The King v Sean Michael McDonald - Sentence Judgment

¶ 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 1 of 16 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 IND. NO: 106 of 2019 3 4 5 THE KING 6 7 V. 8 9 SEAN MICHAEL MCDONALD 10 11 12 13 Appearances: Mr. Richard Matthews KC and Mr. Greg Walcolm for the 14 Prosecution 15 Mr. Benjamin Tonner KC and Mr. Oliver Grimwood for the 16 Defence 17 Before: The Hon. Justice Cheryll Richards KC 18 Sentencing Submissions: 13th January 2023 19 Sentencing Judgment: 18th January 2023 20 21 22 HEADNOTE 23 Criminal Law - Section 180 of the Penal Code (2019 Revision), Manslaughter, Section 210 of the Penal 24 Code, (2019 Revision), Endangering Human Life or Safety, Cayman Islands Sentencing Guidelines. 25 26 27 28 29 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 2 of 16 SENTENCE JUDGMENT 1 2

¶ [1] The defendant Sean Michael McDonald is before the Court for sentencing in respect of three 3 offences following his convictions after a Judge alone trial. Counts One and Two of the 4 Amended Indictment charge him with two offences of Manslaughter contrary to s.180 of the 5 Penal Code (2019 Revision). 6 7

¶ [2] The particulars of Count One are that he on the 11th day of August 2019 in Grand Cayman, 8 Cayman Islands, caused the death of another person, namely John Turner, by culpable 9 negligence in the discharge of the duty to pilot the marine vessel Pepper Jelly with reasonable 10 care to avoid endangering the life of other persons, in particular by navigating Pepper Jelly at 11 dangerous and excessive speed when approaching the shore and the entrance to a channel 12 during the hours after sunset. 13 14

¶ [3] The particulars of Count Two are that he on the said date and place, caused the death of another 15 person, namely Emmanuel Brown, by culpable negligence in the discharge of the duty to pilot 16 the marine vessel Pepper Jelly with reasonable care to avoid endangering the life of other 17 persons, in particular by navigating Pepper Jelly at dangerous and excessive speed when 18 approaching the shore and the entrance to a channel during the hours after sunset. 19 20

¶ [4] Count Three charges him with the offence of Endangering Human Life or Safety through 21 Reckless and Negligent Acts contrary to s.210 of the Penal Code (2019 Revision). The 22 particulars are that he on the 11th day of August 2019 in Grand Cayman, Cayman Islands, 23 navigated the marine vessel Pepper Jelly in a manner so rash or negligent as to endanger human 24 life, including that of Shamilia Wright, in particular by navigating Pepper Jelly at dangerous 25 and excessive speed when approaching the shore and the entrance to a channel during the hours 26 after sunset. 27 28 THE FACTS 29 30

¶ [5] The facts are set out in detail in the verdict judgment. In summary, in the night of Sunday, 11th 31 August 2019, the defendant was the captain of the boat, Pepper Jelly. Two passengers were on 32 board. The boat was returning home from a day at Rum Point. On the last leg of its journey, it 33 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 3 of 16 was travelling from the dock at Camana Bay across the North Sound to Harbour House Marina. 1 Emmanuel Brown was the captain of a Godfrey Hurricane boat. Two passengers were on board, 2 John Turner and Shamilia Wright. This boat was travelling from Star Fish Point across the 3 North Sound. Both boats collided. 4 5

¶ [6] The expert evidence at trial established that shortly before the collision, the Pepper Jelly did 6 not maintain its speed. It accelerated from 35 miles per hour to 42 miles per hour. As it neared 7 the point of the collision about 8/10ths of a mile the speed was between 46 and 52 miles per 8 hour. It travelled at 73 feet in a second. The collision occurred one minute later. The impact 9 was such that the Pepper Jelly passed over the hull of the Godfrey Hurricane, contacting with 10 and causing the deaths of Emmanuel Brown and John Turner and serious injuries to Shamilia 11 Wright. 12 13

¶ [7] In his interview with the Police, the defendant said that he was travelling at planing speed and 14 that it is scary to go faster than 42 miles per hour. 15 16

¶ [8] The Court concluded that the defendant navigated the Pepper Jelly at a dangerous and excessive 17 speed when approaching the shore at the particular time in all the circumstances that existed at 18 that time and that he failed to keep a proper look out. 19 20

¶ [9] The maximum penalty for Manslaughter is life imprisonment. The maximum penalty for the 21 offence of Endangering Human Life or Safety through Reckless and Negligent Acts is 4 years 22 imprisonment1. 23 24 VICTIM IMPACT REPORTS 25 26

¶ [10] The Department of Community Rehabilitation (“DCR”) has provided victim impact reports 27 (VIRs) in respect of two of the victims. The report from the family of John Turner is dated 28th 28 October 2022. The victim John Turner was seventy years old. He was retired and resided in 29 the Cayman Islands for a part of each year. His daughter Sonia Ferrari and her family were 30 visiting with him at the time of the incident. The visit was in part to celebrate the birthday of 31 his grandson. Ms. Ferrari describes the evening of the incident when they returned home to 32 find that her father was missing and unaccounted for. She describes the import of the news that 33 1 S.38 of the Penal Code (2019 Revision) 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 4 of 16 he was one of the victims of the boat collision and what she says was the nightmare of disbelief 1 and grief which followed. In the aftermath, her son, the grandson of Mr. Turner who was very 2 close to him, began having difficulties in school and had to work with a mentor. In summary, 3 the family, extended family and friends have all been devastated by the loss of Mr. Turner. 4 This continues to be felt to this day. 5 6

¶ [11] A report from one side of the family of the victim Emmanuel Brown is dated 28th October 2022. 7 Mr. Brown was forty-nine years old with two younger children. Out of concern for the children, 8 their mother has requested that this report not be referenced in open Court. Counsel and the 9 defendant have had sight of this report and the Court has also read this report in its entirety. 10 11

¶ [12] Shamilia Wright has provided a witness statement dated the 22nd August 2022. Ms. Wright was 12 the partner of Mr. Brown. Mr. Brown is described as a hardworking, sociable and energetic 13 person who had a constant smile. They had been together for some four years and had planned 14 to get married in the future. Ms. Wright remembers waking up from a coma after the incident 15 and the grief she felt upon hearing the news of the deaths. She describes being in physical pain 16 from the injuries which she suffered to her neck, back and head. This went on for months as 17 she underwent rehabilitation and physiotherapy in order to learn how to walk, talk and do basic 18 things for herself again. She continues to suffer emotional pain at the loss and physical pain 19 daily. She gets tired easily and is required by her doctor to avoid stress. Mr. Brown’s death has 20 also impacted her young son who was close to him. 21 22

¶ [13] There is a VIR dated 10th November 2022 from Emmanuel Ricoh Brown, the twenty-nine-year- 23 old son of Mr. Brown. The Probation Officer states that it is evident that the impact upon this 24 victim has been far reaching and enduring and involves permanent and severe psychological 25 scars and ongoing suffering. Mr. Ricoh Brown has provided his own statement which records 26 an aftermath filled with anger, despair and continuing indescribable pain at the loss of his father 27 who was his best friend. 28 29

¶ [14] Dorothy Jackson is the mother of Mr. Brown. A VIR dated 4th November 2022 indicates that 30 she too has suffered severe psychological harm at the loss of her son and has lost her primary 31 financial support and caregiver in her older years. 32 33 34 35 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 5 of 16 SOCIAL INQUIRY REPORTS 1 2

¶ [15] The DCR has provided a Social Inquiry Report (“SIR”) dated 10th November 2022 in respect 3 of the defendant. This provides detailed information as to his personal circumstances and 4 background. The Court has read this report in its entirety and takes into account everything said 5 therein in favour of the defendant. 6 7

¶ [16] In summary, he is thirty-nine years old and is married. He is a boat captain of some experience. 8 He reports having a generally happy childhood and that he was educated to university level 9 overseas. Following university, he worked there for about six years before returning home to 10 the Cayman Islands. On his return he was employed as a boat captain for a tour company 11 before starting his own marine tour business. He ceased this operation as a result of this case 12 and has lost income because of his unemployment in the aftermath of the incident. 13 14

¶ [17] The defendant outlined the impact which the incident has had on his life. While his mother has 15 continued to support him, his relationships with his only sibling and his wife have deteriorated. 16 Many of his friends have deserted him. He says that since the incident he has developed anxiety 17 and depression and has been self-medicating with alcohol as well as receiving counselling. 18 There has been a diagnosis of post-traumatic stress disorder. 19 20

¶ [18] His antecedent history was reviewed by the Probation Officer. He has traffic convictions in 21 2018 for failing to provide a specimen of breath for which he was disqualified from driving 22 and fined. In 2020 he was sentenced to further disqualification from driving and a community 23 service order for additional driving offences. 24 25

¶ [19] Under community functioning, the Officer reports that one person in the community describes 26 him as a friendly and practical individual. Another person who has known him for thirty years 27 describes him as ambitious and talented. 28 29

¶ [20] Under the heading Attitude Towards the Offence, the Officer concludes that while the 30 defendant has expressed remorse about what occurred and is deeply distressed at being 31 involved in such a tragic incident, much of his anguish appears to be due to the impact on his 32 own life. 33 34 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 6 of 16

¶ [21] The defendant was assessed using the Level of Service/Case Management Inventory 1 Instrument (LS/CMI). His overall risk of re-offending was assessed as medium. Of the eight 2 criminogenic factors, he had none in the very high category. He had one factor in the High 3 Category, leisure/recreation due to his present unemployed status. Under pro-criminal 4 attitude/orientation, he is in the medium category. The Officer references inter alia his 5 convictions for traffic offences, his disregard for navigational rules and his tendency to present 6 himself as the victim. He has three factors in the low and very low categories. 7 8

¶ [22] Under sentencing options, the SIR states that the defendant has mental health concerns and that 9 there is a realistic prospect that a period of incarceration would lead to further deterioration in 10 his health and would likely negatively impact his relationship with both his wife and his mother. 11 If he is incarcerated, he will need to be assessed in relation to use of alcohol and to identify any 12 counselling needs. 13 14 CHARACTER REFERENCES 15 16

¶ [23] The Court is in receipt of ten reference letters in respect of the defendant. All of these have 17 been read and are taken into account. These are brief summaries of them. A former co-worker 18 Ricardo Ebanks2 who has known the defendant for ten years describes the defendant as a hard 19 worker who carries himself in a respectable manner. Suzette Watler-Galeano3 has known the 20 defendant since primary school. She describes him as always willing to lend a helping hand to 21 others in need, and as a honest and well-grounded individual. Dr. John Addleson4 has known 22 the defendant since he was ten years old. The defendant is described by him as very respectful 23 and conscientious. This incident is said to be out of character for him. Dr. Addleson says that 24 he can attest to the defendant’s compassion and empathy for those affected by the incident. 25 26

¶ [24] Dwene Ebanks5 has known the defendant for over twenty years. He describes the defendant as 27 being from a good family background, a faithful and caring friend, strong with an overall 28 positive outlook and a law abiding and non-violent person. Mr. Ebanks says that the defendant 29 is thoughtful, perceptive, and sincere in his advice and personal convictions. He is also 30 described as caring in nature and a man of integrity who shares a vision of charity and social 31 2 Dated 23rd September 2022 3 Dated 23rd September 2022 4 Dated 25th October 2022 5 Dated 9th November 2022 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 7 of 16 consciousness. Mr. Ebanks has observed the defendant’s remorse and repentance for what 1 happened. Mr. Ebanks asks for mercy for the defendant and says that the defendant presents 2 the opportunity for a holistic, rehabilitative approach. 3 4

¶ [25] James O’Donnell6 has known the defendant since 2017. He has been out on the water with the 5 defendant on various tours. He says that the one thing that stood out to him was the defendant’s 6 awareness of the water and of his surroundings. He recounts an event as illustrative of the 7 defendant putting his personal feelings aside to ensure that others had a good day on the water. 8 He says that he is proud to call the defendant a friend and knows that he is a good man. 9 10

¶ [26] Chris Shaw7 first met the defendant in about 2014. They first met as they were frequent visitors 11 to a local bar. Mr. Shaw stopped visiting the bar and did not see the defendant for some time 12 until 2021 when he noticed a change in the defendant’s personal affect. They have since 13 become closer friends. Mr. Shaw speaks of the consistent remorse of the defendant. Jessica 14 Butt8 has known the defendant because of the close relationship between their mothers. She 15 cares for him as if they were cousins. She describes him as a kind, generous, warm, thoughtful, 16 and committed friend. She states:- 17 18 “He sticks up for what he feels is right and for the people he cares about and puts himself 19 on the line to protect others.” 20 21

¶ [27] Mark Hollowell9 is a close friend of the defendant having met him when they were in high 22 school some twenty-three years ago. He describes the defendant as a natural leader who always 23 strives to overcome any challenges and improve himself. The defendant is said to have 24 compassion for others and the determination to achieve personally and in business. Keddy 25 Chandran10 has also known the defendant from a young age. He asks that the Court consider 26 the defendant from another perspective, that is, his potential for leadership, entrepreneurship, 27 and service to the Islands. He speaks of the defendant’s selfless leadership of a team of players 28 despite a personal injury and the defendant’s role in supporting the Cayman community in the 29 aftermath of Hurricane Ivan. 30 31 6 Dated 15th November 2022 7 Dated 10th November 2022 8 Dated 14th November 2022 9 Dated 17th November 2022 10 Dated 24th November 2022 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 8 of 16

¶ [28] Joseph L. Watler Jr.11 has been a best friend of the defendant for over 25 years. They have 1 been handling boats and conducting water sports activities together. Mr. Watler says that there 2 was never any problems or issues in terms of safety or responsibility, “in the defendant’s work 3 ethic or attention to detail”. The defendant was usually the go to person for problems as he was 4 responsible, dependable and with an “honest sober state of mind”. The defendant is said to have 5 led a modest and responsible life. He was excited to start his own business and operated 6 professionally with all required licenses, insurance and permits and safety equipment for 7 guests. He is said to be intelligent, ambitious and talented. 8 9 THE CAYMAN ISLANDS SENTENCING GUIDELINES 10 11

¶ [29] The Cayman Islands Sentencing Guidelines for Violent Offences12 in respect of the offence 12 of Manslaughter by gross negligence provides in step one that the level of Harm is always a 13 high one because of the causation of death. 14 15

¶ [30] There are four levels of culpability, very high, high, medium and lower. The issue raised in this 16 case is whether the culpability for Counts One and Two is at the high or medium level. 17 18

¶ [31] Under the Guidelines, high culpability may be indicated by any one or more of the following 19 factors: - 20 21  The offender continued or repeated the negligent conduct in the face of the 22 obvious suffering caused to the deceased by that conduct. 23  The negligent conduct was in the context of other serious criminality. 24  The offence was particularly serious because the offender showed a blatant 25 disregard for a very high risk of death resulting from the negligent conduct. 26  The negligent conduct was motivated by financial gain (or avoidance of cost). 27  The offender was in a leading role if acting with others in the offending. 28  Concealment, destruction, defilement, or dismemberment of the body, 29 (where not separately charged). 30 31 11 Undated 12 June 2021 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 9 of 16

¶ [32] The starting point for high culpability is 8 years custody with a range of sentence of 6 to 12 1 years. 2 3

¶ [33] Medium culpability is indicated where there are cases falling between high and lower because:- 4 5 “Factors in both high and lower are present but balance themselves out and/or the 6 offender’s culpability falls between the high and lower levels.” 7 8

¶ [34] One of the factors which indicates lower culpability is where the negligent conduct was a lapse 9 in the offenders’ otherwise satisfactory standard of care. 10 11

¶ [35] The starting point for an offence of medium culpability is 4 years custody with a range of 12 sentence of 3 to 7 years. 13 14

¶ [36] The prosecution points to the possible presence of the first and third factors under high 15 culpability and submits that these are category 2 offences because of those factors. It is 16 submitted that none of the lower culpability factors are present in this case. As to the first factor 17 under high culpability, the prosecution submits that while the Guidelines refer to negligent 18 conduct in the face of the obvious suffering caused to the deceased, these offences refer to a 19 duty of care to a class of persons, namely boat users in the North Sound. The victims were 20 members of this class. 21 22

¶ [37] The defence submits that Counts One and Two are offences of medium culpability because 23 none of the high and low culpability factors are present and the offending therefore falls 24 between the two levels. 25 26

¶ [38] In response to the submissions of the prosecution it is agreed by the defence that none of the 27 lower culpability factors are present. The defence submission as to the categorisation is that the 28 first factor of repeated negligent conduct in the face of obvious suffering of the deceased is not 29 applicable in the present case. The applicability of such a factor would arise in, for example, 30 the care of a child such as in the case of Regina v. Elaine Clarke13. 31 32

¶ [39] The defence submissions on this aspect are accepted. The context in which the words are used 33 in the Guidelines, appears to go beyond where there is presence of obvious risk to where there 34 13 [2022] EWCA Crim 1109 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 10 of 16 is visible impact on a victim by way of obvious suffering due to repeated negligent conduct. 1 The conclusion is that the first factor in the Guidelines under the high category does not apply 2 to the instant case. 3 4

¶ [40] As to the third factor, the prosecution submits that the offender showed a blatant disregard for 5 a very high risk of death resulting from his negligent conduct. In support of this submission, 6 the prosecution refers to the statements made by the defendant about the manner in which he 7 drove in the North Sound on the night. Reference is also made to his statements that driving at 8 speed in the North Sound was normal behaviour and was something which he had done on 9 occasions in the past. 10 11

¶ [41] The defence in response submit that while there may have been a “substantial risk” of death, 12 the conduct of the defendant did not give rise to a very high risk of death. 13 14

¶ [42] As it was for the verdict judgment, it is the words of the defendant which are of significance as 15 to the risks involved in navigating the vessel at high speeds on a Sunday night in the area which 16 he did. This was not only travelling at speed, at night, about twice what he himself considered 17 to be a safe speed. It was not only travelling at speed when visibility was poor, but it was also 18 accelerating in speed at a time and in an area where it was expected by him, that there would 19 be boats returning with people from Rum Point. Additionally, the Court found that he failed to 20 keep a proper look out. The Courts’ view is that all the circumstances taken together evidence 21 that the defendant showed a blatant disregard for a very high risk of death resulting from his 22 negligent conduct. 23 24 AGGRAVATING FACTORS 25 26

¶ [43] The prosecution submits that the defendant’s actions immediately after the collision is an 27 aggravating factor in respect of this offence. It is said that the defendant deliberately failed to 28 alert the authorities as to the fact of the collision and that he had the opportunity to do so having 29 spoken to the householder who rendered assistance to his two passengers and himself. This 30 missed opportunity said Counsel likely resulted in the delay of assistance being provided to the 31 three victims. 32 33 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 11 of 16

¶ [44] The defence accept that the fact that there is more than one death is an aggravating factor in 1 this case but submits that there is no evidence that the defendant deliberately failed to alert the 2 authorities. 3 4

¶ [45] Defence Counsel points to the defendant’s broken leg as a result of the collision, the fact that 5 he had lost consciousness, was exhausted from a long swim at night and was in shock. He had 6 also been informed by another person that the emergency services had been contacted. 7 8

¶ [46] The Court resolves this issue in the following way. It is an accepted fact that the defendant did 9 not call or contact the emergency services with respect to the second boat, but it is difficult to 10 say whether it was a deliberate choice on his part not to call for assistance. The Cayman Islands 11 Sentencing Guidelines, on Causing Death by Dangerous Driving14 are helpful on this issue. 12 Adopting what is said therein, there may have been any number of reasons why the call was 13 not made by him, not least because he was injured and hardly in a fit state to think clearly. It 14 would not be appropriate against this background to assess the offences as more serious on the 15 basis that no assistance was given at the scene. This Court declines to do so. 16 17

¶ [47] Counsel for the prosecution refers to the English Court of Appeal case of R. v Shepherd15 as 18 likely to be of assistance to this Court on sentencing. 19 20

¶ [48] This was an appeal against conviction. The appellant had been sentenced to six years 21 imprisonment for the single offence of manslaughter. The appellant was the captain of a boat 22 which he navigated at excessive speeds on the River Thames at night and in the dark. The boat 23 was defective in relation to a number of areas including the steering. At some point in the 24 journey, he permitted his passenger to take the wheel and the control of the vessel knowing that 25 she was a novice with boats. She followed his example by driving at an excessive speed. Both 26 were not wearing life vests and had been drinking alcohol heavily. The boat collided with a 27 tree and the passenger was killed. 28 29

¶ [49] Defence Counsel correctly points out that the sentence of six years imprisonment was not 30 challenged on appeal and thus the reasoning behind the sentence is not available. Additionally, 31 there are the factors of alcohol and defectiveness of the vessel which are not factors in the 32 instant case. That case was also different in that it concerned a single fatality. 33 34 14 Page 7 15 [2019] EWCA Crim. 1062 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 12 of 16

¶ [50] It is agreed by both Counsel that as a cross check, regard may be had to the Cayman Islands 1 Sentencing Guidelines for Causing Death by Dangerous Driving, but the prosecution submits 2 that the primary sentencing guidelines are those in relation to Manslaughter. The Court accepts 3 the submission of the prosecution. The Court notes that the general principles in the Guidelines 4 for Causing Death by Dangerous Driving may be helpful but that there are different maximum 5 sentences for these offences. 6 7 COUNT 3 - ENDANGERING HUMAN LIFE OR SAFETY 8 9

¶ [51] In the absence of local sentencing guidelines, Counsel for the prosecution has referred the Court 10 to the United Kingdom Sentencing Guidelines with respect to health and safety offences. The 11 maximum sentence in that jurisdiction is two years and an unlimited fine in contrast to the 12 sentence of four years in this jurisdiction. 13 14

¶ [52] The prosecution submits that under those guidelines the level of culpability is high because this 15 defendant had actual foresight of or willful blindness to the risk of offending, but the risk was 16 nevertheless taken. Alternatively, the culpability was very high as the defendant showed a 17 flagrant disregard for the law. The further submission is that as there was a risk of death, the 18 risk of harm is at level A. Allowing for an appropriate uplift for the difference in sentencing 19 the appropriate starting point says the prosecution would be either 24 or 36 months. 20 21

¶ [53] The defence position is that the United Kingdom Sentencing Guidelines are of limited 22 assistance as they apply to cases of a different nature from the present case and that some 23 assistance can be obtained from the general sentencing Guidelines in the Cayman Islands. 24 25 THE SENTENCE 26 27

¶ [54] The offending in this case is so serious that the custody threshold is firmly passed. The 28 consequences have been tragic for all concerned. This is for those on both sides, prosecution 29 and the defence. In a matter of moments that Sunday night, the course of many lives was 30 altered. Children and grandchildren are without their fathers and grandfathers. There is 31 psychological, emotional and financial impact. One family had to sell their home due to the 32 sudden loss of income. The harm and loss caused is irreparable and the defendant himself 33 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 13 of 16 recognizes this. He is a man of good character who is before the Court, and he appears to still 1 be visibly and genuinely traumatised by what occurred. His life too has been altered by this 2 incident. This Court has found that he was grossly negligent in his piloting of his boat that 3 Sunday night. He must face up to the reality of his role in what occurred. He was well aware 4 of the risks attendant upon navigating the Pepper Jelly in the manner that he did, at that 5 particular time and in that location. In the face of his knowledge as to the risks, he made a 6 choice to do as he did. He has no one to blame but himself. 7 8

¶ [55] The task of this Court on sentencing is set out in the Alternative Sentencing Act. It is to impose 9 a sentence which is proportionate to the gravity of the offences and the degree of responsibility 10 of the convicted person. 11 12

¶ [56] In sentencing, the Act enjoins the Court to take account of a number of principles. These are as 13 set out in s.4 which states:- 14 15 “A court shall, in imposing a punishment under this Law, take into account the following 16 principles — (a) that the fundamental purpose of punishment is to contribute, along with 17 crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful 18 and safe society by imposing just sanctions that have one or more of the following 19 objectives — 20 (i) to denounce unlawful conduct; 21 (ii) to deter the convicted person and other persons from committing offences; 22 iii) to separate convicted persons from society, where necessary; 23 (iv) to assist in rehabilitating convicted persons; 24 (v) to provide reparations for harm done to victims or to the community; and 25 (vi) to promote a sense of responsibility in convicted persons, and 26 acknowledgment of the harm done to victims and to the community;” 27 28

¶ [57] Section 4 also provides that: - 29 30 “(d) a sentence should be similar or proportionate to sentences imposed on similar 31 convicted persons for similar offences committed in similar circumstances; 32 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 14 of 16 …. 1 (f) a convicted person should not be deprived of liberty if less restrictive 2 sanctions may be appropriate in the circumstances; and 3 (g) all available sanctions other than imprisonment that are reasonable in the 4 circumstances of each case should be considered for all convicted persons.” 5 6

¶ [58] These principles as set out in the Act are borne in mind in considering the appropriate sentences 7 in this case. 8 9

¶ [59] With respect to Counts One and Two, there being one factor in the category of high culpability, 10 the starting point is 8 years. From that starting point of 8 years, the sentence is aggravated by 11 the fact that more than one death has occurred and is therefore increased by 12 months to 9 12 years or 108 months. 13 14

¶ [60] In mitigation, the Court takes into account everything that has been written and said in favour 15 of the defendant. These include in summary, that he is of good character. He has no relevant 16 previous convictions, there being only a record of minor traffic convictions. This offending is 17 entirely out of character for him. He suffered serious physical injuries as a result of the incident, 18 and it has also taken an emotional toll upon him and caused some psychological harm. It has 19 impacted his family relationships and friendships and has placed his marriage under strain. 20 According to the SIR it may continue to adversely affect his marriage in the future. There has 21 been a severe economic impact upon him. He had to cease operating his business and abandon 22 his dream and ambition to operate a marine tour enterprise. He has good personal qualities as 23 are set out in the SIR and in the many and detailed character references summarised above. 24 This Court accepts that he is deeply and genuinely remorseful. Counsel on his behalf submitted 25 that he wishes that he could take the place of those who died and repair the harm caused. This 26 Court accepts that this is a sincerely held desire on his part. He is at medium risk of re- 27 offending. 28 29

¶ [61] All the mitigating factors serve to reduce the sentence by 15 months to 93 months or 7 years 30 and 7 months. 31 32 33 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 15 of 16

¶ [62] In relation to Count Three, accepting the limited nature of the assistance from the United 1 Kingdom Guidelines referenced by prosecuting Counsel, consideration has also been given to 2 the Cayman Islands General Guidelines with respect to culpability and harm. This offending 3 would fall into the second highest category of culpability and the harm would be at the highest 4 level. The Court adopts a starting point of 3 years which is reduced by 6 months by reason of 5 mitigating factors for a total sentence of 2 1/2 years. 6 7 CONSECUTIVE /CONCURRENT SENTENCES 8 9

¶ [63] Given the fact that these offences arose out of a single act, concurrent sentences would be 10 appropriate in this case. 11 12

¶ [64] The Court has considered the principle of totality and whether the proposed sentence will 13 reflect the overall criminality. Particularly so where there has been no uplift in the sentence in 14 respect of Count Three of the Indictment. A further uplift is not proposed for the reason set out 15 below. 16 17 DELAY 18 19

¶ [65] There is an additional mitigating factor. This offending occurred in August 2019. There has 20 been some delay, none of which is the fault of the defendant. In early 2020 while preparations 21 were in train for a trial, the pandemic began, attempts to have a defence expert travel to the 22 Island to examine the boat had to be suspended as the borders were closed. The Court process 23 which followed the obtaining of all the relevant experts’ reports, both prosecution and defence, 24 has also been lengthy. Whatever the reasons for the delay, this has been a difficult time for the 25 defendant, and it is clear from many of the reference letters provided that he has been in 26 emotional distress throughout this period while he has been on bail awaiting the completion of 27 this case. Between the 11th December 2019 and the 14th April 2020, his bail conditions restricted 28 his ability to work, specifically that he could not work as boat captain. 29 30 31 32 230118 The King v. Sean Michael McDonald – Ind. 106 of 2019. Coram: Richards, J KC – Sentence Judgment Page 16 of 16

¶ [66] The sentence is further reduced by reason of the delay which has occurred in this case, in two 1 ways, by the non-application of any additional uplift in respect of Count three (which would 2 have added a further 6 months) and by a further reduction of 6 months for a sentence of 7 years 3 and 1 month. 4 5

¶ [67] The defendant, while in custody, is to be monitored for his mental health and he is to be 6 assessed for any counselling needs. 7 8 Dated this the 18th day of January 2023 9 10 The Hon. Justice Cheryll Richards KC 11 Judge of the Grand Court 12 13 14 15 16 17 18 19 20 21 22 23 24 25