R v Jose Carter-Ramirez - Sentence Judgment

¶ 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. 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: 3 OF 2023 4 5 6 7 R 8 9 V. 10 11 JOSE CARTER-RAMIREZ 12 13 14 Appearances: Mr. Alexander Barbour, Crown Counsel, Office of the Director of 15 Public Prosecutions for the Prosecution 16 Mrs. Prathna Bodden of Samson Law for the Defendant 17 18 Before: The Hon. Justice Cheryll Richards KC 19 Submissions Heard: 28th July 2023 20 21 Sentence Judgment: 11th August 2023 22 23 24 HEADNOTE 25 26 Criminal Law–Unlawful Wounding contrary to s.204 of the Penal Code 2022 Revision)– 27 Principles on Sentencing, Cayman Islands Sentencing Guidelines-Whether injury serious in the 28 context of the offence. 29 30 31 32 33 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. 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 the offence of 3 Unlawful Wounding contrary to s.204 of the Penal Code (2022 Revision). 4 5

¶ [2] The particulars are that he on the 16th day of December 2022 at the Power Supply Bar situated at 6 No. 36 Lawrence Boulevard, George Town, Grand Cayman, Cayman Islands unlawfully and 7 maliciously wounded Allan McKenzie Jr. 8 9

¶ [3] The maximum penalty is a term of imprisonment of seven years. 10 11 THE FACTS 12 13

¶ [4] The prosecution has provided a summary of the facts which is not disputed by the defence. On 14 Friday 16th December 2022 at about 11:00pm the victim Allan McKenzie Jr went to the Power 15 Supply Bar on West Bay Road. While he was standing at the counter of the Bar he saw the 16 girlfriend of the defendant, Ariana Consuelo McFarlane. He did not speak to her and denies 17 having any interaction with her. Someone slapped her on her buttocks, and she believed that the 18 victim was responsible. At the time the defendant was outside the Bar sitting in her motor vehicle. 19 20

¶ [5] Ms. McFarlane left the Bar, went to her car and drove herself and the defendant away from the 21 location. She told the defendant that the victim had slapped her on the buttocks. Having driven 22 to another Bar on West Bay Road, they decided to return to the Power Supply Bar. 23 24

¶ [6] Ms. McFarlane observed the defendant to be frantic as though he was under the influence of 25 drugs. (He later admitted to the police that he had been under the influence of alcohol). When 26 they arrived at Power Supply Bar, the defendant walked toward the rear entrance to the premises. 27 Ms. McFarlane called the defendant back. He did not turn around but continued toward the 28 entrance. She remained at the car. 29 30

¶ [7] By this time, the victim was outside the Bar smoking a cigarette by the disabled parking bay in 31 the front of the Bar. Whilst standing there he heard a voice say, “you slapped my girl on her a..”. 32 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 3 of 9 He responded to say, “what’s going on”. He turned around and saw the defendant with a knife in 1 his hand. 2 3

¶ [8] The defendant used the knife to stab him in the chest. The victim said that it happened quickly, 4 and he was frightened. He saw that the defendant was going to stab him again and so he ran off 5 in the direction of the road. The defendant chased him. 6 7

¶ [9] The victim does not recall what happened after that. A passerby, a man called Derrick Bush found 8 the victim on the opposite side of Lawrence Boulevard. The victim was bleeding profusely from 9 his chest. Mr. Bush drove the victim to the George Town Hospital. Although he was initially 10 conscious, the victim lost consciousness on the way to the Hospital. He was treated there and 11 subsequently transported via ambulance on the same day to the Health City Hospital due to the 12 severity of his injury. 13 14

¶ [10] The medical report from the George Town Hospital indicates that the victim suffered a right side 15 hemothorax, laceration to the right middle lobe, and a tiny right apical pneumothorax, 16 accompanied by bleeding in the chest wall. Emergency surgery was necessary to treat the injury. 17 The doctor at George Town Hospital gives his view that the injuries were neither serious nor 18 permanent. 19 20

¶ [11] There are records from the Health City Hospital where he was transferred. These indicate that 21 while he remained stable some hours after blood was evacuated from his lungs, he started to 22 become unstable and underwent an emergency right thoracotomy which included repair of the 23 injured middle lobe and control of bleeding from the chest wall. 24 25

¶ [12] The notes state: - 26 27 “Mr. Allan on arrival was admitted in the ICU, evaluated, a right sided intercostal drain 28 inserted under mild sedation and local anesthesia, immediately around 2 litres of dark 29 blood was drained. After the procedure he remained haemodynamically stable for a few 30 hours, but later in the ICU he again had a significant amount of drain haemodynamic 31 instability, so [the] consent obtained from the father and taken for emergency surgery. He 32 underwent Emergency right thoracotomy – Evacuation of haematoma, repair of injured 33 middle lobe and control of bleeding from the chest wall. He tolerated the procedure well, 34 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 4 of 9 in the postoperative period he had low blood counts and acute kidney injury. He received 1 multiple blood and products during his stay in the hospital. The kidney is recovering and 2 the urea and creatinine is normalising. He recovered well during his post-op stay and was 3 discharged on 21st December 2022 in a haemodynamically stable condition. 4 5

¶ [13] The defendant heard that the police were looking for him and handed himself in to the West Bay 6 Police Station on the 4th January 2023. He was interviewed under caution the same day. 7 8

¶ [14] During the interview he confirmed that he was present at the Bar that night and that the victim 9 was also present. He stated that he was drunk at the time and that he would have taken a different 10 approach had he been sober. 11 12

¶ [15] He identified himself and the victim from still Closed Circuit Television (“CCTV”) images. 13 When asked whether he had stabbed the victim he stated that he had nothing to say. The CCTV 14 footage was played to him and when asked specific questions about the incident he again told 15 police that he had nothing to say. 16 17

¶ [16] The CCTV footage obtained from outside the Power Supply Bar records the incident. The 18 relevant portion was tendered, exhibited and played at this sentence hearing. Six photographs of 19 the victim, which show his injury, were also produced together with the hospital notes. 20 21 VICTIM IMPACT REPORT 22 23

¶ [17] The Department of Community Rehabilitation (“DCR”) has provided a Victim Impact Report 24 (“VIR”) dated 27th June 2023. 25 26

¶ [18] The defendant and the victim are known to each other. They were some two years apart at high 27 school and would greet each other on sight. The victim is twenty-three years old. He described 28 to the Probation Officer how he ran from the defendant after he had been stabbed. The defendant 29 chased him. The victim passed out on the side of the road and was taken to hospital. While on 30 route he was in and out of consciousness. He had to undergo an operation where blood was 31 drained from his lungs. He was admitted to the Health City Hospital where he spent five days. 32 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 5 of 9 After being discharged he has had to have follow up visits including to remove the stitches. He 1 has scars from the injuries and from the surgical insertions. 2 3

¶ [19] He could not move his right hand and his right side was stiff. He could not walk. He could not 4 breathe properly and was weak because of blood loss. He continues to have breathing difficulties 5 and is on medication and uses a pump to assist his breathing. 6 7

¶ [20] He used to be an avid fisherman and diver but since the incident he is afraid to dive in case he 8 has breathing difficulties while under water. He has suffered hearing loss in his left ear after the 9 incident. 10 11

¶ [21] As to the economic impact upon him, he was off from work for three weeks. After he was released 12 from hospital, he had to resort to his savings in order to purchase medication and supplies. 13 14 SOCIAL INQUIRY REPORT 15 16

¶ [22] The DCR has provided a Social Inquiry Report (“SIR’) dated 20th June 2023. The Court has read 17 this Report in its entirety and takes into account everything stated therein in favor of the 18 defendant. 19 20

¶ [23] The defendant is twenty-five years old. He has three young children aged three years, five years 21 and eleven months. His partner was financially dependent on him for support for herself and the 22 children. He has been employed at various jobs from age sixteen years through to November 23 2022 when he was charged with this offence. 24 25

¶ [24] In November 2017 he was sentenced to a 12-month Probation Order for possession and 26 consumption of ganja. He received a written warning in the course of it for failing to comply with 27 directions but thereafter was compliant and successfully completed the term of his probation. 28 29

¶ [25] His adoptive mother speaks highly of him and describes him as a kind, caring and hardworking 30 individual. His biological mother has been very ill for a number of years, and he has been caring 31 for her, provided financial support and takes her to medical appointments. His family has relied 32 on him for this support. 33 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 6 of 9

¶ [26] He was assessed as being at medium risk of re-offending. 1 2

¶ [27] While on remand in Prison he has been gainfully employed as a yard cleaner and has undertaken 3 Mathematics and English classes. He has already completed two rehabilitative programmes. He 4 has had two adjudications while there and at the time of the report there was one pending for 5 offending against good order and discipline. 6 7

¶ [28] He told the Probation Officer that he was heavily intoxicated at the time of the offending. He said 8 that he had consumed only four alcoholic beverages and that he believes that he was drugged by 9 someone. He said that the actions were out of character for him. He expressed remorse and 10 describes himself as feeling terrible about his actions. 11 12 ANTECEDENT HISTORY 13 14

¶ [29] The defendant has four previous convictions which are all for marine offences. 15 16 THE SUBMISSIONS 17 18

¶ [30] Both Counsel referred the Court to the Cayman Islands Sentencing Guidelines. Counsel for the 19 prosecution submitted that the Harm in this case while serious in the context of the offence is 20 unlikely to be capable of being said to be significantly above the norm for a wounding given the 21 nature of the offence. It is therefore said that the level of Harm falls somewhere between Greater 22 and Lesser Harm. 23 24

¶ [31] As to Culpability it is submitted that this is a case of Higher Culpability due to the use of a 25 weapon, the knife. There was some planning involved because the defendant returned to the Bar 26 after leaving it and was armed with a knife. It has elements of being a revenge attack. 27 28

¶ [32] Counsel for the defence did not disagree with the submissions as to the level of categorisation of 29 Harm and Culpability. Counsel submitted in mitigation that the defendant handed himself in to 30 the police and made full and frank admissions. This evidences his genuine remorse. This 31 offending is out of character for him. Counsel accepts that the custody threshold has been passed 32 but asks for consideration to be given to the defendant’s personal circumstances. He has been 33 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 7 of 9 impacted as well and his young family are without his support. Counsel said that the defendant 1 would like to assure the Court that he is not going to be back before the Court. 2 3 THE SENTENCE 4 5

¶ [33] The offending in this case is serious. Following an allegation of interference with his girlfriend 6 the defendant deliberately returned to the location, armed with a knife. Rather than making an 7 inquiry, he stabbed the victim to the lungs. From the CCTV footage played in Court the stabbing 8 was deliberate and purposeful. When the victim ran, he chased him. The resulting injury was not 9 a flesh wound. It entailed loss of consciousness and required immediate and further surgical 10 intervention. The recovery is still not complete and from the VIR it has had life altering 11 implications for the victim. The custody threshold is firmly passed. 12 13

¶ [34] Both Counsel are agreed that the Harm falls between the levels for Category 1 and 2. The Court 14 will adopt a starting point of 4 years custody or 48 months. 15 16

¶ [35] The aggravating factors submitted by the prosecution are also accepted by the defence. They are 17 the location and timing of the offence, this being at night at liquor license premises and in the 18 presence of other persons as shown on the CCTV footage. These were bystanders who would 19 likely be affected by sight of this stabbing. These factors serve to increase the sentence by 4 20 months to 52 months. 21 22

¶ [36] In mitigation the Court takes into account everything said in favour of the defendant in the reports 23 and by Counsel on his behalf. These include that the defendant has no previous convictions of a 24 similar nature. This offending is entirely out of character for him. He is twenty-five years old, 25 still relatively young and has the financial care for his young children and partner. He also has 26 the care of his ill mother. He has thus far led a productive life. He is genuinely remorseful. He 27 gave himself in to the police and made full and frank admissions from an early stage. This was a 28 single blow and an isolated incident. He is at medium risk of re-offending. 29 30

¶ [37] All the facts taken together serve to reduce his sentence by 17 months to 35 months 31 imprisonment. 32 33 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 8 of 9

¶ [38] It is accepted that after an initial equivocal plea to the more serious offence, he pleaded guilty to 1 this offence at the earliest opportunity. He is therefore entitled to the full discount of one third 2 for a sentence of 23 months. 3 4

¶ [39] The Court has given consideration to whether an immediate custodial sentence is unavoidable 5 and to whether any portion of the sentence may be suspended. 6 7

¶ [40] The Court considers that his personal circumstances are such that a portion of this sentence can 8 be suspended. He has expressed a willingness to make amends and has already completed some 9 rehabilitative programmes. This is his first offence of this kind. His risk of re-offending is not at 10 the highest level. 11 12

¶ [41] The defendant is to serve fifteen months of this sentence by way of immediate custody. The other 13 eight months will be suspended for two years. 14 15

¶ [42] For the suspended portion of the sentence, a supervision order is imposed with the conditions as 16 recommended by the Probation Officer. He is to:- 17 18 (i) Attend and complete the Anger Management Programme at the Department 19 of Community Rehabilitation as directed by his Probation Officer. 20 21 (ii) Attend the Department of Counselling Services for individual counselling 22 and follow through with any treatment intervention recommended by that 23 Department and provide proof of participation to his Probation Officer. 24 (iii) Submit to random drug testing. 25 26 (iv) Abstain from the purchase or consumption of drugs, except in accordance 27 with a prescription from an authorised medical professional. 28 29 (v) Participate in any other psycho-educational programmes deemed suitable 30 by his assigned Probation Officer. 31 32 230811 R v Jose Carter-Ramirez: Ind. 3 of 2023. Coram Richards J, KC - Sentence Judgment Page 9 of 9 (vi) Not to have any direct or indirect contact with the victim of the offence or 1 any of the victim’s family members. 2 3

¶ [43] The defendant is warned that should he re-offend within the two years of the suspended portion 4 of the sentence, he will be brought back to Court and may be required to serve the additional 5 period of his sentence. 6 7

¶ [44] Any time served is to be taken into account. 8 9 Dated this the 11th day of August 2023 10 11 The Hon. Justice Cheryll Richards KC 12 Judge of the Grand Court 13