Custodial sentence not warranted in this case – Magistrate

A custodial sentence is not warranted in the case in which former High Court registrar Vanessa Tamara Gibson-Marks pleaded guilty to theft and abuse of office.

Magistrate Carla James, while sentencing Gibson-Marks on Tuesday at the Kingstown Magistrate’s Court, said she came to this conclusion after considering the aggravating{{more}} and mitigating factors of the case and the precedent set by the courts in similar circumstances.

Gibson-Marks had pleaded guilty to the charges of theft of $21,925 and abuse of office on October 7.

On Tuesday, when she reappeared in court for sentencing, James fined Gibson-Marks $4,500 to be paid in one month on the theft charge. If she does not pay, she will go to jail for three months. She was also fined $6,000 for the charge of abuse of office. Gibson-Marks is to pay this fine within three months, or in default, she would face a six-month prison sentence.

As the magistrate read the sentence, Gibson-Marks stood calmly in the dock.

James said one of the main aggravating factors in the case was the loss of confidence by the public in government institutions.

“The defendant’s actions in the commission of the offences have resulted in an obvious loss of public confidence in state institutions. There’s been a breach of public trust by the actions of defendant.

“The defendant at time in the commission of the offences held the office of registrar of the High Court — a position which came with great responsibility and accountability and in which a great degree of trust and integrity was reposed…. By her actions, she breached that trust significantly and abused her office in the commission of these offences,” James said.

The magistrate said she also considered as aggravating, the period over which the offences were committed.

According to a report from the director of audit, the $21,925 that Gibson-Marks pleaded guilty to stealing was taken between April 2006 and May 2014.

The money which was stolen belonged to the Mediation Programme at the High Court, where Gibson-Marks served as the accounting officer. The money had been kept in a drawer at the High Court.

According to defence attorney Alberton Richelieu, when money from the Mediation Programme was reported missing two years ago, the practice of placing money in the drawer continued.

“As registrar, the defendant was responsible for all funds collected and the accounting per se. Through error or inadvertence, no proper record of receipts and transactions were kept. We wish to respectfully submit that the state of the mind, whether through sheer inadvertence or recklessness can give rise to the offence by virtue of not keeping proper records,” Richelieu told the court.

He, however, stated that Gibson-Marks had made full restitution of the sum stolen.

Copies of that payment and acknowledgement of receipt by the Attonery General were furnished to the court by Richelieu.

“The defendant in the disclosure that we had, on first opportunity, admitted that she had in fact, taken the money,” Richelieu said.

He said on May 21, 2014, his client, when speaking to Attorney-General Judith Jones Morgan, admitted to what she had done, then resigned and left the country thereafter.

“She left the state of St Vincent to see how she could right her wrong. The stress and the situation took a toll on her health, she lost considerable weight… The defendant has been the subject of much chatter on social media websites. So far, that chatter has extended to and has affected her child, who has repeated to her what she heard at school, starting with the question, mummy, [are] you still a lawyer?”

The lawyer, further in his mitigation, also mentioned that Gibson-Marks had to deal with an ailing mother, which produced “serious, outstanding” medical bills, which he said she had to deal with at the time.

Richelieu pleaded with the magistrate to temper justice with mercy, adding that his client was a first time offender, therefore a non-custodial sentence would be appropriate.

“The defendant has indicated she has a keen interest in rehabilitation and has expressed remorse. When asked what personal message she (Gibson-Marks) would like to leave with the court, she has indicated she is very sorry for what has happened. She has expressed much remorse and invites the court, in the circumstances to be as lenient.”

Richelieu told the court that on the advice of family and friends, Gibson-Marks agreed to see a therapist, who he said prescribed medication and recommend that she continues the therapy sessions.

He further stated that the therapy sessions are a necessary part of Gibson-Marks’ rehabilitation and may not be readily accessed if she was incarcerated.

The attorney said his client is eager to continue therapy in St Lucia to ensure that she starts a new life, which he noted would be difficult for her.

A copy of a letter from the psychologist also formed part of Richelieu’s submissions in mitigation.

Endorsing Richelieu’s submission, another of Gibson-Marks’ defence counsel, Duane Daniel, told the court that the circumstances of the theft charge were in its simplest form and that there was no serious sophistication that would attract a higher sentence.

“There was direct access to the funds and that was the method of appropriation,” Daniel said.

Daniel, who also spoke in a personal capacity, said this month marks 17 years since he has known Gibson-Marks.

“I can attest to the fact that she is a good mother and she loves her daughter dearly… I can also attest to the fact in two days time, it’s her daughter’s birthday… “

He said having visited Gibson-Marks in St Lucia, he is personally aware of the devastating effect that the matter had had on her.

He, too, asked for the court’s leniency on Gibson-Marks.

In weighing the mitigating factors, James said she took into account that Gibson-Marks is a first time offender and that she has no previous convictions.

“She’s an individual of good character, in submissions and mitigation before the court. The defendant’s history indicates that she was raised in a Catholic household, she has been involved in numerous cultural and community organizations in St Lucia, as well as here in St Vincent and the Grenadines. Counsel has also submitted in mitigation that during her tenure as registrar, she would have worked tirelessly to ensure modernization and digitization of the registry department…,” James said.

James further stated contrition and regret were shown by the defendant when she was confronted by the Attorney General, and she immediately admitted to taking the money.

“Compensation and restitution has been made. The defendant has made full restitution of the sum of $21,925 to the relevant state authorities. An early plea of guilty was entered; she did not waste the court’s time and the prosecution’s time in going through the rigours of a trial… she has cooperated fully with the police and offers no challenge to disbarment proceedings currently before another court,” James stated.

The magistrate said Gibson-Marks has exhibited good qualities as a prospect for rehabilitation and has commenced therapy sessions in an effort to confront the underlying issues which led to her actions.

The magistrate added that in arriving at an appropriate sentence, she looked at cases here that arose out of the magistrate’s court and stated that the money stolen in those cases far exceeded the quantum in Gibson-Marks’ case. She further stated that the court imposed non-custodial sentences in those cases.

“In my mind, the mitigating factors outweigh the aggravating factors in this case. The defendant has expressed remorse and has made full compensation in the full sum to the authorities in the sum of $21,925. She’s entered a plea of guilty to the charges and has sought to right the wrongs that were committed. This does not in any way detract from or excuse the seriousness of the offences… Having regard to all the circumstances of the offences, the aggravating and mitigating factors, the precedent set by the courts in similar circumstances, the imposition of a custodial sentence is not warranted in these circumstances,” James said.

The former High Court registrar had also been accused of withdrawing cash in excess of $300,000 between April 2013 and March 2014 from a trust account at the St Vincent Cooperative Bank, for matters which appeared unrelated to cases being settled by the court.

No charge was laid against Gibson-Marks in relation to these withdrawals,However, at a press conference last month, Prime Minister Dr Ralph Gonsalves said Gibson-Marks had already repaid over $300,000, which had been withdrawn from the trust account.

A third charge of false certification by a public officer, with which Gibson Marks had been charged, and to which she pleaded not guilty, was taken over and discontinued by Director of Public Prosecutions Colin Williams on October 7.

An application made by Attorney General Judith Jones-Morgan for Gibson-Marks to be disbarred because of improper and unprofessional conduct was allowed by Justice Esco Henry in Chambers at the High Court in Kingstown earlier this month.

That application is still to be heard.

Gibson-Marks returned to St Lucia on Wednesday.