Cliff Groves v R

¶ ```html IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS APPEAL NO. 14 OF 2009 SCA NO. 35/06 C#2978/05 BETWEEN: CLIFF GROVES Appellant and HER MAJESTY THE QUEEN Respondent BEFORE: THE RT. HON. SIR JOHN CHADWICK P. THE HON. MR. JUSTICE MOTTLEY J.A. THE HON. MR. JUSTICE VOS J.A. Reasons for Judgment delivered orally on 4 September, 2009. API Appellant Repres PEARANCES: Appellant Apr Seen Ms. N. Petit Self presented for the Respondent ```
```html 1 Friday， 4 September， 2009 2 3 REASONS FOR JUDGMENT 4 5 CHADWICK， President： 6 The applicant， Cliff Ian Groves， was 7 sentenced on 20th December， 2006， in the 8 Summary Court on pleas of guilty to 18 months 9 imprisonment on a charge of supplying a 10 controlled drug (cocaine) and to 30 months 11 imprisonment on a charge of burglary of a 12 residential premises. 13 These were separate offences， the first 14 committed on the 5th February， 2005， and the 15 second on the 10th August， 2005. Although it 16 was accepted that the second offence was drug 17 related - in the sense that the burglary was to 18 obtain the means to feed a drug habit - the 19 Chief Magistrate properly directed that they 20 should be served consecutively. Together they 21 amount to a sentence of four years. 22 Groves to theirt， 2006， 23 appealed ber against 24 those sentences on the ground that they were 25 harsh and excessive. That appeal came before ```
```html 1 Henderson J. on the 25th July, 2008. The 2 appeal was dismissed. 3 After rejecting what the judge described 4 as a threshold issue - that Groves' spent 5 convictions (and there were many) should not 6 have been put before the Magistrate at the time 7 of sentence - he said this: 8 "The sentence of 18 months for 9 social supply of cocaine is 10 likely on the high side for that 11 particular crime. The sentence 12 of 30 months for burglary of a 13 residence in circumstances where 14 the offender has a previous 15 conviction for burglary, albeit 16 an older conviction, is likely 17 on the low side." 18 He then referred to the discount that 19 Mr. Groves could expect for a guilty plea and 20 went on: 21 "It seems to me that, in light 22 of all the 23 circumstances, the sentence of four 24 years for 25 burglary is justified. After 26 applying a one-third discount to ```
```html 1 that, one is still left with a 2 net sentence somewhat higher 3 than 30 months. The result is 4 that the aggregate or global 5 sentence is apt in the 6 circumstances. I am satisfied 7 that there was no error." 8 On 6th April， 2009， Groves applied to the 9 Grand Court for leave to extend the time for 10 giving notice of appeal against the decision of， 11 Henderson J. He told us that he had thought 12 that notice of appeal had been given by his 13 then advocate and only discovered later that it 14 had not been given. 15 The application came before Foster J. on 16 the 15th July， 2009， and was refused. That 17 judge took the view that there must be finality 18 in the matter. In those circumstances， the 19 Crown was at first minded to submit that this 20 Court had no jurisdiction to entertain the 21 appeal. Plainly， there could be no appeal from 22 cision of ail refuser 23 see Lane ing AC 210 the de Foster J. le(189： 24 time(， and Esdl) 25 provided by this Court in Queen v. Shannette Reid Cr. App. No. 17 of 2001， unreported on ```
```html 1 24th August 2001). 2 But we are not concerned with an appeal 3 from the decision of Foster J. The application 4 to us is an original application under rule 32 5 of the Court of Appeal Rules， read with 6 sections 31 to 33 of the Court of Appeal Law. 7 The Crown did not pursue that point. 8 We are satisfied that it is open to us to 9 extend time and to hear the appeal if the 10 circumstances warrant that course. 11 We turn therefore to consider whether the 12 proposed appeal has merit： for if it has no 13 merit then， plainly， there is no purpose in 14 extending time. But if the appeal is 15 meritorious， then we must consider whether the 16 strict enforcement of the time elements in the 17 rules would， in this case， risk injustice to 18 the applicant. 19 We agree with Henderson J. that the 20 sentence for a social supply of cocaine is on 21 the high side. The facts of the offence as 22 pe ar from 23 ised as fort 24 Officers， who wanted to interview Groves 25 in connection with another matter， had ```
```html 1 information that he was at the Westin Casuarina 2 Resort. They went there on the 5th February, 3 2005. They were told that he was in room 2011. 4 When they knocked on the door of that room a 5 female voice was heard on the other side of the 6 door asking who it was. When told it was the 7 police， she replied that she needed a minute to 8 put on some clothes. 9 Shortly afterwards she opened the door. 10 The officers went inside. Mr. Groves was found， 11 to be in the bathroom. He seemed to be 12 attempting to flush something down the toilet. 13 Also found was a crack pipe on the bathroom 14 floor. An item was recovered from the toilet： 15 that was another part of a crack pipe. A 16 search of the room produced some matter which 17 resembled ganja， and a rock-like substance 18 resembling cocaine， also a soda can which might 19 have been used in the consumption of drugs. 20 Groves and his female companion， 21 Ms. Rivera， were taken to the police station. 22 admitted 23 cal analyst he had Groves using 24 tested positive for ganja. 25 So this then was， essentially， a social ```
```html 1 supply of cocaine in an apartment where both 2 parties seemed to be enjoying drugs and 3 probably sex. 4 In her sentencing remarks， the Magistrate 5 said this： 6 "For supplying cocaine， taking 7 into account that it was social 8 supply and also considering the 9 totality of the sentence I 10 intend to impose， I impose a 11 sentence of 18 months， a 12 sentence perhaps more 13 appropriate for simple 14 possession." 15 Then there is a note： 16 "Chief Justice's Statement on 17 Tariffs： The tariff for 18 possession has for many years 19 been and will continue to be 9 20 to 12 months for a first 21 offence. For a second or 22 23 ： is true e， 24 convictions for consumptions of cocaine. There 25 were two old convictions in 1987 and 1988 and ```
```html 1 one more recent conviction in 1999. On the 2 latter conviction he had been given a probation 3 order and required to abstain from consumption 4 of alcohol and drugs. He seems to have 5 observed that condition. 6 A progress report in September 2005 was 7 positive； and a social inquiry report in the 8 same month obtained in connection with this 9 offence recommended a suspended sentence and 10 probation order. Sadly， in the course of the 11 next 12 months the position changed radically. 12 From a social inquiry report obtained in 13 November 2006， shortly before the sentence in 14 this case， it was clear that there had been a 15 relapse. The report of the 27th November， 16 2006， said this： 17 "Unfortunately for Mr. Groves， 18 residential treatment may be his 19 alternative to incarceration 20 and， after his many 21 opportunities in treatment， 22 out of 23 ion， yey 24 not been sustained after leaving 25 the institutions and his ```
```html 1 subsequent re-offends. As a 2 result， Mr. Groves is assessed 3 as at high risk to re-offend. 4 It is noted that his most recent 5 residential treatment was early 6 in 2006 and he relapsed without 7 attending an outpatient 8 treatment as agreed." 9 And the probation officer commented that： 10 "... good social supports [had 11 not] prevented Mr. Groves from 12 relapsing and re-offending. He 13 knows the life changes required 14 and again faces the challenge to 15 unlearn his criminal behaviour 16 and sustain his reformed 17 behaviour." 18 Nevertheless， the probation officer 19 regarded a suspended sentence and a 20 compensation order as a possible way forward. 21 It was， we think， that social inquiry 22 that led to ta 23 sentence sonment report the Magi ate imp 24 necessary in this case. We do not dissent from 25 that view. But we think， taking all the ```
```markdown circumstances into account, an appropriate sentence on a guilty plea for a social supply of this nature and in these circumstances would have been nine months. Eighteen months imprisonment in this case on the drugs charge was, in our view, manifestly excessive. We turn to consider the sentence on the burglary conviction. Again, we can take the facts from the police report made in connection with that offence. The burglary was of a condominium at Dolphin Point, West Bay, Grand Cayman. It was at the time empty. The owner and the occupants were, I think, off Island, and it was in the charge of a Miss Jodi L. Reineking who did not live there. Miss Reineking went to the apartment at about 5:50 a.m. on the 10th August. She went back there about five o'clock in the afternoon. She then discovered the dead-bolt lock on the front door was unlocked, the window on the upper part of the door over the window area was prised. She also noticed a plastic ```
```html 1 plate with cat food that had been left inside 2 the apartment was outside, downstairs on the 3 lower deck. She also stated that she checked 4 the cupboard and the refrigerator and noticed 5 that all canned goods， beers and frozen meats 6 were gone. 7 Miss Reineking stated that she checked the 8 bathroom and noticed that the dive gear was 9 missing and the bedroom was ransacked. She 10 telephoned the police and reported the matter. 11 The police attended the scene and observed that 12 the louvres were removed from the front door 13 and the glass was broken from the front door 14 also. 15 In due course， Groves was interviewed 16 under caution. He admitted to accompanying two 17 others， Norman McLaughlin and Mark Bush， to the 18 condominium where， as he said， McLaughlin and 19 he entered the apartment while Bush stayed on 20 the patio. That is fleshed out by the written 21 notes of the interview itself in which he said 22 23 ent 24 25 he apar 23 aken tctm 24 by McLaughlin in order to obtain 25 something which could be

¶ [1] exchanged for drugs with a dealer. We went upstairs,

¶ [2] Kennedy [that is Bush] and I stood on the patio while Chris McLaughlin pried open the window and the door. Chris took one wooden louvre blade out and he pushed the plexiglas in, put his hand through and opened the door. Upon entering Chris asked me to put the lower blade back in and I did. [McLaughlin] entered the kitchen and began taking out food items from the refrigerator and cabinet, asked me to put these food items into plastic shopping bags which he'd also found in the cabinet. On near completing putting these items in the bag, [McLaughlin] said check that bedroom over there, the gears which suppliers would probably buy. I entered the bedroom, picked up a

¶ [1] yellow dive bag which had this

¶ [2] yellow pair of fins in it that

¶ [3] I'm now pointing out to you.

¶ [4] Also there was in the bag two

¶ [5] pairs of masks and snorkel. I

¶ [6] picked up an additional two

¶ [7] pairs of fins, one black and one

¶ [8] blue, put them in the bag. I

¶ [9] exited the room and we left the

¶ [10] interior of the building."

¶ [11] It is clear from that statement that

¶ [12] Groves was not admitting the damage to the door

¶ [13] and the windows; and there is nothing there

¶ [14] which amounts to an admission of "ransacking"

¶ [15] the bedroom, other than the admission that

¶ [16] items were plainly taken from the bedroom area.

¶ [17] When the matter came before the Magistrate

¶ [18] in December 2006, Groves' co-accused,

¶ [19] McLaughlin and Bush, were put on a drug

¶ [20] rehabilitation programme. It is plain that

¶ [21] Groves was not put on that programme for the

¶ [22] that he had been

¶ [23] reason had already been

¶ [24] least there is no evidence of his re-offending.

¶ [25] McLaughlin did re-offend. He committed a
number of quite serious offences; and was eventually sentenced for those offences and the offence of this burglary in July 2008. He received two years for the burglary on that occasion. We are satisfied that in the circumstances of this case – where it seems clear that Groves was not the ringleader or instigator of this burglary but a follower of McLaughlin; and where there is no evidence that he did any damage in the property – a sentence of 30 months on a guilty plea (representing a sentence after trial of some four years) is manifestly too high. The appropriate sentence, in our view, would have been some 15 to 18 months on the burglary. That would be commensurate with the sentence subsequently passed on McLaughlin, who (on Groves' account) was the moving spirit in the burglary. Groves has been in custody for a total of 40 months since the time of his arrest for the period between November 2005 and 2006 (when he was bailed) and 38 months from July 2006 to September 2009.
If the sentences passed on the 20th December, 2006, had been the only sentences that Groves was serving, he would have been released from prison some time ago. A prisoner sentenced to four years could expect to serve a little less than 27 months before being released on licence. But these were not the only sentences that Groves was serving. On the 27th March, 2007, he was sentenced to terms of six years, to run concurrently, on counts of attempted rape and indecent assault. The offences of attempted rape and indecent assault were committed on the 12th November, 2005. As we have said, there was plainly a crisis in his life at or about that time which led to a relapse into serious criminal behaviour. The six-year sentences were to be served consecutively to the sentences for the drug offence and the burglary which he was already serving which was reduced in the 8th April, 2009, third Court.
```html 1 respectively, to run concurrently, but still to 2 be served consecutively to the earlier 3 sentences. 4 The time that Groves has actually spent in 5 prison, 40 months, is equivalent to a six-year 6 sentence. That is to say, had Groves been 7 serving a six-year sentence, he would have 8 expected to be released after some 40 months. 9 As things now stand, he is serving 10 consecutive sentences of four years each：that 11 is，eight years in all. If his sentence on the 12 offences with which we are concerned were 13 reduced-so that the aggregate was six years 14 or thereabouts-he could expect to be out 15 immediately. 16 We have been impressed by the efforts 17 Mr. Groves has made to put his life back on 18 track. He has provided us with testimonials 19 which speak of his achievements in favourable， 20 indeed glowing， terms，and with certificates 21 indicating the courses that he has undertaken 22 and pasprove 23 h those ci 24 right to extend time and grant leave to appeal. 25 The time we think has now come for Groves to

¶ [1] have the opportunity to show that he can do

¶ [2] within the community what he plainly is able to

¶ [3] do in prison.

¶ [4] Accordingly, we quash the sentences passed

¶ [5] on the 20th December, 2006. We impose a

¶ [6] sentence of nine months in relation to the

¶ [7] supply of cocaine, and we sentence him on the

¶ [8] burglary to such term of imprisonment as

¶ [9] together with the nine-month sentence in

¶ [10] respect of the drug charge, and the four-year

¶ [11] concurrent sentences in respect of attempted

¶ [12] rape and indecent assault will lead to his

¶ [13] immediate release. Without doing the

¶ [14] computation in detail, the sentence on the

¶ [15] burglary will be the equivalent of about 15

¶ [16] months. The effect of our decision is that

¶ [17] Mr. Groves can be released immediately from

¶ [18] prison.

¶ [19] Now, stand up, Mr. Groves.

¶ [20] THE DEFENDANT: Yes, sir.

¶ [21] CHADWICK, President: As I have said in

¶ [22] the course of this I have been able to

¶ [23] take

¶ [24] THE DEFENDANT: Yes, sir.

¶ [25] CHADWICK, President: - we are persuaded
```html 1 that the time has come when you can safely come 2 back into the community. You know better than 3 anyone what the risks are if you do not fulfill 4 the confidence that we have in you. You will 5 be back before this Court or another court. 6 And what I have said will be noted and 7 recorded. 8 THE DEFENDANT：Yes， sir. 9 CHADWICK， President：But you can go on 10 this occasion. 11 THE DEFENDANT：Thank you so much， sir. 12 God bless you， sir. 13 MS. PETIT：Deeply obliged， My Lord. 14 CHADWICK， President：All right. Court 15 will rise. 16 17 18 19 COURT REPORTER'S CERTIFICATE 20 Certified correct to the best of my skill and ability， dated 21 the 7th day of September， 2009. 22 23 Kerri Francella 24 25