R v Levar Antonine Wood - Sentence Judgment

¶ Page 1 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 INDICTMENT NO: 54 OF 2021 3 4 5 6 7 THE QUEEN 8 9 V. 10 11 LEVAR ANTONINE WOOD 12 13 Appearances: Mr. Greg Walcolm for the Prosecution 14 Mr. Richard H. Barton for the Defence 15 16 Before: The Hon. Justice Cheryll Richards QC 17 Submissions on Sentencing: 27th May 2022 18 19 Sentence Judgment: 2nd September 2022 20 21 22 23 HEADNOTE 24 25 Criminal Law-Causing Death by Dangerous Driving- contrary to s.75 of the Traffic Act (2011 Revision)-Cayman 26 Islands Sentencing Guidelines-Principles on Sentencing. 27 28 29 30 31 32 Page 2 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing following his guilty plea to a single offence of 3 Causing Death by Dangerous Driving contrary to s.75 of the Traffic Act (2011 Revision). The 4 particulars of the offence are that he on the 1st day of September 2019, drove a Nissan Skyline 5 motor vehicle registration number 182 542 dangerously on a road, namely Bodden Town Road, 6 Anton Bodden Drive and then onto Shamrock Road, Bodden Town, Grand Cayman, Cayman 7 Islands, and thereby caused the death of Giovani Jerome Berry. 8 9

¶ [2] The defendant was arrested for the offence on the 6th September 2019. On the 20th November 10 2019, he submitted a prepared statement to the Police. He was bailed to attend the Police 11 Detention Centre on the 8th February 2020. He did not report for bail, instead he left the 12 jurisdiction on the 13th January 2020. He did not communicate with the Police prior to or during 13 his absence from the Islands. He was charged with the offence on the 22nd July 2020, in his 14 absence. 15 16

¶ [3] On the 10th February 2021, the Summary Court issued an international arrest warrant for him. 17 On the 2nd June 2021, a request for his extradition was made to the United Kingdom. On the 23rd 18 July 2021, the defendant appeared before the Westminster Magistrate’s Court in the United 19 Kingdom. He consented to his extradition to the Cayman Islands. By order of the Secretary of 20 State he was returned on the 25th August 2021. He had been in custody in the United Kingdom 21 from June to August 2021. He appeared in the Summary Court on the following day 26th August 22 2021 when the charge was transmitted to the Grand Court. 23 24

¶ [4] The defendant’s first appearance in the Grand Court was on the 3rd September 2021. He was 25 arraigned and entered a plea of not guilty. A trial date was set for the 11th October 2021. 26 27

¶ [5] This date was vacated to await the defence expert’s report on accident reconstruction and to allow 28 for review of that report by the prosecution’s experts. A new trial date was set for November 29

¶ [2021] Shortly after the new trial date was set the defendant indicated that he wished to be re- 30 arraigned. He was re-arraigned on the 24th November 2021 and entered a plea of guilty to the 31 offence. 32 33 34 Page 3 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment MAXIMUM PENALTIES 1 2

¶ [6] By s.75 (2) of the Act, the maximum sentence for this offence is 10 years imprisonment together 3 with an automatic disqualification of a minimum of 5 years. By s.75 (3) the period of 4 disqualification may run from either the date of conviction or the date of expiration of a sentence 5 of imprisonment. The driver’s license of the offender may also be endorsed. Additionally, the 6 prosecution invites the Court to consider making an order that the defendant be re-tested for his 7 driving license at the end of any period of disqualification. 8 9 SUMMARY OF FACTS 10 11

¶ [7] The prosecution has provided a summary of the facts which is set out below. 12 13

¶ [8] On the 1st September 2019 the defendant was seen by the Police as he drove a blue Nissan Skyline 14 motor vehicle registration number 182 542 along Bodden Town Road. His front seat passenger 15 was the deceased, Mr. Berry. Bodden Town Road in the vicinity of the Everglo Bar is a 30 mile 16 per hour (“mph”) zone. The defendant drove past this area at a high rate of speed. The police 17 officers who were in a marked service vehicle in the parking lot of the Bar noticed this. They 18 turned on their emergency lights and followed the defendant’s vehicle with a view to stopping 19 him. 20 21

¶ [9] The defendant did not stop. He continued to drive at a high rate of speed. He made a right turn 22 onto Anton Bodden Drive in a manner which the officers describe as reckless in that he turned 23 into the lane for oncoming traffic. There were no oncoming vehicles at the time. When he made 24 the turn his speed was estimated to be 43.26mph in a 30mph zone. He continued travelling on 25 Anton Bodden Drive with the police vehicle travelling behind him. 26 27

¶ [10] Whilst approaching a left-hand bend in the road, the defendant attempted to overtake a line of 28 three vehicles. Having passed the first two vehicles in the line, the defendant collided with the 29 right side of the third vehicle, causing that vehicle to be pushed off the roadway to the left and 30 his own vehicle to go off the roadway into shrubs on the right shoulder, on the opposite side of 31 the road. 32 33 Page 4 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [11] The police vehicle pulled up alongside the defendant’s vehicle. However, the defendant 1 continued driving through the shrubbery before re-entering the roadway ahead of the police 2 vehicle and continuing on. At this point the defendant was travelling at an approximate speed of 3 66.32mph in a 30mph zone. 4 5

¶ [12] The police continued to follow the defendant as he drove over a speed bump ahead of him without 6 braking. Thereafter the police slowed their pursuit of the defendant, having considered the 7 possible risk of harm to other citizens should they continue. As a result, they lost sight of the 8 defendant’s vehicle as it travelled further along Anton Bodden Drive and continued onto Condor 9 Road. 10 11

¶ [13] From Condor Road the defendant turned right onto Shamrock Road heading in the direction of 12 George Town and continued to drive at a high rate of speed. On approaching the right-hand bend 13 in the vicinity of Shamrock Road and Northward Road the defendant lost control of his vehicle. 14 It ran off the roadway and collided with the perimeter wall of a premises in the vicinity of 15 Doubloon Drive. Immediately prior to the collision the defendant was travelling at an 16 approximate speed of 51.67mph. The speed limit in that area was 40mph. 17 18

¶ [14] The distance between Everglo Bar and Restaurant and Doubloon Drive, along Shamrock Road, 19 is approximately 4 kilometers. 20 21

¶ [15] The police were advised by citizens that the defendant had travelled towards George Town. They 22 followed in that direction and came upon the collision approximately 16 seconds later. 23 24

¶ [16] Both the defendant and the deceased received injuries as a result of the collision and were unable 25 to exit the motor vehicle. Persons who witnessed the collision went to assist and saw the 26 defendant in the driver seat and the deceased in the front passenger seat. The defendant was 27 conscious, but the deceased was not. 28 29

¶ [17] Fire Services attended and assisted both the defendant and the deceased from the vehicle. They 30 were transported to the George Town Hospital. The deceased was pronounced dead at the 31 Hospital on the 2nd September 2019. A subsequent postmortem examination concluded that the 32 cause of his death was as a result of the head injuries which he received during the collision. 33 34 Page 5 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [18] While the defendant was at the hospital on the 2nd September 2019, after consulting with his 1 attending physician, the police requested a specimen of blood from him. The defendant was 2 warned that failure to provide this would result in prosecution. He refused to provide a specimen 3 of blood. 4 5

¶ [19] The police secured the scene of the collision and the accident reconstruction experts, PS Lenford 6 Butler and Collin Redden began their investigations. They were assisted by the Closed-Circuit 7 Television footage (CCTV) recovered by the police from various areas along the roadway. They 8 each concluded, from their independent analysis of the crash site and the CCTV footage, that the 9 manner and speed of the defendant’s driving prior to the first collision and thereafter to the second 10 collision was reckless and dangerous. 11 12

¶ [20] The conclusion of Collin Redden1 is as follows: 13 14 “This collision occurred as a result of the manner and speed of the Nissan which the driver 15 failed to stop for the Police on Anton Bodden Drive, driving on the incorrect side of the 16 road overtaking vehicles while [negotiating] the left hand bend which resulted in him 17 losing control and impacting the white Audi which he failed to stop at the scene but chose 18 to continue running where it impacted a speed limit sign then thru the front yard and across 19 the road that leads to the residence and thru the bushes between the utility pole and coconut 20 tree and back on to Anton Bodden Drive beside the Police car where he accelerated to 21 66.32 MPH when he crossed the parking lot for the Evron Plaza continued out to Shamrock 22 Road where he headed west towards town direction. 23 24 The Nissan then crosses residence #2855 located at the junction of Northward Road at 25 speed in a blur, still being followed by the Police who [were] 16 seconds behind him and 26 [were] in the process of negotiating the left hand bend just after the Northward junction 27 where the vehicle started to rotate counter clockwise or to the left and then attempted to 28 be corrected but then rotated clockwise or to the right and got into a yaw in the vicinity of 29 Corella Drive (North Cayman Palms) where the Nissan continued to rotate as it continued 30 to sideslip across the center line and across the east bound lane with the vehicle facing in 31 a northerly direction until it continued to rotate and sideslip impacting rocks that were on 32 1 Defence Sentencing Bundle Tab 2, page 12. Page 6 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment the edge of the property and the left front rim and tire dug mark thru the dirt and bushes 1 and was then rotated facing back east and went rearward and impacted the concrete wall 2 with the corner post and fence with a significant force. The area of maximum engagement 3 was to the right rear which was significantly compressed inward to the rear door leaving 4 parts of the right taillight and bumper cover by the post. The Nissan then rotated counter 5 clockwise with left front rim and tire impacted the wall leaving the imprint then rotating 6 and coming to final rest facing the wall at an angle.” 7 8

¶ [21] After being released from hospital on the 6th September 2019 the defendant was arrested for the 9 offence of Causing Death by Dangerous Driving. He was bailed to appear for interview on the 10 12th November 2019. 11 12

¶ [22] Dr. Clement Von Kirchenheim examined him and on the 14th October 2019, gave his opinion 13 that due to the injuries he suffered he was at that time not fit to be interviewed. In that report Dr. 14 Von Kirchenheim also stated that he had examined the defendant on the 4th September 2019 and 15 found him to be suffering from a post concussive disorder and unfit to provide reliable evidence 16 due to significant neurological impairment affecting his mood, memory and reasoning. 17 18

¶ [23] The interview was rescheduled for the 20th November 2019. Dr. Von Kirchenheim provided a 19 further opinion on the 14th November 2019 in which he stated that the defendant was now fit to 20 be interviewed. He was also of the opinion that the defendant did not have any memories around 21 the exact time of the incident as a result of the injuries he sustained. According to the Doctor, he 22 was then still suffering from cognitive impairment affecting verbal/auditory, immediate and 23 intermediate memory. 24 25 VICTIM IMPACT STATEMENTS 26 27

¶ [24] The Court has been provided with two victim impact statements. Kerry Allen was a girl friend 28 of Mr. Berry. In her statement dated 26th November 2021, she states that they had been close for 29 almost eight years and grew up together. She describes the void left behind in her life because 30 of his absence and what she describes as a future which will no longer contain the 31 accomplishments which they had dreamt of achieving together. 32 33 Page 7 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [25] Belinda Joseph is the mother of Mr. Berry. She details the impact of the news of his involvement 1 in a serious motor vehicle accident, the pain in her heart when there was no hope for his recovery 2 and dealing with the subsequent reality of his absence. The loss is irreplaceable. She states: - 3 4 “The most difficult part of this journey for my family and I was the final day when he was 5 placed in that cold tomb and then the final seal, which convinced me that we would never 6 be seeing Giovani again. 7 8 This has greatly affected the mental wellbeing of his siblings, who too have suffered from 9 stress, headaches, depression and difficulty sleeping at nights, in addition to challenges 10 focusing at school amongst other things. 11 12 I regularly visit my son’s grave site, each time wishing that it was only a dream, however 13 the reality of Giovani’s passing becomes more real to me when there are no answers to my 14 phone calls and messages. This brings much sadness, and anger at the selfish actions taken 15 by Mr. Wood that night that resulted in the death of my son.” 16 17 SOCIAL INQUIRY REPORT 18 19

¶ [26] The Department of Community Rehabilitation has provided a Social Inquiry Report (“SIR”) 20 dated 14th March 2022. This gives significant detail about the defendant and his circumstances. 21 22

¶ [27] The defendant is now 27 years old. He has two young children aged 11 and 9 years old. Both 23 reside in other jurisdictions and the defendant provides financial support whenever he is able to 24 do so. His childhood and early years were in a loving and supportive home environment. After 25 leaving school he trained as a pilot in the United States. On his return to the Cayman Islands, he 26 was not able to obtain work in this field and so sought work in other areas such as construction 27 and as a barber. 28 29

¶ [28] His Pastor who has known him from age seven years describes him as having a quiet personality, 30 respectful and as responding well to instruction. A neighbour who has known him for fifteen 31 years describes him as a good person, respectful and responsible. 32 33 Page 8 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [29] The defendant recounted to the Probation Officer that he has no memory of the incident other 1 than waking up in the hospital. He said that he had left the Island for medical attention and had 2 been unable to return because the airport was closed due to the COVID-19 pandemic. 3 4

¶ [30] He describes Mr. Berry as his closest friend and expressed what appeared to the Officer to be 5 genuine remorse at the loss of his friend. 6 7

¶ [31] The defendant was assessed using the LS/CMI Instrument. His overall risk of re-offending was 8 assessed as low, with no criminogenic factors in the high or very high categories. 9 10

¶ [32] Under, ‘Assessment /Evaluation’, the Officer describes him as having supportive family 11 members and as having already begun the process of rehabilitation. Whilst in Prison on remand, 12 he has enrolled in two rehabilitation programmes and is studying CXC Business Studies. 13 14 ANTECEDENT HISTORY 15 16

¶ [33] The defendant has an antecedent history of three previous traffic convictions. 17 18

¶ [34] On the 28th August 2017 he was convicted of the offence of Driving Under the Influence. He was 19 sentenced to a fine of $200.00 or 20 days imprisonment and disqualified from driving for a year. 20 For the offence of Careless Driving, he received a similar fine and his driver’s license was 21 endorsed. 22 23

¶ [35] On the 4th April 2018 he was convicted of a second offence of Careless Driving. He was sentenced 24 to a fine of $150.00 or two weeks imprisonment and his driver’s license was endorsed. 25 26 LEGAL PRINCIPLES 27 28

¶ [36] Prosecuting Counsel has provided a schedule of unreported and reported cases with respect to 29 sentences imposed for the offence of Causing Death by Dangerous Driving in this jurisdiction 30 Page 9 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment over a period of time.2 The sentences imposed range from 18 months to 6 years and relate to a 1 broad range of circumstances. 2 3

¶ [37] Both Counsel have noted that these cases pre-date the Cayman Islands Sentencing Guidelines 4 and would therefore have been reviewed in the course of the preparation of the Guidelines. This 5 Court is also mindful that each case must be considered on its own particular facts. Two of the 6 cases listed are referenced below for the general statements made therein. 7 8

¶ [38] In the case of Nairne v. R, the Cayman Islands Court of Appeal (“CICA”) dismissed the appeal 9 of the Appellant against his sentence of six years imprisonment for the offence of Causing Death 10 by Dangerous Driving. The Court held that the sentence was not manifestly excessive. The 11 appellant’s driving had been quite exceedingly dangerous. He had driven at 100mph on a major 12 road for a prolonged period. Just prior to the collision which caused the death of his girlfriend 13 who was his passenger, he was travelling at 127mph. 14

¶ [39] The Court considered the United Kingdom Sentencing Guidelines and the approach to 15 Guidelines and stated: 16 17 “It was a common mistake in the application of sentencing guidelines to assume that once 18 a series of factors was sufficient to place an offence within the guideline category, those 19 factors became irrelevant in the application of the sentence bracket within that category. 20 It would not be double counting to take account of the factors as relevant both to the 21 determination of the category and the appropriate position of the offence within the 22 sentencing bracket. In the present case, the judge had been entitled to take the view that 23 the case was of such seriousness as to warrant a starting point greater than the basic tariff, 24 or the starting point suggested by the Cooksley or England and Wales guidelines.” 25 26

¶ [40] In the case of Domladis v. R., the appellant had been sentenced following his guilty plea to the 27 offence of Causing Death by Dangerous Driving to a sentence of four years imprisonment. After 28 consuming alcohol, he had driven at a speed twice the speed limit in a built up area of George 29 Town. While racing with a friend and attempting to overtake on the wrong side of the road, he 30 2 Nairne [2018] (1) CILR 518 2019 CICA, Domladis [2016] (1) CILR N17 (CICA), Piercy [2014] (1) CILR N7 2014, Brookes-Dixon [2012] (1) CILR N14, Morgan [2011] (2) CILR N8, Carter (H) [2010] (1) CILR N6, Cayasso [2008] CILR N14, Terry [2002] CILR N17 (CICA), O’Donoghue

¶ [1998] CILR 362 (CICA), Rivers [1988-89] CILR 77 CICA, Ebanks [1984]. Mohammed [2000] CILR 400 Page 10 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment crashed into the vehicle of his friend killing him. The Grand Court applied the United Kingdom 1 Sentencing Guidelines and concluded that this was a Level 1 offence. The Appellant argued on 2 appeal that it was properly a Level 2 offence. The Court held that the categorisation of the trial 3 judge was correct and that the sentence imposed was not manifestly excessive. The Court stated 4 that: - 5 6 “Dangerous driving would constitute a Level 2 offence if it created a substantial risk of 7 danger to others (e.g. driving at a greatly excessive speed or racing other drivers). The 8 appellant’s driving, however, had clearly constituted a Level 1 offence, as it demonstrated 9 a deliberate decision to ignore, or a flagrant disregard for, the rules of the road and an 10 apparent disregard for the danger caused to others. Although racing or competitive driving 11 might be categorized as a Level 2 offence if it occurred on a motorway or dual 12 carriageway, it was more serious when it occurred in an area such as central George 13 Town.” 14 15

¶ [41] Prosecuting Counsel also drew the attention of the Court to the judgment of the CICA in the case 16 of Cayasso v R3. The Appellate Court confirmed in that judgment that pursuant to s.22 of the 17 Penal Code a Court is not entitled to suspend any term of imprisonment in relation to an offence 18 of this nature. 19 20 THE SUBMISSIONS 21 22

¶ [42] In the instant case, both Counsel focused their submissions on the Cayman Islands Sentencing 23 Guidelines. There is disagreement as to whether this offence is a Level 1 or Level 2 offence. 24 25

¶ [43] The Guidelines provide that a Level 1 offence is the most serious offence. It involves a deliberate 26 decision to ignore or a flagrant disregard for the rules of the road and an apparent disregard for 27 the great danger being caused to others. The culpability is high and the Guidelines state that such 28 offences are likely to be characterised by the following: - 29 30  “a prolonged, persistent or deliberate course of very bad driving and or 31  consumption of alcohol or drugs leading to gross impairment or 32 3 CICA 1 of 2008 dated 14th August 2008 Page 11 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment  a group of determinants of seriousness which in isolation or smaller number would 1 place the offence in level 2.” 2 3

¶ [44] The note to the Guidelines states: - 4 5 “Where an offence involves both of the determinants of seriousness identified, particularly 6 if accompanied by aggravating factors such as multiple deaths or injuries, or a very bad 7 driving record, this may move an offence towards the top of the sentencing range.” 8 9

¶ [45] Under effect of alcohol or drugs, one example of a determinant is failure to supply a specimen 10 for analysis. 11 12

¶ [46] The starting point for a Level 1 offence is 7 years imprisonment with a range of sentence of 6-10 13 years imprisonment. 14 15

¶ [47] Level 2 is driving that created a substantial risk of danger. The culpability is medium and is likely 16 to be characterised by greatly excessive speed, racing, gross avoidable distractions, driving under 17 the influence or a group of determinants which in a smaller number or isolation would place the 18 offence into category C or Lesser Culpability. 19 20

¶ [48] The starting point for a Level 2 offence is 4 years custody with a range of sentence of 3 to 6 years. 21 22

¶ [49] The Prosecution submits that under these Guidelines, the instant offence is a Level 1 offence of 23 High Culpability. It is said to be one in which there was a prolonged, persistent, or deliberate 24 course of very bad driving. Counsel argues that the manner of the defendant’s driving was 25 deliberate. He ignored the rules of the road and showed an apparent disregard for the danger 26 which may have been caused to others. 27 28

¶ [50] Counsel submits that the distance driven by the defendant was 4km from when he was first seen 29 by the police to where the collision occurred in the vicinity of Doubloon Drive. Counsel says 30 that while attempting to evade the police, the defendant: - 31 32  drove in excess of the speed limit; 33  made a reckless turn onto the wrong side of the road; 34 Page 12 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment  overtook a line of traffic; 1  collided with a vehicle without stopping; 2  drove on to the soft shoulder of the road on the opposite side of the road; 3  travelled at speed over speed bumps; 4  accelerated in excess of the speed limit along Shamrock Road, a main road; and 5  failed to properly negotiate a left-hand bend in the roadway. 6 7

¶ [51] Defence Counsel submits with respect to the three levels of seriousness that this is a Level 2 8 rather than a Level 1 offence as the prosecution submitted. Defence Counsel said that there is no 9 evidence of any issue as to the roadworthiness of the vehicle. Referring to the heading in the 10 Guidelines, ‘Effect of Alcohol or Drugs’, Counsel submits that there is no evidence of impairment 11 due to alcohol and that while the defendant refused to provide a specimen of blood, he did indicate 12 that he would provide urine or breath. This is recorded in the statement of PC Vadely Gordon. 13 14

¶ [52] Counsel argues that: - 15 16 “The only relevant factors present in this case that can be attributed to the culpability of 17 Mr. Wood’s behavior are the sustained course of what may be regarded as very bad driving 18 and the aggressive driving which ultimately resulted in the collision with an Audi motor 19 vehicle registration number 196 621 (the “Audi”) on Anton Bodden Drive.” 20 21

¶ [53] Counsel reminds the Court that the presence of a determinant of seriousness does not 22 automatically dictate the bracket into which an offence is placed and submits that the presence 23 of speed in this case is not sufficiently serious to justify placing the offending into Level 1. 24 25

¶ [54] Counsel submits that while it is accepted that the defendant did travel at an excessive speed and 26 that at one point, he was travelling at 66.32mph, double the speed limit for that area, the defendant 27 was reducing his speed at various points. In particular, at the time of the collision his speed was 28 51mph, only 11 miles above the speed limit in that particular area. He had by then reduced his 29 speed considerably. Counsel submitted:- 30 31 “47. At the time of the offence the designated authorized speed limited on Anton Bodden 32 Drive was 30mph. According to the report by Sergeant Lenford Butler (the “Butler 33 Page 13 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment Report”), the Nissan travelled a minimum average rate of speed at 43.26mph (Tab 1 3). 2 3

¶ [48] This calculation is consistent with the Redden Report which also estimates the 4 speed travelled by the Nissan on Anton Bodden Drive to be 43.26mph, having 5 reached a maximum of 66.32mph. 6 7

¶ [49] The speed limit on Shamrock Road on 1 September 2019 was 40 mph. The Butler 8 Report calculated the minimum average rate of speed to be at 51.67mph. The 9 Redden Report also calculated the average rate speed at approximately 51.82mph 10 as the Nissan travelled along Shamrock Road.” 11 12

¶ [55] Counsel submits that in the alternative the mitigating factors are such as to reduce the culpability 13 of the defendant to Level 2. 14 15 AGGRAVATING FACTORS 16 17

¶ [56] The prosecution submits that the aggravating factors are that the defendant refused to provide a 18 specimen for analysis and his three previous convictions for driving offences. Counsel for the 19 defence questions whether there had in fact been a refusal, arguing that the defendant had been 20 willing to provide a specimen by means other than blood. 21 22 REDUCTION FOR PLEA 23 24

¶ [57] Prosecuting Counsel submitted that the Court would need to consider and balance three factors 25 in order to determine the appropriate discount: - 26 27 “a. The defendant’s absence from the jurisdiction during the investigation stage and 28 the laying of charges and the reasons for his absence; 29 b. The efforts of the Crown to bring the defendant before the Court, i.e., the 30 extradition from the UK; and 31 c. The effect of the injury on the defendant, memory loss relating to the commission 32 of the offence, and how this impacted on the decision to enter a guilty plea at the 33 particular stage of the matter.” 34 Page 14 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [58] Defence Counsel in response urged the Court to apply the full 25% reduction recommended by 1 the Cayman Islands Sentencing Guidelines as appropriate after a trial date has been set. Counsel 2 submitted that the plea of not guilty which was entered on the 23rd September 2021 was made on 3 the basis of a preliminary expert’s report obtained by the defence. The plea of guilty was entered 4 following the receipt of the completed report. 5 6 SUBMISSIONS IN MITIGATION 7 8

¶ [59] In mitigation, defence Counsel reviewed the four mitigating factors listed in the Guidelines. 9 Under the heading, actions of others, Counsel submitted that based on the defence expert’s report 10 this is a potential mitigating factor but is not one which the defendant wishes to advance4. 11 However, Counsel asked the Court to consider whether the fact that the police car followed the 12 defendant’s vehicle and the effect upon him, is a relevant circumstance. Secondly, Counsel said 13 that while it is not made as a positive submission, the statement of witness Kimberly Brown 14 suggests that there may have been another vehicle present at the scene at the material time. 15 16

¶ [60] Counsel was asked directly by the Court and in response confirmed that there is acceptance of 17 what is set out in the accident reconstruction expert reports of the prosecution and in particular 18 at paragraph 10 of the prosecution’s summary of facts which states: 19 20 “The police, having been advised by citizens that the defendant had travelled towards 21 George Town, followed in that direction and came upon the collision approximately 16 22 seconds later.” 23 24

¶ [61] In personal mitigation Counsel provided the defendant’s written apology to the Court. The 25 defendant states that he takes full responsibility for what happened and would trade places with 26 Mr. Berry who was more like a brother than a friend. The defendant asks for forgiveness for the 27 pain that his actions have caused and says that he will be haunted with this guilt forever. Counsel 28 said that the defendant is prepared to reach out to the family of Mr. Berry and upon release from 29 Prison, plans to do what he can to advocate and provide lectures about his experience. Counsel 30 said that there is utility in life after rehabilitation and that the defendant is preparing himself to 31 be a better person. 32 4 Paragraph 53 c. Defence written submissions and oral submissions made. Page 15 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [62] Counsel referred to a number of matters including the SIR as evidencing the good and productive 1 life which had been led by the defendant up to the material time and his genuine remorse. Counsel 2 noted that in his prepared statement to the police, the defendant spoke of being distraught after 3 hearing that he had been involved in the accident and said that Mr. Berry was his best friend. 4 5

¶ [63] Character references provided from his Pastor who has known him for nineteen years and a 6 member of the community who has known him for ten years, speak well of him. He is described 7 as an ambitious young man, respectable and loved by many, honest, dependable and of gentle 8 disposition. 9 10

¶ [64] The medical effect of the collision upon the defendant was advanced as a significant factor in 11 mitigation. Counsel reviewed the letters of Dr. Von Kirchenheim who had examined him shortly 12 after the collision and had concluded as set out above that he had lost his memory of what 13 occurred. Counsel sought and was granted permission to provide further medical material after 14 the sentence hearing. 15 16

¶ [65] On the 10th June 2022, Counsel provided additional medical records for the defendant. These are 17 from the Health Services Authority. They are the Emergency Physician notes for the defendant 18 for the 1st September 2019. Under the heading, chief complaint, it is recorded that the defendant 19 reported that his air bag had deployed, and he hit his head. The defendant was seen to have a 7cm 20 laceration to the occipital region of the scalp on the left side, bruises to the left forearm, laceration 21 to the right elbow and a bruise to the right side of his nose. The wound to his head was cleaned, 22 closed with a stapler and dressing applied. The wound to the elbow was cleaned and closed with 23 a stapler. No intra or extra–axial haemorrhage or fractures were seen and no acute injuries. 24 25

¶ [66] The notes of the Emergency Medical Services record that at the scene the defendant’s pupils were 26 dilated and sluggish. He gave an account that he had swerved from an oncoming vehicle and hit 27 a fence. He stated that he had a couple of beers before he was driving. 28 29

¶ [67] The notes of Dr. Von Kirchenheim signed as at 4th September 2019 are also attached and state: - 30 31 “Patient seen with parents for the initial interview and then underwent brief 32 neuropsychological testing. Results indicate that he has impairment with orientation, 33 auditory immediate and intermediate memory, and visual-spatial skills were also affected. 34 Page 16 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment He is clearly distraught with feelings of guilt and loss. There are also reported marital 1 issues. No evidence of suicidal or homicidal ideation. Moreover, there was no evidence 2 of symptoms suggestive [of] a major psychiatric disorder TBS in 2 weeks.” 3 4

¶ [68] In addition to the physical injuries which he sustained and the loss of his memory, defence 5 Counsel asked the Court to consider the following matters in mitigation:- 6 7 i. Loss of his best friend which will likely affect him for the rest of his life. 8 ii. Loss of his livelihood as a pilot. He will not likely be able to obtain employment in 9 this field in the future given his conviction for this offence. 10 iii. He had become separated from his wife following the accident which placed a strain 11 on his marriage. 12 iv. He will not be able to provide for his family. 13 14

¶ [69] Counsel said that it is agreed that the offence passes the custody threshold but asked the Court to 15 balance all factors. Counsel also said that the defendant did not contest his extradition and asked 16 that account be taken of the entire period that he has spent on remand including the period in the 17 United Kingdom. 18 19 THE SENTENCE 20 21

¶ [70] The custody threshold is firmly passed in this matter given the serious nature of it. As the 22 Guidelines note all offences which have resulted in death have the highest level of harm. The 23 defendant travelled at excessive speeds. At one stage more than twice the speed limit. Mr. 24 Redden’s report describes the defendant’s vehicle as passing the cameras in a blur. These were 25 main roads with bends, some sharper than others. Significantly this is not a case involving speed 26 alone. This is also a case in which the defendant drove some 4km or 2.4 miles after being signaled 27 to stop by the police. He ought to have stopped immediately. He did not. He could have chosen 28 to stop at any point. He did not. He made a right turn onto Anton Bodden Drive using the wrong 29 side of the road. Fortunately, there were no oncoming vehicles at the time. He overtook a line of 30 cars and collided with the third in line, the Audi motor car. He ran off the road to the opposite 31 side in the shrubs. He came out just ahead of the police vehicle. After this first collision, he could 32 have chosen to stop. He did not. He continued at a speed which led to him losing control of his 33 vehicle. 34 Page 17 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [71] Implicit in the way his case has been put is that he still sought to blame the police. This is at least 1 for the fact that he was being followed, if not for hitting his vehicle. He cannot go as far as the 2 latter in light of the CCTV evidence which clearly shows when the police vehicle arrived at the 3 scene and the timing in between that and the collision. The Court does give consideration to the 4 fact that he was being followed by the police car, but this is not a consideration which is in his 5 favour. Drivers are to stop when signaled by the police to do so5. The fact that he was being 6 followed by the police means that he could have been in absolutely no doubt that he was being 7 requested to stop. His manner of driving was deliberate in seeking to evade the police even after 8 he had been in an accident with another road user. 9 10

¶ [72] In this Court’s view this offence may properly be described as one encompassing driving that 11 involved a deliberate decision to ignore (or a flagrant disregard for) the rules of the road and an 12 apparent disregard for the great danger being caused. This was a prolonged, persistent or 13 deliberate course of very bad driving and on this determinant alone, the culpability is high, 14 causing this offence to be at Level 1. 15 16

¶ [73] Counsel invited the Court to give the defendant the benefit of the doubt in relation to the alleged 17 failure to provide a specimen of blood. Counsel referred to the statement of PC Vadely Gordon 18 dated 1st September 2019 and to two extracts therein. The full portion of the statement is set out 19 below: - 20 21 “I went back [to] Doctor Booth and asked if it was OK to wake Mr. Wood and he told a 22 nurse to check to see if Mr. Wood was asleep, she did and reported that he was not asleep. 23 I asked Mr. Wood if he was the driver of the vehicle at the time of the collision and he said, 24 yes. I asked if he had anything alcoholic to eat or drink prior to driving and he said “YES 25 BUT IT HAD NOTHING TO DO WITH THE ACCIDENT. IT WAS THE POLICE 26 CHASING A VEHICLE THAT CRASHED INTO MY VEHICLE”. I informed him that 27 based on the nature of the accident I required from him to supply a specimen of blood for 28 the purpose of analyzing the level of alcohol and at 3:00 am he said, HE WILL NOT GIVE 29 ANY BLOOD BECAUSE HE ALREADY HAD NEEDLES IN HIS HAND AND HE WILL 30 GIVE URINE OR BREATH BUT NO BLOOD. I informed him that if he failed or refuse to 31 provide the specimen, he will be liable to prosecution, and cautioned him and he replied, 32 “I AM NOT GIVING ANY BLOOD BECAUSE THE LAST [TIME] I GAVE BLOOD THE 33 POLICE SAID THAT I WAS OVER THE LIMIT AND ARRESTED ME WHEN I HAD 34 ONLY TWO BEERS TO DRINK”. 35 36 5 See s.68 (e) of the Traffic Act Page 18 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment I went back to Doctor Booth and spoke to him about Mr. Wood decision to provide urine 1 and breath. Doctor Booth spoke to Mr. Wood at 3:06 am and informed him that he need to 2 undergo an [extra] before he can be allowed to leave the hospital to provide the breath 3 specimen. 4 Mr. Wood refused to provide a specimen of blood and was warned of intended prosecution 5 and I informed PS 50 Montaque of Mr. Wood’s decision and refusal.” 6 7

¶ [74] It is noted that the defendant was told that he needed to undergo an x-ray before he could leave 8 the hospital. It was clear that he would not be in a position to leave the hospital immediately. He 9 was asked to provide a specimen of blood. He refused even after being warned. He chose to 10 refuse and cannot now say that this was not a refusal as he would have provided it by other means. 11 However, even giving him the benefit of the doubt and excluding this factor as a determinant, the 12 offending still falls within Level 1 for the reasons set out above. 13 14

¶ [75] From a starting point of seven years (84 months), the single aggravating factor which will be 15 taken into account is that of his three previous convictions, one for Driving Under the Influence 16 and two for Careless Driving. Defence Counsel accepts that there is disregard of warnings in this 17 case which might properly constitute an additional aggravating factor. However, in the Court’s 18 view care must be taken to avoid double counting and it is considered that this factor may already 19 be reflected in the way in which the Court has categorised this as a deliberate course of driving. 20 His evasion of and flight from the police are closely linked to the manner of his driving. 21 22

¶ [76] The sentence is increased by five months to ninety months in light of the defendant’s previous 23 driving convictions, (three months for the offences committed on the 28th August 2017 and two 24 months for the offence committed on the 4th April 2018). 25 26

¶ [77] In mitigation the Court takes into account all the submissions and all that has been said and 27 written in favour of the defendant. 28 29

¶ [78] From the early statements made by the defendant the inference is simply inescapable that he 30 initially sought to blame the police for the collision. Perhaps it is the case that but for the CCTV 31 footage along the roadways this may well have continued to be the case. 32 33 34 Page 19 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment

¶ [79] The defendant seeks to explain his departure from the Cayman Islands as due to the need to seek 1 medical treatment. If this was the case it is inexplicable that he would not have made contact with 2 the police before or after he had done so and certainly during the eighteen months before he was 3 held in the United Kingdom in June 2021. The reasonable inference is that he fled the jurisdiction. 4 5

¶ [80] Both these are matters which are inconsistent with genuine remorse and acceptance of 6 responsibility. 7 8

¶ [81] Nevertheless, this Court gives the defendant the benefit of the doubt and accepts that whatever 9 may have been his initial position, he has now come to a place where he is genuinely remorseful 10 and genuinely accepts responsibility for the collision. 11 12

¶ [82] Thus, the factors taken into account in mitigation include the following. He is genuinely 13 remorseful and takes full responsibility for his actions. He has suffered some injury as a result of 14 the collision and has lost his best friend. He has good personal qualities as described by persons 15 who know him well and led a productive life before the incident. This has impacted his marriage 16 and will likely impact his ability to work in the profession for which he is trained. He has already 17 made earnest efforts towards rehabilitation by enrolling in courses at the Prison and is using his 18 time there productively by doing other studies. 19 20

¶ [83] The Court considers all the matters in mitigation as a whole but is mindful of the Guidelines 21 which states: - 22 23 Effects on Offender 24 “(b) 1. Injury to the offender may be a mitigating factor when the offender has suffered 25 very serious injuries. In most circumstances, the weighting it is given will be 26 dictated by the circumstances of the offence and the effect should bear a direct 27 relationship to the extent to which the offender’s driving was at fault – the greater 28 the fault, the less the effect on mitigation; this distinction will be of particular 29 relevance where an offence did not involve any fault in the offender’s, standard of 30 driving. 31 32

¶ [2] Where one or more of the victims was in a close personal or family relationship 33 with the offender, this may be a mitigating factor. In line with the approach where 34 the offender is very seriously injured, the degree to which the relationship 35 influences the sentence should be linked to offender culpability in relation to the 36 Page 20 of 20 220902 R v Levar Antonine Wood: Ind. 54 of 2021. Coram Richards J, KC - Sentence Judgment commission of the offence; mitigation for this reason is likely to have less effect 1 where the culpability of the driver is particularly high.” 2 3

¶ [84] Having reviewed the medical notes, while the loss of memory is serious, the Court’s view is that 4 the other injuries suffered by the defendant cannot be said to fall into the category of “very serious 5 injuries.” Additionally, while he has lost his best friend and this is an important factor in 6 mitigation, his culpability is also high which makes this factor of less effect. 7 8

¶ [85] All the mitigating factors taken together serve to reduce the sentence by eight months from 9 eighty-nine months to eighty-one months. 10 11

¶ [86] The submissions of the defence are accepted as to the possible discount for the guilty plea and 12 the defendant is afforded the full 25% discount recommended by the Guidelines. It is noted that 13 his memory loss would very likely have played a role in his approach to the case. 14 15

¶ [87] This serves to reduce the sentence from eighty-one months by 25% (or 20.25 months) to one of 16 60.75 months or five years imprisonment. 17 18

¶ [88] Time served including time while in custody in the United Kingdom is to be deducted. 19 20

¶ [89] The defendant is disqualified from driving for five years following his release from Prison and 21 his license is to be endorsed. 22 23 Dated this the 2nd day of September 2022 24 25 The Hon. Justice Cheryll Richards QC 26 Judge of the Grand Court 27