R v Ygnacia Rafaelina Francisco Payero - Sentence Judgment

¶ 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 1 of 12 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 Neutral Citation Number: [2025] CIGC (Crim) 24 3 INDICTMENT NO: 0072 of 2024 4 5 6 THE KING 7 8 v. 9 10 YGNACIA RAFAELINA FRANCISCO PAYERO 11 12 Appearances: Mr. Kenneth Ferguson, Crown Counsel of the Office of the 13 Director of Public Prosecutions for the Prosecution 14 Mr. Richard Barton for the Defence 15 Before: Justice Cheryll Richards K.C. 16 Sentence Hearing: 2nd May 2025, 6th June 2025 17 18 Sentence Judgment: 13th June 2025 19 20 Criminal Law – Sentencing, Causing Death by Careless Driving contrary to section 79(1) of the 21 Traffic Act (2021 Revision). Serious injuries to others, Application of the Cayman Islands 22 Sentencing Guidelines. 23 24 25 26 27 SENTENCE JUDGMENT 28

¶ [1] The defendant is before the Court for sentencing following her guilty plea on the 15th 29 November 2024 to the single offence of Causing Death by Careless Driving. The 30 defendant was originally charged with Causing Death by Dangerous Driving but pleaded 31 guilty to the lesser offence. The plea as offered is acceptable to the prosecution. 32 33 34 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 2 of 12

¶ [2] The particulars of the offence are that the defendant on the 8th day of August 2022 drove 1 a Honda Accord motor vehicle bearing registration plate number 163 789 on Eastern 2 Avenue, Grand Cayman, Cayman Islands, without due care and attention and thereby 3 caused the death of Aleiny Reve Villegas. 4 5

¶ [3] Causing Death by Careless Driving, is contrary to section 79(1) of the Traffic Act (2021 6 Revision). The maximum sentence is seven years imprisonment. There is a mandatory 7 period of disqualification from holding or obtaining a driver’s license of at least three 8 years to run from the expiration of any sentence of imprisonment. 9 10

¶ [4] The defendant was first before the Grand Court on the 23rd August 2024, when it was 11 indicated on her behalf that a defence expert’s report was sought. The plea was entered 12 following the receipt of that report. It is accepted that the plea was entered at the first 13 reasonable opportunity and that the defendant is entitled to full credit for her plea. 14 15 THE FACTS 16 17

¶ [5] There is an agreed basis of plea which sets out the facts of this case. The Court appointed 18 interpreter assisted with a Spanish translation of this which was signed by the defendant. 19 20

¶ [6] The English and Spanish versions of the agreed basis of plea were received in evidence 21 as Exhibits 1 and 2 for the purpose of this hearing. The facts are stated therein as follows: 22 - 23 24 i. “On 8 August 2022 at approximately 3:36 AM, the defendant, accompanied 25 by three friends drove a white 2003 Honda Accord, registration number 163 26 789 (“the vehicle”), southbound on Eastern Avenue in the direction of 27 Shedden Road, George Town, Grand Cayman. 28 29 ii. The defendant continued along Eastern Avenue in excess of the prescribed 30 speed limit of 30 miles per hour (“MPH”) and was seen to overtake another 31 vehicle, travelling in the same direction, in the vicinity of the traffic lights 32 at the intersection of Godfrey Nixon Way. 33 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 3 of 12 1 iii. Whilst in the vicinity of Champion House Restaurant, the defendant lost 2 control of the vehicle, travelled off the left side of the roadway and struck a 3 cinder block wall in front of a residential home, located at number 32 4 Eastern Avenue. The vehicle rotated 160 degrees in a counterclockwise 5 direction and came to rest partially near the southside of the cinderblock 6 wall. 7 8 iv. Accident reconstruction reports were prepared on behalf of the Crown by 9 Mr. Collin Redden on 23 March 2024 (“the First Redden Report”) and by 10 Sergeant Lenford Butler (“the First Butler Report”) on 29 March 2024. 11 12 v. On 12 November 2024, Mr. C. Gregory Russell prepared a report on behalf 13 of the Defendant (“the Russell Report”), which resulted in two additional 14 reports being prepared by Messrs. Redden and Butler on 15 January 2025 15 (“the Second Redden Report”) and on 20 January 2025 (“the Second Butler 16 Report”), respectively. 17 18 vi. Messrs. Redden, Butler and Russell all agreed that the Defendant travelled 19 at an estimated speed of approximately 50 MPH and 60 MPH immediately 20 prior to the point of impact where the vehicle collided with the cinderblock 21 wall at number 32 Eastern Avenue. 22 23 vii. At the time of the collision, the Defendant had a Cayman Islands provisional 24 driver’s license, although she held a driver’s license from the Dominican 25 Republic which expired on 17 October 2021. 26 27 viii. Ms. Aleiny Reve Villegas (“the Victim”) was sat in the front passenger seat 28 of the vehicle and sustained fatal injuries as a result of the collision. The 29 other occupants, Ms. Damaris Martinez Alamonte and Ms. Ester Medina 30 Orellana were sat in the rear seat of the vehicle and sustained non-life- 31 threatening head injuries. All occupants were transported to the George 32 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 4 of 12 Town Hospital by ambulance, where the victim was pronounced dead on 1 arrival at 4:06am by Dr Boothe. 2 3 ix. The Defendant sustained a laceration under her right eye that required 4 surgery and multiple lacerations to her arm and legs. Police Constable 5 Orlando Williams (“PC Williams”) attempted to obtain a specimen of blood 6 from the Defendant twice but was unable to do so on both occasions due to 7 her medical condition whilst she remained in the hospital at the relevant 8 time. 9 10 x. However, Ms. Medina Orellana confirmed that the Defendant consumed 11 alcohol at Bananas [Restaurant and Bar] prior to the collision as noted in her 12 witness statement dated 11 August 2022 where she stated that “Ygnacia 13 drank two Henessy (sic), she didn’t drink a lot. She only drank Hennessey, 14 not beer”. This is consistent with information given to PC Williams by the 15 Defendant whilst in the hospital. 16 17 xi. The Victim was a twenty-year old [Cuban national] and worked in the 18 Cayman Islands after she obtained a work permit. A pathology report dated 19 12 August 2022 (“the Pathology Report”) determined the cause of death to 20 be the result of blunt trauma to the head and which resulted in intracranial 21 hemorrhage and whiplash injury. 22 23 xii. The Pathology Report confirms that the injuries sustained by the Victim 24 occurred as a result of the collision and states that the Victim was 25 unrestrained in the front passenger seat of the vehicle at the time it collided 26 with the cinderblock wall. The Victim is survived by her father, Mr. Alexis- 27 Reve-Aviles. 28 29 xiii. On 10 August 2022, the Defendant was arrested under caution on suspicion 30 of causing death by dangerous driving. On 1 October 2022, she was 31 interviewed under caution and responded “no comment” to the questions 32 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 5 of 12 asked. She remained on police bail until her first appearance in the Traffic 1 division of the Summary Court on 22 July 2024. 2 3 xiv. On 23 August 2024, the defendant made her first appearance in the Grand 4 Court. On 15 November 2024, the defendant was arraigned. She pled not 5 guilty to causing death by dangerous driving and instead pled guilty to 6 causing death by careless driving, which has been accepted by the Crown. 7 A social inquiry report (“SIR”) and a victim impart statement (VIS) were 8 ordered by the Court.” 9 10

¶ [7] The reports of Mr. Redden and Mr. Butler were referenced by Counsel and the Court 11 was advised that the speed limit in the area is recorded in the reports as 30 miles per 12 hour. 13 14 VICTIM IMPACT REPORTS 15 16

¶ [8] The Department of Community Rehabilitation (“DCR”) has provided a Victim Impact 17 Report dated 17 February 2025 from the father of the deceased on behalf of the family. 18 Mr. Reve reported that his daughter was one month away from her 21st birthday. She 19 was the last child for her mother and her death has had a severe impact on the entire 20 family. Her mother’s health and that of her grandmother has suffered. They continue to 21 have high blood pressure issues. Ms. Reve assisted them financially and the absence of 22 financial assistance has also affected them. Mr. Reve describes himself as having been 23 plunged into depression for about one year. He has had to be prescribed medication. He 24 could not do his regular work as a driver because of having to pass the location of the 25 incident. The stepmother and sister of the deceased were also affected emotionally. 26 27 ANTECEDENT HISTORY 28 29

¶ [9] The defendant has no previous convictions recorded against her in this jurisdiction. 30 31 32 33 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 6 of 12 SOCIAL INQUIRY REPORT 1 2

¶ [10] The DCR has provided a Social Inquiry Report (“SIR”) dated 19th February 2025. This 3 details the personal circumstances of the defendant. The defendant is forty-two years old 4 with four children. The youngest children are eleven and seven years old. They are all 5 resident in the Dominican Republic, the home country of the defendant. The defendant 6 recounted that she grew up in modest financial circumstances where her basic needs 7 were always met. There were and still are positive and supportive relationships with her 8 parents. There is no reported trauma in her life. She was educated up to tertiary level 9 but did not complete those studies. She has been employed in various fields since leaving 10 school. She is the sole provider for her family and has lived outside her home country 11 in order to provide financial support to them. She migrated to the Cayman Islands in 12 2021 where she worked as a bartender for three years and three months until October 13 2024 when her work permit was deferred because of this case. Since then, she has been 14 in straightened financial circumstances. 15 16

¶ [11] The defendant expressed to the Probation Officer some emotional distress as a result of 17 the incident and has been referred to counselling. The defendant describes her 18 relationship with the deceased as a social one. They had briefly been co-workers at a 19 place of employment. She said that the deceased reminded her of her older daughter and 20 their bond was not that of best friends but rather a mother-daughter connection. 21 22

¶ [12] The defendant says that she has been providing financial support to one of the victims 23 who was unable to work after the incident. She expressed remorse and a desire to 24 apologise to the family of the deceased. She also accepted responsibility for consuming 25 alcohol before driving. 26 27

¶ [13] The defendant was assessed as being at low risk of re-offending. 28 29 30 31 32 33 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 7 of 12 LETTER AND CHARACTER REFERENCES 1 2

¶ [14] The defendant has written a letter to the Court dated 17th January 2025. In this she states 3 that she fully understands the responsibility for the accident and will carry the burden of 4 guilt for the rest of her life. She states: 5 6 “ I cannot find peace knowing that this could have happened to me, leaving my 7 children and mother without my presence. Every single day, the memories of that 8 night and the image of my friend’s family, who lost a loved one in the bloom of 9 youth haunt me. 10 11 I have sought guidance and mental therapy, and I trust that God Almighty, who sees 12 into my heart, may not absolve me of my guilt but knows I never intended to cause 13 harm to anyone. My remorse is genuine, and words cannot adequately express my 14 feelings. 15 16 …Each day I walk the long path toward forgiving myself or learning to live with 17 this guilt. I humbly beg for the mercy of this tribunal because I am not a bad person 18 despite having committed this grave mistake.” 19 20

¶ [15] There are letters from three character references. Each asks the Court to exercise 21 compassion and mercy. They describe the defendant as a genuinely respectful and polite 22 individual who is dedicated to her professional responsibilities. She is also described as 23 kind and as having a generous heart and sincere remorse for her actions. She is said to 24 deeply regret the impact of her behaviour on the family experiencing the profound loss. 25 This is said to have made it difficult for her to find peace in her work and daily life. Her 26 former employer describes her as punctual, disciplined and respectful, and a role model 27 for her colleagues. The incident is said to have had a deep emotional impact on her. 28 29 THE SUBMISSIONS 30 31

¶ [16] The prosecution submitted that under the Cayman Islands Sentencing Guidelines, the 32 offending is at the level of high culpability because the driving may be categorised as 33 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 8 of 12 driving falling not far short of dangerous driving. This is because of her conduct in 1 overtaking at speed at a traffic light. 2 3

¶ [17] Counsel submits that there are two aggravating factors which are likely to increase the 4 degree of harm by the offender namely that: 5 6 i. The defendant’s driving resulted in one death and serious injuries to two 7 victims in addition to the death. 8 9 ii. A combination of alcohol consumption prior to driving and possession of 10 only a Cayman Islands provisional driver’s license that was issued 11 approximately two months prior to the fatal collision. 12 13

¶ [18] The starting point for an offence of high culpability is 30 months custody with a 14 sentencing range of 18 months to 4 years custody. 15 16

¶ [19] Counsel for the defence initially submitted that the culpability was at the medium level 17 and that there was no evidence before the Court that the injuries sustained by the two 18 passengers in the vehicle were serious. The submission was that the mitigating features 19 in this case are sufficient to reduce the level of sentence to the lower level with a starting 20 point of 15 months custody with a sentencing range of a community order to 3 years 21 custody. Counsel noted that the defendant herself was injured and that the deceased was 22 not wearing a seat belt at the material time. Counsel also submitted that the defendant’s 23 license in the Cayman Islands was a provisional one which may indicate a lack of 24 experience. She had previously held a full driver’s license in her home country. 25 26

¶ [20] Counsel asked the Court to consider that the offence did not pass the custody threshold 27 and the imposition of a sentence which could be served in the community. 28 29

¶ [21] Counsel submitted that there was no irresponsible behaviour by the defendant such as 30 an attempt to cast blame or to avoid detection. The defendant cooperated with the 31 authorities and volunteered the fact that she had consumed alcohol, two mixed drinks of 32 Hennessy just prior to the incident. Counsel said that there was no opportunity at the 33 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 9 of 12 time for the defendant to know what had been disclosed to the officers by other 1 witnesses. Counsel said that this speaks to someone who has given an honest account 2 despite there being no opportunity for a blood sample to be taken. 3 4

¶ [22] Counsel said that the defendant accepts the evidence as to the speed at which the vehicle 5 was being driven and that at the time of the collision the vehicle had affixed to it, one 6 tyre which was a spare tyre. This was smaller than the other three tyres. Counsel said 7 that the defendant accepts that she was wrong for not being supervised by a licensed 8 driver but she has had a license which reduces the level of seriousness, and this is distinct 9 from someone who never had a license. 10 11

¶ [23] In mitigation Counsel submitted that the defendant was a person of good character prior 12 to the collision. In 2024 the defendant lost the means by which she was able to provide 13 for one of the victims and for her family. There has been some delay in progressing this 14 case in that the Accident Reconstruction reports were not completed until 2024, some 15 two years after the incident. Counsel also submitted that the defendant’s relationship 16 with the deceased is a mitigating factor. The defendant has had to process the loss and 17 describes the experience as a nightmare. The defendant sustained injuries in the incident 18 and has a prominent scar in the vicinity of her left eye. 19 20 FURTHER HEARING 21 22

¶ [24] The Court noted that there was an issue between the parties as to whether the two 23 passengers had received serious injuries. Thus, at the end of the hearing on the 24 2nd May 2025, the Court adjourned the sentencing, and a subpoena was issued for the 25 production of the medical records for the two passengers. These were provided by the 26 Hospital authorities in a timely manner. 27 28

¶ [25] Both Counsel and the defendant were thereafter afforded time to properly consider these 29 records and the opportunity to make further submissions. 30 31

¶ [26] At a further hearing, Counsel for the defence provided a helpful summary of the medical 32 records and conceded that there is evidence that both passengers sustained serious 33 injuries. 34 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 10 of 12

¶ [27] The summary is as follows: - 1 2 Name Assessment Page No. Damaris Martinez Almonte Polytrauma from a MVA. Sustained fracture to the skull and facial bones and left tibia fracture. She required brain debridement as well as ORIF of the left tibia. She was noted to have right leg swelling over a week ago but not excessive. As a result she had a DVT study showing that there is extensive left DVT to the iliac veins. 85 Damaris Martinez Almonte A significant left orbital blow out fracture. 87 Damaris Martinez Almonte Suffered significant trauma, with head injury. Her progress on surgical has reportedly been slow and concerns raised as to her lack of verbalisations, interactions at times and a paucity of speech. 88 Esther Medina Orellano Blunt head trauma Blunt trauma to abdomen Blunt trauma to chest Cervical spine fractures Fractures considered stable. Will treat conservatively. 5 3 4

¶ [28] It is now agreed by Counsel that this offending must therefore fall into the highest 5 category under the Guidelines. 6 7 THE SENTENCE 8 9

¶ [29] The Court considers that the culpability is particularly high in this case, such that the 10 mitigating factors of injury to the defendant and closeness to the deceased victim have 11 less effect. Notably the injuries which the defendant received do not appear to be at a 12 great level of seriousness. Defence Counsel referenced the fact that the deceased victim 13 was not wearing a seat belt. To meet the test of amounting to a mitigating factor, the 14 actions of the victim must have contributed significantly either to the likelihood of the 15 collision occurring and or of death resulting. In the context of the circumstances of this 16 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 11 of 12 case, and the conduct on the part of the defendant in speeding, overtaking and crashing 1 into a wall, there is an absence of evidence to prove that the action of the deceased victim 2 in not wearing a seatbelt contributed significantly to death occurring. 3 4

¶ [30] In determining the level of culpability, the Court considers that there are two 5 determinants of seriousness which place the offending at the highest level. These are the 6 consumption of alcohol which can be reasonably inferred to have caused gross 7 impairment and excessive speed. To make the judgment call to overtake in the vicinity 8 of a traffic light must surely have been as a result of impaired thinking. The speed was 9 almost more than twice the speed limit for that area. It is not a case of momentary 10 inattention. The Court accepts the submission of the prosecution and considers that the 11 level of driving falls not far short of dangerous driving. The starting point under the 12 Guidelines for offending with this level of culpability is 30 months imprisonment. 13 14

¶ [31] It is plainly an aggravating factor that two other victims were seriously injured. The 15 medical records evidence that the injuries were at the highest level of seriousness and 16 the inference is that but for surgical intervention, at least one other may not have 17 survived. This factor alone increases the sentence by 12 months to one of 42 months. 18 19

¶ [32] It is a second aggravating factor that the defendant was breaking the law in driving on a 20 learner’s permit while not in the presence of a licensed driver. An additional 4 months 21 is added to the sentence for a sentence of 46 months imprisonment. 22 23

¶ [33] In mitigation the Court takes into account everything said and written in favour of the 24 defendant. These include the following: - 25 26 i. The defendant has no previous convictions. 27 ii. Her good character and references. 28 iii. All her good personal circumstances. 29 iv. Genuine remorse and early acceptance of responsibility. 30 v. Four children for whom she is the financial provider. 31 vi. Her family for whom she is the financial provider. 32 vii. She lost her earnings in December 2024. 33 250613 R v Ygnacia Rafaelina Francisco Payero: Ind. 72 of 2024 - Coram: Richards J. K.C. – Sentence Judgment Page 12 of 12 viii. She received injuries herself. 1 ix. She was in a motherly relationship with the deceased and friends with the 2 other two victims. 3 x. She provided support to the victim after the incident. 4 xi. Delay in the provision of the Accident Reconstruction reports. 5 6

¶ [34] All these serve to reduce her sentence by 7 months imprisonment to one of 39 months 7 imprisonment. 8 9

¶ [35] The defendant is given full credit for her guilty plea of one third thereby reducing the 10 sentence to one of 26 months imprisonment. 11 12

¶ [36] Time served is to be taken into account. 13 14 DISQUALIFICATION 15 16

¶ [37] The mandatory disqualification from driving or obtaining a driver’s license is applied of 17 three years following her release from Prison. 18 19 Dated this the 13th day of June 2025 20 21 Honourable Justice Cheryll Richards K.C. 22 Judge of the Grand Court 23