Douglas J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
IND. NO. 39 OF 1997
REGINA
- VS -
CAROL MARIE SCOTT
PROCEEDINGS HAD AND TAKEN BEFORE
THE HONOURABLE MR. JUSTICE DOUGLAS,
ON THE 22ND DAY OF SEPTEMBER, 1998,
IN GEORGE TOWN, GRAND CAYMAN.
CHARGES:
THEFT
FALSE ACCOUNTING
APPEARANCES:
For the CROWN: MISS C. RICHARDS
For the DEFENDANT: MR. D. MURRAY
1 SENTENCING COMMENCED ON TUESDAY,
2 SEPTEMBER 22, AT 10:11 A.M.:
3
4 (MITIGATION SPOKEN TO)
5
6 THE COURT: I have listened to Mr. Murray's most moving plea and as a person, I can't say that I am not moved by his great oratory or by the number of testimonials he has produced in mitigating the sentence.
7 However, I have a job to do and I have a responsibility not only to Mrs. Scott, the defendant, and to the number of people who support her, but also to the community at large. In sentencing her, I have to be guided by certain factors, I have here the words of the Lord Chief Justice in the Barrick case, the John Barrick case; a very well-known case as far as sentencing in these sort of offences is concerned. He said:
18 "In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small."
22 Then he goes on to say:
23 "Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless
(TUESDAY, SEPTEMBER 22, 1998)
pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence."
Then he goes on to give us more guidance in passing such sentences and in considering such sentences. He says:
"(i) you have to consider the quality and degree of trust reposed in the offender including his rank;"
Now, we have here an offender in which great trust was placed. She was the person who handled all the money for Cayman Insurance Centre. Through her, all the money passed and she held a position of great trust in a financial centre in this country where our financial institutions are so important to the well-being of our society.
She was trusted. Everyone trusted her. They did not even check on her in the evenings when it came to the accounting of the money or the lodging of it and so on and on it went. Each one who testified here, each member Of the company who came and testified, you could see that they had placed great trust; they had reposed great trust in her.
So that what we have here to start off with is a great breach of trust and it is the first element in passing sentence and in considering a sentence, a trust
(TUESDAY, SEPTEMBER 22, 1998)
1 reposed in the person.
2 We move on:
3 "(ii) the period over which the fraud or the thefts have been perpetuated."
4
5 We are being told by learned counsel for the defence about a first offence. We are being told by one of the gentleman who wrote a testimony and obviously he, too, had been misled, a Mr. Danny Scott. She told him and he said that she made a full disclosure of the incident which her previous employer in which a lodgement of 16,000 had gone missing. This is not at all the case. For a period of nine months she had been creaming off the finances of this company on almost a daily basis. It took us two weeks to go through each and every one of these offences. Each night when the money was lodged, she took what she wanted and the next day she made it back up by the cheques that were coming in. The English have a term for it, they call it creaming and ladling.
20 So this is a series of offences coming down the line almost daily; over 70 different offences. The Crown could have charged her with false accounting on 70-odd different occasions and if they wished, they could have charged her with 70-odd charges of theft. Instead, they didn't do that. They did not even charge her with false accounting
(TUESDAY, SEPTEMBER 22, 1998)
1 for all those numerous thefts that she committed.
2 Where the 16,000 -- or thereabouts --- missing
3 deposit came in was another bit of fraud because when she discovered that the end was near, that they had found out about this 16,000 that was missing over the period of nine months, then she made up a false lodgement and she accused the bank of it and said that if the bank didn't get it, it has gone missing. This is where the second charge comes in. This false bit of paper, false deposit and accuse the bank, to misguide them, her employers, and to draw a red herring across the trail of her guilt; she says it is missing at the bank. So, really in this case, she has gone and misled her new employer. So we have the second element of this thing carrying on, this fraud being perpetuated over a long period of time. So, again, the second element has been fulfilled.
17 The third element put forward by the Lord Chief Justice was: "The impact of the offences on the public and public confidence." As I said, this is a financial institution. In these islands, we depend on our reputation as a financial centre and when these things occur, certainly there must be a break-down in confidence.
23 As it has been said and said before that it usually is --
24 women are usually the perpetrators of these offences.
25 They come up one after the other. So the Court has a
(TUESDAY, SEPTEMBER 22, 1998)
responsibility to put or attempt to put a stop to this because today there may be someone else losing their money and another day it is going to be someone else; some other company or individuals.
We have been told that this is what we call "exceptional", very "exceptional" circumstances and she should be treated exceptionally. Well, I have been trying to reason and figure out how these exceptional circumstances arise. It is true that she has young children, but so do a lot of other people. This cannot be regarded as very exceptional circumstances -- an exceptional circumstance. I wonder if it even comes under the heading of "exceptional" circumstance?
We are told about money, she being the bread-winner and so in one breath we are told this and in the other breath, there is an offer to repay the $16,000; a willingness to do so. So, I cannot for the life of me see how this could be considered an "exceptional" circumstance or how any exceptional circumstances could be attached to this.
So, where are we left? She hasn't even got the benefit of a guilty plea. Of course, everyone is entitled to have his or her day in court. This is everyone's entitlement. But when one does so, one must know and one expects that when there is a guilty verdict, they must at
(TUESDAY, SEPTEMBER 22, 1998)
that time come to the day of reckoning.
This offence was not terminated by any act on the part of the defendant. Had the company not decided to install new computers, it may have gone on indefinitely; thus was the confidence that they had placed in her and this daily thing, this daily creaming and ladling would have continued. Unfortunately for her and fortunately for society they decided to change the computer system.
So this is not a case of one theft, not a case of one mistake. It can hardly be called a case of a first offence. This is not a case where there is a guilty plea and so I am trying to think in my mind of some real mitigating factor which can be attached to her. It is very difficult to come up with one, notwithstanding all these documents and testimonials that I have before me.
The only thing that I can say is that she seemed to have been well-liked and respected by many people in this society. People who now she has let down.
But I cannot be guided by this society to whom I owe a duty. I cannot be guided by their emotions. I have to be guided by the factors leading up to the way in which I have to perform my duties.
Now, the first thing I must say is that the Crown has asked for compensation and I have given this matter very careful consideration. I feel that, on principle --
(TUESDAY, SEPTEMBER 22, 1998)
and Mr. Murray has pointed out that every defendant deserves their day in court. I, in this circumstance, where I feel very strongly that there should have been a guilty plea and a guilty plea would have avoided all this cost because there was no defence to this action. The defence of the missing deposit did not hold water at all and so she could have avoided putting the Crown to this cost. But, taking all the circumstances into consideration, I am not going to allow the Crown $1000.
Guided by all the factors placed before me and the principles in all the cases -- would you stand for me please, Mrs. Scott. On the charge of theft, you will do 18 months. On the charge of false accounting, you will do six months. You will pay compensation in the sum of $16,475.85 or you will serve a further six months. And what I am going to do as far as any mitigation is concerned and any compassion as they say the Court has to mix justice with mercy, I am going to suspend the six months for two years; the six months on the false accounting. But really and truly, the way in which this bit of false accounting was done, my thoughts were to make it run consecutive, but I am suspending it for two years.
Yes, that is the sentence of this Court.
MR. MURRAY: In relation to your order for compensation, when is this expected to be paid?
THE COURT: By the time she is ready to come out.
If she can pay it when she comes out, she can pay it. If not, she stays for another six months. That is fair enough. I am not putting any interest -- she should be paying interest on that too. What percent interest is it,
7 percent interest? She has an interest-free loan there.
All right.
(COURT ADJOURNED AT 11:37 A.M.)
REPORTER'S CERTIFICATE
I, DARCI C. HEWAK, Official Court Reporter, do hereby certify that the foregoing pages are a true and accurate transcript of the proceedings had in the said Court and reported in machine shorthand by me on the date and place aforementioned.
DATED THE 11TH DAY OF NOVEMBER, 1998.