R v Romario Desmond Brown - Sentence Judgment

¶ 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 1 of 9 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 104 of 2024 4 5 6 7 R 8 9 V. 10 11 ROMARIO DESMOND BROWN 12 13 14 Appearances: Mr. Orrett Brown, Crown Counsel, Office of the Director of 15 Public Prosecutions for the Prosecution 16 17 Mr. Crister Brady of Brady Law for the Defence 18 19 Before: The Hon. Justice Cheryll Richards KC 20 21 Submissions Heard: 6th June 2024 22 23 Sentence Judgment: 6th June 2024 24 25 26 27 28 Criminal Law – Sentencing - Arson – Section 267 of the Penal Code (2022 Revision) Principles 29 on Sentencing, Offence Committed While a Serving Prisoner, Consecutive/Concurrent Sentences. 30 31 32 33 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 2 of 9 SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing following his guilty plea to Count 2 of 3 the Indictment. This charges him with Arson contrary to section 267 (1) and (3) of the 4 Penal Code (2022) Revision. 5 6

¶ [2] The particulars are that he on the 14th day of March 2023 at His Majesty’s Prison 7 (“HMP”) Northward, Northward Road, Bodden Town, within the Cayman Islands, 8 without lawful excuse, destroyed or damaged by fire, a mattress and pillow belonging to 9 the Cayman Islands Government, intending to destroy or damage such property or being 10 reckless as to whether such property would be destroyed or damaged. The estimated 11 value of the damage caused is $125.00. 12 13

¶ [3] The maximum penalty is life imprisonment because it is a case of Arson pursuant to s.267 14 (3) of the Act. 15 16

¶ [4] The plea to Count 2 is acceptable to the prosecution. The prosecution has indicated that 17 they will not proceed on Count 1. A formal verdict of not guilty is entered on that Count 18 and the defendant is discharged thereon. 19 20

¶ [5] The defendant first appeared before the Grand Court on the 8th December 2023. There 21 were adjournments for legal aid arrangements to be finalised and to await a psychiatric 22 report. The defendant was arraigned on the 15th March 2024 and pleaded guilty. It is 23 agreed by Counsel that his plea was entered at the first reasonable opportunity and that 24 he is entitled to full credit. 25 26

¶ [6] Defence Counsel indicated that a Social Inquiry Report is not required because there have 27 been several other reports done in relation to the defendant. 28 29 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 3 of 9 THE FACTS 1 2

¶ [7] The incident took place in the Alpha Wing at HMP Northward where the defendant is a 3 serving prisoner. He is serving a sentence of 5 years and 4 months for Aggravated 4 Burglary. 5 6

¶ [8] At about 1:44pm on Monday 13th March 2023, Prison Officer Shawn Rankine was on 7 duty when he observed dark smoke coming from cell number 9 on that Wing. This was 8 the cell of another serving prisoner. The cell was unoccupied at the time. Prison Officer 9 Rankine quickly got a bucket with water and with the assistance of one of the inmates 10 extinguished the fire which had engulfed the mattress and bed frame in the unit. Other 11 inmates left their cells, and the doors were opened to allow the smoke to escape. The 12 inmate whose cell it was, attended the wing after the smoke had subsided and retrieved 13 his belongings. 14 15

¶ [9] Closed Circuit Television (“CCTV”) cameras were viewed. These showed the defendant 16 going into his cell and coming out with a piece of white paper towel in his hand. He lit 17 the towel on fire, threw it into cell number 9 and walked away. 18 19

¶ [10] Photographs were taken of the damaged cell which showed burnt clothing as well as the 20 burnt mattress inside. 21 22

¶ [11] The fire investigator classified the fire as an incendiary fire. 23 24

¶ [12] The defendant was interviewed under caution on the 28th July 2023 in the presence of his 25 attorney. He admitted that he had set the fire to the cell which he had once shared with 26 Shane Connor by using a cigarette to light a piece of tissue which he placed on the 27 mattress. 28 29 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 4 of 9

¶ [13] He said that he had been forced into a cell with Mr. Connor, that Mr. Connor had a 1 vendetta against him due to his sentencing for burglary. Mr. Connor had received a higher 2 sentence for a similar crime. 3 4

¶ [14] The defendant said it was provocation and not intentionally done. He said that he got 5 angry and stressed as Mr. Connor provokes him. Mr. Connor blocks him from getting 6 inside the cell, steals his cigarettes, things, and canteen, and rubbed something in his head 7 which caused a part of his hair not to grow. He had complained about the provocation to 8 his Prison supervisors, and nothing was done. 9 10 PSYCHIATRIC REPORT 11 12

¶ [15] Dr. Arline McGill has provided a psychiatric report dated 25th April 2024. Dr. McGill 13 states that she is uncertain of the defendant’s fitness to plea based on his presentation. Dr 14 states: - 15 16 “Mr. Brown showed a pattern of responses suggestive of neurological deficit with 17 vulnerability to psychosis. His main defence mechanism seemed to be denial and he 18 has poor judgment concerning his limitations. He, at times, seemed grandiose but it 19 was not in keeping with a diagnosable mood disorder. He displayed significant 20 impulsivity in answers and past behaviour e.g., poor judgment. His decision making 21 overall seemed unrealistic and driven by impulses and fantasy. 22 Based on his presentation at the interview I am uncertain of his fitness to plead. 23 Despite not receiving any history of suicidal behaviour I am wary of saying that he 24 has minor risk of suicide. His pattern of extreme and unrealistic decisions suggests 25 that under severe frustration he could attempt to self-harm. 26 Any odd behaviour might be related to his severe obsessive tendencies and paranoia. 27 28 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 5 of 9

¶ [16] A Case Status Report from the Department of Rehabilitation dated 21st May 2024 1 recommends that prior to sentencing the defendant continues to receive psychiatric care 2 and that sentencing be delayed for a further three months. The Probation Officer records 3 the great concern that the defendant shows paranoia which is affecting his eating habits 4 at the Prison. 5 6

¶ [17] This Court considered further adjourning the sentencing hearing. However, defence 7 Counsel asked that the matter not be delayed any further. Counsel submitted that the 8 unsettled nature of the matter before the Court is adversely affecting the defendant. 9 Counsel said that the defendant is anxious for the case to be concluded. He is not eating, 10 and further delay will make things worse. Counsel stated in written submissions: - 11 12 “There were concerns as to his mental state and a report has been available to the 13 Court. While there are concerns as to the contents of the report, counsel’s 14 interaction with the defendant which has spanned some 7 years leads counsel to 15 conclude that the unsettled nature of his matters before the court, and the constant 16 exposure to abuse has had an even more mentally draining impact on the 17 defendant.” 18 19 ANTECEDENT HISTORY 20 21

¶ [18] The defendant is 24 years old. He has an antecedent history of thirty-two previous 22 convictions, four of which are for damage to property. 23 24 THE SUBMISSIONS 25 26

¶ [19] In the absence of offence specific guidelines in this jurisdiction, prosecuting Counsel 27 referred the Court to the United Kingdom Sentencing Council Guidelines for the offence 28 of Arson. 29 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 6 of 9

¶ [20] Counsel submits that under those Guidelines this offending would fall into category B 3 1 or C 3. 2 3

¶ [21] Category B Culpability factors include “recklessness as to whether serious injury is 4 caused to persons”. Counsel noted that the CCTV footage shows that there were a number 5 of persons present on the cell block at the time that the fire was set. Additionally, the 6 entire cell block became engulfed in smoke. 7 8

¶ [22] Category C factors include a reduction in the level of culpability by reason of mental 9 disorder. This Court proposes to consider mental health factors in mitigation which is the 10 recommended approach in the Cayman Islands. 11 12

¶ [23] Prosecuting Counsel submits that the Harm factors which are present would place this 13 offending into Category 3. There is no evidence of physical or psychological harm caused 14 to any person and the value of the damage is low. 15 16

¶ [24] Defence Counsel submitted in writing that the conduct is more in line with Culpability 17 B. The starting point for Category B 3 is a high level community order with a range of 18 sentence of a medium level community order to 9 months custody. 19 20 AGGRAVATING FACTORS 21 22

¶ [25] The prosecution submits that there are three potential aggravating factors. These are: - 23 24 i. The offence was committed inside HMP Northward-a confined public facility; 25 ii. The defendant committed this offence while he is imprisoned for offences 26 including Aggravated Burglary; and 27 iii. The defendant has previous convictions for damage to property. 28 29 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 7 of 9 SUBMISSIONS IN MITIGATION 1 2

¶ [26] In mitigation, defence Counsel submitted that the defendant is remorseful and upset with 3 himself for succumbing to the pressure from Mr. Connor. The defendant’s level of 4 maturity is not consistent with his chronological age of 24 years. His problem-solving 5 skills are less than average. 6 7

¶ [27] Counsel submitted that the defendant has offered to assist the prosecution with the other 8 persons involved in the burglary for which he is serving his sentence and has been 9 awaiting the outcome of this offer for some time. He has grown frustrated. 10 11

¶ [28] Counsel submitted that the defendant is aware of the seriousness of his offending and the 12 potential human loss that could have been caused. He is relieved that more harm was not 13 caused. Counsel states that the defendant never intended harm to any inmate. Instead, he 14 hoped that it would cause the removal of the prisoner Mr. Connor or cause himself to be 15 removed from the constant threats and abuse from Mr. Connor. 16 17

¶ [29] Counsel submits that the act of the defendant was impulsive and opportunistic and there 18 was little planning. It is said that the defendant pleads for leniency and mercy and asks 19 the Court to consider all the circumstances which have led him to this point. 20 21 THE SENTENCE 22 23

¶ [30] The Court considers that the circumstances of this offending are serious. The defendant 24 is correct that the damage and the injury to life could have been so much worse. But for 25 the quick action of the Prison Officer who did not wait to find a fire extinguisher, and 26 instead grabbed the nearest bucket and water, the fire could have easily spread in the 27 confined space of the Prison. The possible impact and risk to life and property was very 28 high. In the Court’s view the custody threshold is firmly passed. 29 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 8 of 9

¶ [31] The frustration of the defendant and the provocation which he says he has had to endure 1 cannot justify the doing of such a seriously dangerous act. The fact that it was done in a 2 prison context where the defendant ought to have been on his best behaviour makes it 3 even more serious. 4 5

¶ [32] Having regard to the UK Sentencing Guidelines, a starting point of a high-level 6 community order, (Category B 3) is applied. From this starting point, the Court considers 7 the three aggravating factors which have been put forward by the prosecution. In the 8 Court’s view some care has to be taken to avoid double counting and it appears that the 9 fact that the offence was committed inside a confined prison facility overlaps with the 10 fact that the defendant committed the offence while imprisoned for Aggravated Burglary. 11 The Court therefore proposes to take these two factors together as a single factor. This 12 serves to increase the sentence by 9 months. The sentence is further aggravated by the 13 significant factor that the defendant has four previous convictions for damage to property. 14 That factor serves to increase the sentence by an additional 9 months for a total sentence 15 of 18 months imprisonment from the starting point of a high-level community order. 16 17

¶ [33] In mitigation account is taken of everything said and written in the defendant’s favour. 18 These include that he is genuinely remorseful. He intended to assist the prosecution and 19 that intention continues. The circumstances of the offending and the reasons advanced 20 by him for that offending. The Court also takes into account the significant factor of his 21 possible mental state as recorded by Dr. McGill and as submitted by his Counsel who has 22 known him over a period of some seven years. The sentence is reduced by reason of all 23 the circumstances from 18 months to 12 months custody. 24 25

¶ [34] The defendant is given full credit for his guilty plea of one third. The sentence is therefore 26 further reduced to one of 8 months imprisonment. 27 28 29 240606 R v Romario Desmond Brown: Ind. 104 of 2024. Coram Richards J, KC - Sentence Judgment Page 9 of 9

¶ [35] Consideration has been given to whether the proposed sentence is proportionate to the 1 offending and to whether as defence Counsel requested, it or a part of it should run 2 concurrently to the sentence now being served. 3 4

¶ [36] The Court notes the serious nature of the offending and that it is entirely different from 5 the offending for which the defendant is now serving a sentence. 6 7

¶ [37] The Court considers that there must be a deterrent factor. This defendant must know that 8 he cannot set fire to property within the Prison. Other prisoners must know that they 9 cannot set fire to property within the Prison no matter how frustrated one gets. 10 11

¶ [38] Having considered all the submissions and the circumstances, given the seriousness of 12 the offending, the sentence of 8 months imprisonment is to run consecutively to the 13 sentence which the defendant is now serving. For the avoidance of doubt, time served is 14 not to be taken into account because the time which is being served relates to the offence 15 of Aggravated Burglary for which the defendant is incarcerated and is not in relation to 16 this offence. 17 Dated this the 6th June 2024 18 19 The Hon. Justice Cheryll Richards KC 20 Judge of the Grand Court 21