Richards J
230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 1 of 12 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CRIMINAL DIVISION 3 4 5 INDICTMENT NO. 23 OF 2022 6 7 8 R 9 10 V. 11 12 SEKOU LEMUMBA LITCHMORE 13 14 15 16 Appearances: Mr. Gavin Dixon, Crown Counsel for the Prosecution 17 Mr. Crister Brady of Brady Attorneys at Law for the 18 Defendant 19 20 Before: Hon. Justice Cheryll Richards K.C. 21 Submissions: 3rd February 2023 22 Further Written Submissions: 6th February 2023 23 Sentence Judgment: 17th February 2023 24 25 26 27 HEADNOTE 28 Criminal Law, Cayman Islands Sentencing Guidelines, Wounding, Principles on sentencing. 29 30 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 2 of 12 1 SENTENCE JUDGMENT 2 3 1. The defendant is before the Court for sentencing following his conviction after a judge alone trial 4 for the offence of wounding contrary to section 204 of the Penal Code (2019 Revision). The 5 maximum penalty is seven years imprisonment. 6 7 2. The facts are set out in detail in the verdict judgment of 23rd September 2022. In summary, on 8 the night of the 2nd January 2022, the defendant was working as a Disc Jockey at the Everglo Bar 9 in George Town. The victim Omar Plummer was a patron at the Bar. The victim is a part time 10 Disc Jockey and made repeated requests of the defendant to be allowed to play some music. 11 When the defendant ignored his requests, the victim tried to enter the music room. The defendant 12 asked him to leave, took up a knife and stabbed him four times to the front of his body. The 13 victim was hospitalised for surgical care for one month. He suffered the following injuries:- 14 15 i. A wound approximately 1.5cm in length in the region of the sternum; 16 ii. A wound approximately 1.5cm in length in the left upper quadrant of the 17 abdomen; 18 iii. Two (2) wounds each 1cm in length to the umbilical area on the left side. 19 20 3. The agreed evidence of the doctor is that these injuries were serious but are not likely to be 21 permanent. They were consistent with infliction by sharp force trauma. 22 VICTIM IMPACT REPORT 23 4. The Department of Community Rehabilitation (“DCR”) has provided a Victim Impact Report 24 (“VIR”) dated 17th January 2023. Attached to the report is the victim impact statement of Mr. 25 Plummer dated 9th January 2023. He says that the physical injuries which he suffered caused him 26 immense pain and discomfort. Presently he is struggling with feelings of insecurity, helplessness 27 and a loss of control. Sometimes he does not wish to go outside and spends time locked in the 28 house. He is afraid to go outside for fear of the defendant. 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 3 of 12 1 5. He lost his job after being in hospital for one month and on unpaid sick leave for two months as 2 a result of the assault. There is a letter from his employer as to his earnings. Calculations arising 3 from this are that the victim lost wages of $4,160.00. He has a hospital bill at the Health Services 4 Authority (“HSA”) of $21,322.46. 5 6 6. The probation officer’s assessment is that the victim has been emotionally, physically and 7 financially impacted by the incident. The officer notes that he continues to be in ongoing pain 8 and is only able to work for a limited number of hours. This has affected his ability to provide 9 for his family which includes two young children. 10 SOCIAL INQUIRY REPORT 11 7. The DCR has also provided a Social Inquiry Report (“SIR”) in respect of the defendant which is 12 dated 5th January 2023. 13 14 8. The Court has read this report in its entirety and takes into account everything said therein in 15 favour of the defendant. He is 31 years old. He is married and the father of a 12-year-old daughter 16 who resides in Jamaica. Since the completion of the SIR, there is information that he is an 17 expectant father of a second child. 18 19 9. During his early years, his mother emigrated to the Cayman Islands, and he was left in Jamaica 20 in the care of older siblings. This impacted him negatively and he describes what he says were 21 abusive circumstances. He relocated to the Cayman Islands in 2019 on a work permit. He worked 22 at various jobs and supplemented his income by also working as a part time Disc Jockey. His 23 present employer describes him as an exemplary employee. 24 25 10. The defendant gave details as to his total monthly income. After his expenses are paid, he has a 26 balance of $705.00 per month. 27 28 11. The defendant has three previous convictions. On the 30th June 2020 he was fined $500.00 in 29 total for offences of Common Assault, Possession of Ganja, and Consumption of Ganja. 30 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 4 of 12 1 12. Members of the community describe him as respectful and humble. He is not known to be a 2 troublemaker or to be violent. He is said to be committed to supporting his daughter. His 3 employer also describes him as hardworking and quiet. There is positive feedback from the 4 employer’s customers about him. This offending behaviour is said to be out of character for him. 5 6 13. Under attitude towards the offence, the defendant expressed remorse to the probation officer and 7 said that the victim did not deserve what happened to him. The defendant said that he is willing 8 to pay compensation and to comply with any community-based sentence. 9 10 14. Under assessment/evaluation the officer states that notwithstanding the defendant’s 11 disappointment at the guilty verdict, he has verbalised victim empathy and sought to understand 12 his own violent response. The officer also states that due to childhood traumatic events, there 13 may well be psychological issues which an assessment and intervention may identify. Such an 14 assessment is said to be imperative for his successful rehabilitation and to prevent him from 15 committing another serious offence. It is also noted that he may be using ganja to cope with 16 symptoms which use increases his propensity to re-offend. 17 18 15. The defendant was assessed using the LS/CMI Risk/Need Assessment tool. His overall risk of 19 re-offending was assessed as at medium level. There is one factor in the high category. This is 20 anti-social pattern which is based on his previous convictions and need for assessment. 21 THE SUBMISSIONS 22 16. The prosecution submitted that under the Cayman Islands Sentencing Guidelines for the offence 23 of wounding, the offence is a category 2 offence. The submission is that the level of culpability 24 is high based upon the use of a weapon. The harm is said to be lesser harm because of the absence 25 of pre-meditation. The prosecution also submits that the injuries are serious but not permanent 26 and there is ongoing psychological impact. The Court has been referred to the cases of R v Smith 27 (Grant Christopher)1, R v Xue 2 and R. v. Christopher John Duff3. 1 2015 EWCA Crim 1482 2 [2020] EWCA Crim. 587 3 [2020] EWCA Crim. 587 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 5 of 12 1 17. Defence Counsel argues that the culpability is not high despite the use of a weapon. It is said that 2 this is not the usual case of a weapon, because the weapon was not taken to the Bar for an unlawful 3 purpose. It was taken for the purpose of work. The work in the music room meant that the 4 defendant would have been isolated from the general public and patrons. There would have been 5 no exposure to drunken patrons or engagement in common areas. It is thus said that the 6 Guidelines are not specifically applicable to this case. 7 8 18. Counsel also submits that there was some degree of provocation to which the defendant 9 responded, albeit to a lesser extent. As to the level of harm it is submitted that the defendant could 10 not have intended or anticipated the result. He went back immediately to playing music. This 11 says Counsel speaks to an absence of intent to cause the level of injury sustained by the victim. 12 13 19. The defendant’s expression of remorse and empathy to the victim is said to be demonstrative of 14 the absence of any malice of forethought. 15 16 20. Counsel has drawn the Court’s attention to three local cases in which sentences ranging from one 17 to two years were imposed. All of these sentences pre-date the Guidelines4. 18 AGGRAVATING FACTORS 19 21. Counsel for the prosecution submits that there are five aggravating factors as follows:- 20 21 i. Location of the offence being inside liquor licensed premises. 22 ii. Timing of the offence. 23 iii. Presence of family members. 24 iv. Repeated nature of the assault. 25 v. Previous conviction in 2020 for Common Assault. 26 4 CICA 13 of 2016- Alexander Brown v R; CICA 25 of 2011- Morris Brown v. R; CICA 24 of 2010 – Gail Ross v R 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 6 of 12 1 22. Defence Counsel submits in response that the location of the offending is not typical, in that the 2 defendant was there for work purposes and in a booth which was not designed for patrons. The 3 timing should not be considered an aggravating factor as it was part and parcel of the 4 circumstances of the employment. Counsel said that the timing is incidental to the fact that work 5 in that profession is required at that time of night. Counsel also said that the presence of relatives 6 at the scene was purely coincidental and more importantly that the incident only came to the 7 attention of the relatives after the victim left the booth. As to the repeated nature of the offending 8 it is submitted by Counsel that this may well have been during the tussle and exchange between 9 the parties and is not a reflection of the defendant’s intention to cause multiple injuries. 10 MITIGATION 11 23. In mitigation defence Counsel points to the good reports of the defendant’s work ethic. Counsel 12 said that the defendant now seems to be on the upward path of stability. He is the father of one 13 child and is soon to be the father of a second. He has expressed remorse. He is said not to be 14 beyond redemption and seeks the mercy of the Court with respect to a non-custodial sentence. 15 16 COMPENSATION 17 18 24. Counsel submitted that although it is accepted that no amount of money can remedy what 19 occurred the defendant is willing to provide compensation but has limited means. His total 20 earnings will vary depending on the level of his part time work. Following receipt of details of 21 the victim’s medical costs and lost wages, in further written submissions Counsel submitted the 22 following proposal. The defendant proposes to make monthly payments of $500.00 through the 23 Courts Funds Office or as directed for the first year. He proposes to increase monthly payments 24 to $700.00 per month for the second year and to $925.00 per month for the third year. This would 25 amount to $25,500.00,5 and would account for the loss presently before the Court. This would be 26 without regard to whether they are direct or indirect payments to the victim and how they are 27 paid. 28 5 (6,000 + 8,400+11,100) 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 7 of 12 1 25. The second proposal is that the amount due to the HSA could be paid via a separate arrangement 2 directly by the defendant to the HSA, with the defendant signing a ‘declaration of indemnity’ in 3 favour of the victim for the payment of the fees due to HSA. The declaration would be provided 4 to the HSA to support the proposed direct payment arrangement by the defendant. This would 5 ensure that the HSA is paid the outstanding bill but would also protect the victim from being 6 pursued for payment by the HSA. The amount for lost wages could be paid through the Court 7 Funds Office or to a designated account provided by the victim. 8 9 26. In furtherance of these proposals the defendant has provided a signed indemnity declaration 10 which is received as Exhibit 1 for the purpose of this sentence hearing. It states:- 11 “I Sekou Litchmore hereby undertake to indemnify Omar Plummer against all 12 costs payable to Health Services Authority (HSA) as a result of injuries sustained 13 on the 2nd January 2021 (sic) and to engage with the said HSA within one (1) month 14 of the date below with a view to paying in full the present invoice accrued of 15 KYD$21,782.46 representing medical expenses in the terms and conditions that 16 may be required by the HSA to complete full satisfaction of the said invoice.” 17 27. The Court has also been provided with a copy of a promissory note by which the defendant has 18 agreed to guarantee the payment of the victim’s medical bill and the payment of $500.00 per 19 month to the HSA starting on the 16th March 2023 and continuing until the bill is paid in full. 20 The copy of the note is received as Exhibit 2 for the purpose of this hearing. 21 ANALYSIS 22 28. Notwithstanding the concession of the prosecution that the injuries in this case are not serious in 23 the context of the offence, I have considered the circumstances with some care. The injuries are 24 serious requiring as they did hospitalisation for one month and leading to inability to work for 25 some time. However, there are no details as to the extent of the effect upon vital organs and there 26 is no permanent effect reported by the doctor. There is some psychological harm. However, as 27 the victim describes it, much of this is due to his belief that the continued presence of the 28 defendant on the Island means that he may be further attacked in the future. I conclude allowing 29 for the benefit of the doubt, that this is a case of lesser harm. 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 8 of 12 1 29. Under the heading of culpability there are two factors. The first is that a weapon was used. On 2 the defendant’s account he was being punched. The fact that the purpose for having the knife was 3 for work does not excuse the use of it. There were other options open to the defendant. He could 4 have used his fists in response. Secondly, the multiplicity of the injuries to different parts of the 5 body of the victim evidences the repeated nature of the assault. I conclude that this is a case of 6 higher culpability. 7 8 30. The starting point under the Guidelines for an offence of higher culpability and lesser harm is 9 three (3) years custody or thirty-six (36) months. 10 11 31. In my view there are two aggravating factors. Of the five urged by the prosecution, the factor of 12 the repeated nature of the assault is already taken into account in relation to the level of 13 culpability. Double counting should be avoided. 14 15 32. I accept the submission of the defence in relation to the presence of family members and the 16 timing of the offence. I consider that the location of the offence, being liquor licensed premises 17 where alcohol is likely to be a catalyst for disorder is an aggravating factor. The nature of the 18 premises makes it all the more reason for the defendant to have avoided the use of such a weapon. 19 Security guards were apparently on the premises and could have been called to deal with patrons. 20 Indeed, on the evidence at trial, the resulting aftermath was disorder and the early closure of the 21 Bar. 22 23 33. The previous conviction of the defendant for Common Assault is a second aggravating factor. It 24 is a recent offence which is similar in nature. Prosecuting Counsel has provided the summary of 25 facts for this offence. Defence Counsel was afforded the opportunity to say whether or not these 26 facts are accepted. It was a family incident and arose from an argument with his brother who he 27 slapped in the head. I am told that he did so in retaliation for what had been done to his mother. 28 29 34. The two aggravating factors serve to increase the sentence by three (3) months to thirty nine (39) 30 months imprisonment. 31 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 9 of 12 1 35. In mitigation account is taken of everything that has been said or written in the defendant’s 2 favour. This includes the following:- 3 4 i. His remorse and willingness to apologise and pay compensation. The fact that 5 he has already made arrangements to pay the hospital bills of the victim is a 6 significant factor in mitigation, (6 months). 7 8 ii. There was some level of provocation, (4 months). 9 10 iii. His good work ethic and other personal qualities, (3 months). 11 12 iv. His personal circumstances including that he is the father of one child for 13 whom he provides and the expectant father of a second child for whom he will 14 have to provide, (2 months). 15 16 v. His background and exposure to other traumatic events in life which the 17 probation officer identifies as possibly primary contributory factors to his 18 disproportionate response, (2 months). 19 20 21 36. When all the factors are taken into account, the sentence is reduced to one of twenty-two (22) 22 months imprisonment. 23 24 37. In my view this offence is a serious one. It is one of violence in which the victim was repeatedly 25 assaulted. The victim has suffered physically, financially, and emotionally and continues to 26 suffer. The conduct of the defendant on the evidence which was accepted was entirely 27 disproportionate to the requests and actions of the victim. The defendant clearly failed to exercise 28 self-control and to respond appropriately to what was to him, the presence of an irritating patron. 29 The custody threshold has been firmly passed. 30 31 38. Consideration has been given to the personal circumstances of the defendant and to whether this 32 is a sentence which can properly be suspended. 33 34 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 10 of 12 1 39. The defendant is at medium risk of re-offending. He has a previous conviction for assault. This 2 is an escalation in offending behaviour and is cause for concern. However it is the report of the 3 probation officer and the factor of compensation which gives me pause. The officer recounts 4 what may be primary contributory factors for the response of the defendant and describes him as 5 contrite and trying to understand the root cause of his offending behaviour. In summary, from the 6 SIR, there is a process of rehabilitation which can be undertaken to prevent a reoccurrence of his 7 offending. The defendant is willing to undertake this. His personal circumstances include gainful 8 employment at which his employer says that he is doing well. Overall, there appears to be a 9 concerted effort on his part to continue to be of good behaviour. 10 11 40. I consider more importantly that compensation is a significant factor in this case. It will provide 12 some practical measure of assistance to the victim. For the defendant, it will in effect be the long- 13 term imposition of a financial requirement which will no doubt be ever present in his mind. It 14 will reduce his level of disposable income for a significant period of time to come. 15 16 41. Section 4 of the Alternative Sentencing Act (2008 Revision) provides that: - 17 “A court shall, in imposing a punishment under this Law, take into account the following 18 principles — 19 (a) that the fundamental purpose of punishment is to contribute, along with crime 20 prevention initiatives, to respect for the law and the maintenance of a just, peaceful 21 and safe society by imposing just sanctions that have one or more of the following 22 objectives — 23 (i) to denounce unlawful conduct; 24 (ii) to deter the convicted person and other persons from committing offences; 25 (iii) to separate convicted persons from society, where necessary; 26 (iv) to assist in rehabilitating convicted persons; 27 (v) to provide reparations for harm done to victims or to the community; and 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 11 of 12 1 vi) to promote a sense of responsibility in convicted persons, and acknowledgment 2 of the harm done to victims and to the community.” 3 42. I conclude that a sentence of immediate imprisonment is not unavoidable in this case. The 4 objectives of the sentence which I am about to pass are to provide reparation for harm done to 5 the victim in this case as well as punishment and rehabilitation. 6 7 43. The sentence of twenty-two (22) months imprisonment is suspended for two (2) years. 8 9 44. In addition, pursuant to s.21 of the Alternative Sentencing Act, a supervision order is made for 10 two (2) years. The conditions of the order as given by the probation officer in the SIR and VIR 11 are:- 12 13 1. To participate in the Anger Management Programme. 14 2. To submit to random drug testing. 15 3. To participate in any other programmes as instructed by the probation officer. In 16 particular he should comply with the recommendation of the officer for 17 psychological testing. 18 4. He is not to be in direct or indirect contact with the victim. 19 5. He is not to go within 20 yards of the victim should the victim be in a public place. 20 21 45. Pursuant to s.42 of the Penal Code, the defendant is to perform 240 hours of community service 22 in two years under the supervision of the probation officer. 23 24 46. Pursuant to s.33 of the Penal Code he is to pay compensation in the sum of $25,482.46. In default 25 of non-payment of compensation, the total term of imprisonment is five (5) years. 26 27 47. The compensation is to be paid in two parts as follows:- 28 29 i) $4,160.00 is to be paid through the Courts Funds Office to the victim Omar 30 Plummer. This is to be paid in eight monthly installments of $520.00 per month 31 commencing on the 1st March 2023 and continuing on the first day of each month 230217 R v. Sekou Lemumba Litchmore - Ind: 23 of 2022. Coram: Richards J, K.C. – Sentence Judgment Page 12 of 12 1 through to completion. The default term for this portion of the compensation is 6 2 months’ imprisonment. 3 4 ii) The balance of compensation of $21,322.46 is to be paid on behalf of the victim 5 directly to the Health Services Authority pursuant to the indemnity agreement and 6 promissory note, which the defendant has provided to the Court (Exhibits 1 and 2). 7 The defendant is to pay $500.00 per month starting on the 16th day of March 2023 8 and continuing through to completion. The default term of imprisonment for this 9 portion is four (4) years and six (6) months imprisonment. 10 11
The Grand Court Clerk is to provide a copy of the Minute of Order arising from this judgment to 12 the Health Services Authority and the Authority is asked to notify the Court if there is non-payment 13 of any monthly sum. 14 Dated this the 17th day of February 2023 15 16 17 18 The Honourable Justice Cheryll Richards K.C. 19 Judge of the Grand Court