R v Joseph Brice

• Jurisdiction: Anguilla
• Judge: Mathurin J
• Judgment Date: 28 October 2016
• Judgment citation (vLex): [2016] ECSC (AIA) J1028-1
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Date: 28 October 2016
• Docket Number: Indictment No 08 of 2015

[2016] ECSC J1028-1

IN THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

Indictment No 08 of 2015

Regina

and

Joseph Brice

JUDGMENT ON SENTENCING

Mathurin J

1 This sentencing is pursuant to the finding of Guilty by a jury panel on one count of theft. The responsibility of any court is to impose a just sentence, having regard to all the circumstances of the case of the offender, and to implement the aims of sentencing which in the main are punishment, rehabilitation and deterrence. The court is guided by sentencing guidelines and takes into account all mitigating and aggravating factors.

2 The circumstances leading up to the indictment were that at the time of the offence Mr. Brice was a Director of a company called PITCO which was responsible for the management of an International Business Corporation called Regency Holdings Limited. Mr. Brice had sole signing authority on Regency Holding's account in Fortis Bank in Curacao. The normal practice over a number of years was that on receiving instructions of Leonard Reyneke and Associates, an accounting and auditing firm in South Africa, Mr. Brice would send written instructions to the Fortis Bank and the transaction was processed. This was a process that was strictly adhered to even when it came to remuneration of Mr. Brice for his own services.

3 The facts leading to Mr. Brice's conviction on the 27 ^th October 2016 after a trial spanning one and a half weeks were that on the 10 ^th December 2008 at 6:47pm in Anguilla, Mr. Brice sent an urgent email to Mr. Reyneke requesting him to ask the principals of Regency Holdings for an unusual loan of US$900,000.00 for a period of eight weeks. As a result of the time difference of six hours, Mr. Reyneke did not read the email until the next day, the 11 ^th December 2008. By the time he read the email, Mr. Brice had already instructed the bank in Curacao and received the funds.

4 Mr. Reyneke received a record of this transaction on Regency Holdings account on the 15 ^th December 2008 and he contacted Mr. Brice who promised to return the funds the next day, claiming it was an error of judgment. Mr. Brice backed up this promise with a copy of instructions ostensibly sent to First Caribbean Bank requesting that the bank transfer the sum of $950,000.00 to Regency Holdings account.

5 Mr. Brice however, knew he could not return the funds as he had done all these transactions on the account and in fact, he had continued to do transactions even after he sent the purported instructions to Mr. Reyneke. Mr. Brice used the funds and made several payments to various entities as well as himself.

6 The funds were subsequently recovered by one payment in January 2009 of $400,000.00 and the other in March 2009 in the sum of $600,000.00.

The Law;

7 The Criminal Code of Anguilla provides that any person convicted of theft is liable on indictment to 10 years imprisonment.

8 The sentencing process seeks to promote a respect for the law and an orderly society. A sentencing court must consider many things. In fashioning a sentence appropriate to the facts of the case and the characteristics of the offender, the court must consider the principles referred to by our Court of Appeal in Desmond Baptiste v R;

• a. Retribution – the court must reflect society's abhorrence of particular types of crime through punishment of such unlawful conduct;

• b. Deterrence – this is specific to the offender and others who are minded to commit similar offences;

• c. Prevention – this is to protect the public from offenders who persist in committing crimes by separating them from society and

• d. Rehabilitation – the objective being to engage the prisoner in activities that would assist him with reintegration into society after prison

Mitigation

9 Mr. Foster urged the Court to take into consideration the Prosecution witness's view that Mr. Brice was a man of good character and had no previous convictions. Counsel said he was a business man and a professional and he had once held the post of Parliamentary Secretary in Saint Lucia. He said that Mr. Brice who has a Bachelor and Masters degree in Law had contributed to the society in Anguilla and served Anguilla well.

10 In mitigation, he reminded the court that the monies were repaid. He urged the court to consider a suspended sentence and take into account the various periods of time that Mr. Brice had spent on remand and served time pursuant to the original trial in this matter.

Prosecution's submission

11 Mrs. Hinds for the Prosecution responded that Mr. Brice had been convicted of Theft. She states that the aggravating factors are breach of trust, a large sum of money involved, the effect on Anguilla's financial sector and the impact on Mr. Brice's employees and she also agreed that the mitigating factors are the repayment of the funds and the defendant's previous good character.

Court's consideration

12 I considered the authorities referred to by the Prosecution when considering an appropriate sentence;

• (a) In R v Barrick; 81 Cr App R 78; the Accused used his position as manager of a finance company to steal in excess of £9,000.00 from persons who could ill afford the loss. He did this...