Chapple J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE SCA #: 28/2020 (Case #02844/2020) (Failure to comply with Reg. 3 of the Control of Covid-19 Regulations) SCA #: 29/2020 (Case #02845/2020) (ibid) REGINA v. SKYLAR ANN MACK VANJAE RASHAM RAMJEET Appearances: Mr. Patrick Moran, DPP for the Appellant/Crown Mr. Jonathon Hughes of Samson Law for the Respondents Before: Justice Roger Chapple (Actg.) Heard: 14th December 2020 HEADNOTE Criminal Law – Appeals (against Sentence) from the Summary Court to the Grand Court – Failure to comply with Regulation 3 of the Control of Covid-19 Regulations. JUDGMENT ON APPEALS BY THE CROWN AGAINST SENTENCE
In the short time available to me, I have been able to reach a decision. My deliberations as to the determination of this appeal have not been rushed. I am in a position to give a full judgment.
On the 4th of December this year, the Respondents appeared before the Summary Court to answer a charge of failure to comply with Regulation 3 of the Control of Covid-19 Regulations 2020.
The First Respondent, Miss Skylar Ann Mack, was charged as the principal offender. The Second Respondent, Mr. Vanjae Rasham Ramjeet, was charged with aiding and abetting the commission of that offence.
The charge against Miss Mack alleged that on the 29th of November of this year at South Sound, Grand Cayman, being a tourist visitor managed by the medical officer of health at a place specified by the medical officer of health; namely 139 Meadowlark Road, Newlands, failed to comply with the directions of the medical officer of health by leaving those premises during the mandatory period of quarantine or isolation.
Both Respondents pleaded guilty at their first appearance in the Summary Court. Having heard the prosecution's summary of the facts and all mitigation, Magistrate Hernandez sentenced both Respondents to perform 40 hours of community service and made compensation orders against each of the Respondents in the sum of $2600. In addition, in the case of the Second Respondent, she made a curfew order for two months, to commence as soon as he had completed quarantine.
Pursuant to s.165 of the *Criminal Procedure Code* (2019 Revision), the Crown now appeals to this Court, the sentences imposed, contending that they were unduly lenient. In all the circumstances of this case, the Appellants submit that the only appropriate sentence in the case of both Respondents is a sentence of immediate imprisonment.
The First Respondent, Miss Mack, 18 years of age, is a citizen of the United States and a medical student at the University of Georgia. She arrived in the Cayman Islands on a flight from Miami on Friday, the 27th of November. She had been granted permission to travel to the Cayman Islands to visit her boyfriend, the Second Respondent, under the Cayman Islands Government and Health Services Authority "Phased Opening of our Borders Programme".
The day before she travelled, the First Respondent had signed a monitoring technology participant agreement to terms and conditions. The form concluded: *By signing this form, you signify your agreement to these terms and conditions of participants*.
On arrival at Owen Roberts International Airport she was fitted with a smart wrist band and supplied with a monitoring device. She had been given permission to quarantine at a private accommodation in Bodden Town. Having been transported there from the airport, she was required, as a condition of her admission to the programme, to remain inside that property for a minimum of 14 days and, thereafter, until she provided a negative Covid test, and had been given permission to end her quarantine. She had also agreed as a condition of the programme not to tamper with or remove her wrist band.
On Saturday the 28th of November, soon after midday, the First Respondent contacted public health officials requesting that her wrist band be changed, complaining that it was too tight and was restricting her blood flow. A team responded immediately, substituting the original wrist band for a looser fitting one.
On Sunday, the 29th of November, both Respondents were seen together at a jet-ski event in South Sound. The Second Respondent was a competitor at this event.
The First Respondent was not wearing her wrist band. Subsequent enquiries revealed that she had slipped her band, undoubtedly made possible by the looser-fitting band that she had requested.
As a result of concerns expressed by members of the public present at the event, police were called - attending soon after 4:00 o'clock in the afternoon.
The beach was described as "heavily crowded". A police inspector estimated that hundreds of people were in attendance.
The Second Respondent explained to the police, when interviewed under caution, and I quote as follows: "On the 28th of November 2020, Skylar and I had a discussion about the wave runner race that I was taking part in and she told me that she wanted to go. I told her it was a bad idea and she insisted that she wanted to come. Both of us talked about it on the phone until I gave up. On the 29th of November at about 8:30 a.m., I picked up Skylar from her home. I remained in the car and did not go into the house. Skylar came out, got into the car and we drove to South Sound dock".
The First Respondent does not argue with the Second Respondent's version of events.
It follows that the Respondents were on the beach and at the event together for some seven (7) hours or so.
After initially lying to the police, suggesting that she had been on island for two weeks - it is right that I note that her lies were short lived - she admitted the truth, accepting that she had only been on island for two days, that she had been interacting with others at the beach, including with a young child and, of course, with the Second Respondent who was himself interacting with others.
The First Respondent was arrested and taken to the premises at which she was supposed to be quarantined. There, officers found her wrist band intact next to the monitoring device. She was taken to a mandatory quarantine facility at the Holiday Inn, George Town, where she remained until yesterday.
The Second Respondent also quarantined there separately from the First Respondent. The cost of that quarantine is $2,600 per Respondent.
Section 165(1) of the Criminal Procedure Code (2019 Revision) reads as follows: "Any person who is dissatisfied with any judgment, sentence or order of the Summary Court in any criminal case or matter to which he is a party, may appeal to the Grand Court against such judgment or sentence".
Unlike the Court of Appeal Law, the Criminal Procedure Code is silent on the test to be applied when considering whether to interfere with a sentence imposed by the Summary Court.
I'm grateful to Mr. Hughes for reminding me of the case of *R v Guardiola*¹ in which it was held that the test in the Cayman Islands, when dealing with an appeal by the Crown, is whether the sentence is wrong in principle or manifestly lenient or inadequate.
Mr. Hughes, representing both Respondents, submitted that there is no meaningful difference between the terms "manifestly lenient or inadequate" or "unduly lenient"; the test applied by the Court of Appeal in England and Wales on a prosecution's appeal against sentence and I agree with him in that regard.
The court should not interfere with a sentence of the Summary Court simply because, had it come before the Grand Court at first instance, rather than on appeal, a different sentence might have been imposed. This court should only interfere with the sentence of the lower court if it falls outside the range of appropriate and permissible sentences, if it is unreasonably lenient, or wrong in principle.
I have helpfully been referred by both Mr. Hughes and by Mr. Moran on behalf of the Appellants to the provisions of the *Alternative Sentencing Law* (2008 Revision) which I have found helpful. Section 4 of the *Alternative Sentencing Law* goes back to basics, as it might be, and serves as a reminder of the aims and objectives of sentencing. I quote: "A court shall, in imposing a punishment under this law, take into account the following principles: A. That the fundamental purpose of punishment is to contribute along with crime-prevention initiatives, to respect for the law, and the maintenance of a just, peaceful and safe society by imposing just sanctions which have one or more of the following objectives". ¹ 1994-95 CILR N-20
Various objectives are then set out, but I need only in this case look at the first two of those which are: "1. To denounce unlawful conduct; and, 2. To deter the convicted person and other persons from committing an offence".
These are, it seems to me, the most obviously relevant considerations in this case but, of course, as subsection B of section 4 indicates, a punishment must be proportionate to the gravity of the offence and the degree of responsibility of the convicted person.
I remind myself particularly of the provisions of sections 4 F and G. "F. A convicted person shall not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances; and, G. All available sanctions other than imprisonment that are reasonable in the circumstances of each case should be considered for all convicted persons". All of those principles this court bears very well in mind.
There are no offence specific guidelines here, although I have been referred to guidelines issued by the Chief Justice on the 11th of May of this year dealing with breach of curfew offences prosecuted under s.49(7) of the Police Law (2017 Revision). If these guidelines were to be applied to this case, there is no dispute that this is, for both Respondents, a level 1 offence; that is to say, greater harm and higher culpability, resulting, if those guidelines were applied, in a starting point sentence of six months' custody with a sentencing range from three months to one year's custody. The maximum penalty under that legislation is a fine of $3000 and/or one year's imprisonment. The maximum penalty for an offence contrary to Regulation 3 of the Control of Covid-19 Regulations 2020 - the offence under consideration here - is a fine of $10,000 and/or two years' imprisonment.
The hard curfews, part of the Government's measures to combat the Covid pandemic imposed under powers provided by the Police Law were in force, I was told, for a period of about three months; from March to June this year. Offences were also created by the Public Health Prevention, Control and Suppression of Covid-19 Regulations 2020.
The offence with which this appeal is concerned initially provided a maximum penalty of $1,000 and/or six months' imprisonment. The maximum penalty was increased by the Control of Covid-19 number 3 regulations 2020 to $10,000 and/or two years' imprisonment, with effect from the 26th of November.
This was as clear and unambiguous an indication as there could be from the Legislature that it had revised its view as to the seriousness with which such offences should be viewed. This was a five-fold increase in the maximum financial penalty and a quadrupling of the maximum custodial sentence.
Regulation 3 bears a heading: "Restrictions on arrival of all persons to the islands to control the spread of the virus".
It is important to look at this legislation and the increased penalties in context.
I have only recently been able to return to this jurisdiction. I can take judicial notice and, in any event, there is no dispute, of the response to the Covid pandemic by the Government of the Cayman Islands. The Government’s response was swift and decisive. It imposed draconian measures to control the spread of the virus and to protect its people. When describing those measures as "draconian", I do not mean that by way of criticism. Far from it. The results of those measures have paid dividends which are surely the envy of the world. Strict adherence to these measures has created, as the learned Magistrate put it in her helpful reasons for sentence: "a safe bubble" around these islands.
The population of these islands endured a great deal of hardship, loyally complying with the measures taken by the Government in a collaborative and community spirit. The reward was a reduction in Covid transmission, almost to the point of extinction. As I understand it, there is little to no local transmission. Such positive tests as are recorded are from visitors from abroad.
Borders have begun to open but in a phased and careful way. The greatest protection against the transmission of the virus is firm adherence to the obligatory 15-day quarantine period, initially only at a Government facility, but now permission can be sought and granted for home quarantine.
The risk of a visitor from a country where Covid infection rates are high is so obvious as not to require emphasis from me, and if infection is introduced into the safe bubble of the Cayman Islands, it risks, firstly, all the hard work and sacrifices that were being made set at naught, and secondly, a further lockdown — which comes with all the hardship and economic damage that would cause as this country begins to take steps towards recovery.
In the view of this court, the sentencing guidelines for breach of curfew are of only limited value in this case. The landscape has changed very considerably since the Chief Justice issued those guidelines. Then, the country was in strict lockdown with its borders closed. The guidelines were then aimed at civil disobedience by the local population. Now, thanks to those measures, the country has been able to return to a relatively normal way of life.
The situation in May was very different from the situation now. The offences to which the Respondents have pleaded guilty are aimed at those who abuse the very considerable privilege of being permitted entry to these islands during a world pandemic. Nevertheless, the approach to an assessment of culpability and harm is helpful.
The actions of these Respondents gave risk to a significant risk of harm to the public health.
The First Respondent had arrived from the USA where Covid infection rates are alarming. She remained at South Sound for seven hours or more at a crowded water sports event. I was told that four households were required to self-isolate as a result of her presence on the beach.
The first Respondent's actions were entirely deliberate and planned, as is demonstrated by her contriving to have a looser wrist band fitted in order to facilitate her intended escape from quarantine. It cannot for a moment be said that she did not appreciate her duties and responsibilities. This was as flagrant a breach as could be imagined; borne of selfishness and arrogance.
The Second Respondent's behaviour endorsed and facilitated this offence. Of course he should have refused to help. Had he done so, the chances are that the First Respondent would not have been at the event at all and, of course, I note that he has lived through the restrictions imposed and should have realised the enormity of his actions.
The learned Magistrate properly noted the essential mitigating features in this case. Three features in particular are powerful mitigating factors - they are, of course, firstly the ages of these Respondents, particularly the First Respondent. She is only 18 years old. The Second Respondent is 24 years old. He is old enough to know a great deal better but still relatively youthful.
Secondly, both Respondents are of previous good character and deserve substantial credit for that.
Thirdly, both Respondents pleaded guilty at their first appearance. The First Respondent admitted, after initial prevarication, what she had done. Both are plainly now remorseful for their actions.
Returning to the Alternative Sentencing Law, the Court must decide what are the main objectives of sentencing in this case. It is worth repeating the words of s.4: "The fundamental purpose of punishment is to contribute, along with crime-prevention initiatives, to respect for the law, and the maintenance of a just, peaceful and safe society". And, of course, one underlines here the word "safe". In these troubling global times, the word "safe" assumes enhanced significance.
The first two stated objectives of s.4, as I have already noted, are of prime importance; those objectives being to denounce unlawful conduct, and to deter the convicted person and other persons from committing offences.
These courts have a clear duty to implement the will of the Legislature. And as I have said, their message is abundantly plain.
It should not be forgotten that these courts pass sentence on behalf of the public. It is of fundamental importance that the public have faith in the courts. The anger, frustration and fury of the public at selfish behaviour such as this, which could bring Covid-19 back to these islands after all the sacrifices and progress that has been made, is a feeling which is palpable and should properly be reflected in the sentence of the court.
As to deterrence: Of course these Respondents do not themselves need to be deterred from behaving in this way again. As I have said, their remorse and contrition are clearly genuine. But these courts must send a deterrent message; a message to deter others who may be tempted to behave in a similar manner - putting themselves before the safety of the country.
Whilst no court relishes the prospect of imposing sentences of imprisonment, particularly on young people of good character, there is, in some cases, particularly where public feeling is high, sometimes no alternative.
The learned Magistrate observed at paragraph 7 of her reasons, and I quote her: "This is a difficult exercise, especially as we navigate through the pandemic and the protection of our society. There is a delicate balancing act of immediate custody to send a clear message and to deter others from such breaches, whilst at the same time noting the defendant's particular circumstances and how else punishment could be met".
It is certainly difficult, in the sense that imposing custodial sentences on young people of good character is always difficult. However, this court disagrees that the balancing act was a delicate one.
It is perhaps of relevance that the Magistrate did not dwell, in her careful reasons for sentence, upon the need to reflect the public's disapproval and proper concern for the admitted behaviour of these Respondents.
The learned Magistrate did place some emphasis on the fact that the First Defendant was booked on a flight back to the USA on the 21st of December. She explained at paragraph 8 of her sentencing reasons that 40 hours of community service was: "...the maximum amount of community service which would have been possible within that one week window" This is a reference to the window between her release from quarantine and her flight to Miami.
The implication is that more hours of community service would have been imposed had her return flight been booked for a date in, say, January.
As Mr. Moran rightly submitted, the fact that she had a return flight booked should not have weighed in the sentencing process, given the predominant aims of sentencing in this case.
This court concludes that the sentence of the lower court was unduly lenient and wrong in principle. There was, in all the circumstances, no proper alternative to an immediate custodial sentence.
I have in mind the principle in a prosecutor's appeal against a sentence of double jeopardy. Quarantine is not a pleasant experience at the best of times. The Respondents are now at an end of this quarantine, which I am sure has been made considerably worse and considerably more stressful by the knowledge and worry of this appeal and the prospect of imprisonment. That principle does not dissuade this court from substituting custodial sentences, but it has served to decrease the length of those sentences.
For a case of this gravity involving a deliberate, planned, sustained and inexplicably selfish breach; being present at a crowded event for many hours, a starting point of 15 months' imprisonment, or thereabouts, in the view of this court is appropriate.
In the case of the First Respondent, a substantial reduction is appropriate to reflect her age, her good character and her obvious remorse. A reduction of six months is appropriate on that account, bringing the sentence down to nine months' imprisonment. The sentence should then be reduced further by one-third to reflect her guilty plea at the first opportunity; reducing the sentence to one of six months' imprisonment. A still further reduction of two months is appropriate to reflect the double-jeopardy principle, leaving a sentence of four months' imprisonment.
Given all that I have said above, it would not be appropriate to suspend that sentence.
Whilst there are differences between the two Respondents, particularly that the Second Respondent is older, and having experienced the Cayman lockdown at first hand, should, as I have said, known a lot better. This court sees no powerful reason for not treating both Respondents equally.
Accordingly, this appeal is allowed and for the sentences imposed by the lower court, I substitute sentences of four months' imprisonment in respect of both Respondents.
The orders for compensation remain undisturbed. It is obviously right that the Respondents should pay for the mandatory quarantine they brought upon themselves by their actions. That order has already been satisfied by the First Respondent.
I adjust the learned Magistrate's compensation order against the Second Respondent, only by adding a term of imprisonment, in default of payment, of six months. The Magistrate gave the Second Respondent six months to pay that penalty. I do not disturb that order.
I endorse and leave undisturbed the Magistrate's recommendation that the First Respondent not be allowed to visit these islands again while the borders remain closed or restricted. Dated this the 15th December 2020 Justice Roger Chapple Acting Judge of the Grand Court