R v Nicholas Romano Forbes - Sentence Judgment

¶ 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 1 of 12 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NO: 97 OF 2022 4 5 6 7 8 R 9 10 V. 11 12 NICHOLAS ROMANO FORBES 13 14 15 Appearances: Mr. Scott Wainwright, Assistant Director of Public Prosecutions for 16 the Prosecution 17 18 Mr. Jonathon Hughes of Samson Law for the Defence 19 Before: Justice Cheryll Richards KC 20 Submissions Heard: 3rd April 2023 21 22 Sentence Judgment: 3rd April 2023 23 24 25 26 HEADNOTE 27 28 Criminal Law–Wounding with Intent and Causing Grievous Bodily Harm with Intent–Principles on 29 Sentencing, Cayman Islands Sentencing Guidelines-whether injuries serious in the context of the offence. 30 31 32 33 34 35 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 2 of 12 SENTENCE JUDGMENT 1

¶ [1] The defendant is before the Court for sentencing following his guilty pleas to two offences 2 pursuant to s.203 of the Penal Code (2022 Revision). 3 4

¶ [2] Count 1 charges him with the offence of Wounding with Intent. The particulars are that he on 5 the 23rd June 2022 at the Seven Mile Shops Plaza, West Bay Road, Grand Cayman, Cayman 6 Islands unlawfully and maliciously wounded Christopher Michael Alberga, with intent to do 7 the said Christopher Michael Alberga grievous bodily harm, namely by stabbing him in the 8 abdomen with a knife. 9 10

¶ [3] Count 2 charges him with the offence of Causing Grievous Bodily Harm with Intent. The 11 particulars are that he on the same date and at the same location unlawfully and maliciously 12 caused grievous bodily harm to Kyle Donovan McCoy with intent to do the said Kyle Donovan 13 McCoy grievous bodily harm, namely by stabbing him in the left eye with a knife. 14 15

¶ [4] The maximum penalty is life imprisonment for each offence. 16 17

¶ [5] The defendant first appeared before the Grand Court on the 9th December 2022. On that date 18 he was arraigned and entered pleas of guilty. It is accepted that his pleas were entered at the 19 first reasonable opportunity and that he is entitled to the full reduction for his pleas. 20 21

¶ [6] The prosecution has provided a summary of facts which is not disputed. 22 23

¶ [7] At about midnight on the 23rd of June 2022, the victims Christopher Michael Alberga and Kyle 24 Donovan McCoy had been out with others socializing at “The Bird” Bar and Lounge in the 25 Seven Mile Shops Plaza, West Bay Road. 26 27

¶ [8] At the relevant time, Mr. McCoy was outside and Mr. Alberga inside the establishment. An 28 argument developed between Mr. McCoy and the defendant. As Mr. McCoy walked away, the 29 defendant punched him on the back of his head. The two then exchanged blows. A third male, 30 who has not been identified, intervened and held Mr. McCoy from behind. 31 32 33 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 3 of 12

¶ [9] Mr. Alberga observed what was taking place and went to assist his friend. When he did so, the 1 defendant stabbed him in the abdomen with a knife which he produced from somewhere on his 2 person. 3 4

¶ [10] The defendant then looked Mr. McCoy in his face as he was still being restrained from behind 5 by the unidentified male. Having looked at him for a few seconds he then stabbed him in the 6 left eye. He then pulled out the knife and fled. 7 8

¶ [11] The police and ambulance were called. Both victims were conveyed to the George Town 9 Hospital for treatment. 10 11

¶ [12] Mr. Alberga received a laceration to his abdomen. The injury was said to be serious but not 12 likely to be permanent. The injury was consistent with infliction by a sharp object. He was 13 admitted to the medical unit. 14 15

¶ [13] Mr. McCoy sustained a penetrating injury to his left eye. The upper left eye lid was completely 16 cut and destroyed. There was significant tissue loss to the eye with the eye globe completely 17 out. He underwent surgery and was admitted to the surgical unit. He subsequently lost his left 18 eye. His condition was described as serious and permanent. 19 20

¶ [14] The defendant was subsequently positively identified at formal identification procedures by 21 Mr. McCoy and two other persons who were present at the time. 22 23

¶ [15] The defendant was interviewed under caution in the presence of an Attorney on the 24th June 24

¶ [2022] He exercised his legal rights and answered “no comment” to most of the questions put 25 to him. 26 27 VICTIM IMPACT REPORTS 28 29

¶ [16] The Department of Community Rehabilitation (DCR) has provided a Victim Impact Report 30 (“VIR”) in respect of Mr. McCoy which is dated 14th March 2023. 31 32

¶ [17] The victim is 20 years old. The defendant is unknown to him. The victim states that he lost two 33 liters of blood that night and was in and out of consciousness. On arrival at the hospital, he 34 was taken to the operating room. He was hospitalized for eight days and has an outstanding 35 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 4 of 12 hospital bill of $15,008.93. In the immediate aftermath of his discharge from hospital, he 1 suffered pain to his eye and swelling to his joints. The biggest impact has been the loss of his 2 eye. He needs to have two further surgeries but has been unable to have them because of issues 3 with his insurance coverage. He was unable to work for about a month and a half because of 4 the injury to his eye. He returned to work in September 2022 but lost his job in November 2022. 5 He remained out of work until January 2023 when he resorted to fishing to earn a living. 6 7

¶ [18] Under the heading Assessment/Evaluation, the Probation Officer states that the victim was 8 significantly impacted at all levels by the actions of the defendant. The injuries sustained were 9 serious, permanent and life altering. He is still dealing with the medical implications of his 10 injuries. 11 12

¶ [19] The VIR with respect to the victim Christopher Alberga is dated 20th March 2023. Attached to 13 this is a victim impact statement dated 19th March 2023. The victim states that when he went 14 outside the Bar to check on his friend, the first victim, he was suddenly stabbed to his lower 15 abdomen. He says that he was taken by ambulance to the emergency room and underwent 16 surgery. He remained in the intensive care unit for two nights. The fear was that his colon may 17 have been pierced. The doctors were not sure at the time. Once he was released, he was in 18 immense pain. He had nightmares, emotional breakdowns and feelings of fear of danger. He is 19 now afraid to go to bars or social events alone or even to move about alone. He was unable to 20 work for some three months at his usual employment in the water sports industry. He says that 21 he has recently left the Island in the hope that being away from the Cayman Islands will assist 22 him in rebuilding trust in people. 23 24

¶ [20] The Probations Officer’s assessment is that the offending has had a significant impact upon the 25 victim. The Officer notes that even in the absence of a formal psychological evaluation the 26 emotional harm caused to the victim appears to be severe as he continues to experience panic 27 and other symptoms of psychological harm. 28 29 ANTECEDENT HISTORY 30 31

¶ [21] The defendant has three previous convictions and a number of convictions for traffic offences. 32 There is one for an offence of a similar nature. On the 3rd August 2012, he was sentenced to a 33 probation order of one year for an offence of Assault Causing Actual Bodily Harm. 34 35 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 5 of 12 THE SOCIAL INQUIRY REPORT 1 2

¶ [22] The DCR has provided a Social Inquiry Report (“SIR”) dated 28th February 2023. The Court 3 has read this report in its entirety and takes into account everything said therein in favour of 4 the defendant. The defendant is 32 years old. He is the father of two children, a teenager and a 5 toddler, who is four years old. His early childhood and home environment was one with 6 difficulties including the separation of his parents which impacted him negatively. During his 7 school years he was diagnosed with an illness and placed on medication which he has 8 discontinued taking because of the side effects. 9 10

¶ [23] While in his teens he became involved in the criminal justice system when he was placed on a 11 probation order for the offence of Burglary. He has been gainfully employed at various jobs 12 between 2018 and 2023. He received serious injuries in a motor vehicle accident in 2017 which 13 required him to have four surgeries to his leg. He continues to have pain in his leg. 14 15

¶ [24] There is some ganja use which he reports as being for sleep and calm. He has admitted to the 16 Probation Officer that leading up the night of the offence he had commenced engaging in 17 alcohol use and the “party scene”. He also reported that on the night of the offence, he 18 consumed numerous alcoholic beverages. He said that he has reduced his level of alcohol 19 consumption because he is unable to think rationally when under the influence of alcohol. 20 21

¶ [25] The Officer states that over the years, the defendant has failed on all occasions to comply with 22 the terms of his probation orders and to address the needs identified including anger 23 management counselling. He failed to attend appointments and to complete the anger 24 management programme which was a condition of his last two Court orders. He was brought 25 back to Court and for the breach he was placed on a curfew order. On the 4th July 2018 he was 26 sentenced to a community service order as a result of traffic offences. He did not complete the 27 conditions of this order and was subsequently sentenced to two months imprisonment for this 28 breach. 29 30

¶ [26] Under the heading Community/Institutional Function, the defendant is described as a generally 31 quiet person, a loner, hardworking, a good father and to have made positive changes since this 32 incident. 33 34 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 6 of 12

¶ [27] Under the heading Attitude toward the Offence, the Officer records that the defendant said that 1 he had consumed about five to six mixed drinks within a two-hour period at the bar. He 2 admitted that anger had gotten the best of him so that he did not ignore the initial comments 3 made by one person in the group of people present there. He admitted to being in a rage, which 4 he presumed was fueled by the consumption of alcohol. He said that he was not aiming at Mr. 5 McCoy, he just wanted to catch him. He said that he was not able to think rationally about 6 handling the situation. 7 8

¶ [28] He expressed remorse at the injuries suffered by the victims and said that he felt bad that he 9 could have killed them and they are “someone’s child”. He showed no hostility towards the 10 justice system. 11 12

¶ [29] The defendant’s overall risk of reoffending was assessed as high, with five of the eight 13 criminogenic factors in the high category. The Officer recommends that as part of any sentence 14 plan if a custodial sentence is imposed, the defendant completes anger management, alcohol 15 prevention treatment and individual counselling. 16 17 CAYMAN ISLANDS SENTENCING GUIDELINES 18 19

¶ [30] Both the prosecution and the defence are agreed that the offending in respect of the victim 20 McCoy falls into Category 1 of the Cayman Islands Sentencing Guidelines for the offence of 21 Wounding with Intent. This is on the basis that the level of culpability is high because of the 22 use of a weapon and there is greater harm due to the injury to the victim’s eye which is serious 23 in the context of the offence. 24 25

¶ [31] The prosecution has drawn the Court’s attention to three cases:- 26 27 (1) R. v. Smith, (Grant Christopher)1 28 (2) R. v. Christopher John Duff 2 29 (3) R. v. Xue3 30 31 1 [2015] EWCA Crim 1482 2 [2016] EWCA Crim 1404 3 [2020] EWCA Crim 587 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 7 of 12

¶ [32] In R. v. Smith, the English Court of Appeal considered an appeal against sentence for an 1 offence of Wounding with Intent. In the course of an altercation, the victim received a final 2 blow to the back of the head which required three stitches. In his Sentencing remarks the 3 learned Judge concluded that this fell into the category of greater harm and greater culpability. 4 This was on the basis that the injury which was caused required hospital treatment, stitching 5 and had considerable lasting effect on him. The Appellate Court considered what is meant by 6 the term “serious in the context of the offence” and stated:- 7 8 “First, with regard to the injury, the question is whether the injury was serious “in 9 the context of the offence”. It is axiomatic that all violence within the context of a 10 section 18 offence is serious, but some violence is more serious than others. The 11 purpose behind the words “which is serious in the context of the offence” in the 12 guidelines is to distinguish between that level of violence which is inherent or par 13 in a standard section 18 offence and that which will, by definition, go beyond what 14 may be viewed as par for the course. In our view, given that there is such a marked 15 disparity in the starting point between categories 1 and 2, the sorts of harm and 16 violence which will justify placing a case within category 1 must be significantly 17 above the serious level of harm which is normal for the purpose of section 184. 18 19

¶ [33] The Court noted that while the blow to the back of the head was inflicted when the victim was 20 prone and defenceless and necessitated three stitches, the victim was able, following the blow, 21 to rise from the bed and pursue the Appellant out of the house. The Court concluded that given 22 the great disparity in the sentence of six years between Categories 2 and 1, although it was a 23 bad injury, standing alone, it was not a Category 1 offence. 24 25

¶ [34] The dicta in the case of Smith was applied in the case of R. v. Xue. The appellant appealed 26 against a sentence of 12 years imposed following his convictions for wounding with intent and 27 assault occasioning actual bodily harm. The basis of the appeal, was in part the categorisation 28 of the trial judge that the harm caused was serious in the context of the offence. The appellant 29 had taken a knife to the home of the two victims following an earlier telephone conversation 30 which he found insulting. He forced his way into the property and slashed victim 1 in the face 31 with a knife or razor. Victim 1 suffered lacerations to his face and hip which required sutures. 32 4 Paragraph 14 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 8 of 12 One of the lacerations to his face was described as a deep triangle type laceration to the left 1 side of his face above the jaw line. He had scars to his face which he said were obvious knife 2 scars which would cause people to look at him in a different way. 3 4

¶ [35] The Appellate Court noted the fact specific nature of the type of assessment required to 5 determine whether injury is serious in the context of the offence. The Court referred to the case 6 of R. v. Duff in which the finding of a trial judge that the victim had lost an ear and suffered 7 permanent, visible, significant cosmetic disability, which was serious in the context of the 8 offence, was reversed on appeal. 9 10

¶ [36] The Court concluded that while the injuries suffered by the victim in the case under appeal 11 were serious, they were considerably less grave than the injuries suffered by victims in many 12 such cases before the Court and were thus not significantly above the level of harm which is 13 the norm for the offence. 14 15

¶ [37] Against the background of the guidance provided in these cases, in respect of the instant case, 16 the Court’s conclusion is that this is a Category 1 offence. It is one of higher culpability given 17 the use of a knife. The victim has lost an eye. The loss is permanent. He has had one surgery 18 and requires two more. The harm caused to him is serious in the context of the offence. 19 20

¶ [38] The starting point is 12 years custody with a range of sentence of 9 to 16 years. 21 22

¶ [39] Defence Counsel submits that while this is a Category 1 offence, it is offending at the lower 23 end of the scale. Counsel asks the Court to note that many of the factors listed under higher 24 culpability which would make the offence a more serious one are absent from this case. There 25 was no premeditation, and the altercation appears to have been instigated by the victim. This 26 is a case in which each victim received a single blow in an isolated incident in which the 27 defendant has shown sincere remorse. Counsel submits that the Court should consider a 28 sentence at the bottom of the range given the circumstances. The Court notes however that any 29 one factor would serve to place the offending within the category. 30 31

¶ [40] Defence Counsel refers to the judgment in the case of Garfield Silburn5 in which the Grand 32 Court imposed a sentence of 10 years for two assaults upon police officers following guilty 33 pleas. One of the officers was permanently blinded in one eye. The charge in respect of this 34 5 CICA Criminal Appeal 29/2017 Unreported Judgment dated 31st October 2018 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 9 of 12 was Causing Grievous Bodily Harm with Intent. The sentence imposed was upheld on appeal. 1 The appellant had some 12 previous convictions including threats to kill and attempted rape. 2 He had been released from prison shortly before the offending. 3 4

¶ [41] Defence Counsel submits that the case of Silburn can be distinguished from the present case 5 in three ways. The Appellant Silburn had a serious criminal history and had only just been 6 released from prison when he committed the offences, the victims were serving police officers 7 which was a serious aggravating factor and the attack on the officers was a sustained one which 8 involved kicking and stomping on the head of the officer. Given the distinguishing features it 9 is submitted by Counsel that a sentence much below 10 years should be imposed in the instant 10 case. 11 12

¶ [42] With respect to Count 1, the wounding of Mr. Alberga, the prosecution submits that the 13 offending falls into Category 2. In written submissions, defence Counsel submits that it is 14 arguably a case of lower culpability or at least between lower and higher culpability. Counsel 15 submits that although a weapon was used, the victim involved himself in an ongoing fight in a 16 way that the defendant perceived as threatening. The defendant reacted instinctively, 17 defensively in a way that lacked premeditation. Counsel submits that on balance the offending 18 falls between Category 2 and 3 with an appropriate starting point being 5 years custody. 19 20

¶ [43] The Court concludes that this offending is Category 2. The culpability is high given the use of 21 a weapon. However given the medical evidence and as agreed by the prosecution the harm 22 caused is not serious in the context of the offence. The starting point is 6 years custody with a 23 range of sentence of 5 to 9 years. 24 25 AGGRAVATING FACTORS 26 27

¶ [44] The prosecution submits that there are two aggravating factors, the location of the offending, 28 being immediately outside liquor licensed premises and the timing being in the early hours of 29 the morning. 30 31

¶ [45] Defence Counsel submits that the timing and location would constitute aggravating factors if 32 they caused difficulty for the victims in seeking help. Counsel said that the licensed premises 33 appear to have been relatively quiet that night and that the victim was able to secure help very 34 quickly. 35 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 10 of 12 THE SENTENCE 1 2

¶ [46] The offending in this case is serious. Following an exchange of words, a fight ensued. The 3 defendant produced a knife. He stabbed one victim to his stomach when he tried to come to the 4 assistance of his friend. While the second victim was being held by another he stabbed that 5 victim to his eye. Both victims suffered serious physical and psychological harm. In the case 6 of Mr. McCoy, the harm which resulted is permanent and life altering. The custody threshold 7 is firmly passed. 8 9

¶ [47] Count 2 is the more serious offence. From a starting point of 12 years (one hundred and forty 10 four months), there are two aggravating factors. The location of the offence being liquor 11 licensed premises with the possibility for greater disorder because of alcohol consumption, is 12 an aggravating factor. 13 14

¶ [48] The timing of the offence being after midnight is also an aggravating factor though less so. An 15 additional three months is imposed for these factors. 16 17

¶ [49] The defendant has one previous conviction which is for an offence of some similarity albeit on 18 a much lower scale, Assault Occasioning Actual Bodily Harm for which he received a sentence 19 of probation, however this was some eleven years ago. This is not treated as an aggravating 20 factor. 21 22

¶ [50] In mitigation the Court takes into account all that has been said and written in the defendant’s 23 favour. Defence Counsel made detailed submissions in mitigation, all of which the Court has 24 considered. The defendant has previous convictions which are spent and over ten years old. 25 The Court treats him as a person of effective good character. This offending is said to be out 26 of character for him. He is genuinely remorseful. He is described by defence Counsel as being 27 wracked with guilt, as taking very seriously the result of his actions and in great strain as he 28 awaits his sentence. He handed himself into the police and was open with the Probation Officer 29 and showed insight as to the nature and causative factors to his offending. He recognizes that 30 he has an underlying issue with alcohol. He had a difficult childhood in the circumstances as 31 detailed in the SIR. He is of quiet disposition and has good personal qualities as outlined in the 32 SIR and by his Counsel. He is the father of two children and by all accounts is a good father 33 to them. He has been hardworking and in stable employment prior to this offending and has 34 35 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 11 of 12 1 been a good citizen. To the Probation Officer he presented as a quiet and respectful man and 2 he showed no hostility towards the criminal justice system. 3 4

¶ [51] The mitigating factors serve to reduce the sentence by twelve months to one hundred and thirty- 5 five months. 6 7

¶ [52] He is given full credit for his guilty plea of one third which would reduce his sentence to ninety 8 (90) months or seven and a half (7 ½) years’ imprisonment. 9 10

¶ [53] For Count 1, from a starting point of seventy-two (72) months, the sentence is increased by 11 reason of the aggravating factors to seventy-five (75) months. The same percentage is applied 12 for all the mitigating factors reducing the sentence to sixty-nine (69) months. He is given the 13 full one third credit for his guilty plea of twenty-three (23) months thus reducing his sentence 14 to forty-six (46) months or three years and eight months. 15 16

¶ [54] The offences arose out of a related incident or facts. Applying the Guidelines, it is appropriate 17 that the sentences run concurrently. 18 19

¶ [55] Standing back and looking at the proposed sentence as a whole, this Court considers that the 20 proposed sentence is proportionate to the offending. What was reprehensible and deserving of 21 full condemnation is that the defendant produced a knife. Both victims were unarmed. Having 22 voluntarily consumed alcohol in large quantities, the defendant reacted angrily to words spoken 23 to him. While it may have been unplanned and impulsive, the reaction was clearly out of 24 proportion to the situation at hand. The effects of his actions will be faced by one victim for 25 the rest of his life and continues to be felt psychologically by the second victim to this day. The 26 defendant appreciates the impact of what he has done. It is his genuine remorse which stands 27 out to the Court. He is in visible distress as he sits in the dock, but this Court must balance the 28 seriousness of what he has done with the factors in mitigation. The aims of sentencing in this 29 case are punishment, deterrence and rehabilitation. 30 31 32 33 34 35 230403 R v Nicholas Romano Forbes – Ind. 97 of 2022. Coram: Richards, J KC – Sentence Judgment Page 12 of 12 CURFEW 1 2

¶ [56] The defendant has been on an electronic monitor with a curfew from 7:30pm to 5:00am from 3 the 27th June 2022 through to today, a total of two hundred and eighty (280) days. The Court is 4 guided by the Cayman Islands Sentencing Guidelines with respect to credit for curfew. It is 5 noted that much of this was during the night hours. Therefore, as requested by his Counsel the 6 Court proposes to give him credit of twenty-five percent (25%) for a total of seventy (70) days. 7 8

¶ [57] The sentence is as follows:- 9 10 (1) On Count 2 – 7 and ½ years. 11 (2) On Count 1 – 3 years and 8 months. 12 13

¶ [58] The sentences are to run concurrently. 14 15

¶ [59] Any time served is to be deducted. 16 17

¶ [60] He is to receive credit of seventy (70) days for the time spent on electronic monitor with curfew. 18 19

¶ [61] While in custody as recommended by the Probation Officer, the defendant is to complete anger 20 management program, alcohol prevention treatment and individual counselling. 21 22 Dated this the 3rd day of April 2023 23 24 Honourable Justice Cheryll Richards KC 25 Judge of the Grand Court 26