Richards J
220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 1 of 14 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 CRIMINAL SIDE 3 IND. NO: 14 of 2022 4 5 6 THE QUEEN 7 8 V. 9 10 SHIMARONA ANTHONY PETRIE 11 12 13 Appearances: Ms. Hema Soondarsingh for the Prosecution 14 Mr. Keith Myers for the Defence 15 Before: Justice Cheryll Richards Q.C. 16 Submissions on Sentencing: 12th August 2022 17 Sentence Judgment: 19th August 2022 18 19 20 21 HEADNOTE 22 Criminal Law – Cayman Islands Sentencing Guidelines, Burglary, Principles on 23 Sentencing 24 25 26 27 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 2 of 14 1 SENTENCE JUDGMENT 2 3 1. The defendant Shimarona Petrie is before the Court for sentencing in respect of a single 4 count of burglary contrary to s.243 (1) of the Penal Code (2022 Revision). The 5 particulars are that he “on the 15th day of February 2022 entered a dwelling building 6 namely Apartment 2, 24A Pasture Drive, Grand Cayman as a trespasser with intent to 7 steal therein”. 8 9 2. The defendant was arraigned on the 4th March 2022 which was his first appearance 10 before the Grand Court. He entered a plea of not guilty. The trial commenced on the 11 25th July 2022 and continued through to the 27th July 2022. After the close of the 12 prosecution’s case, the giving of evidence on his own case and just before closing 13 speeches, the defendant entered a plea of guilty. The jury was directed to and returned 14 a formal verdict of guilty. 15 16 3. The Prosecution has provided a summary of facts. 17 18 4. On the 14th of February 2022, the victim Anthony Cunningham secured his home at the 19 above address and retired to bed with his wife and two young children. The home is a 20 small one-bedroom apartment with a rear door and front door. The open living room 21 area had been retrofitted to include a bedroom for the children. 22 23 5. Mr. Cunningham was awakened at about 2:30 in the early morning, by the sound of 24 wind entering the apartment. He got up from the bedroom and found the rear door of 25 the apartment to be wide open. He locked the door and went into the living room area 26 to check on the children. He noticed an individual bent over by the sofa chair. On the 27 chair was his wife’s handbag which had been left there when she went to bed. 28 29 6. Mr. Cunningham attempted to hold on to the individual who moved away and went 30 towards the locked rear door. The individual did not go through that doorway but 31 turned back and went towards the front door. There was a tussle between the two and 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 3 of 14 1 the individual was able to break the chain lock on the front door, to open that door and 2 to go through it. 3 4 7. Mrs. Cunningham was awakened by the sounds of the altercation, and saw her husband 5 struggling with a strange man. She raised an alarm and screamed out for help. When 6 the intruder went through the front door, Mr. Cunningham gave chase and the intruder 7 jumped over the northern perimeter fence and escaped. 8 9 8. After the intruder’s departure, Mrs. Cunningham’s purse which had been in her 10 handbag on the sofa, was found on the floor of the passage area leading to the rear door. 11 There were items such as coins, which had come out of the purse and were scattered 12 on the floor. Nothing appeared to be missing. 13 14 9. Shortly after the incident, the defendant called 911. A transcript of that call was 15 tendered as an exhibit during the trial and in part this is what he said: 16 17 “I just did something wrong and I’m just giving in myself. 18 I just did something wrong and I’m very sorry about it, so I’m just calling. 19 I don’t know what to do right now. 20 I did something wrong. …I never do this in all my life. 21 I’m going to just serve the consequences. 22 I don’t want to be in this type of trouble.” 23 24 10. The defendant could be heard crying on the phone call to 911. He kept repeating that 25 he had done something ‘terribly wrong’ and that he had hurt two persons terribly. He 26 said that he is so sorry to that lady and that man. He said that he did not know what to 27 do. He told the 911 operator that he had done that about an hour ago, that he is in trouble 28 with the law, and this could cause him to go to jail. He said that he is sorry and that he 29 did not hurt the persons physically, ‘like damage them’. He said that he just wanted to 30 walk out to the Bodden Town Police Station and give himself up. He said that he did 31 not know what came over him. He said that he is not in want or in need so why did he 32 do it. He told the 911 operator where he was and where it had happened. He said that 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 4 of 14 1 it was not forced entry. He was asked whether he had taken anything from the location 2 and he said that he attempted to. He said that the door was open. He said that he did 3 not know ‘the nerves that got into him’, to go into the people’s house. He told the 4 operator where he was, that he was right there standing. 5 6 11. Police Constables Olivia Samuels and Andre Johnson attended the apartment of the 7 victim at about 3:15 in the early morning. While they were there, they were contacted 8 by the 911 operator and directed to the address of the defendant who was then still on 9 the phone to 911. The defendant was arrested. 10 11 12. PC Wanda Sue Nixon carried out a search of the area just outside the victim’s apartment 12 and found a key fob lying on the ground. That key fob was the key for a burgundy 13 Toyota Passo motor vehicle, registration 207 093. The vehicle was parked on the road 14 next to an adjoining premises. Further inquiries indicated that the owners of the vehicle 15 had lent the vehicle to the defendant for two days starting on the 14th February 2022. 16 17 13. The defendant was interviewed under caution in the presence of his attorney on the 19th 18 February 2022. This was after he was examined and found by a doctor to be fit to be 19 interviewed. 20 21 14. A transcript of that interview was tendered into evidence at the trial. The Court takes 22 note of what was said by the defendant in that interview. In part the defendant said that 23 he had the ‘intention to head to the gas station’ namely ‘On the Run’. He said that when 24 he went through the bush after leaving the victim’s apartment and reached the car, he 25 realised that he did not have the car key. He went home and used his phone and called 26
He repeated what he had said to the 911 operator. He said that he did not break in 27 as if he was in need or short of anything. He said that if he got the chance to pay the 28 penalty or to apologise to the persons, he would do that. He again repeated the 29 circumstances of his entry into the premises of the victim. 30 31 15. At trial the defendant gave evidence that he had been at home and was having a bad 32 headache. He left home to try to get some tablets at the ‘On the Run’ Gas Station. 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 5 of 14 1 While travelling there he remembered a female friend who lived nearby on Pasture 2 Drive. He said that he had not seen the person for about six months. He was not sure 3 where her apartment was. He went around to the back of the premises because he had 4 cut a line stick for her some time ago and he wanted to see if he could see the stick and 5 recognize the apartment. While there, he saw a light on, in the victim’s apartment and 6 thought that this was the apartment of his friend who might have been up to get her 7 children ready for school. 8 9 16. He entered the apartment, realised it was a stranger’s apartment and left. He stopped 10 outside and went back inside because he really wanted a tablet for his headache. He 11 said that he took up the handbag or purse out of the handbag from the couch and he had 12 it in his hand when the householder came at him. 13 14 17. In cross-examination he said that he knew that he did not have permission to be in the 15 apartment, that the apartment was that of a stranger and not that of his friend. He also 16 said that if he had found a tablet, he would have taken it and left, if he had not been 17 interrupted by the householder. He agreed that in the 911 call he had admitted to 18 breaking into someone’s apartment. 19 REPORTS 20 18. Defence Counsel was asked specifically and directly whether he sought a Social 21 Inquiry Report in respect of the defendant. Defence Counsel indicated that he did not 22 wish to have one. Counsel said that he would be able to provide all the relevant 23 information to the Court in respect of this defendant. Defence Counsel said further that 24 the Court had ordered a psychiatric report prior to the trial and that this provides 25 sufficient information about the defendant in order to allow for his circumstances to be 26 properly placed before the Court for this sentencing exercise. 27 28 19. The psychiatric report of Dr. Arline McGill is dated 14th June 2022. It states that the 29 defendant has a significant history of traumatic injury in his childhood as well as violent 30 incidents of head injury in his adolescence. The defendant reported suffering from 31 headaches frequently and has a history of suicide attempts. He grew up in an 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 6 of 14 1 atmosphere of conflict between his mother and step-father. He provided to the Doctor 2 a history which is suggestive to her of dyslexia and of prominent symptoms of moderate 3 obsessive compulsive disorder. His history also suggests depression with anxiety and 4 prominent features of attention dysregulation. The Doctor says that he experienced 5 several social dislocations in his childhood which contribute to his psychological 6 vulnerabilities. 7 8 20. On mental status examination, his psycho-motor activity was otherwise normal 9 although his gait was awkward. He displayed the capability to follow requests and was 10 cooperative. He was alert, could state his full name but he was only partially oriented 11 in time. The Doctor found his speech to be normal in rate and volume but monotonous 12 and hesitant as if he had to think carefully about the question to answer it. 13 14 21. The defendant is described as having good short term memory recall but his long term 15 recall was patchy. He remembered the injury to his right fronto-temporal area in 2006. 16 His information processing was concrete. His screening forms indicated occasional 17 suicidal thoughts although he denied current suicidality. His reasoning was simple but 18 within normal limits and his attention and concentration were intact. His thought 19 processes were said to be sometimes tangential but he was easily re-directed. His 20 history, says the Doctor, and current thought processes suggest post traumatic sequelae 21 and brain injury sequelae. He reported to the doctor that he was prone to headaches 22 three or more times a month and shocking pains to the back of his head and in the 23 temporal region which woke him up at night and that he usually took over the counter 24 medication for the headaches. 25 26 22. The Doctor concludes: 27 “Despite his neuro-psychiatric limitations, Mr. Petrie can relate events 28 surrounding the incident if he is approached with patience. He can also direct his 29 attorney and can understand the process in Court. He may have some difficulty 30 with processing information but he is able to provide testimony. He is therefore fit 31 to plea.” 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 7 of 14 1 ANTECEDENT HISTORY 2 23. The defendant has no previous convictions. 3 MAXIMUM PENALTIES 4 24. The maximum sentence for the offence of burglary is fourteen years imprisonment. 5 THE SUBMISSIONS 6 25. Both Counsel referred the Court to the Cayman Islands Sentencing Guidelines for the 7 offence of burglary and drew comparisons with the United Kingdom Sentencing 8 Guidelines. The prosecution submitted that under the Cayman Islands Sentencing 9 Guidelines the offending is a Category 1 Harm and Culpability B with a starting point 10 of five years and a range of sentencing of three to seven years in custody. 11 12 26. As to culpability, the prosecution submitted that the defendant has a mental disorder or 13 learning disability which seems to be linked to the commission of the offence. 14 Alternatively, that this is a mitigating factor which may reduce the starting point for 15 the offence. 16 17 27. The aggravating factors were submitted to be the timing of the offence, it having been 18 committed at night, the fight with the householder and the fact that children were at 19 home. 20 21 28. Prosecuting Counsel drew the Court’s attention to two cases as relevant sentencing 22 authorities. Firstly, the case of R v. Myles1. In this case, the defendant was found guilty 23 of burglary. He and another person had entered the house of the complainant in the 24 middle of the night, awakened her in her bedroom and demanded that she open her 25 safe. Items of value including credit cards, jewelry and drivers’ licenses were stolen. 26 The intruders left the house when the alarm went off. The defendant had a number of 27 previous convictions for burglary and aggravated burglary. He received a sentence of 1 2011 (2) CILR Note 11 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 8 of 14 1 seven years imprisonment with time spent in custody to be taken into consideration. 2 The dicta of Lord Bingham, Chief Justice in the case of R v. Brewster2 was applied. 3 4 29. The aggravating factors in that case were considered to be, that the burglary took place 5 in the early hours of the morning, the defendant stayed in the dwelling house after 6 discovering that the owner was present, the items stolen were valuable and the burglary 7 was highly planned. 8 9 30. The second case drawn to the Court’s attention is the case of R v. Wright 3. In that case 10 the defendant Wright was found guilty of criminal damage and burglary. He and 11 another person had carried out a burglary on a grocery store in the early hours of the 12 morning using a stolen truck. They caused damage totaling $23,000.00. The defendant 13 was sentenced to four years imprisonment for criminal damage and four years for 14 burglary. 15 16 DEFENCE SUBMISSIONS 17 18 31. Defence Counsel submitted that the instant offence is an offence of Category 1 Harm 19 and Lesser Culpability. 20 21 32. In mitigation defence Counsel submitted that the offence is peculiar. The defendant has 22 never committed any offence before. He went to college in Jamaica and has never been 23 in trouble in that country. He knows his mother but does not know his father or any 24 other siblings. He has no close family ties other than his mother. He came to the 25 Cayman Islands when his mother was working here. His mother has now returned to 26 Jamaica. 27 28 33. Counsel said that about ten years ago the defendant was the victim of a major assault. 29 He was hit with a metal bar to his head and was kicked and punched. He was in a 30 coma for a while and spent many weeks in hospital. It took him a couple years to 2 [1998] 1 Cr App Rep 220 3 2011 (2) CILR Note 5. 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 9 of 14 1 recover. He gets headaches every now and again. These are ‘blinding’ headaches which 2 hurt his eyes and cause him extreme pain in the front of his head. These do not cause 3 him to become violent or to experience ‘black outs’. Counsel said that the incident has 4 not affected the defendant to the degree that he cannot think. Counsel also said that the 5 defendant appreciates and knows right from wrong as can be heard on the 911 6 recording. 7 8 34. Counsel said that this is a bizarre case from beginning to end. At times the defendant 9 is like a child and is vulnerable. Sometimes he feels very alone here. It is very hard to 10 talk to people. Counsel said that the defendant is willing and able to work with 11 authorities and probation and to undertake whatever course is provided to him. 12 13 35. Counsel said that on the 911 call the defendant is remorseful and crying. His thinking 14 let him down. His thought process is not always clear, and he does not always think 15 things through. Counsel posed this question, once he realised that he was in the wrong 16 house why did he go back? Counsel said that fortunately no one was hurt, and nothing 17 was taken. 18 19 36. Counsel submitted that this is an exceptional and unusual case and asked the Court to 20 show as much compassion as can be shown. This is not an individual who is a perpetual 21 criminal. He made wrong choices and is trying to be honest. Counsel said that the Court 22 has seen and heard him. He acted like a child at times in the way he responded to 23 questions. He is a man of limited education but knows right from wrong and through 24 Counsel, he is apologising to the Court and to the family of the victim. He hopes that 25 in time the family will forgive him. He is hoping for a suspended sentence so that he 26 can work and re-engage in the community. 27 IMPACT OF GUILTY PLEA 28 37. The prosecution submits that in accordance with the Cayman Islands Sentencing 29 Guidelines 2015 the defendant should only benefit from a one tenth discount. Defence 30 Counsel submitted that while the trial had started one would ask for some discount. 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 10 of 14 1 THE SENTENCE 2 38. Under the Cayman Islands Sentencing Guidelines4 with respect to burglary in a 3 dwelling, there are two levels of culpability. None of the factors under Higher 4 Culpability appear to apply to this case. The offence appears to have been committed 5 on impulse. 6 7 39. The Court concludes that this is an offence of Lesser Culpability. The Court would 8 also have categorised this as one of Lesser Culpability given the submissions of both 9 Counsel as to the defendant’s possible mental issues as supported by the psychiatric 10 report of Dr. McGill. 11 12 40. As to Harm, the factors under Category 1 of the Guidelines are:- 13 14 i. Theft of/damage to property causing a significant degree of loss to the victim 15 (whether economic, sentimental or personal value). 16 ii. Soiling, ransacking or vandalism of property. 17 iii. Victim on premises (or returns to premises) while offender present. 18 iv. Trauma to the victim, beyond the normal inevitable consequence of intrusion 19 and theft. 20 v. Violence used or threatened against victim. 21 vi. Context of general public disorder. 22 23 41. Under Category 2, the factors are: 24 25 i. Nothing stolen or only property of very low value to the victim (whether 26 economic, sentimental or personal). 27 ii. Limited damage or disturbance to property. 28 4 Revised June 2021 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 11 of 14 1 42. In this case nothing was stolen and there was limited damage or disturbance to the 2 property. The only damage was the broken lock on the front door. Thus, there are two 3 factors in the lesser category. 4 5 43. However, the victim was present on the premises. The defendant was well aware that 6 persons were on the premises when he re-entered. At page 19 of his interview transcript 7 he says that he saw a female and a child on the bed in the room. Secondly, there was a 8 fight with the householder. There are thus one, possibly two factors which would serve 9 to place this offence in the higher category. In the general Guidelines, under the 10 heading of factors indicating more than usual degree of harm, is the fact of the presence 11 of others especially children. 12 13 44. The Court concludes that this is properly an offence which is somewhere between 14 Category 2 and Category 1 Harm and is possibly at the lower end of Category 1. 15 16 45. For an offence of Category 1 Harm and Lesser Culpability, the starting point is five 17 years custody. As the presence of others including children and the fight with the 18 householder are properly reflected in this categorisation, the Court does not consider 19 these to be aggravating factors as this may well be double counting. 20 21 46. The timing of the offence is properly an aggravating factor. This was at night, when 22 all persons should be able to sleep safely in their homes secured from intruders. The 23 early hours of the morning is a time of particular vulnerability for householders. From 24 a starting point of five years or sixty months, the sentence is increased to one of sixty- 25 three months. 26 27 47. In mitigation, the Court takes into account the defendant’s particular circumstances. He 28 is thirty-seven years old. He is a man of good character with no previous convictions. 29 This offence is entirely out of character for him. He is deeply remorseful as evidenced 30 by his 911 call and apologises through his Counsel. He has been the victim of a serious 31 assault which continues to affect him medically. His medical issues are detailed in the 32 psychiatric report. Incarceration in this country will affect him more than others, in 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 12 of 14 1 that, he has no family here and already expresses feelings of being alone. He is simple 2 and child-like in his thinking and this was evident in the course of the giving of his 3 evidence. In all the circumstances, all the mitigating factors taken together serve to 4 reduce the sentence by twenty-one months. 5 6 48. With respect to reduction for a guilty plea, the Cayman Islands Sentencing 7 Guidelines5 provides as follows: 8 “The level of reduction should reflect the stage at which the offender indicated a 9 willingness to admit guilt to the offence for which he is eventually sentenced: 10 i. the largest recommended reduction will not normally be given unless the 11 offender indicted willingness to admit guilt at the first reasonable 12 opportunity; when this occurs will vary from case to case; 13 14 ii. where the admission of guilt comes later than the first reasonable 15 opportunity, the reduction for guilty plea will normally be less than one 16 third; 17 18 iii. where the plea of guilty comes very late, it is still appropriate to give some 19 reduction; 20 21 iv. if after pleading guilty there is a Newton hearing and the offender’s version 22 of the circumstances of the offence is rejected, this should be taken into 23 account in determining the level of reduction; 24 25 v. if the not guilty plea was entered and maintained for tactical reasons (such 26 as to retain privileges whilst on remand), a late guilty plea should attract 27 very little, if any, discount.” 28 5 October 2015, paragraph 10 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 13 of 14 1 49. In this case the guilty plea came at the latest possible stage. The trial before a jury had 2 almost reached conclusion. The defendant is given the recommended discount which 3 is set out in the Guidelines of one tenth (1/10th). This reduces the sentence by four 4 months and two weeks to one of thirty-seven months for a sentence of three years and 5 one month. 6 7 50. The Cayman Islands Sentencing Guidelines provides general guidance as to the aims 8 of sentencing, assessing the seriousness of an offence, the custody threshold and the 9 principle of proportionality. The Court reminds itself of this guidance including that 10 in sentencing an offender, the Court has to balance a number of competing interests 11 and objectives and to tailor the punishment to the individual circumstances of the 12 offender while ensuring that it is in line with the seriousness of the offence. The Court 13 should consider which of the aims which govern the sentencing process will be best 14 served by the sentence to be passed. The aims which are set out in the Alternative 15 Sentencing Act 2008 include deterrence, punishment, rehabilitation and restitution. 16 17 51. The Guidelines also provide that a custodial sentence should not be passed unless the 18 offence is so serious that no other sentence can be justified for the offence. Custody 19 should be reserved for the most serious offences. Even where the custody threshold is 20 passed, custody can still be avoided in light of personal mitigation or if there is suitable 21 community intervention which would meet the aims of punishment and rehabilitation. 22 23 52. In considering whether the custody threshold has been passed in this case, consideration 24 has been given to the personal circumstances of the defendant and to whether there is 25 suitable community intervention which would provide a sufficient restriction by way 26 of punishment while addressing rehabilitation issues. 27 28 53. The serious nature of the offence in this case is an important factor. This is an offence 29 which was committed at night while the householders and their children were sleeping. 30 It was in the early hours of the morning. The defendant on his own account, in re- 31 entering the home, his re-entry was deliberate. The defendant knew that he was in a 32 stranger’s home. He knew that he did not have permission to enter that home or to take 220819 The Queen v. Shimarona Anthony Petrie: Ind: 14 of 2022. Coram: Richards J, Q.C. – Sentence Judgment Page 14 of 14 1 anything out of that home. He knew immediately that he was wrong to have done what 2 he did. The reason which he gives that this was a search for tablets is no excuse and 3 cannot be condoned. While he is said to be simple, he is some thirty seven years old 4 and he is a working man. 5 6 54. It is the view of this Court that the custody threshold is firmly passed and that 7 consideration of his personal circumstances is already given in the extensive discount 8 which has been applied in mitigation. There is nothing further in those circumstances 9 which suggests that immediate custody in unavoidable. The sentence is therefore three 10 years and one month with time served to be deducted. 11 Dated this the 19th day of August 2022 12 13 14 Honourable Justice Cheryll Richards Q.C. 15 Judge of the Grand Court