Quin J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO.: 98/2012 (Carter) INDICTMENT NO.: 98A/2012 (Ebanks) INDICTMENT NO.: 106/12 (Crawford) INDICTMENT NO.: 85/13 (Brandon Liberal) REGINA v. MANUEL RAMIREZ CARTER JOHN PHILLIP COHEN EBANKS TARRICK KEVIN CRAWFORD BRANDON RENO LIBERAL Appearances: Mme. DPP Cheryll Richards Q.C. and Mr. Neil Kumar for the Crown Mr. John Furniss for Brandon Liberal Mr. Charles Clifford for Manuel Carter Mr. Clyde Allen for John Phillip Cohen Ebanks Before: The Hon. Mr. Justice Charles Quin Sentence Submissions heard: 10th April 2014 - Brandon Liberal and Manuel Carter 14th May 2014 – John Phillip Cohen Ebanks 8th & 23rd July 2014 – Tarrick Crawford SENTENCE RULING
This is the Court’s decision on the sentences to be imposed for three of the four Defendants on this Indictment, namely, Manuel Carter ("Mr. Carter"), Brandon Liberal ("Mr. Liberal") and John Phillip Cohen-Ebanks ("Mr. Cohen-Ebanks"). The fourth Defendant, Tarrick Crawford, has been deemed unfit to plead and, as at today’s date, submissions are still to be heard in relation to Mr. Crawford. PROCEDURAL HISTORY
This matter has a complicated history and, accordingly, I now set out the relevant proceedings.
On the 31st October 2012 an indictment was laid against Mr. Carter and Mr. Cohen-Ebanks for charges of Robbery and Possession of an Unlicensed Firearm in relation to the robbery of BritCay Insurance Company on the 4th October 2012.
Less than a month later, on the 28th November 2012, an Indictment was laid against Tarrick Crawford, charging him as acting along with others to carry out the same robbery whilst in possession of an unlicensed firearm.
On the 9th November 2012 Mr. Carter pleaded not guilty to both counts on that Indictment.
On the 14th June 2013 Mr. Cohen-Ebanks pleaded not guilty to both counts on the Indictment.
On the 23rd June 2013 Mr. Cohen-Ebanks pleaded guilty to both counts on the Indictment.
Between July and December 2013 Mr. Cohen-Ebanks provided statements to the police which resulted in an Indictment being laid against Mr. Liberal on the 11th December 2013.
On the 13th December 2013, Mr. Liberal, pleaded not guilty to both counts on that Indictment.
On the 12th February 2014, the DPP laid a new joint Indictment – Ind. 98/2012 and Ind. 85/2013 against Mr. Carter and Mr. Liberal.
THE CURRENT INDICTMENTS in this case read as follows: i. R v. Manuel Ramirez Carter and Brandon Liberal (a) Indictments 98/12 and 85/13 - Dated the 12th February 2014. (b) Count 1 – Robbery, Contrary to s.242(1) of the Penal Code (2010 Revision) The Particulars of the offence are that Manuel Ramirez Carter and Brandon Liberal, on Thursday the 4th day of October 2012, in George Town, Grand Cayman, Cayman Islands, stole CI$8,117.00 and US$593.00 the property of BritCay Insurance Company, and at the time of so doing and in order to do so sought to put Winston Nelson in fear of being then and there subjected to force. (c) Count 2 – Possession of an Unlicensed Firearm, contrary to s.15(1) and (5) of the Firearms Law (2008 Revision). The Particulars of the offence are that these Defendants, on Thursday the 4th day of October 2012, in George Town, Grand Cayman, Cayman Islands, had in their possession a firearm, namely a Bryco semi-automatic pistol, not under and in accordance with the terms and conditions of a Firearm’s User’s (Restricted) Licence. ii. Re R v. Manuel Ramirez Carter and John Phillip Cohen Ebanks (a) Indictments 98/12 and 98A/12 - Dated the 31st October 2012. (b) Count 1 – Robbery, Contrary to s.242(1) of the Penal Code (2010 Revision) The Particulars of the offence are that Manuel Ramirez Carter and John Phillip Cohen Ebanks, on Thursday the 4th day of October 2012, in George Town, Grand Cayman, Cayman Islands, stole CI$8,117.00 and US$593.00 the property of BritCay Insurance Company, and at the time of so doing and in order to do so sought to put Winston Nelson in fear of being then and there subjected to force. (c) Count 2 – Possession of an Unlicensed Firearm, contrary to s.15(1) and (5) of the Firearms Law (2008 Revision). The Particulars of the offence are that Manuel Ramirez Carter and John Phillip Cohen Ebanks on Thursday the 4th day of October 2012, in George Town, Grand Cayman, Cayman Islands, had in their possession a firearm, namely a Bryco semi-automatic pistol, not under and in accordance with the terms and conditions of a Firearm’s User’s (Restricted) Licence. iii. Re R v. Tarrick Kevin Crawford (a) Indictment 106/12 - Dated the 28th November 2012. (b) Count 1 – Robbery, Contrary to s.242(1) of the Penal Code (2010 Revision) The Particulars of the offence are that Tarrick Kevin Carter† Crawford, on Thursday the 4th day of October 2012, in George Town, Grand Cayman, Cayman Islands, together with another person, stole CI$8,117.00 and US$593.00 the property of BritCay Insurance Company, and at the time of so doing and in order to do so sought to put Winston Nelson in fear of being then and there subjected to force. (c) Count 2 – Possession of an Unlicensed Firearm, contrary to s.15(1) and (5) of the Firearms Law (2008 Revision). The Particulars of the offence are that Tarrick Kevin Crawford on Thursday the 4th day of October 2012, in George Town, Grand Cayman, Cayman Islands, together with another person had in your possession a Bryco .380 semi-automatic pistol, not under and in accordance with the terms and conditions of a Firearm’s User’s (Restricted) Licence. 1 Indictment bore this typographical error.
A trial date was set for the 24th February 2014. On this date, the Defendants Carter and Liberal were re-arraigned on the new joined *Carter-Liberal* Indictment which contained the same two counts of Robbery and Possession of an Unlicensed Firearm, and both pleaded not guilty.
On the 24th February 2014, a jury was empanelled but the Defendants were not put under its charge, as both Defendants indicated that they wished to apply for a Goodyear Direction in relation to Count 1.
On the 25th February 2014 this Court heard a Goodyear application in relation to both Mr. Carter and Mr. Liberal and the Court stated that the maximum sentence the court would impose – with a guilty plea to Count 1 from both Defendants – is 7 years.
*On the 25th February 2014* – following on from the Goodyear direction, both Mr. Carter and Mr. Liberal were re-arraigned and both pleaded guilty to Counts 1 and 2 on the Indictment. THE FACTS
Shortly after 1 p.m. on Thursday the 4th October 2012, an employee of Sprint Express Services ("Sprint") completed a delivery at Grand Pavilion on the West Bay Road. He proceeded along the West Bay Road on to Eastern Avenue where he stopped at BritCay House for another delivery and pick up. The Sprint employee was travelling in a white Toyota Yaris motorcar which bore the Sprint company logo. He parked at the front of the building and then entered the building and made a delivery and collected a black bag with three night deposit bags. He placed that bag in a blue canvas Sprint bag, signed for it and left the office. As he returned to the Sprint motorcar he had the deposits under his arm in the Sprint bag. As he approached his driver's door he observed a white car coming from the left of the parking lot but did not pay it much attention. As he opened his door the Defendant, Carter, came up to him, pointed a gun towards his stomach and demanded the bag carrying the deposits.
The Sprint employee said the man that we now know to be the Defendant Carter was wearing a mask, with the eyes and mouth cut. The gun did not actually touch the Sprint employee's stomach, but Carter was able to take the bag from him and he then got back into the white car.
The Sprint employee saw the white car exit the complex and turn right on to Eastern Avenue.
A 911 call was made and the police responded quickly to the call. PC Tamara Jackson was on mobile patrol duty in the George Town area when she overheard the 911 transmission. She saw a parked white vehicle bearing the registration plate #135 064 and, when checked, discovered that this plate did not match the description of the vehicle and the DVL. PC Jackson then called for assistance. PC Rabess and PS Harvey responded to the call and arrived at 1:45 p.m. They checked the vehicle and found it was still warm – having been abandoned on a grass verge. They called the canine unit and began searching the area. PC Rabess and PS Harvey found the black bag, the blue pouch, a black hand-held radio and open envelopes and immediately called for a Scenes of Crime officer.
At approximately 2:25 p.m. SOCO Camille Haughton took photographs and secured the items which included: the Butterfield blue zipper bag; the Motorola radio; the Butterfield cheques; a pair of jeans pants; a small firearm – the black Bryo semi-automatic pistol, serial number #1191048; 3 rounds of ammunition – 2 of which were viable.
The Bryo semi-automatic pistol firearm was tested by the Ballistics Expert, Mr. Allen Greenspan and the RCIPS firearms officer, Officer Stewart, and found to be capable of discharging bullets and therefore the firearm is a lethal weapon within the meaning of the Firearms Law.
The items secured were examined for fingerprints and DNA. Mr. Cohen-Ebanks’ fingerprints were found on envelopes. Mr. Carter’s fingerprints were found on the green receipt. Mr. Carter’s DNA was found in the pockets of the pair of jeans pants – together with the lighter found in the same pocket. The firearm was found in a jeans pocket. Mr. Carter’s DNA was found on the right front door of the white vehicle.
CCTV footage was taken from the parking area of Kirk Home Centre which identified Mr. Cohen Ebanks in the parking lot shortly before the robbery took place.
Mr. Cohen-Ebanks’ statements confirm that the Defendants had been observing the Sprint courier vehicle. It should be noted that the Defendants had been observing this vehicle on Monday the 1st October 2012 when the three men had driven in Mr. Liberal’s red SUV to reconnoitre the scene.
On the 3rd October 2012 the Defendants had actually planned to execute the robbery but the Sprint Courier did not turn up.
From Mr. Cohen-Ebanks’ statement it was established that on the 4th October 2012 Mr. Liberal and Mr. Cohen-Ebanks left Mr. Cohen-Ebanks’ house in Mr. Liberal’s red SUV. They went to pick up Mr. Carter and then Tarrick Crawford. From there they drove into George Town – to the house of a man called Big Jeff. At Big Jeff’s was the white car which was to be used for the robbery.
Mr. Liberal left Big Jeff’s house in his red SUV and returned in a gray KIA motorcar which belonged to his (Mr. Liberal’s) girlfriend. This time Mr. Liberal handed to another man called Big Brother, a small grey gun. Big Brother handed the gun to Mr. Carter, who put it in his waistband.
Mr. Liberal then said, "It's time to go." Mr. Cohen-Ebanks got into the driver's seat of the white motorcar and Mr. Carter got into the backseat. Mr. Liberal and Mr. Crawford got into the grey KIA – with Mr. Liberal driving. The KIA drove to the parking lot of Kirk Home Centre. Mr. Cohen-Ebanks and Mr. Carter followed them there and the all waited in the parking lot. They used hand-held radios to communicate with each other.
At some point Mr. Cohen-Ebanks began getting "cold feet" and walked over to Mr. Liberal to tell him not to go through with it. Mr. Cohen-Ebanks eventually returned to the car he drove and then Tarrick Crawford delivered a message to Mr. Cohen-Ebanks from Mr. Liberal which said he was "not to mess up on him."
The CCTV footage from Kirk Home Centre confirms that Mr. Cohen Ebanks was seen walking from the white motor vehicle to Mr. Liberal’s grey KIA.
After a further wait, Mr. Liberal gave the signal over the handheld radio saying: "The food is ready" or, as Defence counsel said he said, "the food is on the table."
At that point Mr. Cohen-Ebanks saw the Sprint vehicle drive into the car park at BritCay. In his statement Mr. Cohen-Ebanks tells the police that he drove to the front of the BritCay building and told Mr. Carter to "go and get him." Mr. Carter pulled on his mask and went up the courier with the gun he had put in his waist in his hand, grabbed the bag and got back into the white vehicle.
Mr. Cohen-Ebanks drove out of the BritCay parking lot, on to Eastern Avenue and then over to Puritan cleaners, where they had agreed to meet up with Mr. Liberal and Tarrick Crawford.
Mr. Cohen-Ebanks received a call from Mr. Liberal which advised that there was a police car near the Uncle Bills store and, accordingly, they drove to an area behind Puritan Cleaners – beside an old container. There they cut open the bags, removed the cash – throwing the papers and cheques to the ground of the car. Mr. Carter removed his clothing and left his pants with the gun and ammunition inside them. Mr. Cohen-Ebanks and Mr. Carter left the white vehicle, ran over to North Church Street, where they were picked up by Mr. Liberal in the grey KIA. Mr. Liberal then drove them to West Bay.
When they got to West Bay Mr. Cohen-Ebanks handed the money over to Mr. Liberal. At this point Mr. Liberal asked for the gun and the radio and Mr. Carter told him he had left them behind. Mr. Liberal became angry.
At Mr. Liberal’s home he distributed the money between Mr. Cohen-Ebanks and Mr. Carter and Mr. Crawford.
Mr. Carter was arrested on suspicion of robbery on the 4th October 2012. He was interviewed on the 5th and 6th October 2012 and in his interviews he said he was at home all day on the 4th October 2012.
Mr. Liberal was interviewed on the 29th and the 30th November 2013 and denied being involved in the robbery. Ultimately cell phone evidence was obtained and telephone analysis confirmed Mr. Liberal’s communication with Mr. Carter and Mr. Cohen Ebanks on the day of the robbery and at the time of the robbery.
The Sprint employee said that he has never forgotten the events of that day. He said the incident will never go away from his memory. At the time he was extremely frightened when Mr. Carter approached him with the handgun. He said the robbery only lasted for a few seconds but the handgun was pointed at his stomach. Throughout the weeks following the incident he kept going over the robbery in his mind. He said the robbery affected his health, in that, he began drinking more heavily as a way to fall asleep and he now finds that he is scared to go out and he opts to stay home or at a friend's home. As a result of the robbery the victim had to stop working as a courier and he still feels affected by the event. SUBMISSIONS ON BEHALF OF MANUEL CARTER
Counsel for Mr. Carter acknowledged that the Defendant was aware that the robbery was going to take place. In fact, the robbery was to have taken place on the day prior, on the 3rd October 2012, but the Sprint vehicle did not arrive. Counsel acknowledges that the Defendant was aware of the facts and circumstances, but, at the time, he was under the influence of both cocaine and ganja, and the Defendant specifically recalls being under the influence of cocaine at the time of the robbery. As a consequence, counsel submits that the facts were "fuzzy" for the Defendant and the Defendant did struggle with his ability to recall each and every related fact.
Notwithstanding the Defendant's knowledge of and participation in the robbery, counsel asks the court to accept that the Defendant had pleaded guilty, avoiding the need for a trial – albeit one year and four months after the Indictment was laid on the 31st October 2012.
Counsel informs the Court that the Defendant, Carter, was born in Cuba to a Caymanian father and a Cuban mother, and did not arrive in the Cayman Islands until he was 5 or 6 years of age. As a result of having Spanish as his mother tongue he had language problems and was, actually, referred to the Lighthouse School because he was considered a very slow learner. Counsel submits that the Defendant had a very difficult start in life and, as a result of these early challenges Mr. Carter exhibited significant anti-social behavioural problems, which led to serious crime in his adult years.
Counsel points out that the Defendant now sees the error of his ways and realises that he must change his lifestyle, or, otherwise, he will spend the rest of his life in prison. Quoting from the SIR, counsel refers to the section where Mr. Carter states: "I was not thinking about the consequences because of this drug thing, it doesn't give me time to think and, because I wanted that drug, that is why I know I did it."
Counsel went on to add that his client now feels bad because, "it (the robbery) is keeping him away from everything that he loves." Counsel said the offence also gave him a name which he never wanted to have, namely, "a robber."
In conclusion, counsel submits that Mr. Carter has seen the error of his ways and that is the main reason for his guilty plea.
Counsel stated that because the firearm, of itself, is an aggravating factor in connection with the Robbery, it would be usual and reasonable for the term of imprisonment imposed for Count 1, the Robbery charge, to run concurrent with the term for Count 2, rather than consecutive
Like counsel for Mr. Carter, counsel for Mr. Liberal stated that because the firearm, of itself, is an aggravating factor in connection with the Robbery, it would be usual and reasonable for the term of imprisonment imposed for Count 1, the Robbery charge, to run concurrent with the term for Count 2, rather than consecutive. Counsel for Mr. Liberal stated that this approach is consistent with the case law in the Cayman Islands and the United Kingdom.
Counsel for Mr. Liberal stated that although Mr. Liberal’s guilty plea was late – entered on the 25th February 2014 when his client was first charged in December 2013 – it still saved the Court at least two weeks of valuable court time and avoided Crown witnesses being subject to cross examination.
Counsel concedes that Mr. Liberal participated in the robbery and because of the fact that all four defendants participated in the robbery, they are all equally guilty of possession of the firearm and that the firearm was part of the robbery.
Counsel acknowledges that the expression “the food is ready” was Mr. Liberal’s words and counsel added that the expression was actually “the food is on the table” but for the purposes of this hearing the difference is immaterial. Mr. Liberal was clearly giving the signal to go.
Counsel points to the fact that all four Defendants played a particular part. Mr. Carter put the gun to the Sprint employee, collects the money and brings it back to the car; Mr. Cohen Ebanks was the getaway driver and played a part in the planning. However, counsel states that the person who supplied the firearm to Mr. Liberal and Big Jeff are not before the court.
At the close of proceedings on the 8th July 2014 and today, counsel on behalf of Mr. Liberal drew the court’s attention to the fact that, on the 14th April 2014 – some four days after the Sentencing Submissions were made by him on the 10th April 2014 on behalf of Mr. Liberal – Mr. Liberal requested a meeting at which he offered to assist the police with the recovery of an illegal firearm, that is, a .22 revolver. Mr. Furniss explained that the recovery of the firearm took place shortly afterwards. Mr. Furniss advised that the firearm “was functional” even though he accepts that it was capable of firing only once and, in addition, there was no connection between the firearm recovered and the charges against Mr. Liberal on Indictment 85/2013. Mr. Furniss asks the Court to note that an Indictment was not laid against Mr. Liberal until December 2013 and, therefore, Mr. Liberal has provided this assistance with the discovery of an unlicenced firearm only some 4 months after being charged. Therefore, Mr. Furniss states it would be wrong of the Court to view Mr. Liberal’s association with this case as being as long as that of his co-defendants – that is, more than a year prior in October 2012. Mr. Furniss states that, in light of the existing dangers when an illegal firearm is “on the streets” and, in light of this Court’s view, expressed in the past, relating on the importance of persons cooperating with the authorities for the recovery of firearms, Mr. Liberal is entitled to credit for the production of the weapon. Counsel asks the Court to consider that this is an exceptional circumstance for the purpose of s.39 of the Firearms Law.
As I stated on the 8th July 2014, I cannot find how the handing in of an unlicenced firearm – one that is wholly unrelated to the events of the 4th October 2012 – could constitute “exceptional circumstances” in relation to Count 2 of this Indictment, or in relation to Mr. Liberal.
Further, it is my view that, Mr. Liberal, having now pleaded guilty to the robbery which occurred almost 2 years ago on the 4th October 2012, involving the use of a firearm, is, by his own guilty plea, and, in the eyes of the Court, associated with this crime since the 4th October 2012. Therefore, this Court rejects Mr. Furniss’ submission that this is not a late act on the part of Mr. Liberal because his Indictment was laid just over 12 months after the Indictment against Mr. Carter and Mr. Cohen-Ebanks. Mr. Liberal, having now pleaded guilty to robbery involving the use of a firearm which occurred in October 2012, for which the basis of his plea includes the fact that he was the one who supplied the firearm to Mr. Carter to point towards the stomach of the Sprint employee, has, in this Court’s view, stood silently by for more than a year and a half while the RCIPS invested a large amount of manpower and resources into investigating this crime.
Mr. Liberal’s assistance to the police has now occurred far too late – a mere afterthought long after he had fully instructed his counsel through his Goodyear hearing on the 24th February 2014 and the full mitigation submissions made on his behalf at the Sentence hearing on the 10th April 2014.
Accordingly, it is my view that, whilst Mr. Liberal’s handing in of a weapon was a creditable act on his part, this assistance is far too late and it does not alter his position in relation to this Indictment. I therefore reject the submission that the handing in of an unrelated firearm, sometime after Mr. Liberal had already fully instructed his counsel through a sentence hearing on his behalf, is an exceptional circumstance and deserving of a discounted term of imprisonment.
The Court can take judicial notice of the fact that there has been no amnesty in relation to firearms in the late 2013 or in 2014 and, therefore, whilst the Court commends Mr. Liberal for handing in an unlicenced firearm, the fact that he has not been charged with another offence of possession of an unlicenced firearm, means that the authorities have already given him the credit he seeks. Consequently, and despite the fact that there is no current amnesty, in handing in the illegal firearm Mr. Liberal has avoided facing a new and second charge for possession of an unlicenced firearm contrary to s.15(1) and (5) of the Firearms Law (2008) Revision.
Accordingly it is my view that this late handing in of the unlicenced firearm does not, in my opinion, constitute “exceptional circumstances” relating either to Count 2 on Indictment 85/2013 or to Mr. Liberal which would justify this Court giving Mr. Liberal less than the minimum prescribed of seven (7) years’ imprisonment. JOHN PHILLIP COHEN EBANKS
This Defendant gave a number of statements denying his involvement and then, at a later stage, provided statements giving full details of how the robbery occurred and the roles each robber played.
Mr. Ebanks gave the Crown further witness statements and expressed a willingness to give evidence on behalf of the Crown. Mr. Cohen-Ebanks maintained this position for several months, right up to the start of the trial, including on the 14th February 2014, when he gave a further witness statement before trial – indicating certain corrections to details of the robbery.
Furthermore, Mr. Cohen-Ebanks was physically present at the beginning of the trial on the 24th February 2014 – fully ready and prepared to give evidence against the other Defendants.
Mme DPP stated that this Defendant has been of significant assistance to the prosecution and the RCIPS has said that, without his evidence and his willingness to assist, they would have failed to identify two of the other three offenders responsible for the robbery.
Somewhat similar to Mr. Carter, Mr. Cohen-Ebanks has said that his addiction to cocaine has led him into the difficulties he now faces, and is largely responsible for his poor criminal record.
Counsel points to the fact that before the robbery took place Mr. Cohen-Ebanks tried to stop the robbery, or at least tried to get himself out of it. However, the evidence shows that the Defendant was forced into continuing by Brandon Liberal who threatened to harm Mr. Cohen-Ebanks and his family if he didn’t carry out the robbery as planned.
Counsel stated that serious consideration was given to the Defence of duress in relation to Mr. Cohen-Ebanks but, Mr. Cohen-Ebanks accepted his responsibility in the robbery. At that stage, he had made it clear that he would be prepared to assist the Crown by giving evidence against the other offenders.
Aside from cocaine, Mr. Cohen-Ebanks said he used the money he obtained from the robbery to pay his mother’s medical bills and, since that time, his mother has passed away.
Counsel explained that one of the reasons for the delay in assisting was the time it took to ascertain whether or not the defence of duress was open to Mr. Cohen-Ebanks.
Counsel submits that, despite threats to the Defendant’s life he has come forward and provided very significant information to the police – which has assisted the prosecution of this case and, ultimately led to the guilty pleas of two other offenders.
Counsel has acknowledged that his client is not of exemplary character. He does have a bad record. However, this Defendant was never the ringleader or the mastermind.
Counsel also points out that the firearm was not given to Mr. Cohen-Ebanks; it was given to Mr. Carter and Mr. Carter sat behind Mr. Ebanks.
Counsel relies heavily on the significant assistance his client has given to the police and the Crown and contends that, together with Mr. Cohen-Ebanks’ contrition and remorse can constitute exceptional circumstances in relation to Count 2. Counsel relies upon the fact that Mr. Cohen-Ebanks’ assistance to the police and his willingness and preparedness to give evidence right up to the 24th February 2014, constitutes one single striking feature – which itself can constitute exceptional circumstances in relation to Mr. Cohen-Ebanks for the purposes of imposing a sentence less than the minimum sentence of seven (7) years for Count 2. ANALYSIS AND CONCLUSION
I am grateful to the DPP and to all counsel for the Defendants for their helpful review of both the UK and the Cayman authorities.
It is common ground that this offence is a street robbery with the use of a firearm. Under the Chief Justice’s Sentencing Guidelines² (the Guidelines) at page 6 this offence could attract a tariff of 14 years imprisonment for a first offence involving the use of a firearm. Under the UK Sentencing Council Guidelines this would equate to a Level 2 offence. At page 11, the UK Sentencing Guidelines set out the various starting points for the offence of a street robbery or robbery of a small business. Under s.225 and 227 of the UK Criminal Justice Act 2003 robbery is a serious offence with a maximum penalty of life imprisonment. Under Cayman law, the maximum penalty is also life imprisonment.
It is agreed between counsel that Count 1 is a level 2 offence and the Guidelines set out a starting point of 4 years’ custody with a sentencing range of 2 to 7 years’ custody, depending on the nature and duration of the threat.
In this case there are several aggravating factors which would warrant a more severe sentence and, if the aggravating factors are exceptionally serious, the case may move to the next level of seriousness, namely, Category 3. ² Statement on Tariffs and Guidelines for Sentencing for Certain Offences 2002
In this case: i. We have a loaded firearm. ii. We have four offenders before the court. iii. It is clear that the offence was pre-planned with some considerable organization. iv. We have two different vehicles being used – one to commit the robbery and another to get away from the robbery. v. We have the switching of licence plates for the vehicles. vi. We have the presence and use of handheld radios for the robbers to communicate with each other. vii. The Defendant Carter who actually used the gun to execute the robbery wore a disguise in the form of a ski mask to conceal his identity. viii. A large sum of money was targetted for the robbery. ix. Three Defendants played a very active part
There is evidence to suggest that Liberal supplied the handheld radios and made sure that Cohen-Ebanks did not back out of the planned robbery at the last moment. In addition, Liberal is the one who gave the signal to go when he said either "the food is ready" or "the food is on the table" – clearly indicating that he was the man who was directing the heist. It was Liberal who spotted the police near to the pre-arranged meeting point after the robbery and, consequently, warned Carter and Cohen-Ebanks not to go there.
The UK Sentencing Guidelines state: "It is the use of violence that is the most serious part of the offence of robbery, but it is not the only determinative factor. The relative seriousness of each offence depends on factors such as the degree of injury to the victim or the nature and duration of threats. The degree of force used is important in determining the seriousness of the offence but the degree of fear which was experienced by the victim is a relevant consideration."
In this case the Sprint employee suffered a terrifying and traumatic fright. He is no longer able to be employed as a courier and finds adjusting to normal activities such as going out with other people, extremely difficult. One cannot underestimate the effect such a terrifying incident, with a gun being pointed at him, must have had on this innocent victim.
The President of the CICA Sir John Chadwick stated at paragraph 11 in the case of the R v. Haylock, Avila McLaughlin and Watson³: "... those who arm themselves with weapons and undertake pre-meditated robbery of small commercial businesses in these islands must expect at least five years' imprisonment if they are convicted."
As a result of the high number of aggravating factors in this case the starting point for Count 1 has to be between six (6) and seven (7) years. It should be noted that this is at the higher end of the range for Category 2 offences recommended by the SGC. It is a long established principle that the earlier an accused pleads guilty, the greater the reduction in the sentence imposed by the Court. Had the accused, Carter and Liberal, pleaded guilty from the outset, they would have been entitled to a discount of 33 1/3 %. As they maintained their not guilty pleas until the day of the trial, and after a jury had been empanelled, any discount can only be 10% or less. ³ CICA (Crim) No. 33 of 2010
Mr. Carter was the robber who actually put on the mask and pointed the gun at the victim outside BritCay. Mr. Carter took the bag containing the cash from the Sprint courier. Mr. Carter has 23 previous convictions, including six for Burglary and Attempted Burglary, 3 for Criminal Trespass and convictions for Aggravated Criminal Trespass, Common Assault and Assault Causing Actual Bodily Harm.
There is sufficient evidence for the Court to find that Mr. Liberal played a, if not the, major role in organizing the robbery. He was involved in obtaining the firearm from others not before the Court. The evidence shows that he provided the vehicles and the false registration plates for the vehicles used in the robbery. He provided the hand-held radios for the robbers to communicate with each other before and after the robbery. He made sure that Cohen-Ebanks did not back out of the robbery when it was clear that Mr. Cohen-Ebanks was having second thoughts. Mr. Liberal was the one who gave the signal to go when he said, via his radio, "the food is ready" or "the food is on the table". After the robbery Mr. Liberal was the one who warned Carter and Cohen Ebanks not to go to the pre-arranged meeting point as the police were nearby. Finally, and very significantly, Mr. Liberal was the one to whom the money was handed after the robbery and he was the one who allocated and distributed the portions to the other robbers.
Mr. Liberal, on the other hand, unlike Mr. Carter, has only 2 convictions – one for possession of ganja and the other for disorderly conduct. However, in view of his leading role in this armed robbery, I can find no good reason to impose a lesser sentence than one imposed for Mr. Carter.
Accordingly, in all the circumstances I find that, on Count 1 both Defendants should be sentenced to six (6) years’ imprisonment:
On Count 2 both Defendants are sentenced to seven (7) years’ imprisonment – the minimum prescribed by the law – to run concurrent to the sentence on count 1. MR. JOHN PHILLIP COHEN EBANKS
Mr. John Phillip Cohen Ebanks has 59 previous convictions. The Court notes that of those 59, 28 offences relate to the consumption and possession of illegal drugs. He has 2 offences of burglary and several offences of obtaining property by deception and uttering a false document, and, one conviction for theft.
In England, assistance to law enforcement agents is governed by the Serious Organised Crime and Police Act 2005 (SOCPA). In the Cayman Islands we do not have any corresponding legislation.
The English Court of Appeal in the case of *R v. P and Derrick Stephen Blackburn*⁴ reviewed the case law in relation to Defendants assisting investigations and prosecutions – both before the SOCPA and since. This Court notes that the UK statute did not include any direct provisions suggesting the level of discount appropriate to be provided to the Defendant who entered into and performed an agreement to assist the prosecution. At Chapter E 1.13 of *Blackstone's Criminal Practice 2014*, the learned editors state that s.73 and 74 of the SOCPA are silent as to the appropriate extent of any reduction to reflect actual or promised assistance by the offender. The former Lord Chief Justice, Lord Judge, in *R v. P and Derrick Stephen Blackburn* stated that the pre SOCPA Court of Appeal authorities are still relevant despite the introduction of the statutory scheme. ⁴ [2008] 2 Cr. App R. (S) 16
The learned editors of the Archbold 2014 review the case law provided other than in accordance with the new SOPCA 2005 Act. At paragraph 5-139 the learned editors of Archbold refer to R v. P and Derrick Stephen Blackburn and R v. Sinfield5 and state that an offender who assists the police by giving information that leads to the apprehension and prosecution of his associates or of other offenders may expect a discount – possibly substantial – from his sentence.
In R v. Michael King6 the English Court of Appeal set out some guidelines regarding the appropriate discounts for those who assist the authorities in their investigation and prosecution of offenders. Stating that it would be impossible to lay down any hard and fast rule, the Lord Chief Justice, Lord Lane, said: "The amount by which that figure should be reduced would depend on a number of variable features; the quality and quantity of the material disclosed ... its accuracy and his willingness to confront other criminals or give evidence against them." The Lord Chief Justice, giving the opinion of the Court of Appeal stated that there should be an expectation of some substantial reduction of what otherwise would be the proper sentence and suggested that the amount would vary between a half and two-thirds of the appropriate sentence.
Some three years later the English Court of Appeal in R v. Sivan7 confirmed that it was a well-established feature of sentencing practice that credit should be given to a Defendant in certain circumstances for assistance or information given to the authorities. The Court of Appeal said that the matters that should be taken into account are: 5 3 Cr App R (S) 258 6 7 Cr. App R. (S) 227 7 10 Cr. App R. (S) 282 "The nature and the effect of the information, did it bring justice to persons who otherwise would not have been brought to justice, and the degree of the assistance provided, namely, was the offender prepared to give evidence, and, finally, the degree of risk to which the defendant had exposed himself and his family. Within those limits the judge must bring himself to tailor the sentence so as to punish the Defendant, but at the same time reward him as far as possible for the help he had given, in order to demonstrate to offenders that it was worth their while to disclose the criminal activities of others for the benefit of the law-abiding public in general."
Finally, in considering the appropriate reduction, there are authorities to suggest that the judge should consider the reduction for the assistance separate and apart from any reduction for a plea of guilty. However, in R v. Sehitoglue (Dervis)8 the English Court of Appeal stated that the sentencer should determine the final sentence by calculating a single discount – taking into account all the relevant factors including the plea of guilty and the assistance given to the authorities. I follow and adopt this approach from Mr. Cohen-Ebanks.
In R v. P and Blackburn the Lord Chief Justice, Lord Judge, endorsed the totality principle when it came to sentencing in cases of this nature and stated that the normal level for reduction would continue to be a reduction of between a half and two-thirds.
Had Mr. Cohen-Ebanks not provided this substantial assistance to the RCIPS and the Crown, I would have imposed a sentence of 6 years’ imprisonment on Count 1. In light of his substantial assistance and willingness to give evidence at trial, I impose a sentence of three (3) years’ imprisonment.
I turn now to this Defendant’s guilty plea to Count 2. 8 [1998] 1 Cr. App R. (S) 89 CA
Section 39(2) of the Firearms Law (2008 Revision) reads: "(2) Notwithstanding sections 6(2) and 8 of the Criminal Procedure Code (2006 Revision), the court of summary jurisdiction or the Grand Court before which the individual pleads guilty or is convicted, shall- (a) in a case where the individual pleads guilty, impose a sentence of imprisonment for a term of at least seven years (with or without a fine); or (b) in any other case, impose a sentence of imprisonment for a term of at least ten years (with or without a fine), unless the relevant court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so; and such exceptional circumstances shall be stated by the relevant court."
In the case of Chavarria-Atily v. R9 the CICA applied Lord Bingham’s dicta in R v. Avis et al. The Acting President Forte JA set out Lord Bingham’s guidelines and added the following words at paragraph 10 of his Judgment: "In the Cayman Islands, it has been the massive increase in offences under the Firearms Law that has led Parliament to enact the minimum sentences in respect of those offences, while at the same time making special provision for cases of exceptional circumstances."
The English Court of Appeal in R v. Zakir Rehman and Gary Dominic Wood10 examined the question of "exceptional circumstances" in relation to the minimum sentence under the UK Firearms Act 1968, which are similar to the provisions under our Firearms Law. The then Lord Chief Justice, Lord Woolf stated: "The question of exceptional circumstances in that context has been considered in Buckland (2000) 2 Cr. App R (S) 217. In the light of that decision the court considered that it was not appropriate to look at each circumstance separately and then to conclude that it did not amount to an exceptional circumstance. A holistic approach was needed. There would be cases where there was single striking feature which related either to the offence or the offender, which caused that case to fall within the requirement of "exceptional circumstances." There could be other cases where no single factor by itself would amount to an exceptional circumstance, but the collective impact of all the relevant circumstances truly made the case exceptional." 9 [2009] CILR 118 10 (2006) 1 Cr App R. (S) 77
In Chavarria-Atily v. R the Cayman Islands Court of Appeal referred to R v. Zakir Rehman and Gary Dominic Wood and added at paragraph 12 of their Judgment: "We would say, however, that the section (in the Firearms Law) makes it clear that it is the opinion of the court that is critical as to what constitutes exceptional circumstances." In Chavarria-Atily v. R the Court of Appeal did not disturb the Grand Court's finding of exceptional circumstances.
The DPP has confirmed to the Court that the Defendant Mr. Cohen-Ebanks provided several statements which assisted both the investigation of this case and the prosecution of both Carter and Liberal. Ms. Richards has confirmed that since Mr. Cohen-Ebanks gave his statements assisting the police he had always expressed a willingness to give evidence in court and he maintained that position right up to the 24th February 2014 when the jury was empanelled. Mme DPP confirmed that, in summary, this Defendant has been of significant assistance and the police have stated that, without his assistance they would have been unable to identify 2 of the 3 offenders responsible for the robbery.
The Court notes that Mr. Cohen-Ebanks cannot be described as a person of good character in light of his record which demonstrates that he had or has a serious drug addiction which led to many offences under the Misuse of Drugs Law and other criminal offences.
Defence counsel for Mr. Cohen-Ebanks submits that his client’s assistance constitutes a single striking feature and his willingness to come forward and help the police – notwithstanding the threats to him and his family – constitute exceptional circumstances.
I am satisfied when a Defendant gives such significant assistance – assistance which enables the police to apprehend the perpetrators of such a serious crime, and assistance which includes giving evidence in the court proceedings – this constitutes, in my view, “exceptional circumstances” relating to Mr. Cohen-Ebanks. This view justifies me not imposing a minimum sentence of seven (7) years’ imprisonment.
Accordingly, I impose a sentence of three (3) years’ imprisonment in relation to Count 2, with time spent in custody to be deducted. Dated this the 23rd day of July 2014 Honourable Mr. Justice Charles Quin Judge of the Grand Court