R v Kevin Kumar Walters - Sentence Judgment

¶ 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 1 of 11 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 91 of 2023 4 5 6 7 R 8 9 V. 10 11 KEVIN KUMAR WALTERS 12 13 14 Appearances: Mr. Neil Kumar, Crown Counsel, Office of the Director of Public 15 Prosecutions for the Prosecution 16 17 Mrs. Prathna Bodden of Samson Law for the Defence 18 19 Before: The Hon. Justice Cheryll Richards KC 20 21 Submissions Heard: 24th May 2024 22 23 Sentence Judgment: 24th May 2024 24 25 26 27 28 Criminal Law, Sentencing, Possession of Imitation Firearm contrary to section 18 (6) of the 29 Firearms Act (2008 Revision). Guilty Plea, United Kingdom Sentencing Council Guidelines. 30 Starting Point, Difference in Maximum Sentences. 31 32 33 34 35 36 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 2 of 11 SENTENCE JUDGMENT 1 2 3

¶ [1] The defendant is before the Court for sentencing following his guilty plea to a single 4 count of Possession of Imitation Firearm contrary to section 18 (6) of the Firearms Act 5 (2008 Revision). 6 7

¶ [2] The particulars are that he on the 21st day of September 2023 at No 5. Birchwood Road, 8 George Town, Cayman Islands, had in his possession an imitation firearm with intent to 9 commit an offence, namely causing fear or provocation of violence. The maximum 10 sentence is 20 years imprisonment. 11 12 THE BACKGROUND 13 14

¶ [3] The defendant first appeared before the Grand Court on the 13th October 2023. He was 15 arraigned on his next appearance on the 27th October 2023 and entered a not guilty plea. 16 He elected a jury trial. A trial date was set for the 27th November 2023. On the 21st 17 November 2023, the defendant indicated that he wished to change his attorney. A new 18 attorney came on record for him on the 24th November 2023 and the trial date was 19 vacated. New trial dates were set. 20 21

¶ [4] On the 21st May 2024 a jury was empaneled. The trial was due to begin on the 23rd May 22

¶ [2024] On that day, defence Counsel advised that following a pre-trial interview a new 23 statement had been provided by witness Curtis Cory Campbell. Mr. Campbell said in that 24 statement that he heard a sound as if a bullet was selected but did not (as he had earlier 25 said) see a firearm in the hand of the defendant. The defendant was re-arraigned at the 26 request of Counsel and pleaded guilty. 27 28 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 3 of 11

¶ [5] On the 24th May 2024, Counsel provided an agreed basis of plea. Defence Counsel noted 1 that the defendant has been in custody for some time and asked that the case proceed to 2 sentence rather than be further delayed for reports. 3 4

¶ [6] The prosecution offers no evidence on the scheduled offence to the Indictment of Causing 5 Fear or Provocation of Violence contrary to s.88 of the Penal Code (2019 Revision). A 6 formal verdict of not guilty is entered and the defendant is discharged thereon. 7 8 THE FACTS 9 10

¶ [7] The prosecution provided a detailed summary of facts which is set out below. 11 12

¶ [8] The defendant is a twenty-two year-old foreign national who in September 2023 was 13 employed on a work permit in the Cayman Islands. He was previously in a relationship 14 with Mary Hibbert. Mary Hibbert is now in a relationship with Curtis Campbell. They 15 have been in a relationship for more than a year. Mr. Campbell and Ms. Hibbert share 16 one child together. There is an issue as to whether the child is the child of the defendant 17 or the child of the witness Campbell. Ms. Hibbert told the police that she had known the 18 defendant for about a year. She had met the defendant through social media and started 19 to communicate. A week later they met personally. They started a relationship one month 20 afterwards, and she began visiting him at his family home. She ultimately ended the 21 relationship with him. Shortly before she became pregnant, she had just met Mr. 22 Campbell. 23 24

¶ [9] The incident occurred on the 21st of September 2023, sometime after 10:30pm, outside 25 the residence of Ms. Hibbert at Birchwood Road. Mr. Campbell was also present at the 26 residence at the time of the incident. At the material time, he was by the trunk of his car 27 in order to remove clean clothes from the laundry. 28 29

¶ [10] According to Ms. Hibbert, the defendant drove to her residence and came out of his car. 30 He asked what was going on ("what a gwane yah so") and she told him "Kevin you need 31 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 4 of 11 to leave." The defendant said threatening words to the effect that he will shoot him. She 1 walked up to the defendant in order to keep the distance from him and Mr. Campbell. 2 The defendant said that he had something in his waist. She saw him push his hand down 3 to his waist. She heard a click but did not see what made the click sound. She told him 4 to stop and leave and words to the effect that he would get in trouble. As she was saying 5 that to him, she put her right hand to where she saw him put his hand. She felt something 6 hard inside his waistband but did not see what it was. 7 8

¶ [11] Mr. Campbell got into his car and drove out from the parking lot. Shortly afterwards, the 9 defendant got into his own car and went after Mr. Campbell. Both vehicles turned left 10 onto Crewe Road and travelled in the direction of George Town. 11 12

¶ [12] Mr. Campbell told the police that he heard the threats of the defendant which caused him 13 fear. He was then told by the defendant to leave, and so he went to his car and left the 14 location. Shortly thereafter, he saw the defendant driving his silver car. The defendant 15 stopped right next to him near to the Smith Road stoplight, where the light was red. As 16 soon as he saw the defendant’s vehicle, he drove off. He drove at a fast rate of speed 17 towards the George Town Police Station to get away from the defendant because he was 18 in fear for his life. Mr. Campbell reported the matter to the police. 19 20

¶ [13] In his further statement dated 22nd May 2024, Mr. Campbell stated that he did not see the 21 defendant with a gun on the night in question. It was dark, and he was more than ten feet 22 away from the defendant at the time. Mr. Campbell said that he could hear the ‘click 23 click’ sound, which sounded like when a 9mm pistol is charged. He said that when the 24 defendant threatened him was the time that he heard the sound. Mr. Campbell said that 25 he can identify the sound. It is the sound when you pull a part of a pistol and select a 26 bullet to fire. Mr. Campbell said that he has five uncles who are police officers in Jamaica, 27 and he knows the sounds that a gun makes when you ‘charge it’. 28 29

¶ [14] Following the report of Mr. Campbell, the police began making checks for the 30 defendant’s vehicle (a silver Honda Accord registration 136 465). They searched along 31 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 5 of 11 West Bay Road and then onto Eastern Avenue. Upon approaching the Kirk Supermarket 1 entrance, police saw the vehicle approaching, heading towards the West Bay Road 2 junction. Upon seeing the police vehicle, the defendant’s vehicle went straight towards 3 the junction passing the police vehicle. The police vehicle turned around and started to 4 follow the silver Honda Accord which had increased its speed. The Honda Accord made 5 a right turn at the stoplight and went through the red light. The defendant then threw a 6 flare gun out of the window of the vehicle. This was captured on Closed Circuit 7 Television (“CCTV”) footage. The police caught up to the vehicle in the vicinity of 105 8 West Bay Road where it came to a complete stop. The defendant was arrested. 9 10

¶ [15] Police Officer Caswell Ferguson conducted a search on-foot along the road where the 11 defendant’s vehicle had travelled. At 12:13am in the vicinity of 19 West Bay Road, 12 George Town, he recovered an orange and black flare gun and one black tam. 13 14

¶ [16] The defendant was interviewed by the police on the 22nd of September 2023. The 15 defendant told the police that he did attend Mary Hibbert’s residence on the night in 16 question, but he denied threatening anyone. He also denied pulling a gun or being in 17 possession of a flare gun whilst in anyone’s presence at the residence of Ms. Hibbert. He 18 did, however, admit to police that he threw a flare gun out of his vehicle before he was 19 apprehended. He was shown the CCTV footage of this at the time of the interview. 20 21 THE BASIS OF PLEA 22 23

¶ [17] The following is the agreed basis of plea: - 24 “I Kevin Walter plead guilty to Count 1 on the following basis: - 25 26 a. On 21st September 2023 there was an exchange of words between myself and 27 Mary Hibbett, during which threats were made which caused fear to Curtis 28 Campbell. 29 b. No imitation firearm was ever shown. 30 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 6 of 11 c. I had work tools in my pocket which made a click sound – I accept that the 1 complainants suspected that this was a gun. 2 d. Later, I threw the flare gun, which was in my car, out of the window out of fear 3 as I was being chased by the police.” 4 5 THE SUBMISSIONS 6 7

¶ [18] Both Counsel referred the Court to the United Kingdom Sentencing Council Guidelines 8 for the offence of Possession of Imitation Firearm with Intent to Cause Fear. Counsel for 9 the prosecution submitted that under those guidelines this offending is Lower Culpability 10 and Category 3 Harm. Counsel said that there is no evidence of serious harm in this case. 11 12

¶ [19] Lower Culpability factors under the Guidelines include the following: - 13 • No intention to cause injury to persons. 14 • Lesser role where offending is part of group activity. 15 • Little or no planning or unsophisticated offending. 16 • Firearm or imitation firearm not produced or visible. 17 • Conduct limited in scope and duration. 18 19

¶ [20] Harm factors for Category 3 Harm are: - 20 21 • Alarm/distress caused. 22 • All other cases not falling into 1 or 2. 23 24

¶ [21] Counsel for the Prosecution provided information, which was not disputed, that at the 25 time of this offending the defendant was on bail on Summary Court charge 01307/23- 26 Assault Causing Actual Bodily Harm. The date of that offending is 8th January 2023, and 27 the complainant is Ms. Hibbert. The defendant first appeared in the Summary Court on 28 the 21st July 2023. He pleaded guilty to the lesser offence of Common Assault. He was 29 on bail for that offence in September 2023. 30 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 7 of 11 1

¶ [22] The Court brought to the attention of Counsel the judgment of the Grand Court in the 2 case of R v Jonathan Samuel Welcome1 and opportunity was afforded to Counsel to 3 make submissions thereon. Counsel for the defence submitted that the case of Welcome 4 is significantly more serious than the present case. A firearm was produced in that case. 5 6

¶ [23] Defence Counsel disagreed with the prosecution that the fact that the offending occurred 7 at nighttime may be treated as an aggravating factor. Counsel said that the incident 8 occurring at nighttime may serve to aggravate any offence and one has to consider the 9 particular offending. 10 11

¶ [24] In mitigation, defence Counsel submitted that this defendant has no previous convictions. 12 Counsel said that the defendant has been in custody since his arrest in September 2023. 13 Prior to his arrest he had been here for some four years. He had been working as a mason 14 and during his free time occupied himself with football. His mother and grandmother are 15 resident in the Cayman Islands. Whilst in custody, he has used his time productively. He 16 has had no infractions. He goes to the Chapel at the Prison and is trying to register for 17 educational courses such as mathematics. He recognises that this is a very serious offence 18 and is apologetic. The time spent in custody to date has provided him with the opportunity 19 for sober reflection. Counsel noted that there was a change in the evidence and asked that 20 full credit be given for the defendant’s guilty plea. 21 22 THE SENTENCE 23 24

¶ [25] This Court has considered the relevant questions as set out in the case of R v Avis2. 25 26 i) What sort of weapon is involved in this case? It is an imitation firearm. 27 28 1 Ind. No 57/2016 Grand Court Unreported Judgment dated 15th December 2016 2 [1998] 1 Cr. App. R. 420 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 8 of 11 ii) What use if any was made of it? It was not brandished or pulled whilst in the 1 presence of the two civilian witnesses according to the accepted basis of plea. The 2 defendant says that he had a tool in his pocket and the statements of the witnesses 3 say that he placed his hand on his waist where something hard was and made a 4 threat to shoot. 5 6 iii) With what intention did the defendant possess the imitation firearm. Clearly it was 7 to instill fear into the minds of the witnesses. 8 9 iv) What is the defendant’s record? He has no previous convictions for offences of a 10 similar nature. 11 12

¶ [26] Both Counsel accept that the United Kingdom Sentencing Council Guidelines for the 13 offence of Possession with Intent to Cause Fear can only be of limited assistance because 14 the maximum sentence in the United Kingdom is quite different, being one of 10 years 15 imprisonment compared to the 20-year maximum in the Cayman Islands. 16 17

¶ [27] The Court accepts the submission of the prosecution that this offending under those 18 Guidelines would fall into Category 3 Harm. This is the lowest level, being one where 19 some alarm or distress was caused to Mr. Campbell in this case. There is no evidence of 20 severe physical or psychological harm. 21 22

¶ [28] The offending would be at the level of Culpability C, because the imitation firearm was 23 not produced. This offence of Category 3 Harm and Culpability C would attract a starting 24 point in the United Kingdom of 6 months custody. 25 26

¶ [29] In the case of Welcome the Grand Court (Dobbs J.) said this: - 27 28 “27. Mrs. Bodden, counsel for the Defendant, has submitted that when looking at 29 the UK cases, cognizance has to be taken of the fact that the maximum sentences in 30 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 9 of 11 the UK are higher for the equivalent offence, That is correct. However, the 1 imposition of the tough mandatory minimum in the Cayman Island demonstrates 2 that these offences are taken extremely seriously and are indeed higher than the 3 mandatory minima in the UK. 4 5

¶ [28] In my judgment, there has to be some correlation between sentences for a real 6 firearm and an imitation one under the section. Despite Lord Bingham’s measured 7 words, there is a strong message about the seriousness of cases involving imitation 8 firearms. In this case, the officers were clearly concerned for their safety, taking 9 cover where they could; the two members of the public must have been petrified. 10 11

¶ [29] The mandatory minimum sentence under the section, had this been a real 12 firearm, is ten years following conviction. This obviously can be increased to reflect 13 aggravating factors. With that in mind, I take a starting point of five years. A more 14 imposing weapon would have attracted a higher starting point.” 15 16

¶ [30] The learned Judge referred to the judgment of Lord Bingham in the case of Bentham3 17 and stated that: - 18 “24. Applying the questions set out in Avis: The court is concerned with an 19 imitation firearm. Although the maximum sentence under s.18 is the same whether 20 the firearm is imitation or real, commonsense dictates that the fact that the gun is 21 an imitation one is a highly relevant factor. If the gun in question had been a real 22 firearm under the section, the mandatory minimum sentence of 10 years’ 23 imprisonment, unless exceptional circumstances pertained would follow 24 conviction. However, the fact that the gun was an imitation one does not take the 25 offence out of the clearly serious category which Parliament intended, not least 26 because as Lord Bingham in the case of Bentham (supra) at paragraph 6 said: 27 28 3 [2005] UKHL 18 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 10 of 11 “While an imitation firearm lacks the capacity of a real loaded firearm to kill or 1 injure, it has much the same capacity to frighten and enforce compliance, not least 2 because many imitations are almost indistinguishable from the real thing and those 3 threatened have little opportunity or inclination to examine the nature of the 4 weapon used.”” 5 6

¶ [31] The Court adopted a starting point of 5 years imprisonment in the case of Welcome. The 7 defendant in that case had brandished an imitation firearm at police officers and two 8 members of the public at night in a public place. His intention was to resist arrest. 9 10

¶ [32] In this case the defendant, while not producing the firearm, touched his waist and 11 threatened to shoot Mr. Campbell. The witnesses heard a clicking sound as if a bullet had 12 been selected. This was clearly meant to cause the witnesses to believe that he had a 13 firearm and to frighten them. The defendant deliberately chased after Mr. Campbell after 14 Mr. Campbell had fled the premises in fear. The defendant sought to evade the police 15 thereafter and threw an imitation firearm out of his car window. The offending is serious, 16 and the custody threshold is firmly passed. 17 18

¶ [33] Given the seriousness with which these offences are treated legislatively in the Cayman 19 Islands and the nature of the offending this Court adopts a starting point of 30 months 20 imprisonment. 21 22

¶ [34] The offence was committed while the defendant was on bail for an assault on Mary 23 Hibbert. The Court considers this to be a serious aggravating factor which increases the 24 sentence by 6 months from the starting point. The Court also considers that it is an 25 aggravating factor that this offence was committed at night. The fact that this was under 26 cover of darkness would clearly have increased the fear and alarm to be felt by both 27 witnesses. This factor serves to further increase the sentence by 2 months for a total 28 sentence of 38 months imprisonment. 29 30 240524 R v Kevin Kumar Walters: Ind. 91 of 2023. Coram Richards J, KC - Sentence Judgment Page 11 of 11

¶ [35] In mitigation the Court takes into account everything which has been said in the 1 defendant’s favour by his Counsel. He is remorseful. He has had no similar offending in 2 the past and his personal circumstances, as detailed by his Counsel, are noted. He was 3 gainfully employed and while on remand has occupied himself productively by taking 4 various courses and intends to continue to do so. 5 6

¶ [36] All these factors serve to reduce the sentence by 12 months to one of 26 months. 7 8

¶ [37] This plea was entered after a trial date had been set and although the Court accepts that 9 circumstances changed given the new statement of the witness Campbell, there was no 10 previous acknowledgement by way of a plea that the defendant had done anything wrong 11 involving an imitation firearm. The defendant could have pleaded earlier had he chosen 12 to do so. Consequently, the Court proposes to follow the Cayman Islands Sentencing 13 Guidelines and to apply the recommended discount therein of 25%. The defendant is 14 afforded a reduction for his guilty plea of 6 months for a total sentence of 20 months 15 imprisonment. Time served is to be taken into account. 16 17 Dated this the 24th May 2024 18 19 The Hon. Justice Cheryll Richards KC 20 Judge of the Grand Court 21