Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT No: 74/11 (74/11; 74A/11; 74B/11; 74C/11; 74D/11) THE QUEEN V DEVON WRIGHT DOUGMORE WRIGHT KRISTIE McFIELD Appearances: Ms. Trisha Hutchinson, Senior Crown Counsel for the Crown Mr. John Furniss for Devon Wright Mr. Nick Hoffman of Priestleys for Kristie McField Fiona Robertson of Samson and McGrath for Dougmore Wright Before: The Hon. Mr. Justice Charles Quin Sentencing Submissions Heard: 13th June 2012 SENTENCE RULING Preamble At the commencement of this trial on the 24th April 2012 there were three Defendants on this Indictment. On the 25th April 2012 the Crown entered a Nolle Prosequi in relation to Dougmore Wright. During the course of the trial, no-case-to-answer submissions were made in relation to Devon Wright and Kristie McField and, on the 27th April 2012, the Court handed down its ruling that the trial should continue against Devon Wright, but acceded to the no-case-to-answer application in relation to Kristie McField. On the 1st May 2012 Devon Wright was found not guilty of burglary (Counts 1 and 2) but guilty of handling stolen goods (Counts 3 and 4).
The Defendant was found guilty of two counts (Counts 3 and 4 on the Indictment) of handling stolen goods contrary to s.260(1) of the Penal Code (2010 Revision), after a trial by Judge Alone.
The particulars of Count 3 are that, the Defendant, on the 27th day of May 2011 at Hickory Drive, Prospect, George Town, Grand Cayman dishonestly undertook or assisted in the retention, removal, disposal or realization of stolen goods, namely, an Acer laptop belonging to Hugh Maxwell, by or for the benefit of another or dishonestly arranged to do so, knowing or believing the same to have been stolen. The value of this laptop was estimated at eight hundred dollars ($800.00.)
The particulars of Count 4 also relate to another laptop, in that, the Defendant, on the 27th day of May 2011 at Hickory Drive, Prospect, George Town, Grand Cayman dishonestly undertook or assisted in the retention, removal, disposal or realization of stolen goods, namely, a Toshiba laptop belonging to Marlon Birch, by or for the benefit of another or dishonestly arranged to do so, knowing or believing the same to have been stolen. The value of the second laptop was estimated at $1,090.00. Accordingly, the total value of the stolen property that the Defendant handled was $1,890.00.
Senior Crown counsel pointed out that although the Defendant has just turned 20 years of age he already has a total of eleven (11) convictions between 2009 and 2011 – that is, nine (9) for burglary, one (1) for handling stolen goods and one (1) for damage to property.
Senior Crown Counsel pointed out that the Defendant was on bail in relation to other charges for which he was convicted. Senior Crown counsel highlighted the fact that there had been very few cases of handling stolen goods before the Grand Court and helpfully provided the Court with the UK Sentencing Guidelines for handling stolen goods. The leading case is the English Court of Appeal decision of *R v. Bernard Webbe & Ors.* [2002] 1 Cr. App. R. (S.) (22). Lord Justice Rose, the President of the Court of Appeal in the *Webbe* case referred to the sentencing panel guidelines and identified nine (9) factors which may be regarded as aggravating the offence. I deem it necessary and helpful to set these out in full, which are as follows: i. The closeness of the handler to the primary offence (I add that closeness may be geographical, arising from presence at or near the primary offence when it was committed or, temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal; ii. Seriousness in the primary offence; iii. High value of the goods to the loser including sentimental value; iv. The fact that the goods were the proceeds of a domestic burglary; v. Sophistication in relation to the handling; vi. A high level of profit made or expected by the handler; vii. The provision by the handler of a regular outlet for stolen goods; viii. Threats of violence or abuse of power by the handler even over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit; ix. The commission of an offence whilst on bail."
In addition, the English Court of Appeal agreed with the Sentencing panel and stated at paragraph 29 on page 6: "...For more serious offences there will some for which a sentence within the ranges of 12 months to 4 years will be appropriate, and there will be others for which a sentence of considerably more than four years up to the maximum may be appropriate."
Senior Crown counsel has stated that the following aggravating factors are relevant to the case before me: i. The closeness (in time and geography) of the Defendant to the primary offence: In that, the Defendant was close in geography to the burgled premises and also was found with the goods close to the time when the premises were burgled. The Defendant arrived at his uncle’s house only a few hours after the domestic burglaries had taken place. His uncle’s premises were also in the Prospect area, close to the houses which were burgled. ii. The relatively high value of both goods: In one instance, the laptop was a gift, so it had sentimental value. iii. The goods were the proceeds of two domestic burglaries; iv. The items/goods can be easily sold v. The Defendant committed this offence whilst on bail.
Senior Crown Counsel referred to the Cayman Islands Court of Appeal decision in R v. Harrington Rivers CICA No. 9 of 2008. The Defendant in this case had previous convictions for like offences. These offences were committed not long after his release from prison and the probation report had concluded that he had a high risk of re-offending. The Grand Court imposed a sentence of three (3) years which was upheld by the Court of Appeal. However, Crown counsel points out that, unlike this Defendant, in the Rivers case, the Defendant pleaded guilty, and therefore there was no trial and conviction.
Defence counsel has accepted the contention of the Senior Crown counsel that the appropriate sentence for this Defendant is in the range of 12 months to 4 years. Mr. Furniss properly accepts that the Defendant has previous convictions and committed these offences whilst on bail.
Defence counsel highlights that the Defendant does not seem to want to have a break from his criminality. He also points out that if the Defendant does not take a break from his criminality, he is liable to spend most of his life in HMPS Northward prison.
Defence counsel also highlights that the Defendant has been smoking ganja since he was 12 years old, which is a problem the Defendant describes as “a family problem” and he smokes between twelve (12) to fifteen (15) ganja “spliffs” per day.
I am grateful to the Department of Community Rehabilitation and in particular to Jhanelle Ennis for her in-depth report dated the 10th June 2012. Ms. Ennis points out that, despite being tried and found guilty, the Defendant continues to maintain his innocence, claiming that his uncle took advantage of him by saying that the goods were the Defendant’s. Ms. Ennis however points out that the Defendant is clearly bright, knowledgeable and full of potential, but, in relation to the Level of Service/Case Management Inventory (LS/CMI) test, the Defendant scored very high – pointing out that the high-risk bracket, as outlined in the LS/CMI, incorporates scores 30 and above. The Defendant scored 32 points – putting him at a one hundred percent probability of committing a new crime, leading to conviction within one year of his release. This makes for depressing reading.
What is particularly disturbing is that despite attempts to contact the Defendant’s parents, they could not be reached to verify or supplement any information. It has been said before, but it still bears repeating: it is this apathy, and total lack of concern for the welfare of their children, shown by parents, that is one of the major reasons for the high level of serious crime committed by young persons in the last two or three years. Nevertheless, the Defendant is now 20 years old and must be responsible for his actions.
Despite the best endeavours of Defence counsel, the Defendant has not made his task an easy one.
In light of the several aggravating factors highlighted by Senior Crown counsel, and the Defendant’s previous convictions for burglary and handling stolen goods, I impose, in relation to Count 3, a sentence of three (3) years of imprisonment. However, in view of the fact that the Defendant is currently serving a sentence of four years for crimes that were committed near in time to these offences, I am prepared on the basis of the “totality principle” to make one (1) year concurrent with the sentence he is now serving, and the two (2) years consecutive to the sentence he is currently serving. In relation to Count 4, there is no separate penalty imposed. Dated this the 25th June 2012 Honourable Mr. Justice Charles Quin Judge of the Grand Court