R v Hernandez (Luisto Eusebio) - Sentence Judgment

¶ ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 1 of 10 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 IND NO: 0095/2022 4 5 6 REGINA 7 8 v. 9 10 LUISTO EUSEBIO HERNANDEZ 11 12 13 14 Appearances: Mr. Neil Kumar holding for the delivery of 15 the judgment for Mrs. Nicole Petit for the 16 Crown 17 18 Ms. Lene Doherty holding for the delivery 19 of the judgment for Mr. Jonathon Hughes 20 of Samson Law for the Defendant 21 22 Before: Justice Roger Chapple (Actg.) 23 Heard: 23rd June 2023 24 25 26 HEADNOTE 27 Criminal Law – Attempted Murder contrary to s194 of the Penal Code (2022 28 Revision) - Possession of an unlicensed firearm contrary to s15(1) and (5) of the 29 Firearms Act (2008 Revision) – Sentence after trial. 30 31 32 33 34 SENTENCE JUDGMENT 35 36 37 38 39 40 41 42 43 44 45 46 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 2 of 10 INTRODUCTION 1 2

¶ [1] On 8th June, 2023, the defendant was convicted, following a jury trial, of two 3 offences: 4 5 i. attempted murder, contrary to s194 of the Penal Code (2022 Revision), 6 and 7 8 ii. possession of an unlicensed firearm contrary to s15(1) and (5) of the 9 Firearms Act (2008 Revision) 10 11

¶ [2] It is now my task to decide upon the appropriate sentences for these offences. I have 12 the advantage of written sentencing submissions from both Counsel Mrs Pettit, on 13 behalf of the Prosecution, and Counsel Mr Hughes, on behalf of the Defence. I heard 14 oral submissions as to sentence on 23rd June and have taken time to reflect and 15 deliberate upon sentencing in what is, on any showing, a serious and troubling case. 16 17 THE FACTS 18 19

¶ [3] Mr Nigel Campbell, the victim in this case, lives at 26, Oakland Close, Windsor 20 Park, George Town, together with his wife, her children and grandchildren. In April 21 2022 the defendant, also lived there with his partner and baby mother, Jenicia (one 22 of Mr Campbell’s wife’s daughters) and their 2 children. 26 Oakland Close is 23 situated in a tenement yard. 24 25

¶ [4] On 20 April 2022, an argument developed between the defendant, then 26 years of 26 age, and Mr Campbell, then 41 years of age, as to how a mango, which the defendant 27 intended to feed to his baby son, should be prepared. According to Mr Campbell, 28 when he offered his views, the defendant told him to “F… off”, adding that “if I were 29 to say anything further, he (the defendant) would corn my skin,” which, Mr Campbell 30 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 3 of 10 explained, meant that the defendant would shoot him. This prompted Mr Campbell 1 to throw a bottle at the defendant. The bottle shattered. The defendant, it seems, 2 thought that a shard of glass had caused injury to his daughter; her mother later took 3 her to hospital. There is no evidence as to whether the daughter did in fact sustain 4 injury, and if so, the extent of it, since Miss Jenicia, along with many other potential 5 witnesses, refused to co-operate with the police and refused her permission for the 6 police to have access to the relevant medical records. 7 8

¶ [5] The defendant drove off in his car, but returned some 6 to 10 minutes later, armed 9 with a handgun. He made his way towards Mr Campbell, who was now in a shop in 10 a corner of the yard. The defendant fired two shots, intending, as the jury found, to 11 kill Mr Campbell. Thereafter, the defendant fled and went into hiding. His 12 whereabouts were eventually discovered by the police. He was arrested in Bodden 13 Town on 14th November 2022. As was his right, the defendant answered “no 14 comment” to all questions asked of him when interviewed by the police. He 15 maintained his silence at trial, electing not to give evidence. Consequently, nothing 16 is known of the defendant’s account of events. 17 18

¶ [6] One of the two bullets fired found its target, entering the upper left side of Mr 19 Campbell’s chest, travelling transversely down and through his body, causing 20 extensive damage to several internal organs. The bullet finally lodged in his pelvic 21 bone. He underwent emergency surgery and spent time in critical care before being 22 discharged from hospital on 3 May 2022. Further details of his injury, treatment and 23 prognosis appear from the statement and report of Dr Jehangir dated respectively 4th 24 May and 16th June 2022. I will return to those details later in this judgement. 25 26 27 28 29 30 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 4 of 10 THE SENTENCING GUIDELINES – VIOLENT OFFENCES 1 2

¶ [7] My starting point in determining the appropriate sentence in this case is the Cayman 3 Islands Sentencing Guidelines for Violent Offences, published in June 2021. Mrs 4 Pettit, in the course of her helpful written submissions has referred me to two Grand 5 Court sentencing judgments: R v George Washington Vaughan1 and R v Robert 6 Aaron Crawford2. I have read both cases with interest, but, I agree with Mr Hughes 7 that pre-guideline cases are now of limited value and, in any event, neither case 8 sought to lay down any general principle, but were confined to their own facts. I am 9 told this is the first attempted murder case to be sentenced since the guidelines were 10 published. 11 12

¶ [8] As with all sentencing exercises, I am required to assess both Culpability and Harm. 13 Dealing firstly with Culpability: The prosecution submit that this case falls within 14 Category one of the guidelines – “most serious offences.” Mr Hughes submits that 15 I should place this case in Category two, as, he contends, there is one feature in each 16 of the three Culpability categories present in this case. The Category three feature – 17 “other spontaneous attempts to kill” – he argues, is present here and is “a greater 18 degree of provocation than normally expected.” Guidance as to how to determine 19 whether this feature is present is to be found at paragraph 5 of the guidelines, which, 20 in so far as it is relevant to this case, provides as follows: 21 “In many offences, it is possible that the issue of provocation will arise. 22 The law generally expects a person to be able to resist provocation, but 23 accepts that there will be circumstances where the level of provocation 24 justifies a reduction in sentence. In assessing the degree of provocation 25 where the guideline provides for a greater degree of provocation than 26 normally expected to be a mitigating factor, account should be taken of 27 the following factors: 28 a. …. 29 b. whether the victim presented a threat not only to the 30 offender, but also to children in his or her care;” 31 1 Ind. 85/2014 dated 15 December 2016 2 Ind. 58/2015 dated 21 January 2020 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 5 of 10

¶ [9] I readily accept that the defendant was concerned, as any father would be, for the 1 safety of his daughter. The potential for serious injury, when a glass bottle shatters 2 in close proximity, is obvious. Mr Hughes tells me that the defendant is especially 3 protective of his daughter. However, it seems that this part of the incident was further 4 fuel to the defendant’s fire which had already ignited, a fire which arose from an 5 entirely trivial disagreement over a mango. 6 7

¶ [10] The defendant’s threat to kill Mr Campbell preceded the smashing of the bottle. For 8 what it is worth, the guidelines speak of a threat presented both to the defendant and 9 to children in his care. I do not believe that the defendant felt under any serious threat 10 from Mr Campbell. The guideline does not, I am sure, mean provocation in the 11 strictly legal (that is to say, a defence to murder) sense, but in a more general sense. 12 Nevertheless, I cannot conclude in all the circumstances of this case that there was 13 “a greater degree of provocation than normally expected” or a level of provocation 14 that justifies any significant reduction in sentence. I bear in mind, particularly, that 15 a period of 6 to 10 minutes elapsed between the contended provocative act and the 16 shooting. There was ample time for the effect of such provocation - such as there 17 may have been – to subside. The defendant’s behaviour cannot properly be described 18 as a “spontaneous attempt to kill” – the sub-heading, as it were, of Category 3. 19 20

¶ [11] For the same reason I conclude, as Mr Hughes concedes, that there was a “significant 21 degree of premeditation or planning” – a Category 2 feature. The defendant drove 22 off, obtained a loaded firearm, or a firearm and ammunition, and returned to the 23 scene with murderous intent. 24 25 26 27 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 6 of 10

¶ [12] I am satisfied that this case sits firmly within Category one Culpability, since this 1 was, in the words of Category one, the “use of lethal weapon brought to the scene 2 for the purpose of causing fatal injury.” The fact that the degree of pre-meditation 3 or planning was significant, rather than substantial, does not alter the categorisation. 4 5

¶ [13] There can be no question as to the seriousness with which the legislature views the 6 possession and use of firearms, given the mandatory minimum sentence regime 7 imposed by the Firearms Act (2008 Revision). As is well known, conviction for an 8 offence of unlawful possession of an unlicensed firearm, following trial, attracts a 9 minimum sentence of 10 years’ imprisonment, unless there are exceptional 10 circumstances. In the event of a guilty plea, the mandatory minimum sentence is 7 11 years’ imprisonment. 12 13

¶ [14] I then move to assess the Harm caused, and whether that is best described as: 14 15 a. serious and long-term physical or psychological harm. 16 b. some physical or psychological harm. 17 c. little or no physical or psychological harm. 18 19

¶ [15] In addition to Dr Jehangir’s statement and report, I have the advantage of a recent 20 witness statement from Mr Campbell, in which he explains his current state of health 21 and the impact of this attack upon him. He continues to suffer from sharp pain in his 22 chest, particularly at night. Prior to this attack upon him, he worked as a construction 23 worker. He is unable to return to this work as a result of his injuries and is now 24 unemployed. He has incurred hospital bills in the region of CI$54,000, with no ready 25 means to discharge that debt. He is understandably concerned for the future. He 26 describes the almost inevitable, but nevertheless very real, effect offences such as 27 these have on other family members. 28 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 7 of 10

¶ [16] Undoubtedly, Mr Campbell suffered serious harm. As the bullet travelled through 1 Mr Campbell’s body, it caused, as I have already noted, extensive damage to several 2 internal organs, including the diaphragm, spleen, kidney, colon, intestine and 3 bladder. The bullet remains in Mr Campbell’s body, “lodged in a place which may 4 cause nerve, bladder or bowel dysfunction. However, it is in a position where 5 removal of the bullet could cause more damage to nerves.” The prognosis is 6 uncertain. Dr Jehangir explains, “the long-term sequelae of these injuries depend on 7 the complications which may or may not occur in the future.” The primary areas of 8 future concern are the diaphragm, bowel, intestines and bladder. 9 10

¶ [17] Dreadful though these injuries clearly were, I am not satisfied that their effect upon 11 Mr Campbell can properly be described as “serious and long-term physical or 12 psychological harm.” One does not, sadly, have to look very far to find cases in 13 which catastrophic injury has been caused. That said, “some physical or 14 psychological harm” hardly seems an apt description of Mr Campbell’s injuries and 15 their effect upon him. As Mrs Petit put it, this case “sits on the cusp” of the first and 16 second categories of harm. I place it in the second category - but increase the starting 17 point sentence to reflect the high degree of harm within that second category. 18 19

¶ [18] Of the aggravating features listed in the guidelines, three seem to me to be relevant. 20 Firstly the “location of offence (especially in public area or where children 21 present).” As was adduced in evidence at trial, the yard where this offence took 22 place was often “a busy place”. History does not relate if children, whether the 23 defendant’s own children or others, were present, although this was not unlikely. 24 Secondly, “firearm used which was unlicensed or otherwise illegally possessed”, as 25 it was here, although, as I observed in the course of submissions, that is generally 26 the way of things in almost all shootings. Thirdly, I take note of the defendant’s 27 previous convictions. He first appeared before the courts in 2014. He has 4 28 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 8 of 10 convictions for offences of violence (assaults occasioning actual bodily harm). His 1 last court appearance prior to these offences was in 2020, when a 2-year suspended 2 sentence was imposed. This expired a little over 3 months before the commission of 3 these offences, which represent a very considerable escalation of violent offending. 4 5

¶ [19] There is, in my judgment, one further significant aggravating feature in this case: the 6 firearm used to shoot Mr Campbell was not recovered and thus remained in 7 circulation, for use in future crime. Examination of the two spent cartridges 8 recovered at the scene establishes that this firearm has been used in the course of 9 three other reported offences, as follows: 10 11 i. the robbery of a barber’s shop during which a shot was fired, on 23rd 12 June 2021; 13 ii. a shooting in West Bay on 25th June 2021; and 14 iii. the fatal shooting of a retired prison officer in George Town on 26th June 15

¶ [2022] 16 17

¶ [20] I hasten to add that there is no suggestion that the defendant was involved in any of 18 those offences. It can be safely assumed that the defendant returned the firearm into 19 the criminal hands from whence it had come, since the fatal shooting to which I have 20 just referred took place a little over two months after these offences. 21 22

¶ [21] The starting point suggested for a Category 1, “some physical or psychological 23 harm” case, is a sentence of 20 years’ imprisonment, with a suggested category range 24 of 17 to 25 years’ imprisonment. As discussed above, the extent of the injuries 25 sustained, together with the risk of future complications, along with the four 26 aggravating features I have referred to, require an increase to the starting point, from 27 20 to 24 years’ imprisonment. 28 29 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 9 of 10 MITIGATION 1 2

¶ [22] At the conclusion of the trial, Mr Hughes readily agreed that in all the circumstances 3 of this case, and particularly the inevitability of a substantial custodial sentence, a 4 Social Inquiry Report (SIR) would not assist. Mr Hughes felt that such factors about 5 the defendant’s background and circumstances as were relevant could as well be 6 placed before me by Mr Hughes as by the Department of Community Rehabilitation. 7 Unusually perhaps, I am satisfied that the interests of justice do not require what in 8 this jurisdiction would be a lengthy delay, to obtain such a report. 9 10

¶ [23] I have summarised Mr Hughes’ submissions on behalf of the defendant, as to the 11 guidelines, in my discussions above. 12 13

¶ [24] The defendant is now 28 years of age. I was told that after a “rocky teenage period”, 14 he had settled down and taken steps to address his anger problems which were the 15 root cause of his earlier offending. He has a 5-year-old daughter and a 2-year-old 16 son. Mr Hughes told me that the defendant was, at the time of these offences, in 17 gainful employment, having two jobs, one in the construction industry, the other in 18 logistics. He had been out of trouble for some years prior to these offences, for 19 which, Mr Hughes urged, he deserved credit. 20 21

¶ [25] As against that, it is a feature of this case that I view with concern, that the defendant 22 was able, within a period of minutes, to lay his hands on a firearm and ammunition, 23 which I regard as a reliable indicator of his lifestyle and connections at the time of 24 these offences. 25 26 CONCLUSIONS 27 28

¶ [26] There are, in my view, relatively few mitigating features in this case. I bear in mind 29 the defendant’s relative youth, his troubled past and that his record of offending at 30 ____________________________________________________________________________________ Sentence Judgment: R v. Hernandez (Luisto Eusebio). Ind. 0095/2022. Coram: Chapple J. (Actg.). Date: 11th July 2023 Page 10 of 10 the time of these offences was not, relatively speaking, extensive. Whilst not 1 amounting to any significant provocation, I also bear in mind that Mr Campbell 2 added fuel to the fire by throwing a bottle and that the defendant was concerned for 3 the safety of his daughter. Those factors persuade me to reduce the sentence to one 4 of 21 years’ imprisonment. That is the sentence I pass on count 1 of the indictment 5 (attempted murder). 6 7

¶ [27] I am obliged to pass a sentence of at least 10 years’ imprisonment upon count 3 8 (unlawful possession of an unlawful firearm), since there are no exceptional 9 circumstances which would justify a departure from the mandatory sentencing 10 regime. Self-evidently, the firearms offence was part and parcel of the more serious 11 offence of attempted murder. A concurrent sentence is plainly appropriate, on 12 general principles. The sentence upon count 3 is one of 12 years’ imprisonment, to 13 run concurrently with the sentence passed upon count one. Thus, the total sentence 14 to be served is one of 21 years’ imprisonment. 15 16

¶ [28] I make no order for compensation as there is no evidence before me that the 17 defendant has the means to satisfy any such order. 18 19

¶ [29] The time that the defendant has already spent in custody shall count towards the 20 serving of his sentence. 21 22 Dated this the 11th day of July 2023 23 24 Justice Roger Chapple 25 Acting Judge of the Grand Court 26