R v John Miller - Sentence Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 12/11 THE QUEEN V. JOHN ALFREDO MILLER III Appearances: Elisabeth Lees for the Crown John Furniss for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 18th October 2011 SENTENCE RULING

¶ [1] On the 18th October 2011 the Defendant pleaded guilty to the charge of being an accessory after the fact of robbery contrary to s.323 and s.324(b) of the Penal Code 2010 Revision.

¶ [2] The particulars of this charge are that the Defendant, on the 29th November 2010 in Grand Cayman, knowing or believing that three persons unknown had committed an armed robbery at “The Shoppe”, Watercourse Road, West Bay, did, without lawful authority or reasonable excuse, an act with intent to impede their apprehension or prosecution, namely, assisted the said three men to leave the scene of the crime.
Summary of the Facts

¶ [3] The robbery took place on the 29th November 2010 when three gunmen robbed “The Shoppe” in West Bay. The Shoppe is located at the intersection turning into Northwest Point Road with Watercourse Course Road on the right.

¶ [4] The owner of The Shoppe at the time was Mr. Glasford Dawkins (“Mr. Dawkins”) who rented The Shoppe from Mr. Kirk McCarthy (“Mr. McCarthy”), the landlord, who lived nearby.

¶ [5] Present at The Shoppe at the time of the incident were Mr. Dawkins, Mr. Wayne Gallimore (“Mr. Gallimore”) and Mr. Alex White (“Mr. White”) who were all outside The Shoppe while Mr. White’s sister, Ms. Marlene White, (“Ms. White”) was inside The Shoppe. Mr. Gallimore, Mr. Dawkins and Mr. White were outside The Shoppe working on a truck when three men, walking on Watercourse Road, towards The Shoppe, from the direction of Hell Road, came on to the premises. All three men had their faces covered and all three were carrying guns. One of the men said, “Don’t move, and give me all the money.” Mr. Gallimore was holding two mobile phones in his hand at the time and one of the gunmen went over to him, pointed the gun at him and took the two phones from him. One of the three gunmen went into The Shoppe and pointed the gun at Ms. White and said, “Where’s the money?” The man took five hundred and fifty dollars ($550) in cash and left. One of the gunmen also pointed a gun at Mr. White’s head outside The Shoppe.

¶ [6] Mr. McCarthy was, by chance, walking towards the crime scene when he saw a white Ford Explorer in a nearby driveway with its engine running. Mr. McCarthy noted that there was damage to the vehicle’s right front fender. Although the vehicle was empty, it was facing the road with its engine running. When the three masked men left The Shoppe one of them, on seeing Mr. McCarthy, held the gun at him and told him to turn back the other way. Mr. McCarthy, not surprisingly complied with the gunman’s instruction.

¶ [7] The armed gunmen took the five hundred and fifty dollars cash and the two mobile phones.

¶ [8] Mr. Dawkins saw the white Ford Explorer pull out of the nearby driveway and all three men got into it. The Defendant, who was the driver of the vehicle, drove it to the intersection of Watercourse and Northwest Point roads and turned left towards the 4-way stop main intersection in West Bay.

¶ [9] Mr. Gallimore also saw the Ford Explorer drive out, pull up, and pick up the three men and drive off at a fast speed. He noted the Registration Number 132 632.

¶ [10] The Crown submits that the vehicle appeared to pull up and pick the men up and drive off.

¶ [11] Mr. Dawkins immediately called 911. The police responded and PC Williams drove to Willie Farrington Drive and called for a back-up car. Eventually, the Ford Explorer was stopped and the Defendant was ordered out of the vehicle and apprehended at 20:48. The three gunmen in the vehicle
had escaped capture as they were not in the vehicle when it was stopped by the police.

¶ [12] The Defendant said he was visiting his girlfriend at the time of the arrest. The police made their enquiries and although the Defendant’s girlfriend said he had tried to call her, they had no arrangements to see each other that night.

¶ [13] The Defendant said his mother was the owner of the vehicle and she had loaned it to him. The Defendant accepted that the vehicle was unique because it was a right-hand drive Ford Explorer.

¶ [14] One black glove was recovered from the vehicle.

¶ [15] Mr. Dawkins provided a victim-impact statement. He said he had begun to hear of a number of robberies all over the island and, in an effort to protect himself and his employees he had bought a CCTV system and installed it. He said he was putting in the finishing touches when he was robbed in this incident. Mr. Dawkins said that since the robbery he dreads being alone in The Shoppe. He said he is constantly looking outside, writing down license plate numbers and paying close attention to customers. He said that when he is at home he is constantly thinking about what will happen if I get robbed again. He said, “I feel scarred from thinking about that night of the robbery with the gun being pointed at me, thinking how lucky I am to be alive. I am pondering right now if I should continue on with the business or just close down for good. I wouldn’t like anyone to go through this because I can tell you that it is not a good feeling.”

¶ [16] The Defence and the Crown presented an agreed “Basis of Plea” which I will now read: a. The Defendant received a phone call at time when he was in the West Bay area going to call on his girlfriend; b. The call asked that he come to Watercourse Road in the vicinity of The Shoppe, as the individual needed a ride; c. It took only a few minutes and he was at the location and pulled into the area adjacent to The Shoppe; d. The Defendant saw the individuals coming and all three of them had guns; e. The Defendant gave the gunmen a lift for a short distance in West Bay and dropped them off; f. The Defendant was then stopped by the police; g. The Defendant pleads guilty to being an accessory after the fact; h. The Defendant is not willing to disclose the names or identities of the gunmen. The Law

¶ [17] Crown counsel and Defence counsel drew the Court’s attention to the case of R v. Bailey Baker Smith and Richards 2000 CILR Note 18. In that case, the Defendant, Bailey, pleaded guilty to being an accessory after the fact of robbery. At the time this offence took place the maximum sentence was three
years. There were several mitigating factors and the Defendant received a sentence of 18 months imprisonment.

¶ [18] The Court’s attention was also drawn to R v. Jason Hinds Indictment 49 of 2008, Mr. Hinds was an accessory after the fact in the case of William McLaughlin Martinez, who was later found guilty of murder. The Defendant Jason Hinds not only pleaded guilty, but provided very significant assistance to the Crown. In fact, it was accepted by Mr. Furniss that there would probably have been no case against William McLaughlin Martinez had it not been for the assistance and evidence of Jason Hinds. Mr. Hinds was sentenced to three years for being an accessory.

¶ [19] Indeed it is clear that both the Defendant and his counsel understand that it is hard to imagine a stronger mitigating factor than assisting the police and the Crown to identify the principal offenders, so that they can be apprehended and the guns they used, recovered.

¶ [20] In the case of R v. Jason Hinds, the Defendant provided significant assistance to the Crown and this was the main reason for the substantial reduction in his Sentence of imprisonment.

¶ [21] Mr. Furniss submits that as soon as the charge of accessory after the fact was included on the Indictment the Defendant immediately pleaded guilty and therefore should be entitled to a reduction.

¶ [22] Mr. Furniss, on behalf of the Defendant, submits that the Defendant accepts that he would receive a custodial sentence – having acknowledged the serious nature and consequences of what he did.

¶ [23] Mr. Furniss confirmed that the Defendant is not prepared to assist the Court with the names of the gunmen because he is in fear of his life and in fear for his family. Indeed, the Defendant has also said that he does not want to put his mother through any difficulties.

¶ [24] The Defence properly accepts that, the fact that the Defendant is not willing to assist the Court is an aggravating feature, which the Court can hold against the Defendant.

¶ [25] Defence counsel accepts that the Defendant has four convictions for drug offences, but no convictions for either violence or dishonesty. Conclusion

¶ [26] Section 323(1) of the Penal Code sets out the definition of Accessory after the Fact and reads: "Where a person has a committed an arrestable offence, a person who, knowing or believing him to be guilty of the offence or of some other arrestable offence, does without lawful authority or reasonable excuse any act with intent to impede his apprehension or prosecution is said to become an accessory after the fact."

¶ [27] Section 324(b) provides for the punishment in this case and reads: "A person who is convicted of being an accessory after the fact is liable to imprisonment if the offence is one for which a person (not previously convicted) may be sentenced to imprisonment for fourteen years or more, for seven years." Accordingly, the maximum sentence in this case is seven years' imprisonment.

¶ [28] The learned editors of Blackstone’s Criminal Practice 2011 state at paragraph A5.1 on page 69: "Responsibility for a criminal offence may be incurred either as a principal offender or as an accessory." The learned editors go on to state at paragraph A5.1: “A principal offender is the actual perpetrator of the offence, the person whose individual conduct satisfied the definition of the particular offence in question, while an accessory is one who aids, abets, counsels or procures the commission of the offence.”

¶ [29] On the evidence before me the Defendant was waiting in the Ford Explorer to collect the three gunmen and take them away after they had completed the robbery. The engine of the Ford Explorer was left running near The Shoppe – the obvious inference being to ensure that the Defendant could drive away the three gunmen without unnecessary delay. The evidence is that the Defendant drove the three gunmen off, away from the scene of the crime, at great speed, thereby helping them to escape from the scene of the crime. The Defendant in making good the escape of the gunmen aided, abetted and assisted the gunmen to leave the scene of the crime undetected, and therefore impeded their apprehension and prosecution.

¶ [30] The Defendant assisted the three gunmen to leave the scene of the crime. Accordingly, one must examine the facts surrounding the robbery and its consequences, even though, the Court acknowledges that there is no evidence that the Defendant participated in the actual robbery involving the guns, or imitation firearms, or the taking of the money and the mobile phones.
a. It is hard to imagine a more serious armed robbery than the one that took place here. The three men came with masks covering their faces in order to avoid identification, and all three also had firearms or imitation firearms. b. As has been stated on previous occasions, whether a firearm is real or an imitation is not a major factor in determining the appropriate sentence of imprisonment because the amount of fear created in the victim is likely to be exactly the same. c. One of the gunmen told Messrs. Gallimore, White and Dawkins not to move and to hand over their money. Mr. Gallimore handed over the two mobile phones. One gunman went into The Shoppe and pointed the gun at Ms. White, forcing her to hand over five hundred and fifty dollars ($550). Another gunman pointed the gun at Mr. White’s head. When Mr. McCarthy, who was not at the scene, but who was walking towards the scene, saw the gunmen attempting to leave, one of the gunmen, holding a gun towards him told him to turn back the other way, which he did. The gunmen left the scene of the crime with the cash and the two mobile phones. d. Robbery is a very serious criminal offence. These three gunmen caused extreme fear in the minds of at least four, and probably five, persons at the scene. Therefore it can only be described as a robbery of the most serious kind and of the kind which has plagued Grand Cayman over the past few years.

¶ [31] The gunmen are still at large and their guns have not been recovered. This Defendant has decided that, due to a fear for his safety and that of his family, he will not assist the Crown, the Court, or indeed, himself, by identifying the gunmen, or by providing some information which could assist the police to recover the three guns used against these law abiding and hardworking persons.

¶ [32] I turn now to the appropriate Sentence in the circumstances of this case. As has been stated before, the distinction between an accessory and a principal offender is, in many cases, of little importance, because the accessory allows the principal offenders to escape undetected.

¶ [33] The Legislature has set a maximum of seven (7) years for this particular offence. Given the very serious nature of this armed robbery, I find that the starting point for Sentencing, had the Defendant pleaded not guilty, would be somewhere between six to seven years. In light of his guilty plea he is entitled to a discount and therefore I impose a sentence of five (5) years imprisonment. I order that time spent in custody be taken into consideration.

¶ [34] This Court is compelled to comment on the fact that this absence of cooperation with the police is a deeply regrettable consequence of the pervasive and abhorrent influence these criminals have on our community. To this Defendant I state that the fear he has for himself and his family will only spread if criminals are allowed to thrive and remain at large. I would implore this Defendant to examine carefully all the consequences related to his silence, in the round, and understand that there is no long term good for
him, his family, or the community when criminals are allowed to thrive and their actions go unpunished. Dated this the 25th October 2011 Honourable Mr. Justice Charles Quin Judge of the Grand Court of the Cayman Islands