R v Lindsay Kirk Watler - Sentence Judgment

¶ 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 1 of 11 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 Neutral Citation Number: [2025] CIGC (Crim) 18 3 IND NO: 105 of 2023 4 5 6 7 R 8 9 V. 10 11 LINDSAY KIRK WATLER 12 13 14 15 Appearances: Ms. Candia James-Malcolm, Deputy Director and Ms. Shauna-Kaye James, 16 Crown Counsel, Office of the Director of Public Prosecutions for the 17 Prosecution 18 19 Mr. Ben Tonner KC of McGrath Tonner and Mr. Crister Brady of Brady Law 20 for the Defence 21 22 23 24 Before: The Hon. Justice Cheryll Richards KC 25 26 Submissions Heard: 10th April 2025 27 28 Sentence Judgment: 17th April 2025 29 30 31 32 Criminal Law - Sentencing for Murder contrary to section 181 of the Penal Code (2019 Revision), The 33 Conditional Release Act (2019 Revision), Minimum Term. 34 35 36 37 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 2 of 11 SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing following his conviction after trial for the 3 offence of Murder contrary to s.181 of the Penal Code (2022 Revision). The particulars are that 4 he on the 14th day of October 2022, in the vicinity of Birch Tree Hill Road, West Bay, Grand 5 Cayman, murdered George Ian Duffel. 6 7

¶ [2] By section 183 of the Penal Code the maximum sentence for the offence of Murder is life 8 imprisonment. 9 10

¶ [3] The facts may be briefly summarised as follows. On the night of Friday 14th October 2022, the 11 deceased George Ian Duffel was at Kellys Bar in West Bay. He left the Bar at about 9:30pm and 12 was last seen by the Police walking in the area of Stadium Drive. At around 10:30pm he was seen 13 in the vicinity of Swallow Road running away from an unknown assailant. The assailant punched 14 and kicked the deceased as he lay on the ground before fleeing the scene. The Police were called 15 and on arrival there was no sign of life in the deceased. A subsequent postmortem examination 16 concluded that the cause of death was multiple sharp force injuries. There were also defensive 17 injuries to the hands of the deceased. Fingernail scrapings taken from the right hand of the 18 deceased had DNA material which was not from the deceased himself. The expert evidence at 19 trial was that the most likely scenario for this, is violent contact, a struggle or a fight. The DNA 20 expert testified that the defendant could not be excluded from the DNA material under the 21 fingernails of the deceased to a statistical ratio of it being 420 trillion times more likely if the 22 defendant was the source of the material than an unknown person in the population. 23 24

¶ [4] The sister of the deceased Harvon Ebanks has provided a victim impact statement dated 20th 25 February 2025. She states that the deceased was born in 1971. He was thus 51 years old at the 26 time of his death. He was the youngest of three children. She describes him as an intelligent 27 individual and a gifted sportsman especially in basketball. He worked for three years as a 28 firefighter and is believed to have achieved high marks in test results. Thereafter he worked in 29 construction and sold coconuts around the West Bay area. Around 1995 he became involved in 30 drugs and his life took a downward turn. 31 32 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 3 of 11

¶ [5] Ms. Ebanks states that his murder has had a massive effect on her. She is tortured by the way he 1 died which she describes as a horrific death with horrific injuries. She says that she feels lost 2 without him and her life is not the same. Another sibling is in tears because of his absence. 3 4 ANTECEDENT HISTORY 5 6

¶ [6] The defendant has an antecedent history consisting of seven previous convictions. One 7 conviction for Assault and three convictions for Assault Causing Actual Bodily Harm are spent. 8 These were in 1997, 1999, 2006 and 2017. There is a recent conviction for Wounding on the 23rd 9 September 2021. The defendant was sentenced to 23 months imprisonment suspended for 2 years 10 with a supervision order. The circumstances in relation to this offending are set out in the 11 judgment of the Court dated 23rd September 2021. The defendant chopped the victim with a 12 machete causing multiple lacerations to the chest, scalp and left forearm, an open fracture to the 13 left ulna and left hemopneumothorax. Paragraph 7 of that Judgment states: 14 15 “The Defendant was interviewed under caution on the 10th April 2021. He stated that on 16 the day in question he went to the yard where he saw the Complainant raking. He said that 17 the Complainant started an argument with him about some music CD’s and swiped at him 18 with the rake to the left of his stomach which caused an injury. He said he ran from the 19 yard and the Complainant chased him with a shovel. He ran to his own yard, retrieved his 20 machete and returned with it to where the Complainant was. He saw the Complainant 21 holding a Guinness stout bottle in his hand from which he had been drinking earlier. He 22 felt threatened by this and started beating the Complainant with the machete. He said that 23 he had not called the Police about what was happening because he had called the Police in 24 respect of previous incidents and nothing was done about his reports.” 25 26 27 28 29 30 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 4 of 11

¶ [7] It is accepted by the defence in the instant case that the defendant has previous convictions for 1 violence and that this offence of murder was committed during the term of the suspended 2 sentence. 3 4 MEDICAL REPORT 5 6

¶ [8] Counsel for the defence has provided a medical report dated 10th March 2025. Dr. Rohan-Moving 7 states that the defendant has a long history of respiratory conditions including asthma and chronic 8 obstructive pulmonary disease, (“COPD”). The defendant gave evidence about this at trial. 9 10

¶ [9] His asthmatic condition was diagnosed in childhood. Doctor states that this is very poorly 11 controlled due to non-compliance with prescribed medications and ongoing exposure to triggers. 12 Four triggers are detailed. These include smoking and environmental exposure, for example 13 exposure to dust during construction work. The prognosis is that: - 14 15 “Asthma and COPD are chronic and progressive conditions with no cure. However, with 16 appropriate management, symptoms can be controlled, and quality of life can be improved. 17 Mr. Watler’s history of recurrent exacerbations highlights the importance of strict 18 adherence to medical advice, avoidance of triggers and consistent use of prescribed 19 medications. 20 21 In summary, Mr. Watler’s asthma and COPD have required recurrent medical intervention 22 over the past four years due to exacerbations triggered by infections, environmental 23 exposures, and non-compliance with treatment recommendations. Continued access to 24 appropriate medical care, medications, and a controlled environment free from irritants is 25 essential for managing his condition and preventing further deterioration.” 26 27 THE CONDITIONAL RELEASE ACT 28 29

¶ [10] The Conditional Release Act (2019 Revision) provides for a minimum sentence of 30 years for 30 the offence of murder before a prisoner is eligible for conditional release. This may be lower or 31 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 5 of 11 longer depending on whether there are exceptional circumstances of an extenuating or 1 aggravating nature. Section 14 (1) states: 2 3 “Notwithstanding any other Law to the contrary, when sentencing a prisoner to a term of 4 imprisonment for life, the court shall specify the period of incarceration the prisoner shall 5 serve before the prisoner is eligible to be considered for conditional release on licence, the 6 period being such as the court considers appropriate to satisfy requirements of retribution, 7 deterrence and rehabilitation, but for murder, the period shall be thirty years before the 8 prisoner is eligible for conditional release unless there are — 9 10 (a) extenuating circumstances, exceptional in nature, in which case the court may 11 impose a lower period of incarceration; or 12 (b) aggravating circumstances, exceptional in nature, in which case the court may 13 impose a longer period of incarceration.” 14 15

¶ [11] Section 21 of the Act provides for Regulations to be made. Schedule 12 to the Regulations 16 provides a non-exhaustive list of aggravating and extenuating circumstances. 17 18 “Schedule 12 19

¶ [2] (1) Detailed consideration of aggravating or mitigating circumstances may result in a 20 minimum term of any length. 21 22 (2) Aggravating circumstances that may be relevant to the offence of murder include – 23 24 (a) a significant degree of planning or premeditation; 25 (b) the fact that the victim was particularly vulnerable because of age or disability; 26 (c) mental or physical suffering inflicted on the victim before death, 27 (d) the abuse of a position of trust; 28 (e) the use of duress or threats against another person to facilitate the commission of the 29 offence; 30 (f) the fact that the victim was providing a public service or performing a public duty; 31 (g) concealment, destruction or dismemberment of the body; 32 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 6 of 11 (h) previous convictions; 1 (i) abduction and sexual or sadistic conduct; and 2 (j) any other circumstances which may be considered relevant. 3 4 (3) Extenuating circumstances that may be relevant to the offence of murder include – 5 (a) an intention to cause serious bodily harm rather than to kill; 6 (b) lack of premeditation; 7 (c) the fact that the offender suffered from any mental disorder or mental disability which 8 (although not falling within section 185(1) of the Penal Code (2013 Revision)), lowered 9 the offender’s degree of culpability; 10 (d) the fact that the offender was provoked (for example, by prolonged stress); 11 (e) the fact that the offender acted to any extent in self-defence or in fear of violence; 12 (f) a belief by the offender that the murder was an act of mercy; 13 (g) the age of the offender; and 14 (h) any other circumstances which may be considered relevant. 15 16 Previous convictions 17

¶ [3] (1) In considering the seriousness of an offence committed by an offender who has one 18 or more previous convictions, the court must treat each previous conviction as an 19 aggravating circumstance if (in the case of that conviction) the court considers that it 20 can reasonably be so treated having regard, in particular, to – 21 22 (a) the nature of the offence to which the conviction relates and its relevance to the current 23 offence; and 24 (b) the time that has elapsed since the conviction. 25 (2) Any reference in this schedule to a previous conviction is to be read as a reference to a 26 previous conviction by a court in the Cayman Islands. 27 (3) The court may treat a previous conviction by a court outside the Cayman Islands as an 28 aggravating circumstance in any case where the court considers it appropriate to do so.” 29 30 31 32 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 7 of 11 THE SUBMISSIONS 1 2

¶ [12] Both Counsel referred the Court to the provisions of the Conditional Release Act and to the 3 Cayman Islands Sentencing Guidelines. The Guidelines provide that in determining whether 4 the circumstances as a whole are exceptional in nature the court will undertake a two-stage 5 analysis. The first stage is to decide based on a holistic assessment whether there are 6 circumstances which are unusual or uncommon. If there are, the second step is to decide whether 7 in the light of these the minimum term of 30 years would be arbitrary and disproportionate. In 8 considering this, the Court is to keep firmly in mind the intent behind the legislation which is to 9 protect the public. 10 11

¶ [13] In R v Anglin1, Smellie CJ stated that in the absence of circumstances that are truly exceptional 12 in nature, the court has no discretion to depart from the 30-year norm. 13 14

¶ [14] In Ricketts and Others2, the Cayman Islands Court of Appeal held that:- 15 16 “In interpreting Schedule 12, para. 2(2) and (3) (Aggravating and extenuating 17 circumstances) and the words “exceptional in nature,” the factor in question must be of 18 sufficient weight and seriousness so as to take the case into the exceptional category and 19 move the minimum term either upwards or downwards from the starting point of 30 years’ 20 imprisonment. It was not the case that aggravating or extenuating circumstances in para. 21 2(2) or (3) were not on their own sufficient to enable the judge to find that such 22 circumstances were exceptional, and that a further degree of exceptionality was required. 23 Once the court was sure that one or more of the circumstances set out in para. 2(2)(a)–(i) 24 or 2(3)(a)–(g), or any other relevant circumstances (para. 2(2)(j) or 2(3)(h)) was made out, 25 it had discretion to increase or reduce the minimum term.” 26 27

¶ [15] Counsel for the prosecution submits that there are no identifiable extenuating circumstances in 28 the instant case. Counsel’s submission is that there is nothing in the medical report which suggests 29 debilitating illness. Counsel said that the defendant’s symptoms appear to be well managed with 30 1 [2018] (1) CILR 85 2 [2019] (2) CILR 666 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 8 of 11 medication in prison and there is nothing which would warrant reducing the sentence below the 1 minimum term. 2 3

¶ [16] As to aggravating circumstances, Counsel submitted that this was a violent knife attack 4 committed at night on a fairly deserted roadway. Counsel submitted that the defendant has 5 previous convictions for offences of violence and that the most recent offence was committed 6 while the defendant was subject to a suspended sentence. 7 8

¶ [17] It is submitted that the defendant has been engaged in a course of escalation of violence despite 9 efforts by the Court to impose rehabilitative sentences on him. Counsel submitted that the facts 10 are strikingly similar as it appears that the defendant’s actions in the earlier offending were 11 retaliatory in nature. The submission is that the previous conviction meets the test for exceptional 12 circumstances and the minimum term should be increased to reflect this. 13 14

¶ [18] Counsel for the defence submitted that the defendant is 55 years of age. He has children who are 15 all adults, the youngest is in her 20s. He was gainfully employed for more than 20 years in the 16 car dealership and car rental industries. At the time of the offence he had been working as a 17 landscaper and a labourer for many years. Counsel submitted that the defendant has a number of 18 health issues. He has been asthmatic since childhood and has suffered from depression for over 19 a decade. The defendant also suffers from COPD which is an overlapping syndrome and on three 20 occasions in the last four years this has required doctor’s care. It was moderate to severe and the 21 defendant had to be hospitalised. Counsel described this illness as chronic and progressive and 22 as having no cure. Counsel also notes the reference in the judgment in the previous case to the 23 defendant having a serious mental health disorder which is treated with medication associated 24 with bi-polar disorder. 25 26

¶ [19] Counsel said that it is an extenuating circumstance that the defendant is 55 years old now and a 27 minimum term of 30 years means that the defendant will not be eligible for release until he is 85 28 years old. Counsel said that a man of his age with a progressive disease faces difficulty. He is 29 having incidents even now and this will not get any easier as he gets older. 30 31 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 9 of 11

¶ [20] Counsel said that it is accepted that the suspended sentence had not yet been served but the 1 defendant has complied to the best of his ability. This offence was committed one year into the 2 two-year period. Counsel submitted that the previous conviction is not an exceptional 3 circumstance. Defendants’ do from time to time have previous run ins with the law. Counsel 4 urged that the fact of this conviction does not move the needle upwards from 30 years. 5 6

¶ [21] In closing, Counsel submits that if the Court finds that there are aggravating and extenuating 7 factors, these cancel each other out. 8 9

¶ [22] Following Counsel’s submissions, the defendant sought and was granted permission to address 10 the Court directly. He said that in relation to the previous incident he had gone to the police four 11 times before about the complainant’s behaviour towards him. He said that he admitted what he 12 had done to the police and to the Court in relation to that case. He maintained his innocence in 13 relation to this case and said that in the Prison his lungs are being affected by secondhand smoke. 14 15 THE SENTENCE 16 17

¶ [23] The legislative steer set out in the Conditional Release Act reflects the serious nature of the 18 offending. The harm caused by the offence of murder is immeasurable in that a life lost can never 19 be replaced. Families are distraught and relatives are left to mourn as do the parents and siblings 20 of Mr. Duffel in this case. 21 22

¶ [24] The intent behind the legislation is also to protect the public from those offenders who would 23 seek to cause harm of such a serious nature. 24 25

¶ [25] This was a violent assault in which Mr. Duffel was left for dead under cover of night. Had he not 26 been found quickly and scientific evidence secured, his assailant may have remained unknown. 27 28

¶ [26] Having considered the submissions and circumstances of the instant case, I do find that there are 29 circumstances which are exceptional in nature. To be exceptional the circumstances have to be 30 unusual or uncommon, but they do not need to be unprecedented or very rare. 31 32 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 10 of 11

¶ [27] The previous offending of wounding is very recent and is of a similar nature to the present 1 offending. In my view it can reasonably be treated as an aggravating circumstance. It serves to 2 increase the minimum term by one year. 3 4

¶ [28] I have noted the submissions of defence counsel as to extenuating circumstances. Dr. Rohan- 5 Moving states that: - 6 7 “Asthma and COPD are chronic respiratory conditions that significantly impact a 8 patient’s quality of life and overall health. Common symptoms experienced by 9 individuals with these conditions include: 10 11 • Shortness of breath (dyspnea), particularly during physical activity or exposure to 12 triggers. 13 • Wheezing and chronic cough. 14 • Frequent respiratory infections due to compromised lung function. 15 • Fatigue and reduced exercise tolerance, leading to a sedentary lifestyle and associated 16 health risks.” 17 18

¶ [29] The defendant is not a young man. I accept as defence Counsel submitted that the defendant’s 19 health issues, the progressive nature of them, coupled with his age at 55 years will make his 20 health circumstances particularly difficult for him. I would therefore have reduced the minimum 21 term by one year. 22 23

¶ [30] The ultimate conclusion is that as submitted by defence Counsel the balance of factors 24 aggravating and extenuating mean that the minimum term remains at 30 years. 25 26

¶ [31] The defendant’s sentence is therefore life imprisonment with a minimum term of 30 years. 27 28 29 30 31 32 250417 R v Lindsay Kirk Watler - Ind. 105 of 2023, Coram: Richards J. – Sentence Judgment Page 11 of 11

¶ [32] The defendant was arrested on the 29th November 2023. Between then and today he has been in 1 custody for 505 days. This number of days is to be deducted from the minimum term. 2 3 Dated this the 17th April 2025 4 5 The Hon. Justice Cheryll Richards KC 6 Judge of the Grand Court 7