R v Devon Wright Jr - Sentence Ruling

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 87/10 THE QUEEN V DEVON EMMANUEL WRIGHT JR. Appearances: Ms. Marilyn Brandt Crown Counsel, for the Crown Mr. John Furniss for the Defendant Before: The Hon. Mr. Justice Charles Quin Heard: 16th August 2011 SENTENCE RULING Introduction

¶ [1] On the 16th August 2011 the Defendant, Devon Emmanuel Wright Jr., was found guilty, following a Judge Alone trial, on two Counts, namely, damage to property, contrary to s.267(1) of the Penal Code, and burglary, contrary to s.243(1) of the Penal Code Law (2007 Revision).

¶ [2] The particulars of the first Count were that the Defendant, together with a person unknown, on the 18th July 2010, at 150 Mary Street, George Town, Grand Cayman, without lawful excuse, willfully damaged the building known as Solomon’s Grocery, the property of Mr. Louis Solomon, with damage totaling CI$23,000.00.

¶ [3] The particulars of Count 2 are that the Defendant, together with a person unknown, on the 18th July 2010, at 150 Mary Street, George Town, Grand Cayman, entered as a trespasser, Solomon’s Grocery, and stole a cash register belonging to Mr. Louis Solomon. Submissions from Defence Counsel

¶ [4] Defence counsel, Mr. Furniss, observed that the Defendant was not entitled to any benefit of a guilty plea.

¶ [5] Defence counsel, quite properly, acknowledged that there was the aggravating feature of the damage to the property, which was considerable.

¶ [6] Mr. Furniss also acknowledges that the Defendant has eight (8) previous convictions for burglary offences.

¶ [7] However, Mr. Furniss pointed out that unlike many cases in recent months, this was not a robbery, and there was no question of any firearm being involved.

¶ [8] Mr. Furniss also highlights the young age of the Defendant – 20 years old – and points to the fact that the driver of the vehicle in this case was older. Mr. Furniss explained that the driver, who is now deceased, was a man of 29 years, who also had a criminal record. Accordingly, Mr. Furniss not only submitted that the older man was the person who actually caused the damage to Solomon’s Grocery, but also that it was the driver who acquired the vehicle. Therefore, Mr. Furniss asks the Court to accept that the Defendant played a slightly lesser role in the case now before the Court.

¶ [9] Mr. Furniss also points out that nobody was put at serious risk. However, he does acknowledge that this is still a serious crime and, regrettably, one preceding which the Defendant has eight previous convictions. However I do take into account that the Defendant was sentenced for all of them on the same date.

¶ [10] Finally, Mr. Furniss again relies upon the fact that this was a burglary of commercial premises, and not a private dwelling. The Defence submits that burglaries of homes are considered to be more serious and cause greater harm to individuals. Submissions from the Prosecution

¶ [11] Crown counsel, Ms. Brandt, begins by submitting that the Defendant "has a long history of offending" despite his age.

¶ [12] Ms. Brandt also submits that the damage of CI$23,000.00 is a marked aggravating feature.

¶ [13] Ms. Brandt also points out that the maximum sentence for the burglary is fourteen (14) years imprisonment, whereas the maximum sentence for the criminal damage is ten (10) years imprisonment.

¶ [14] Ms. Brandt points out, very practically, that there can be no question of compensation as the owner, Mr. Solomon, had to rebuild his premises and the Defendant is currently unemployed and without identifiable financial resources. Conclusion

¶ [15] I do accept that generally the Courts regard a burglary of commercial premises as less serious than burglary of a home or dwelling house.

¶ [16] The Chief Justice’s Statement on Tariffs and Guidelines for Sentencing points out that for aggravated offences of burglary, a first offence will attract a tariff of four to six (4 to 6) years, but for a burglary without aggravating circumstances, a second or subsequent offence will attract a tariff of three to four (3 to 4) years.

¶ [17] However, I cannot impose a sentence without reminding myself that this was a small family grocery shop, which is open seven (7) days per week to serve the local community. Accordingly, there is what the President of the Cayman Islands Court of Appeal, Sir John Chadwick, recently has called a “sense of violation and insecurity” which gives rise to security concerns for fellow shopkeepers, and indeed, to the general public.

¶ [18] I accept the argument from Defence counsel that the driver may have played a more dominant role in acquiring the vehicle and actually crashing it into the front of Mr. Solomon’s shop. However, the Defendant was clearly on a joint enterprise along with the driver, and he played the very active role of the burglar in entering Solomon’s Grocery as a trespasser – stealing the cash register and its contents.

¶ [19] As far as I am aware, this is the first offence in the Cayman Islands of what is known in the United Kingdom as “ram-raiding” where the Defendant and his cohort use the vehicle belonging to another person in order to steal from a building, not just by breaking and entering the building, but by breaking down the building itself, and then stealing its contents.

¶ [20] It is clear that the Defendant and his partner in crime targeted Solomon’s Grocery store on Mary Street. The Defendant’s partner drove the Ford F150 truck into the front door, knocking it, and the walls surrounding it, down, and thereby allowing the Defendant to enter as a trespasser and steal its contents.

¶ [21] Some guidance can be found in the English Court of Appeal decision of the late Lord Chief Justice Taylor in R v. Byrne and Ors. (1995) 16 Cr. App. R. (S)140 where he stated at page 142: "The gravity can be stated in this way. First, it is almost always a composite offence: it involves the theft of other vehicles before the main theft is attempted. Secondly, it involves targeting a particular prize and planning the offence with deliberation ... Thirdly, whatever may have been obtained by thieves by this method ... there will almost always be serious damage to property ... A further aggravating feature is that this type of offence is aimed at defeating even the best security ... It is a kind of military operation against whatever security precautions may be applied to any building. Finally, there is the element of breach of the peace. In the middle of the night ... there is an operation going on which rouses people and puts some of them in fear. It is an affront to civilized society; it is an outrageous offence. It transcends the ordinary type of attempted theft."

¶ [22] The two Defendants who pleaded guilty in R v. Byrne and Ors. were sentenced to five (5) years imprisonment.

¶ [23] Professor Thomas’s classic text book, Current Sentencing Practice, refers to the Attorney General’s References Nos. 45, 46, 47, 48 and 49 of 2006 (Karl Kevin Callaghan and Others) [2008] 1 Cr. App. R. (S.) 88.

¶ [24] The English Court of Appeal reviewed a number of ram-raiding cases including *R v. Byrne* and Ors and concluded by saying: "They seem to us to suggest that in the context of a single ram raid offence, a starting point in the region of or approaching 7 years, following a trial, is implicit in all of them."

¶ [25] Shopkeepers and their premises must be protected and so must the general public. This sort of offence in the very early hours of the morning, (4 a.m.) whilst most residents are still asleep, cannot be condoned. The Courts must impose a sentence which will serve as a punishment to the offender and a deterrent to others.

¶ [26] I have taken the submissions from both counsel into consideration. In light of the Defendant's relatively young age, I will impose a sentence of four (4) years imprisonment on the burglary, with four (4) years for the criminal damage, to run concurrently, with time spent in custody to be taken into account. Dated this the 22\textsuperscript{nd} day of August 2011 Honourable Mr. Justice Charles Quin Judge of the Grand Court