EASTERN CARIBBEAN SUPREME COURT

TERRITORY OF ANTIGUA AND BARBUDA

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

CASE NO. ANUHCR 2020/0053

BETWEEN:

THE QUEEN

v.

JUAN DIAZ

Defendant

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2020: July 27^th,

September 25^th,

October 5^th.

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Appearances:

Mrs. Shannon Jones-Gittens, Counsel for the Crown

Mr. Michael Archibald, Counsel for the Defendant

JUDGMENT ON SENTENCING

Facts in Brief

[1] SMITH, J.: The complainant, Mrs. Kara-Ann Spencer
lived with her husband at Sunset Cove Apartments at McKinnons also being
the overseer of the property. She and her husband used one of the
apartments as a storeroom for household items and appliances. That room was
secured by locking the windows and the two external doors which were fitted
with a cylindrical lock and deadbolt. The defendant, Mr. Juan Diaz also
occupied one of the apartments.

[2] On Sunday 7^th October, 2018 at about 2:30 p.m., Mrs. Spencer
went to the said apartment. She noticed that the lock had been damaged and
that the deadbolt was unlocked. In her deposition to the Magistrates’ Court
she stated that she looked into the room and realized that the room had
been ransacked. She stated that she immediately left and returned with her
husband. It was then that she noticed that several items were missing. Of
those were a washing machine and dryer, a laundry pedestal, a folding
table, an ice cooler and some other kitchen items and appliances. The total
value of the missing items was estimated to be EC twenty thousand, four
hundred and sixty five dollars and seventy one cents ($20,465.71).

[3] Upon Mr. Spencer’s arrival, he stated in his deposition that he noticed
that several of the wooden louver windows were in an incorrect position and
that a window screen at another window was bent and slightly pulled from
the window frame. The police were called and shortly thereafter commenced
their investigations.

[4] The following morning Mr. Spencer received a phone call from the
defendant through another neighbour whereby the defendant admitted that he
had taken the missing items. The police were informed of this development
and returned to the property with a search warrant to search the
defendant’s premises. During the search, the police were able to recover
some of the stolen items: – washing machine, dryer, folding table, serving
tray and a chafing dish.

[5] The defendant was taken into police custody and on 11^th
October, 2018 when the allegation was put to him, he elected to write a
statement. In the statement, he admitted to breaking into the apartment and
stealing the items. He said he felt bad about it and wanted to speak to the
owner but only saw him days later and that the police were already
involved.

[6] He was subsequently arrested and charged. He was twenty two (22) years
old at the date of this offence.

Legal Framework

[7] The maximum sentence for the offence of housebreaking and larceny is
seven (7) years imprisonment. The Court is also empowered to order
restitution and impose a fine. The offence is contrary to contrary to
Section 30 (a) of the Larceny Act Cap. 241 of the revised
edition 1992 of the Laws of Antigua and Barbuda

[1]

.

Pre-sentence Report

Early Life

[8] A pre-sentence report was ordered by the Court on 27^th July,
2020 and delivered to the Court in September 2020. The report was prepared
by Ms. Nakitia Williams, Probation Officer. The report indicates that the
defendant is the father of two small boys and that his formative years were
spent with his father and paternal grandmother as his mother had migrated.
He added that his mother returned to Antigua when he was aged sixteen (16).
His father emigrated when he was aged six (6) and last saw him when he was
fourteen (14) years old.

Positives

[9] At the Jennings High School the defendant was a part of the music
programme playing in the steel band. He also passed seven (7) CXC subjects
graduating with a High School Diploma. Upon leaving high school he secured
employment as a boat captain and obtained a boat master’s licence. All of
the persons interviewed by the author of the report spoke of the offender’s
behaviour being out of character. All expressed shock when they learnt of
the matter before the Court. A community member when interviewed stated
that

“he is not the type of person to get himself into trouble with the law
or even within the community”

. It appears to the Court that this defendant is a prime candidate for
rehabilitation.

Plea in Mitigation

[10] Defence Counsel reiterated aspects of the report and pointed out that
the offending of the defendant was out of character and was caused by
desperation on his part. Counsel pointed out that the defendant was facing
serious financial challenges and that he labored under the misinformation
that the said premises had been abandoned. This of course was not the case.
The report also states that the defendant had recently become a father and
wanted his home to be comfortable for his family.

Victim impact Statement

[11] The complainants attended Court and indicated that while the items had
been recovered, the brand new washing machine was scratched and the dryer
totally ‘burnt’ out. Mr. Spencer indicated that he and his wife had been
severely inconvenienced by the defendant’s conduct. They both stated that
they were put to expense in order to replace the damaged items.

Construction of the Sentence

[12] The Court found the following Aggravating and Mitigation factors:-

Aggravating Factors relating to the defendant

I. There were no aggravating factors relating to the defendant

Aggravating Factors relating to the offence

I. The value of the goods initially stolen notwithstanding that some items
were recovered

II. Loss and inconvenience experienced by the victims

Mitigating Factors relating to the offender

I. The defendant is a first time offender

II. The defendant is the father to two minor children

III. At the time of the commission of the offence the defendant was aged
twenty two (22)

IV. The defendant has shown remorse

[2]

Mitigating Factor of the offence

I. A large portion of the goods were recovered

Sentencing Guidelines

[13] The Sentencing Guidelines of the Eastern Caribbean Supreme Court
dictates that the Court address the seriousness of the burglary relating it
to the harm caused to the victim in the case. As stated in paragraph seven
(7) of this decision, in Antigua the offence is worded as Housebreaking and
Larceny and is contrary to Section 30 (a) of the Larceny Act Cap. 241 of the revised edition 1992 of the
Laws of Antigua and Barbuda

[3]

.

[14] The maximum penalty for this offence is seven (7) years imprisonment.
In this case the value of the amount of the goods stolen was EC$20,465.70
with the vast majority of the items being recovered. The Court places this
level of offending into category three medium where the goods are valued
between EC$1,000 to EC$50,000 and with no significant additional harm. The
Court heard from the victims and has noted what they had to say in relation
to their goods being stolen and damaged.

[15] In terms of seriousness, the Court after consulting the sentencing
guidelines would place this level of offending in category ‘C’ where there
was very little planning and where the defendant acted alone. This offence
appears to be an offence of opportunity where the defendant seized upon the
opportunity to break into the apartment and steal the contents therein.

[16] The maximum sentence of housebreaking as set out in paragraph seven
(7) is seven (7) years. The Court applies a percentage of 20 per cent of
the seven years which would result in seventeen (17) months in prison.

[17] The sentence of seventeen (17) months will be further adjusted
downwards as the mitigating factors outweigh the aggravating factors. The
Court will adjust downwards by six (6) months bringing the sentence to
eleven (11) months. The defendant has also entered an early guilty plea
which will result in the sentence being reduced further by one third
bringing the sentence to eight (8) months.

[18] The Court is guided on the learning of the former Chief Justice Sir
Dennis Byron in the case of Desmond Baptiste vs. The Queen

[4]

where guidelines were set down for sentencing including the guideline of
imposing non-custodial sentences for young first time offenders. In his
plea of mitigation Counsel also urged the Court to find that the defendant
is a fit and proper candidate for a non-custodial sentence.

[19] The Court is also mindful that it must not pass a custodial sentence
unless it is of the opinion that the offence was so serious that no other
sentence can be justified for the offence and clearly this is not the case
here.

[20] Consequently, having regarded to all of the above and the Sentencing
Guidelines of the Eastern Caribbean Supreme Court, this Court will sentence
the defendant to a non-custodial sentence.

[21] The Probation of Offenders Act
states at section 2(2);-

“Where any person has been convicted on indictment of any offence
punishable with imprisonment, and the court is of the opinion that, having
regard to the character, antecedents, age, health or mental condition of
the person charged, or to the trivial nature of the offence, or to the
extenuating circumstances under which the offence was committed, it is
inexpedient to inflict any punishment or any other than a nominal
punishment, or that it is expedient to release the offender on probation,
the court may, in lieu of imposing a sentence of imprisonment, make an
order discarding the offender condonably on his entering into a
recognizance with or without sureties, to be of good behaviour and to
appear for sentence when called on at any time during such period, not
exceeding three years, as may be specified in the order”.

[22] Having regard to the above, the Court and will place the defendant on
probation for two (2) years. He will be required to adhere to the
requirements of his probation supervisor and the terms of the Probation
Order. If he breaks the Probation meaning if he commits further offences
whilst on Probation he will spend six (6) months in prison. He is to enter
a recognizance with the Probation Department without a surety.

[23] In considering ancillary matters, the Court orders that the defendant
pays to the victims the sum of EC five thousand ($5,000) which represents the value of the damaged items. This
compensation is to be paid on or before 31^st January, 2021 in
default he will serve six (6) months in prison.

Ann-Marie Smith

High Court Judge