R v Floyd Basil Hall
| Jurisdiction | Turks and Caicos Islands |
| Judge | Agyemang CJ |
| Judgment Date | 12 October 2023 |
| Court | Supreme Court (Turks and Caicos) |
| Year | 2023 |
| Docket Number | CR 44/12 – R v Floyd Hall |
and
Agyemang CJ
CR 44/12 – R v Floyd Hall
CR 38/12 – R v Clayton Greene
IN THE SUPREME COURT
FOR THE CROWN: Mr. Andrew Mitchell KC, WITH HIM, Mr. Quinn Hawkins, Ms. Kate Duncan, Ms. Enjaleek Dickensen
FOR THE FIRST DEFENDANT: Mr. Earl Witter KC, WITH HIM, Mr. Kayode Smith, AND Ms. Leona Brooks-Campbell
FOR THE FOURTH DEFENDANT Mr. Richard Bendall, WITH HIM Ms Kishanta Hall
On 25 September 2023, this court in a judge-alone trial, delivered its judgment in the trial of the four persons including the present defendants, charged with five counts of criminal offences. The second and third defendants who were charged with Conspiracy to Defraud on Count 2 of the Information, were acquitted and discharged of the offence. The first defendant Mr. Floyd Hall (FBH) was convicted of the crime of Bribery which was charged in Count 3. The fourth defendant Mr. Clayton Greene (CSG) was convicted under s. 30(2)(a) of the Proceeds of Crime Ordinance 1998 on Count 5.
The court directed itself on the provisions of Rule 91 of the Criminal Procedure Rules, when learned King's Counsel Earl Witter, for the first defendant sought an adjournment in preparation for the sentencing hearing, and granted an adjournment to 10 October 2023.
In accordance with Rule 91(3) of the Criminal Procedure Rules 2021, the Prosecution in compliance with their duty to provide relevant information to assist the court in its duty of sentencing, filed on 5 October 2023 Sentencing Guidelines for England and Wales, an amended Note on Sentencing with authorities, a Note on Confiscation, and a Prosecutor's Statement (in the related matter of confiscations which will be dealt with separately from the sentencing).
On 7 October 2023, A response which dealt with both sentencing and confiscation, was filed by Mr. Bendall on behalf of the fourth defendant, Clayton Stanfield Greene.
On 10 October 2023 the Prosecution filed the Eastern Caribbean Supreme Court (ECSC) Sentencing Guidelines. They also filed an Addendum Note on Sentencing, in which they drew parallels between the England and Wales Sentencing Guidelines and the ECSC guidelines.
On 10 October 2023, Mr. Witter KC filed his severed responses on sentencing and confiscation.
The Prosecution assists the court with Sentencing Guidelines from the United Kingdom, as well as from the ECSC. The ECSC Sentencing Guidelines references the offence of corruption (which includes Bribery) and money laundering.
The Prosecution submit that in the absence of Sentencing Guidelines for the Turks and Caicos Islands, the England and Wales Sentencing Guidelines (EWSG) should be applicable in these islands. The applicability, they submit is manifest, for the EWSG's guidelines for the offence of Bribery includes provisions in respect of s.1 of their Bribery Act of 2010, which mirrors the common law offence of Bribery of which the first defendant has been convicted. They submit also, that s. 327 of their Proceeds of Crime Act, 2002 mirrors the provisions of s. 30(2)(a) of the Proceeds of Crime Ordinance of 1998, regarding which the fourth defendant has been convicted.
They rely on the said guidelines to submit that FBH's offence falls in the ‘Category A - High Culpability’ category, in that among other things, he abused his position of power and trust as Deputy Premier, the second highest political office, that the mode of commission was sophisticated, and was sustained over a period of two and a half years. Thus, there was no question of the existence of coercion, intimidation or exploitation in the commission, that there was a lack of personal benefit, or that it was one-off offence with very little or no planning, factors that would have brought it within the ‘Category C Lesser Culpability’ category.
Regarding the harm caused by FBH's actions, the Prosecution submit that it falls within the ‘Category 1’ bracket, in that they constituted an offence that undermined the proper function of the national government, and was committed for his personal benefit.
That would give a starting point of 7 years imprisonment with a category range of 5-8 years.
In the ECSC guidelines, FBH's offence for the same reasons, would be in the ‘Level A Seriousness’ category, and ‘High Consequence’ (harm). The application of the ECSC would give a starting point of 75% of the maximum sentence with a range of 60%-90% of the maximum sentence.
The Prosecution have helpfully pointed the court in the direction of ss. 67 and 70 of the Integrity Commission Ordinance, which provides a maximum sentence of 5 years imprisonment for an offence which mirrors common law Bribery. They concede that the following are mitigating factors: that FBH has no previous convictions, that there was delay in the trial, and that FBH might be barred from entering the USA.
The Prosecution have provided the court with information regarding the sentencing of Richard Padgett who pleaded guilty to Bribery in that he gave bribes to FBH and another, and also guilty to the offence of Conspiracy to Pervert the Course of Justice.
Further information regarding the sentencing of Lillian Boyce who pleaded guilty to the Offence of Misconduct in Public Office, has also been furnished by the Prosecution which contend that because the offence of Bribery of which FBH has been convicted is very different from Lillian Boyce's crime of Misconduct in Public Office, there can be no question of them being treated alike in accordance with the principle of parity.
The Prosecution submit that this also is a ‘Category A High Culpability’ offence, in that CSG as an attorney, abused his position as a professional person.in this regard, they submit that his actions amounted to a breach of trust in that he had held the office of Speaker of the House of Assembly. They submit also, that the manner of the commission was sophisticated as it involved concealment of the money in the ledger of his firm, providing false descriptions over a period of eighteen months. They submit that the following are aggravating factors: that he dealt with money on behalf of a leading politician, that he took the funds off-record, that he disguised the funds within his practice and paid out non-transactional funds on behalf of FBH, thus lending his respectability to FBH's criminal acts.
The Prosecution concedes that the following are mitigating factors which the court must consider: that CSG was a man of good character who has lost his reputation of good standing, may lose his right to practise law and has suffered delay in the trial of the offence he was charged with.
The Prosecution cites the case of R v. Duff 1 which was cited in R v. Griffiths and Patterson 2. They both involved the less serious offence of ‘Failing to Disclose’ committed by them as solicitors, for the court's guidance. The fifteen-month sentence of Griffiths, a
They argue that the level of harm for the sum of $276,965 would be ‘Category 4’ which would be 5 years imprisonment with a range of 3-6 years, starting with a starting point of GBP 300,000.
In the ECSC Guidelines, the value of the amount ($276,965) would be ‘Category 2’ with ‘Consequence 2’ for Seriousness. The starting point they submit, is a range of 35% to 65%. The starting point for a maximum sentence of 14 years, is therefore 7 years imprisonment with a range of 4 years 10 months to 9 years 1 month imprisonment.
On behalf of FBH, Mr. Witter KC submits that there is no authority for the use of the EWSG in these islands. He grounds his argument on the fact that s. 15 of the Criminal Procedure Ordinance permits resort in the exercise of its criminal jurisdiction, to the practice in the High Court of England, but does not enable the importation of legislation which sentencing guidelines are. He therefore submits that the court pronounce the sentence for common law Bribery in its discretion, having regard to the principle of parity in relation to the sentencing of Lillian Boyce and Richard Padgett, and other matters apropos the infliction of condign punishment on FBH. Regarding Lillian Boyce's punishment, Mr. Witter KC contends that FBH received less money than Lillian Boyce, and endured a further thirty-one months of a continued breach of his constitutional right to a fair trial. He also refers to a character reference written by H.E. Professor Gilbert Morris, seeking leniency in the sentencing of FBH. Other character references provided by a Calvin Greene and Bishop Coleta Williams III were also supplied.
On behalf of CSG, Mr. Bendall, in his response to the Crown's Note, raises pertinent matters and includes relevant case law, for the consideration of the court. He also includes a letter of reference written by Mr. Conrad Griffiths KC, seeking leniency in the sentencing of CSG.
Mr. Bendall insists that it will be more just to use the EWSG rather than the ECSC Sentencing guidelines which provide starting points significantly higher than the EWSG and that in any event, he had addressed the court on the EWSG before Mr. Witter KC filed his submissions belatedly and addressed the court. Thus, he argues that the sum would place it in the lower rung of Category 4 (range £100,000-£500,000)) and should have a starting point of 3-6 years.
Regarding the matters to be considered in...
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