Chapple J
Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 SCA0019/2020: 4 Case No.: 01179/18 – Burglary 5 Case No.: 01258/18 – Possession of Criminal Property 6 7 8 MARK KENNEDY BUSH 9 10 v. 11 12 REGINA 13 14 15 16 Appearances: Mr. Jonathon Hughes of Samson Law for 17 the Appellant 18 19 Ms. Kerrie Ann Gillies for the 20 Respondent/Crown 21 22 Before: Justice Roger Chapple (Actg.) 23 Heard: 12th November 2020 24 25 26 HEADNOTE 27 Criminal Law – Appeal from the Summary Court to the Grand Court – Appeal 28 against Sentence. 29 30 31 JUDGMENT 32 ON APPEAL AGAINST SENTENCE 33 34 35 36 37 38 39 40 41 42 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020
On 21st February 2020, this Appellant was convicted, following trial in the 1 Summary Court before Magistrate McFarlane, of two offences, namely: 2 3 a. Burglary, contrary to s.243 of the Penal Code (2018 Revision) 4 5 b. Possession of criminal property, contrary to s.135(1) of the Proceeds of Crime 6 Act (2018 Revision) 7 8
On 24th September 2020, having heard full mitigation, the learned Magistrate 9 sentenced the Appellant as follows: 10 11 a. Burglary: 2 years’ imprisonment; 12 13 b. Possession of criminal property: 9 months’ imprisonment, concurrent; 14 15 c. 8 months’ imprisonment, to run consecutively to the sentence of 2 years’ 16 imprisonment by way of partial activation of a suspended sentence (2 years’ 17 imprisonment suspended for 2 years) imposed on 5th December 2016 - these 18 offences having been committed during the operational period of that 19 suspended sentence. 20 21
This resulted in a total sentence to be served of 2 years and 8 months, less credit 22 for 45 weeks – as it expressed in the commitment warrant – “for time spent of (sic) 23 remand, also for time on electronic monitoring device.” 24 25
The Appellant now appeals to this court against sentence on the grounds that it was 26 manifestly excessive or wrong in principle. There is no appeal against the 27 convictions. 28 29 30 31 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020
In both his concise written grounds and in his oral submissions, Mr Hughes, on 1 behalf of this Appellant, focusses on the sentence of two years’ imprisonment 2 imposed for the offence of Burglary. He does not quarrel with the 9-month 3 concurrent sentence for possession of criminal property or the consecutive sentence 4 of 8 months’ imprisonment by way of activation of the suspended sentence. 5 6
In short summary, Mr Hughes argues that the learned Magistrate erred when 7 placing this burglary within category 3B (medium culpability, lower harm) of the 8 Cayman Islands Sentencing Guidelines for Offences of Burglary. If that 9 categorisation were right, it would result in a starting point sentence of 2 years’ 10 imprisonment, with a sentencing range between a community-based penalty and 4 11 years’ imprisonment. Rather, Mr Hughes contends that this was a category 3C 12 burglary. His position is as set out in the last 3 paragraphs of his written 13 submissions dated 5th November 2020: 14 15 “If this is a lesser culpability case, the applicable starting point and range 16 should have been: 17 - starting point: 1 year’s custody 18 - category range: community-based sentence – 3 years’ custody. 19 The error identified above resulted in the Magistrate arriving at the 20 starting point of two years rather than one year. The grand court is 21 respectively (sic) invited to re-categorise this case and reduce the sentence 22 imposed by 1 year.” 23 24
The Respondent’s position is set out in the concluding paragraph of Ms Gillies’ 25 written submissions dated 10th November 2020: 26 27 28 29 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020 “The Respondent urges this honourable court to find that: 1 - The appellant has failed to show that the learned Magistrate 2 incorrectly applied the sentencing guidelines; 3 - The sentence imposed is not manifestly excessive; and 4 - The appeal against sentence ought to be refused.” 5 6 7
I have been assisted by Magistrate McFarlane’s detailed “Reasons for Sentence”, 8 in which she helpfully sets out the way in which she approached and applied the 9 guidelines and how she arrived at her conclusions. 10 11
All are agreed that this was a case of lesser harm – and thus Category 3. It plainly 12 was, as none of the factors set out in category 1 or category 2 were present. That 13 being so, I need not dwell any further upon the categorisation of harm. 14 15
As to culpability: Category B (medium culpability) is, as it might be, the default 16 position, inasmuch as it is the appropriate category where neither the aggravating 17 factors listed in category A nor the mitigating factors listed in category C are 18 present. It is again common ground that no factors indicating higher culpability are 19 present in this case. 20 21
Submissions centred upon the factors indicating lower culpability (category C) and 22 whether one or more of them was/were present in this case. Those factors are: 23 24 i. Performed limited role in offence acting under the direction of others; 25 26 ii. Involved through coercion, intimidation or exploitation; 27 28 iii. Threat or use of minimal force; 29 30 iv. Very little or no planning. 31 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020
The Appellant gave evidence at his trial. He denied any knowledge of, or 1 involvement in, the burglary, expressing puzzlement as to how his DNA came to 2 be deposited on top of a fence at the rear of the burgled premises and asserted that 3 the items found at his home, said by the prosecution to have been stolen in the 4 course of the burglary, were innocently acquired. 5 6
The learned Magistrate considered the factors indicating lower culpability. As she 7 observed: 8 “There was no direct or other evidence adduced which shed any light on the 9 defendant’s role in the burglary, nor was there any evidence that he became 10 involved through coercion, intimidation or exploitation.” 11 12 13
When considering whether there was any planning, she said this: 14 “As it concerns the extent to which there was planning (if at all), it seems to me 15 that category C is intended to reflect those cases where there is positive 16 evidence that the burglary was almost entirely opportunistic, hence the 17 reference to cases where there is “very little or no planning.” No such 18 evidence was adduced in this case, nor any evidence from which I could 19 reasonably infer that there was very little or no planning. The absence of such 20 evidence is not in my view a positive indication that there was little or no 21 planning, because the vast majority of burglaries by their very nature 22 necessarily involve a degree of planning.” 23 24
The Magistrate similarly concluded that there was no positive evidence that this 25 was a case of minimal force. 26 27
Mr Hughes disagrees with the Magistrate’s approach, submitting that “even at 28 sentencing, the burden remains on the Crown and the absence of evidence should 29 operate in favour of the defendant.” 30 31
Looked at overall, it is in my judgement clear that the factors indicating lesser 32 culpability are in very large measure matters likely to be outside the knowledge of 33 the prosecution or the court and, if relied upon, must be established by the defence. 34 35 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020
It cannot be – and it is not – the position, as Mr Hughes contended, that if, for 1 example, there is no evidence either way as to whether an offender was or was not 2 “acting under the direction of others,” a court must conclude that he was. At the 3 sentencing stage, a distinction is to be drawn between matters having to do with the 4 essential ingredients of the offence, where the Crown continues to shoulder the 5 burden of proof, and extraneous matters of mitigation, where the burden of proof 6 rests with the defence. (See Archbold Criminal Procedure, Evidence and Practice, 7 2020 edition at paragraph 5A-291 and particularly R v Newton1). 8 9
The matters set out under the heading “lower culpability” are clearly extraneous 10 matters of mitigation to be raised by a defendant, and the defence bears the burden 11 of proof (of course, on a balance of probabilities)2 12 13
There was no direct evidence as to the degree of force used by the Appellant to 14 gain entry to the premises. All that is known is that the property was secured before 15 the occupants left and, when they returned, according to one occupant, “I observed 16 that the back door was unlocked and could see that the window was open, which 17 had been completely shut when I left.” Another occupant added, “We ensured that 18 the doors were securely locked when we left.” 19 20
Plainly then, some force was used to gain entry. In my judgement, the learned 21 Magistrate was entitled, on all the evidence, to place this burglary within category 22 3B. 23 24
There were no obvious mitigating features in this case and a number of aggravating 25 factors, particularly: 26 27 1 (1983) 77 Crim App R 13 2 See R v Guppy (1995) 16 Cr App R (S) 25 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020 a. The appellant’s previous convictions. Putting aside, as one must, spent 1 convictions, this Appellant was convicted of a number of offences on 5th 2 December 2016, including two offences of handling stolen goods one of theft 3 and one of burglary. Additionally, the instant offences were committed during 4 the currency of both a Suspended Sentence Supervision Order and a Probation 5 Order. 6 7 b. This Appellant fell to be dealt with additionally for an offence of possession of 8 criminal property – in the context of this case, effectively, handling stolen 9 goods. If that was not to be dealt with by way of a consecutive sentence, then it 10 was an aggravating feature of the burglary offence. The Appellant was in 11 possession of property stolen from a burglary that took place, the likelihood is, 12 within days after the burglary of which he was convicted. 13 14
These aggravating features justify a substantial uplift from the suggested starting 15 point of 2 years’ imprisonment. 16 17
The Appellant came into possession of stolen property sometime between April 18 and June, having himself committed a burglary on 10th April. These are separate 19 and distinct offences and on the face of it, consecutive sentences would have been 20 appropriate. Even though 1 year and 4 months had passed between the imposition 21 of the suspended sentences and these offences, it may be thought to have been 22 lenient to activate only 8 months of the 2 year sentence, particularly given that the 23 suspended sentence was imposed for, amongst other things, an offence of burglary. 24 However, the Magistrate explained that she had in mind the principle of totality 25 and reduced the overall sentence on that account. 26 27 Judgment on Appeal against Sentence. SCA 19/2020. Bush (Mark Kennedy) v R. Coram: Chapple J. (Actg.). Date: 3rd December 2020
It may be that other sentencers would have taken a different route to determine the 1 appropriate sentence. There are often, as here, several permissible alternative 2 methods by which to arrive at the appropriate sentence. If Mr Hughes were right 3 that this was a category 3C offence, the aggravating features mentioned above 4 would necessarily have resulted in a significant increase in the suggested starting 5 point of 1 year’s imprisonment. A consecutive sentence for the offence of 6 possession of criminal property would have been justified, as would the activation 7 of a greater proportion of the suspended sentence than Magistrate McFarlane 8 determined. 9 10
The total sentence passed by the learned Magistrate was, in the view of this court, 11 within the permissible range of sentences properly available to the lower court. The 12 sentence passed, if it erred at all, did so on side of leniency. This court is unable to 13 conclude that this sentence was either wrong in principle of manifestly excessive. 14 15
Accordingly, this appeal is dismissed. 16 17 18 19 Dated this the 3rd December 2020 20 21 22 23 Justice Roger Chapple 24 Acting Judge of the Grand Court 25 26 27 28