) of the Information and Communications Technology Authority Law
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(2017 Revision) (maximum sentence $10,000 fine/1 year’s imprisonment);
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c.
1 x attempting to obstruct the course of justice, contrary to s.107(1)(d) and s.318 of
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the Penal Code (2017 Revision) (maximum sentence 7 years’ imprisonment).
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2.
A further charge of causing fear or provocation of violence, contrary to s.88(a) of the
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Penal Code (2017 Revision), was left to lie on file.
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3.
The court adjourned the matter for a Victim Impact Report (‘VIR’) and a Social
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Inquiry Report (‘SIR’) to be prepared.
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4.
On 3 February 2020, the court, having received both reports adjourned the matter again
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for a psychiatric report to be obtained.
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5.
Due to the Appellant’s inability to pay for the psychiatric report, the matter proceeded
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to ser Magistrate irch 2020 in
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the absence of
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The Appellant was sentenced to a 2-year Probation Order with the following
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conditions:
Judgment: Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
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a.
The Appellant shall submit to a mental health assessment if the BHAC report
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remains unavailable to the Department of Community Rehabilitation (DCR);
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b.
The Appellant shall attend at and abide by any treatment program recommended
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by the mental health professionals;
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c.
The Appellant shall complete the Anger Management Program and any other
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rehabilitative programs recommended by the DCR;
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d.
The Appellant shall complete 150 hours of Community Service (CS) within 2
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years;
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e.
The Appellant shall not contact Sally Kemp or her daughters directly or indirectly
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and shall not comment/post about them on any social media.
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7.
Convictions were recorded for all matters.
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8.
The Appellant was ordered to pay Compensation in the sum of $1，331 to David Reid,
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and Crown costs in the sum of $300.
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9.
The Respondent applied for a Protection Order under s.5 of the Protection from
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Domestic Violence Law 2010， which was granted in the following terms：
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a.
The Defendant， Jessica Andrea Swinamer is， whether by herself or by servants or
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agents， [prohibited] from in any way threatening to kill， assaulting， insulting，
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interfering， annoying or troubling the complainant David Reid in any
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molesting， annoying or David Reid
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way：
Judgment. Jessica Andrea Swinamer v R. SCA #11/20. Coram：Dobbs J. (Actg.). Date：17.08.2020
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(a) Not to contact directly or indirectly any member of David Reid's
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immediate family (spouse, parents, siblings, children);
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(b) Not to go within 50 feet of David Reid except with his consent;
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(c) Not to go within 100 yards of David Reid's residence;
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(d) Not to go within 100 yards of David Reid's place of work;
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(e) Not to post/comment on any matter on social media including but not
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limited to email, phone, social media (Snap Chat, Instagram, Facebook,
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WhatsApp etc.) concerning David Reid or his immediate family;
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(f) Not to go within 100 yards of the residence of any of David Reid's
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immediate family.
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10. The Appellant, who appears in person before this Court, sought leave to appeal both
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her conviction and sentence.
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11. The Grand Court, at a previous hearing, having pointed out that the Court, by virtue of
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s.167 of the Criminal Procedure Code (2019 Revision), was unable to deal with
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appeals against conviction where there had been a plea of guilty, granted an
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adjournment for the Appellant to seek legal advice about her position. The Appellant
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now pursues only the appeal against sentence.
FACTS UNDE CONVICTION
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facts are taken
espondent c
nted to
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THE IRLYING THDNS
2.
The fn from the R
of facts wese
h were pr
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the Summary Court.
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facts are taken
espondent c
nted to
Judgment: Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
The Appellant and the victim, Mr. David Reid, had been in a relationship between November 2010 and March 2014. In December 2016, Mr. Reid entered into a new relationship with Ms. Sally Kemp. As a result, the Appellant began sending the victim increasingly aggressive emails.
Some days before the incident, the subject matter of charges 1 and 2, the Appellant emailed Mr. Reid to request a loan for, inter alia, accommodation, car insurance and health insurance. Mr. Reid refused, noting that the Appellant had not repaid him for previous loans. At 10:13am on 14 November 2017, the Appellant responded by email: 'I will sell your diamond earrings and never think of you again period. Go to hell – you fucking monster'.
At around 2 pm the same day, Mr. Reid heard banging on his front door and the Appellant's voice yelling at him to come outside and speak to her. Mr. Reid responded to the effect that they had nothing to talk about; he did not open the front door.
The Appellant then smashed the glass door and began kicking in the broken panel of glass (Charge 1). Mr. Reid called the police. The Appellant began grabbing pieces of the broken glass and throwing them at Mr. Reid, screaming "why are you trying to ruin my life?"
The Appellant then walked down the stairwell outside Mr. Reid's flat, whereupon he heard multiple smashing noises. He saw the Appellant drive off. Mr. Reid went to inspect his car and noticed that the window had been shattered in three separate pieces (Charge 2).
Thereafter, the Appellant began sending abusive emails and text messages to, or for the attention of, Mr. Reid and his new girlfriend, Ms. Sally Kemp (Charges 4 and 5).
Judgment: Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
Number
Date
Format
Recipient
Comment
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14/11/17
Email
Chris Dinan (victim’s business partner, understood to be for the attention of David Reid)
“[David] deserves to die and I have my whole life ahead to track him down”
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14/11/17
Email
Chris Dinan (victim’s business partner, understood to be for the attention of David Reid)
“[David’s] new girlfriend and her 2 daughters better not stick around Cayman, I have many pictures, and their lives will lead to MASSIVE and SEVERE pain”
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14/11/17
Email
Chris Dinan (victim’s business partner, understood to be for the attention of David Reid)
“I DARE FOR SALLY TO WRITE BACK […] I will come after your whole family, little by little, starting with your fucking ugly face need a remodelling”
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07/12/17
Email
Chris Dinan (understood to be for the attention of David Reid)
“I will not be around much longer to tell you ALL how responsible you are”
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07/12/17
Email
Chris Dinan (understood to be for the attention of David Reid)
“Next time think about who you let into your bed, because your soul will suffer the consequences from this”
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07/12/17
Email
David Reid
“I hope someday you experience what you did to me, and you can wonder if it was my ghost who came back for you”
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22/12/17
Text
David Reid
“I’m pregnant. Please drop the charges.”
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22/12/17
Text
David Reid
“You will get PR denied and get us deported”
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22/12/17
Text
David Reid
“Request ‘no further action’ or else we’ll get deported”
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31/12/17
Text
David Reid (understood to be for the attention of Sally Kemp)
“Don’t forget to dress your daughters up like whores, so you can sell them to the highest bidder. Virginity pays a premium here. David will make all the necessary arrangements”
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31/12/17
Text
David Reid (understood to be for the attention of Sally Kemp)
“Don’t send your soon-to-become whores daughters to Canadian schools. arm fuck yqu in betwou out prostitueeny.”
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01/01/18
Text
David Reid
“I will get revenge – don’t doubt it for a second. Sleep with one eye open.”
This is a faithful transcription of the content on the page, using Markdown for headings and paragraph structure, HTML for the table, and LaTeX for the math.
On 22 December 2017, the Appellant attended Mr. Reid's home address, which he had moved into only a few weeks earlier. The Appellant held onto one of Mr. Reid's dogs in the yard, until Mr. Reid managed to extricate it. Half an hour later, Mr. Reid's doorbell was rang. A pizza was on the doorstep with a note on top.
Later that day, the Appellant texted Mr. Reid in the terms set out at number 4 in the above chart (Charge 6).
THE MAGISTRATE'S FINDINGS
The recommendation in the SIR was for Probation with significant conditions. The Probation officer invited the court to consider imposing the Probation order without entering convictions. Magistrate Gunn accepted the recommendation of a Probation Order. However, she did not follow the second recommendation.
The Magistrate entered convictions, giving reasons for her decision. She identified the following relevant factors:
a. The harassment took place over a prolonged period of time (paragraph 3, Reasons);
b. Mr. Reid and his former partner 1 became gravely concerned for their safety (paragraph 3, Reasons);
c. The Appellant's acts were manipulative, and involved emotional blackmail regarding her pregnancy (paragraph 3, Reasons).
1 Ms. Kemp
Judgment: Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
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d. The Appellant persisted in her behaviour despite being told it was inappropriate
(paragraph 4, Reasons);
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3
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e. The incident involved Ms. Kemp’s daughters (paragraph 6, Reasons).
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24. At Paragraph 9, Magistrate Gunn said:
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“Whilst it is not surprising that a conviction for these offences will have a
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significant effect on the defendant’s reputation and maybe even on her ability
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to secure employment, I am not persuaded that the consequences of recording a
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conviction would be disproportionate to the offences as these are serious offences,
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in particular the offence of attempting to obstruct justice. Not recording a
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conviction even for a person of previously exemplary character and the
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defendant’s health mental health diagnosis, would be sending entirely the wrong
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message to the defendant and the public.”
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GROUND S OF APPEAL
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25. There were many points raised in the grounds of appeal, including challenge to the
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facts underlying the conviction and an alleged error in the SIR which related to an
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incident which was not charged.
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26. At the first hearing, the court in order to assist the Appellant in understanding the
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court’s powers on appeal, set out, with the concurrence of the Respondent, its powers
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and what it could and could not take into account without more. This is in part why the
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Court gave the Appellant time to take legal advice.
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27. As already noted, the Appellant now challenges her sentence. The essence of the
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Appeal is that her sentence was manifestly excessive, insofar as the
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Appellant’s appeal is that her sentence was manifestly excessive, insofar as the
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Appellant’s appeal is that her sentence was manifestly excessive, insofar as the
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Appellant’s appeal is that her sentence was manifestly excessive, insofar as the
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Appellant’s appeal is that her sentence was manifestly excessive, insofar as the
Judgment: Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
1
28.
The Appellant argues that the impact of a conviction on her life has been
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disproportionate, particularly in relation to her career prospects. She is now destitute,
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in debt, facing eviction and unable to get a job in her field (financial) due to the
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convictions.
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29.
The Appellant further submits that there is new material which was not in front of the
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Magistrate, namely a psychiatric report, which would have persuaded the Magistrate to
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record "no conviction."
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THE RESPONDENT'S SUBMISSIONS
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30.
The Respondent submits that Magistrate Gunn identified the relevant factors upon
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which her decision to enter a conviction were based. She rightly considered the
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offences to be serious ones, in particular the offence of attempting to obstruct the
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course of justice, such offences typically resulting in custodial sentences: Att. Gen.'s
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Reference (No. 17 of 2008)2.
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31.
Plainly, she felt that this matter deserved both punishment of the Appellant and a
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deterrent effect to the wider community. Her decision was appropriate. That there was
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a recommendation in the SIR that No Conviction be recorded does not bind the court.
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It is a matter for the court's discretion.
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32.
The Appellant's emphasis on the impact of a recorded conviction on her life, in
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particular her career prospects, was specifically considered by the Magistrate at
paraer Reasons.
graph 9 of hThe Mag
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commiss
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2 [2008] EWCA Crim. 1341；[2008] R.T.R. 29.
Judgment Jessica Andrea Swinamer v R SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
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33.
The Respondent reminds the court that it was the Appellant who applied to proceed to
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sentence without the benefit of a Psychiatric Report (paragraph 1， Reasons).
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Nevertheless, it is contended that there is nothing within the Psychiatric Report dated 4
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March 2020 that the Appellant now specifically seeks to rely on. It contains no obvious
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mitigation and would not have persuaded the Magistrate to record no conviction. There
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was no disadvantage therefore in proceeding in the absence of the report.
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THE LAW
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34.
Under s.165(1) of the Criminal Procedure Code (2019 Revision) (‘the Code’), the
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Appellant has a right of appeal to the Grand Court against any judgment (including
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conviction) or sentence of the Summary Court with which she is dissatisfied, on
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matters of law or fact or both.
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35.
Under section 181 of the Code:
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36.
Under s.35(1)(b) of the Alternative Sentencing Law (2008 Revision):
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person is choffence whic
character anes， rounding nde is prove
ease the
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and the cour is punis
hing the offen
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Where any larged with able on sum
rd to the cir o) the char bie nature dient to
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conviction， d thinks tan mary
ad home surge including of r， it is erelion that
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offender on probation， the court may [...]
having regarhatcumstanz th the offexpeut is of o and the court may [...]
without proceeding to conviction， make
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a probation order."
Judgment. Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
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DECISION
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37.
During the Appellant's submissions, in light of the Appellant's various written
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comments and documents (which the court has read in full including those submitted
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after the most recent hearing containing, inter alia, repetition of matters which the
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court had indicated cannot be considered), the court explained to the Appellant the
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importance of focussing on errors made by the Magistrate, - whether error of fact or
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law or error in the exercise of the Magistrate's discretion. The Appellant was also
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invited to point out how the Psychiatric Report advanced her appeal.
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38.
The main point the Appellant stressed was, that, whilst others who have convictions
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may be able to obtain employment, in her profession in the financial world, it would be
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a complete bar to her obtaining employment. Additionally, she could not complete her
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professional exams in the light of a conviction. She had applied for two jobs. She had
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not mentioned the court proceedings to either company. Now one of the companies
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was now doing due diligence before interview. It was imperative that the recording of
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the convictions be expunged therefore, otherwise her 20-year career would be
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destroyed.
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39.
I turn to the Magistrate's decision which has been set out above.
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40.
Magistrate Gunn gave clear reasons for:
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a.
Her decision to impose a Probation Order with the conditions set out; and
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b.
g to record
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For declinin no conviction
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So far as the report that was not available at the time of sentencing is concerned, the
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following is to be noted.
Judgment: Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
1
a.
The Magistrate acknowledged that the Appellant had mental health problems and
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took that into account when sentencing;
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b.
The Magistrate particularly noted that the Appellant was under the care of a doctor
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for her mental health issues and commented that the circumstances of the offences
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led her to suspect that further professional intervention may still be necessary.
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c.
The Magistrate's suspicions were borne out in the psychiatric report, which,
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without going into detail, recommended that the Appellant undergo psychotherapy.
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42.
It follows from the above, that the report does not significantly assist the Appellant.
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43.
As for the Appellant's submissions that the convictions will ruin her career: The
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Magistrate noted the possibility of damage to reputation and career in paragraph 9 of
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her sentencing remarks. The fact that she is likely to be proved correct does not
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undermine her decision.
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44.
The effect of the Appellant's submission amounts to the following: that every
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professional person of previous good character, who commits an offence which attracts
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a Probation Order, and who stands to lose their career as result of the guilty plea or
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verdict, should be entitled to have "no conviction" recorded in the record, so that
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they can keep their employment or find similar new employment. The inequity of that
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approach needs no spelling out.
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45.
It is hat recording", although
rege
The UK
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not exactly
to th of an absolu
d KingdoSei
to be noted t
g "No convic
the same, is
in the Um.
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ctic akin
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te imposition
te dischanite
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Council says the following:
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Judgment. Jessica Andrea Swinamer v R. SCA #11/20. Coram: Dobbs J. (Actg.). Date: 17.08.2020
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“Discharges are given for the least serious offences such as very minor thefts. The
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court may give an absolute discharge, which means it decides not to impose a
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punishment because the experience of going to court has been punishment enough.
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However, the offender still gets a criminal record.”
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46. By no stretch of the imagination could any of these offences be said to be in the
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category of the least serious offences.
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47. This case did not involve an isolated offence. It was a course of conduct. As already
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noted, the Magistrate considered the case with care and gave cogent reasons for her
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decision. The unfortunate consequences for the Appellant, lie not at the door of the
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Magistrate, who on the facts, and for the reasons she gave, was entitled to exercise her
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discretion in the way she did. The consequences lie at the door of the Appellant herself
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(despite any extenuating circumstances) when she committed the offences.
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48. It follows from the above, that this Appeal against sentence is dismissed.
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Dated this the 17th August 2020
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Dame Linda Dobbs
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Acting Judge of the Grand Court