Carter J
```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT Nos：39，67，68/19 THE QUEEN Mr. Greg Walcolm for the Crown Mr. Rupert Wheeler for the Defendant Justice Marlene I. Carter (Actg.) 16 December 2021 13 January 2022 HEADNOTE Criminal Law-Sentence-Conspiracy to Commit Burglary-Possession of Unlicensed Firearm-Delay in production of Psychological Report-Effect on Sentence SENTENCE JUDGMENT 1. The Defendant is before the court to be sentenced for the offences of conspiracy to commit burglary contrary to section 243(1)(a) of the Penal Code (2019 Revision) and possession of an unlicensed firearm contn 15(1) and earms Act (2 008 Revisio 2. These offences arise out of the following facts which came principally from the evidence of the complainant in the case，Jamar Timothy who described events that took place on the evening of the 25th of April 2019 into the early morning hours of the 26th of April 2019. ```
```html 1 3. On the 25th of April 2019, Timothy was driven to the Defendant’s home in West Bay on two occasions, first during the day and thereafter during the night-time hours. During his visits to the Defendant’s home, Timothy and the Defendant discussed a plan to burgle premises for financial gain. The discussion was initiated by the Defendant. At that time Timothy was unaware that a firearm would be involved in the plan to burgle the premises. 2 4. After Timothy’s last visit to the Defendant’s home on the night of the 25th of April, the Defendant and another male picked Timothy up from his home in a vehicle driven by the Defendant. The three of them travelled into George Town to an open lot across from the residence situated at No 877 West Church Street in George Town in pursuance of the plan to burgle premises. 5. When they arrived at the open lot at approximately 1 a.m. on the 26th of April, Timothy saw a firearm in the Defendant’s possession. The Defendant discharged the firearm in Timothy’s presence and then handed it to the other male. Timothy and the other male then left the vehicle and went in the direction of the apartments across from the lot in pursuance of the plan to burgle the premises. The Defendant remained in the vehicle. 6. Whilst heading towards the apartments Timothy saw that there were residents at the apartment and decided to abandon the plan to burgle the premises. Timothy was shot twice by the other male using the same gun that had earlier been in the possession of the Defendant. The other male ran to the vehicle and was driven away from the location by the Defendant. 7. The Defendant turned himself into police custody and was interviewed twice on the 1st and 3rd of May 2019. The Defendant admitted that he planned to burgle the premises between the 25 and 26th April 2019. 8. The Defendant admitted that he had possession of a firearm which he discharged on the 26th of April 2019 however he stated that he had only taken possession of the firearm as he was in fear of the other mount rejected at trial and found the ale. The CI that evidenced the Defendant’s guilt of the unlicensed possession of a firearm. 9. The Defendant pleaded guilty to the offence of conspiracy to commit burglary on the 15th of November 2019 and was found guilty after trial of the offence of possession of an unlicensed firearm on 12th February 2021. ```
The Psychological Report and Delay
The court ordered that a Social Inquiry Report (“SIR”) be prepared as part of its consideration on sentence in this case. The SIR was filed in April 2021 and at a sentence hearing on 6th May 2021 the court ordered a further psychological report largely arising from recommendations in the SIR.
The court has not received the psychological report up to the date of sentence. In December 2021, this court proceeded to a sentence hearing without the benefit of the psychological report. This decision was taken after hearing submissions from the Crown and from the defence. The court was mindful that even at that stage over 6 months after the report was ordered but more importantly 10 months after the Defendant had been found guilty at trial, there was no indication when the report would be prepared or could be ready for the court's consideration given. The court noted that up to that date the Defendant had not even received a date of appointment still less been seen by a psychologist.
The court weighed the further time that would pass awaiting a report (unknown at that point) against the need for the Defendant to know what the court's sentence was for a very serious offence. In the interest of fairness, the court formed the view that the better approach at this stage was to proceed to sentence with the caveat that it would view the Defendant's circumstances in the best possible light based upon the assumption that the report would have been a positive report. These are matters that would go the mitigation of Defendant's sentence. The court respectfully adopts the approach of McDonald Bishop J. in R v Andy Barnes¹. In that case the court was faced with the unexplained delay in the production of the ordered psychological and psychiatric reports of two years.
At page 24 of the judgment the learned judge stated: > "I have additionally found that the inordinate delay in obtaining the pre-sentence reports from the date of his conviction is a special feature in his case that ought not oked in the ice. The difficulties brought about by the pandemic and the difficulties brought about by the island's social and economic circumstances were being overcome at the time." --- ¹ Sentence Judgment. R v. Barnes (Andy Errol). Ind. 59/2016 Coram: McDonald-Bishop J. (Actg.). Date: 15th July 2021 220113 R v Carlos Jameel Bustillo IND 36, 67, 68/19 - Sentence Judgment Page 3 of 13
```html 1 Defendant would have been almost two years in his sentence had he been 2 sentenced shortly after the trial ended in September 2019, as was the court's 3 intention. However, nearly two years later, the court had to proceed to sentencing 4 him without the benefit of a psychological report, which was requested. 5 6 There is no satisfactory explanation from the State as to why the report was not 7 available for the court, even though the psychologist interviewed the Defendant. 8 Thus, the court had to proceed with the sentencing without further delay, as it is 9 acknowledged that the Defendant would have been increasingly affected by the 10 proverbial 'sword of Damocles' hanging over his head, the longer the delay. 11 12 13 I consider it only fair and in keeping with the interests of justice to give the 14 Defendant the benefit of the delay in the production of the psychiatric report and 15 the absence of the psychological report. Therefore, I would act on the premise that 16 the psychology report would have been favourable to him to mitigate the sentence." 17 The offences: 20 Conspiracy to Commit Burglary 21 14. The maximum sentence for the offence of burglary is 14 years imprisonment. Applying 22 the Cayman Islands Sentencing Guidelines for Burglary it is appropriate that the court bears in mind 23 that the Defendant was found guilty of the charge of conspiracy to commit burglary, and that the 24 offence of burglary was not in fact committed. The court will therefore apply an appropriate 25 reduction to reflect these factors. 26 27 15. The Crown has submitted that the Defendant's offending should be categorised as being one of 28 high culpability on the basis that the Defendant was aware that his co-conspirator was armed with 29 a firearm and presented a threat by a firearm 30 and that this represented a threat of violence. The Crown therefore argues that the appropriate starting point for an offence of burglary in these circumstances under the Cayman Islands sentencing guidelines is five years custody with a sentence in range of 31 32 33 ```
three to seven years custody. The Crown further submits that there are several aggravating factors present in this case which should warrant an increase in the identified starting point.
These the Crown identified as: (i) the failure of the Defendant to respond to previous sentences - the Defendant committed this offence while being subject to a probation order and a suspended sentence for a similar offence (ii) the Defendant has previous convictions including a conviction for the offence of burglary and (iii) that this offence of burglary is a prevalent offence in this jurisdiction and can result in a significant change in the residential culture of the islands where persons may have to become used to living with burglar bars and fences.
The Crown submitted that there are few mitigating factors for the court’s consideration. The mitigating factors identified by the Crown relate to the Defendant’s personal circumstances, his difficult childhood and the early diagnosis of certain mental disorders as identified in the social inquiry report submitted to this court. The Crown therefore concluded that based on the number of aggravating features identified that there should be an increase in the starting point for sentence.
On the matter of the discount that should be accorded the Defendant for his guilty plea the Crown submitted that the Defendant should not be accorded the full 1/3 reduction for his guilty plea as the plea was not entered at the first available opportunity. The Crown further submitted that the evidence against the Defendant in relation to this offence was overwhelming. The Defendant pleaded guilty on the 15th of November 2019. The indictment in the matter was filed on the 11th of July 2019.
Counsel for the defence submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm.
Counsel submitted that the court should find that the offence of conspiracy to commit burglary should be treated as of being medium not high culpability as suggested by the Crown. Counsel submitted that there was a threat of violence by a firearm which firearm was not produced. He argued that there was no actual threat made only a potential threat of use of the firearm. Page 5 of 13 220113 R v Carlos Jameel Bustillo IND 36, 67, 68/19 - Sentence Judgment
```html 1 21. Counsel submitted that with a category 3 culpability, category three harm the starting point for the offence burglary should be two years imprisonment with a range of four years to a community-based sentence. Counsel agreed that there were aggravating factors present, the Defendant's previous conviction for burglary and the fact that this was an offence that was committed at night. 2 22. On the issue of the extent of the discount for the Defendant's guilty plea, counsel submitted that the court should accord the Defendant the full discount because the Defendant admitted the offence in interview and because the guilty plea was entered immediately after the successful application to dismiss count 3 on the indictment. 11 Possession of unlicenced firearm 12 23. The offence of possession of an unlicensed firearm is contrary to section 15 (1) and 15 (5) of the Firearms Act. Section 39 of the Firearms Act provides that the minimum sentence of 10 years imprisonment should be imposed in relation to this offence unless the court can identify exceptional circumstances for not imposing such a sentence. The Crown's position is that there are no exceptional circumstances in relation to this offence or of the offender which should cause the court to deviate from the set mandatory minimum sentence for the offence of possession of an unlicenced firearm. 20 24. The Crown submits that this Defendant was in possession of the firearm as part of a conspiracy to commit burglary and that the Defendant must be taken to have been aware that his Co-conspirator, who was the enter the identified promises, would be in possession of the firearm and that this represented a threat of using the firearm in the furtherance of the offence of burglary. The Defendant has also admitted to discharging the firearm during the course of the night while pursuing the intended offence. Counsel submitted that the court should not find that the Defendants childhood diagnosis of attention deficit disorder along with other mental challenges is sufficient to provide the exceptional circumstances as contemplated by section 39 of the Firearms Act. 29 The Crown' is that the cotain a starting 30 and considering factors to be 31 aggravating considered 32 to the offence of conspiracy to commit burglary. The Crown submits that a further aggravating 25. 29 submissi on but should m years imprison 30 being the wh 31 considering factors san 32 factor regarding this offence was that the Defendant was in possession of the firearm which was 33 and warrant to 33 increase ng 34 ultimately used to shoot and seriously injure the complainant in this case. ``` ```latex \begin{equation} \text{Counsel submitted that with a category 3 culpability, category three harm the starting point for the offence burglary should be two years imprisonment with a range of four years to a community-based sentence. Counsel agreed that there were aggravating factors present, the Defendant's previous conviction for burglary and the fact that this was an offence that was committed at night.} \end{equation} \begin{equation} \text{On the issue of the extent of the discount for the Defendant's guilty plea, counsel submitted that the court should accord the Defendant the full discount because the Defendant admitted the offence in interview and because the guilty plea was entered immediately after the successful application to dismiss count 3 on the indictment.} \end{equation} \begin{equation} \text{The offence of possession of an unlicensed firearm is contrary to section 15 (1) and 15 (5) of the Firearms Act. Section 39 of the Firearms Act provides that the minimum sentence of 10 years imprisonment should be imposed in relation to this offence unless the court can identify exceptional circumstances for not imposing such a sentence. The Crown's position is that there are no exceptional circumstances in relation to this offence or of the offender which should cause the court to deviate from the set mandatory minimum sentence for the offence of possession of an unlicenced firearm.} \end{equation} \begin{equation} \text{The Crown submits that this Defendant was in possession of the firearm as part of a conspiracy to commit burglary and that the Defendant must be taken to have been aware that his Co-conspirator, who was the enter the identified promises, would be in possession of the firearm and that this represented a threat of using the firearm in the furtherance of the offence of burglary. The Defendant has also admitted to discharging the firearm during the course of the night while pursuing the intended offence. Counsel submitted that the court should not find that the Defendants childhood diagnosis of attention deficit disorder along with other mental challenges is sufficient to provide the exceptional circumstances as contemplated by section 39 of the Firearms Act.} \end{equation} \begin{equation} \text{The Crown' is that the cotain a starting} \end{equation} \begin{equation} \text{submissi on but should m years imprison} \end{equation} \begin{equation} \text{and considering factors to be} \end{equation} \begin{equation} \text{being the wh} \end{equation} \begin{equation} \text{and warrant to} \end{equation} \begin{equation} \text{increase ng} \end{equation} \begin{equation} \text{factors regarding this offence was that the Defendant was in possession of the firearm which was} \end{equation} \begin{equation} \text{ultimately used to shoot and seriously injure the complainant in this case.} \end{equation} ```
```html 26. The court has also considered the submissions of counsel for the Defendant which were substantial 3 on this issue of the sentence that should be imposed for possession of the unlicenced firearm. 4 Counsel’s main arguments centred on the issue of exceptional circumstances. Counsel argued that 5 contrary to the Crown’s assertions, exceptional circumstances were present in this case relating 6 both to the offence and to the offender which would justify the court not imposing the mandatory 7 minimum sentence of 10 years imprisonment in this case. 9 27. Counsel noted the factors which should together be found as sufficient to amount to the exceptional 10 circumstances contemplated by the legislation: 11 1. The brief period that the Defendant had the gun in his possession. The Defendant had the 12 firearm in his possession for a very short period of time after it was passed to him by another 13 male. 15 2. That the court has elected to proceed on the basis that the psychological report ordered by 16 the court would have been as favourable as possible to the Defendant. In light of this, the 17 Defendant therefore relied on his history as set out in the SIR and as well the history from 18 the juvenile assessment reports of May 2000 and 2014 to submit that there should be a 19 significant discount to the mandatory minimum sentence on his behalf. 21 3. In this regard the Court notes that the Defendant’s psychological challenges were evident 22 from a very young age. The Defendant was diagnosed with attention deficit disorder as a 23 child. He was later diagnosed as having interpersonal problems, cannabis use disorder, 24 oppositional defiant disorder, and conduct disorder. These problems may have been the 25 cause of him being excluded from school at quite a young age. The psychological 26 assessment of the 1st of May 2014 recorded that the Defendant was of below average range 27 and learning and had a learning disability in reading. It was also noted that he had 28 difficulties in adhering to rules, a propensity to negative influences in the community and 29 seriouin his home 30 Defendant al 314. The Iso relies on 32 relevant time. It was also submitted and agreed by the Crown that this Defendant has no 33 previous convictions for firearm related offences. 220113 R v Carlos Jameel Bustillo IND 36, 67, 68/19 - Sentence Judgment Page 7 of 13 ```
```html 1 5. The Defendants troubled family history as stated in the SIR, referred to in detail later in this 2 judgment. This history coupled with the issues identified in the psychological assessment 3 referred to above were highlighted as having in part led to this Defendant being 4 institutionalised. There is no issue that the Defendant in his early life spent long periods in 5 the Bonaventure Boys’ Home, Eagle House and later at Northward. 6 7. The Defendant has certain medical issues from which he has suffered from a young age. 8 The Defendant has suffered problems with his legs since his birth, breathing difficulties, 9 and obesity. In addition, in 2017 the Defendant lost the use of his right eye when he was 10 the victim of an attack. 11 12. Referring to these personal circumstances, medical and psychological issues, counsel for 13 the Defendant submitted that Her Majesty’s Prison Northward could not adequately 14 accommodate the Defendant’s medical needs and pointed to a period while the Defendant 15 was on remand when the prison authorities were unable to assure the Defendants attendance 16 at the George Town Hospital for appointments relating to the Defendant’s eye and his 17 hepatitis condition. Counsel for the Defendant noted that these issues had resulted in the 18 Defendant missing appointments which caused the Defendant significant mental distress. 19 28. Counsel submits that these matters taken together should lead the court to find that there are 21 exceptional circumstances. The issue of the delay in the conclusion of these proceedings, was also 22 to be considered in the court’s holistic approach to the issues surrounding exceptional 23 circumstances. 24 25 Social Inquiry Report 26 29. The SIR notes that the Defendant’s father passed away before he was born. The Defendant was 27 then raised primarily by his grandmother who also lived with the Defendant, his mother, and his 28 siblings in the same home. As far as the Defendant was concerned when his mother subsequently 29 remarried, so devote all new husband 30 and her l 31 he seemed t her love to ove for her 32 During the and 66 herchildren 33 cousin. 220113 R v Carlos Jameel Bustillo IND 36, 67, 68/19 - Sentence Judgment Page 8 of 13 ```
```html 1 30. As far as the Defendant was concerned, the lack a father in his life who would have been able to 2 guide him, was a major factor in him getting into a criminal lifestyle from an early age. The 3 Defendant was not very successful in primary school. When he moved to secondary school, he 4 was expelled because of his behaviour. After his expulsion, the Defendant seemed to spend his 5 time as quoted in the SIR “chilling smoking and not listening”. He was again placed in the 6 Bonaventure Boys’ Home where he was able to resume some educational classes. However, the 7 Defendant never completed his high school education. 8 9 31. The Defendant has no particular skill or vocation and has only been employed in various menial 10 jobs during the course of his young life. The Defendant continues to have quite a strained 11 relationship with his mother. He is currently in a relationship which, it has been submitted to this 12 court, is a steady one. 13 14 32. In his early life he was diagnosed with attention deficit disorder and has been on medication for 15 this disorder although the Defendant disagreed with this early diagnosis. When he was a teenager 16 a psychological assessment diagnosed the Defendant as having interpersonal problems, the stomach 17 disorder, cannabis use, disorder oppositional defiant disorder and conduct disorder. It was largely 18 based on this early assessment and the probation officer’s own evaluation of the Defendant which 19 led to the court being persuaded that it could benefit from an updated psychological report 20 concerning this Defendant. 21 22 33. The Defendant was assessed as very high risk of offending based on factors such as his criminal 23 history, education and employment, companions, his pro criminal attitude and/or orientation and 24 anti-social pattern. 25 26 Court’s considerations 27 28 Sentence: Possession of Unlicenced Firearm 29 The court has considered the of counsel for 30 the Defendant and the of Crown 31 psychological of the D 32 nt and as w 33 he Cayman 220113 R v Carlos Jameel Bustillo IND 36, 67, 68/19 - Sentence Judgment Page 9 of 13 ```
```html relevant authorities including Parsons v AG2; R v Reuben Hydes3，R v Manderson4 and Jackson and Ryan Ebanks v R5. 35.Regarding the sentence for possession of unlicenced firearm，I have reviewed the dicta in the cases above relating to exceptional circumstances. I am mindful that each case turns on its own facts. The court must make a careful assessment of the relevant matters relating to the offence and to offender to assess whether there is anything relating thereto could lead the court to find that the mandatory minimum sentence for the possession of an unlicenced firearm of 10 years imprisonment should not be imposed. 36.In Parsons，the defendant suffered from attention deficit hyperactivity disorder，depression and adjustment disorder. There was evidence in that case from a psychiatrist that incarceration would increase the defendant's risk for further "depression，damaged self-efficacy and would destroy any hope of rehabilitation". However，in considering whether these were in the circumstances of that case sufficient to amount to exceptional circumstances，the Smellie C.J as he then was noted： "Nor，in my view，does the subjectively harsh effect that imprisonment will likely have upon this appellant...present exceptional circumstances. Each offender will be implicated in a subjective and unique way to a sentence of imprisonment. The appellant's condition is not such as to make him "unfit to serve a [7] year sentence". 37.I have considered all relevant matters raised in this case. As counsel for the Defendant accepts each matter raised may not in and of itself in this case cause such a finding. I have considered the matters individually and holistically. While it is clear to the court that the Defendant has mental or emotional challenges as well as physical and/or medical issues and these have all been considered， these is no basis upon which this court finds that there are exceptional circumstances made out in relation to this Defendant. For the offension of an unlicenced ence of posseunlicenc 2[2012](1)CILR 388 3Ind.32 of 2017(Coram.Carter J.(Actg.).Date 29.08.2018 4Sentence Judgment.R v.Manderson(Jordan)and Jackson(Austin).Ind 20/15；R v.Lewis(Julia)Ind.16/2014 Coram：Mettyear J.(Actg.)Date：09.02.2016 5Crim.App.6 of 2020 Page 10 of 13 ```
```html 1 firearm related offences. However, he does have previous convictions. The Defendant committed 2 this offence while he was subject to orders of probation and to a suspended sentence order. The 3 court would have been minded to find that an uplift was warranted, to increase that starting point 4 to 11 years imprisonment to reflect these aggravating features. However, in the court’s 5 commitment to mitigate sentence occasioned by the lack of the psychological report and to make 6 allowances as if that report had been as favourable to the Defendant as it could have been, the court 7 will treat this as a further mitigating factor. The aggravating factors thus do not outweigh the 8 mitigating factors to lead to an uplift to the starting point. The sentence of the court is therefore 10 9 years imprisonment. 10 11 39. There are other factors which affect the final sentence that the court must impose in this case 12 13 40. The time that the Defendant has spent in custody prior to him being granted bail from 30th April 14 2019 to 18th of March 2020 shall be deducted from his sentence, agreed at 325 days 15 16 41. The Defendant has been subject to a bail condition. He was subject to a curfew which has required 17 him to wear an electronically monitored bracelet between the hours 6 pm - 7 am. 18 19 42. Section 12 of the Cayman Islands Sentencing Guidelines 20 21 22 23 24 25 26 27 28 29 30 31 32 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. 90. 91. 92. 93. 94. 95. 96. 97. 98. 99. 100. 101. 102. 103. 104. 105. 106. 107. 108. 109. 110. 111. 112. 113. 114. 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. 132. 133. 134. 135. 136. 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. 160. 161. 162. 163. 164. 165. 166. 167. 168. 169. 170. 171. 172. 173. 174. 175. 176. 177. 178. 179. 180. 181. 182. 183. 184. 185. 186. 187. 188. 189. 190. 191. 192. 193. 194. 195. 196. 197. 198. 199. 200. 201. 202. 203. 204. 205. 206. 207. 208. 209. 210. 211. 212. 213. 214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231. 232. 233. 234. 235. 236. 237. 238. 239. 240. 241. 242. 243. 244. 245. 246. 247. 248. 249. 250. 251. 252. 253. 254. 255. 256. 257. 258. 259. 260. 261. 262. 263. 264. 265. 266. 267. 268. 269. 270. 271. 272. 273. 274. 275. 276. 277. 278. 279. 280. 281. 282. 283. 284. 285. 286. 287. 288. 289. 290. 291. 292. 293. 294. 295. 296. 297. 298. 299. 300. 301. 302. 303. 304. 305. 306. 307. 308. 309. 310. 311. 312. 313. 314. 315. 316. 317. 318. 319. 320. 321. 322. 323. 324. 325. 326. 327. 328. 329. 330. 331. 332. 333. 334. 335. 336. 337. 338. 339. 340. 341. 342. 343. 344. 345. 346. 347. 348. 349. 350. 351. 352. 353. 354. 355. 356. 357. 358. 359. 360. 361. 362. 363. 364. 365. 366. 367. 368. 369. 370. 371. 372. 373. 374. 375. 376. 377. 378. 379. 380. 381. 382. 383. 384. 385. 386. 387. 388. 389. 390. 391. 392. 393. 394. 395. 396. 397. 398. 399. 400. 401. 402. 403. 404. 405. 406. 407. 408. 409. 410. 411. 412. 413. 414. 415. 416. 417. 418. 419. 420. 421. 422. 423. 424. 425. 426. 427. 428. 429. 430. 431. 432. 433. 434. 435. 436. 437. 438. 439. 440. 441. 442. 443. 444. 445. 446. 447. 448. 449. 450. 451. 452. 453. 454. 455. 456. 457. 458. 459. 460. 461. 462. 463. 464. 465. 466. 467. 468. 469. 470. 471. 472. 473. 474. 475. 476. 477. 478. 479. 480. 481. 482. 483. 484. 485. 486. 487. 488. 489. 490. 491. 492. 493. 494. 495. 496. 497. 498. 499. 500. 501. 502. 503. 504. 505. 506. 507. 508. 509. 510. 511. 512. 513. 514. 515. 516. 517. 518. 519. 520. 521. 522. 523. 524. 525. 526. 527. 528. 529. 530. 531. 532. 533. 534. 535. 536. 537. 538. 539. 540. 541. 542. 543. 544. 545. 546. 547. 548. 549. 550. 551. 552. 553. 554. 555. 556. 557. 558. 559. 560. 561. 562. 563. 564. 565. 566. 567. 568. 569. 570. 571. 572. 573. 574. 575. 576. 577. 578. 579. 580. 581. 582. 583. 584. 585. 586. 587. 588. 589. 590. 591. 592. 593. 594. 595. 596. 597. 598. 599. 600. 601. 602. 603. 604. 605. 606. 607. 608. 609. 610. 611. 612. 613. 614. 615. 616. 617. 618. 619. 620. 621. 622. 623. 624. 625. 626. 627. 628. 629. 630. 631. 632. 633. 634. 635. 636. 637. 638. 639. 640. 641. 642. 643. 644. 645. 646. 647. 648. 649. 650. 651. 652. 653. 654. 655. 656. 657. 658. 659. 660. 661. 662. 663. 664. 665. 666. 667. 668. 669. 670. 671. 672. 673. 674. 675. 676. 677. 678. 679. 680. 681. 682. 683. 684. 685. 686. 687. 688. 689. 690. 691. 692. 693. 694. 695. 696. 697. 698. 699. 700. 701. 702. 703. 704. 705. 706. 707. 708. 709. 710. 711. 712. 713. 714. 715. 716. 717. 718. 719. 720. 721. 722. 723. 724. 725. 726. 727. 728. 729. 730. 731. 732. 733. 734. 735. 736. 737. 738. 739. 740. 741. 742. 743. 744. 745. 746. 747. 748. 749. 750. 751. 752. 753. 754. 755. 756. 757. 758. 759. 760. 761. 762. 763.</
```html 1 44. I refer again to the approach in Barnes, where the court sought to use the premise that the psychological report not received before sentence would have been favourable to Barnes to mitigate the sentence. 5 45. The Crown has suggested that in order to mitigate any fairness/prejudice to the Defendant caused by the delay occasioned by the lack of the ordered psychiatric report in the instant case the court could order that instead of a discount for that time that the Defendant has been on bail with the EMT that the Defendant be accorded the full discount for the number of days so spent. I agree with that approach although in the circumstance of this case this will be a significant reduction. The reduction will reflect the fact that the significant length of time that the Defendant has worn the monitor will be treated as being a severe curtailment of liberty. The sentence will be further discounted to reflect this time which amounts to 667 days. 14 15 Sentence-Conspiracy to Commit Burglary 16 46. I find that if this had been a sentence for the commission of the offence of burglary, on the facts of this case, I would have found that the case reflected high culpability and category 3 harm. This accords with a starting point of 3 years custody with a sentencing range of 1-5 years custody. In the circumstances of this case the starting point of 3 years would have been raised to 3 1/2 years considering the aggravating and mitigating features present. This was a conspiracy to commit burglary. The appropriate sentence for this offence is 2 years custody. The Defendant will be accorded a discount of 20 percent for his guilty plea. While the court appreciates that the guilty plea was made after the hearing of an application to dismiss another offence charged on the indictment, and that there may have been admissions at interview, it cannot be said that the Defendant pleaded at the first available opportunity. 26 47. The sentence of 2 years after the discount for the guilty plea is reduced to 19 months imprisonment. This sentence for the offence of conspiracy to commit burglary is to run concurrent to the sentence for possessicenced firea 29 48. ne Probation assessment ida 30 of t 31 I note here tl Officer's ass nt in the S his DefeSIR 32 33 “Based on the information garnered it is strongly believed and is accepted that Mr 34 Bustillo has the potential to be a productive and accomplished citizen. To achieve ```
```html 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 hisR, he will need to demonstrate the necessary determination and commitment to make the changes by adopting a pro social lifestyle. It is only by embracing this approach that Mr Bustillo will be able to significantly reduce his pro criminal thinking and behaviours." 49. I hope that this Defendant realises that he can still contribute to this society and that his future is within his own hands. Final sentence: 50. Sentence for possession of unlicenced firearm: 10 years imprisonment. 51. Sentence for conspiracy to commit burglary: 19 months’ imprisonment to run concurrent to the 52. Time spent on remand pre-trial of 325 days to be deducted from the sentence as time served 53. Time spent on electronically monitored bracelet agreed at 667 days to be deducted from sentence as time served. Madam Justice Marlene I. Carter Judge of the Grand Court (Ag.)