R v Watler (Kurt Lindsay) - Sentence Judgment

¶ _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 1 of 16 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 0022 of 2021 3 4 5 THE QUEEN 6 7 v. 8 9 KURT LINDSAY WATLER 10 Appearances: Mr. Kenneth Ferguson holding for Mrs. Nicole 11 Petit for the Prosecution 12 13 Mr. Crister Brady of Brady Attorneys at Law 14 for the Defendant 15 16 Before: Justice Cheryll Richards Q.C. 17 18 19 Submissions on Sentencing: 2nd September 2021 20 21 22 Sentence Judgment: 23rd September 2021 23 24 25 HEADNOTE 26 Criminal Law – Unlawful Wounding – Principles on Sentencing – Cayman 27 Islands Sentencing Guidelines – Category of Offence - Use of Machete. 28 29 30 31 32 SENTENCE JUDGMENT 33 34 35 36 37 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 2 of 16

¶ [1] The Defendant is before the Court for sentencing following his guilty plea on the 6th May 1 2021 to the offence of Unlawful Wounding. While this was his third appearance before 2 the Grand Court for mention of the case, he had not been represented at the first mention 3 and the plea was entered as soon as assigned Counsel had the opportunity to take 4 instructions. The Defence submit, and it is accepted by the Prosecution, that his plea was 5 offered at the earliest opportunity and that he is entitled to full credit. 6 7

¶ [2] The particulars of this offence of Unlawful Wounding are that the Defendant, on the 9th 8 day of April 2021, at Bodden Town, Grand Cayman, unlawfully wounded Robbie David 9 Berry. The Penal Code (2019 Revision) provides in s.204 that the maximum sentence 10 for this offence is seven years’ imprisonment. 11 12 SUMMARY OF FACTS 13 14

¶ [3] The facts may be briefly summarised as follows. In the afternoon of the 9th April 2021, 15 the Complainant was at Magpie Close in Bodden Town engaged in raking up a yard. 16 The Defendant, who is known to him, came there and a conversation took place between 17 them. According to the Complainant, the Defendant left and returned with a machete, 18 which he used to inflict wounds on him. 19 20 The Police arrived at the scene shortly thereafter and on arrival saw the Defendant 21 standing by a wall near to the said yard with the machete in his hand. It was about 2-3 22 feet long. As the Police approached, he threw the machete into the roadway. When the 23 Police engaged the Defendant in conversation, the Defendant shouted: 24 25 26 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 3 of 16 “Yes officer I chopped him. I told the officer already I would rather go to 1 prison than let anyone chop me up again.” 2 3 The Police retrieved the machete and arrested the Defendant on suspicion of Assault 4 Causing Grievous Bodily Harm. He was cautioned and said: 5 6 “Yes officer I chopped him, he swiped at me with a rake and I chopped him 7 with my machete. I made a report to the Bodden Town Police before about 8 Robbie chopping me on my finger and believe me it wasn’t going to happen 9 again.” 10 11 The Defendant showed the Police a large bruise on the left side of his stomach, and said: 12 “Officer he swiped at me here and I wasn’t going to let this happen again. 13 I told Dr. McGill already that I would rather go to prison before letting 14 anyone else chop me up.” 15 16

¶ [4] The Defendant was taken into custody and transported to the Detention Centre. 17 18

¶ [5] The Complainant was seen by the Police lying along the roadway with deep wounds to 19 his left arm. He was bleeding from his arm and from his head. He was taken to the 20 George Town hospital where he was admitted to the Critical Care Unit in serious but 21 stable condition. 22 23

¶ [6] CCTV footage was obtained from the roadway cameras which showed the Defendant in 24 possession of the machete but did not show the incident. 25 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 4 of 16

¶ [7] The Defendant was interviewed under caution on the 10th April 2021. He stated that on 1 the day in question he went to the yard where he saw the Complainant raking. He said 2 that the Complainant started an argument with him about some music CD’s and swiped 3 at him with the rake to the left of his stomach which caused an injury. He said he ran 4 from the yard and the Complainant chased him with a shovel. He ran to his own yard, 5 retrieved his machete and returned with it to where the Complainant was. He saw the 6 Complainant holding a Guinness stout bottle in his hand from which he had been 7 drinking earlier. He felt threatened by this and started beating the Complainant with the 8 machete. He said that he had not called the Police about what was happening because he 9 had called the Police in respect of previous incidents and nothing was done about his 10 reports. 11 12 MEDICAL REPORT 13 14

¶ [8] Dr. Omar Felix has provided a medical report dated 27th April 2021. He states that he 15 examined the Complainant on the 9th April 2021 at 6:30 pm and found that he had the 16 following injuries: 17 18 i. Multiple lacerations to chest, scalp and left forearm. 19 20 ii. Open fracture of the left ulna. 21 22 iii. Left Haemopneumothorax. 23 24

¶ [9] The Doctor described his condition as serious with injuries consistent with infliction by 25 a sharp object and which were not likely to be permanent. 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 5 of 16

¶ [10] Medical notes have also been provided which indicate that the Complainant also 1 received a one-inch laceration to the occiput or the back and lower part of the skull. On 2 arrival at the hospital, he was seen to be in painful distress. The wound to the chest was 3 described as a penetrating wound with bleeding from the intercostal artery and pectoralis 4 muscle. Attempts were made to insert a tube into his chest to try to stop the bleeding 5 but it could not be controlled. He was taken to the operating room for an emergency 6 thoracostomy to be performed. 7 8 ANTECEDENT HISTORY 9 10

¶ [11] The Defendant has an antecedent history of two previous convictions for offences of 11 Assault Occasioning Actual Bodily Harm. The first was in 1999 and the second and 12 more recent was on the 20th March 2017 when he was placed on probation for one year. 13 That offence appears to have been committed in 2015. 14 15 THE SOCIAL INQUIRY REPORT 16 17

¶ [12] The Department of Community Rehabilitation has provided a Social Inquiry Report 18 (“SIR”) dated 11th August 2021. The Defendant is 52 years old. He has eight children 19 all of whom are adults. The youngest is 22 years old. He had been gainfully employed, 20 for some twenty years, in the car rental service industry, at a car dealership for three 21 years and a local store for a year. For the past eight years his employment status is 22 described as a self-employed labourer but he has not been gainfully employed. 23 24

¶ [13] By way of health issues he is an asthmatic. He reported to the Probation Officer that he 25 consumes ganja in the form of homemade tea to assist with his asthmatic symptoms. He 26 has been receiving treatment for the past eleven years for depression, which is said, by 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 6 of 16 the Probation Officer, to be a serious mental health disorder. He has been prescribed 1 two types of medication to deal with this - one of these is used to treat depression 2 associated with bipolar disorder. 3 4

¶ [14] One member of the community who has known him for over 20 years speaks to the 5 negative influence upon him from his associates and says that he has a long history of 6 excessive alcohol consumption which has negatively impacted his career and his 7 relationships. 8 9

¶ [15] In the SIR, under ‘attitude toward offending’, the Defendant told the Probation Officer 10 that he went back for the machete because he wanted to teach the Complainant a lesson. 11 He said he hit the Complainant but did not intend to cut him. 12 13

¶ [16] The Defendant was assessed using the LS/CMI instrument. His overall risk of 14 reoffending was assessed as high, with five of the eight criminogenic factors in the very 15 high or high category. In the very high category is his alcohol/drug problem. 16 17

¶ [17] His pro-criminal attitude/orientation was assessed as high. This, in part, is due to his 18 belief that violence is the answer to conflict. The Officer states that he has a long history 19 - dating back to fights while at school, and as an adult - of resolving conflicts with 20 violence, and verbal and physical altercations with former partners and their family 21 members. 22 23

¶ [18] He is described as demonstrating a degree of victim empathy and a willingness to engage 24 in intervention services. It is noted that he completed his Probation Order without 25 difficulty and did attend interviews as required for the preparation of this Report after 26 being warned against non-compliance. 27 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 7 of 16 THE SUBMISSIONS 1 2

¶ [19] Both Counsel referred to the Cayman Islands Sentencing Guidelines with respect to the 3 categorisation of this offence. 4

¶ [20] The Prosecution submits that the injuries sustained, including, as they do, a collapsed 5 lung, which required surgical intervention, and an injury to the head, are serious in the 6 context of the offence and constitute greater Harm. It is also submitted that there is higher 7 Culpability due to the use of a weapon and the repeated nature of the assault which 8 resulted in multiple injuries. 9 10

¶ [21] Offences of greater Harm and higher Culpability are category 1 offences. The starting 11 point is 5 years’ imprisonment for such offences, with a sentence range of 3 to 6 years. 12 13

¶ [22] Counsel on behalf of the Defendant submitted that this is a category 2 offence, being one 14 of greater Harm but lower Culpability on the basis that a greater degree of provocation 15 than normally expected, was present. In support of this argument, Counsel relies on the 16 following facts: 17 18 i. The Complainant used the rake to cause a wound to the Defendant; 19 20 ii. There had been previous encounters between the two and the Defendant 21 feared reprisals from the Complainant who has a history of violent conduct 22 and mental health issues; 23 24 iii. The Defendant had in the past been a victim of a violent assault which has 25 affected his perception as to how to respond to such incidents. 26 27 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 8 of 16 AGGRAVATING FACTORS 1 2

¶ [23] The Prosecution submits that the following are aggravating factors: 3 4  The previous conviction in 2017 for Assault Occasioning Actual Bodily Harm; 5  The repeated nature of the assault; 6  The assault was by way of revenge. 7 8 MITIGATION 9 10

¶ [24] In mitigation, Counsel for the Defendant submitted that the Defendant has not had an 11 extended association with the criminal justice system and that the offences on his record 12 are 18 years apart. He is a man of middle years, being 52 years old and has lived a 13 relatively uneventful life. He has been able to maintain his medical treatment over the 14 years. He is remorseful, wishes to apologise to the Complainant and to have no further 15 incidents between them. 16 17

¶ [25] Counsel asked the Court to consider the Defendant’s mental state, the effect upon him 18 of previous incidents where he was subjected to assaults and the fact that on this occasion 19 he was injured by the Complainant. The Defendant continues to believe that he is in 20 danger from the Complainant because of their past interactions. Counsel invited the 21 Court to accept the recommendations of the Probation Officer in respect of the 22 imposition of a suspended sentence. The Defendant is said to be willing to participate in 23 any community based sentence. He asks for mercy and is deeply ashamed that he has 24 not been a good example for his children and grandchildren. 25 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 9 of 16 ASSESSMENT 1 2

¶ [26] In the case of R v. Smith (Grant Christopher)1, the English Court of Appeal considered 3 what is meant by the term “serious in the context of the offence”. The Court concluded 4 that in the context of an offence of Wounding with Intent it is meant to distinguish 5 between injury “which is inherent or par in a standard section 18 offence and that which 6 will, by definition, go beyond what may be viewed as par for the course.” 7 8

¶ [27] The case of R v. Smith was concerned with an appeal which focused on the approach 9 adopted by the trial Judge in sentencing for an offence of Wounding with Intent, contrary 10 to s.18 of the Offences Against the Person Act 1861. The appellant had pleaded guilty 11 to the charge of Burglary but was convicted by a jury in relation to the charge of 12 Wounding with Intent. In the course of an altercation, the victim received a final blow 13 to the back of the head which required three stitches. In his Sentencing remarks the 14 learned Judge concluded that this fell into the category of greater Harm and greater 15 Culpability. This was on the basis that the injury which was caused needed hospital 16 treatment, stitching and had considerable lasting effect on him. 17 18

¶ [28] In considering the matter, the Appellate Court noted that while the blow to the back of 19 the head was inflicted when the victim was prone and defenceless and necessitated three 20 stitches, the victim was able, following the blow, to rise from the bed and pursue the 21 Appellant out of the house. The Court concluded that given the great disparity in the 22 sentence of six years between categories 2 and 1, although it was a bad injury, standing 23 alone, it was not a category 1 offence. 24 25 1 [2015 EWCA Crim 1482 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 10 of 16

¶ [29] The Court also expressed the view that the concept of “sustained or repeated” imports 1 some degree of persistent repetition. An assault may be sustained because it continued 2 over a significant period of time or be repeated because it involved multiple blows over 3 a short period of time. 4 5

¶ [30] In the instant case, the Complainant sustained a wound to his head, the fracture of two 6 bones in his forearm and significantly, a collapsed lung, which required emergency 7 surgery. These injuries amount to greater Harm. 8 9

¶ [31] In respect of Culpability, the use of a weapon, the machete, would place the offending 10 into the category of higher Culpability. Plainly it was also a revenge-based attack, with 11 the Defendant having left the Complainant’s yard to go to his home nearby to retrieve 12 his own machete before returning to the scene. 13 14 PROVOCATION 15 16

¶ [32] With respect to the submission of the Defence that there is lower Culpability as there 17 was a greater degree of provocation than normally expected, the Court has given 18 consideration to the definitions in the Guidelines. This states: 19 20 “In many offences, it is possible that the issue of provocation will arise. The law 21 generally expects a person to be able to resist provocation but accepts that there 22 will be circumstances where the level of provocation justifies a reduction in 23 sentence. In assessing the degree of provocation where the guideline provides for a 24 greater degree of provocation than normally expected to be a mitigating factor, 25 account should be taken of the following factors: 26 27 - if the provocation (which does not have to be a wrongful act) involves 28 gross and extreme conduct on the part of the victim, it is a more 29 significant factor mitigating than conduct which, although significant, 30 is not as extreme; 31 - whether the victim presented a threat not only to the offender, but also 32 to children in his or her care; 33 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 11 of 16 - the offender’s previous experience of abuse and/or domestic violence 1 either by the victim or by other people; 2 - any mental condition which may affect the offender’s perception of what 3 amounts to provocation; 4 - the nature of the provocative conduct, the period of time over which it 5 took place and its cumulative effect; 6 - discovery or knowledge of the fact of infidelity on the part of a partner 7 does not necessarily amount to high provocation – the gravity of such 8 provocation depends entirely on all the surrounding circumstances.” 9 10

¶ [33] Of the six factors listed above, in the context of the circumstances of the instant case, 11 the conclusions are: 12 i. The provocation raised which is the swiping at the Defendant with the rake, 13 does not appear to involve gross and extreme conduct on the part of the 14 victim. The nature of the provocative conduct and the period of time over 15 which it took place and its cumulative effect does not appear to be such a 16 level so as to place in the extreme range. There is no medical information 17 such as to suggest that the Defendant suffers from a mental condition which 18 would affect his perception of what amounts to provocation. There is 19 possibly only one factor for consideration which is the Defendant’s previous 20 experience of abuse by the victim. 21 22 ii. There was some provocation, given the injury from the rake which the 23 Defendant received. The Defendant left the premises, went to his home and 24 returned with a machete. He says that on his return the victim raised a bottle, 25 and there is also some argument that there was possibly excessive self 26 defence. However, the victim was being approached by a man armed with 27 a machete. At that stage the threat must have come from the Defendant and 28 not the victim. Overall the circumstances suggest a proactive, revenge-based 29 response rather than one borne out of a high degree of provocation. Indeed 30 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 12 of 16 the Defendant expressed to the Probation Officer that he went back to the 1 scene because he wanted to teach the victim a lesson and make sure that the 2 victim understood that he would not let him take his life. 3 4 iii. While the action was not planned, there was some element of pre- 5 meditation. 6 7

¶ [34] The conclusion is that the circumstances do not amount to a greater degree of 8 provocation than normally expected and that no lower culpability factors are present. 9 10

¶ [35] Consideration has also been given to whether the Defendant’s Culpability is reduced 11 because of his mental health issues. The relevant questions in accordance with the United 12 Kingdom Sentencing Council Guidelines for Sentencing Offenders with Mental 13 Disorders have been asked by the Court. While non-psychotic illnesses such as 14 depression are listed in Annex ‘A’ thereto there is no evidence in the instant case of a 15 sufficient connection between any illness from which the Defendant suffers and the 16 offending behaviour and no evidence that at the time of the offending, the illness 17 impaired the Defendant’s ability to make rational choices, understand the nature and 18 consequence of his actions or cause him to behave in a disinhibited way. The conclusion 19 is that his culpability is not reduced by reason of any illness. 20 21 SENTENCE 22 23

¶ [36] The starting point is therefore is one of 5 years’ custody. 24 25

¶ [37] The Court has considered the submissions of the Prosecution with respect to aggravating 26 factors. The factor of revenge has already been taken into account in the categorization 27 of higher Culpability. The victim suffered multiple injuries but details are not clear as to 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 13 of 16 whether the incident was over an extended period of time, and how prolonged it was. In 1 any event this would be a factor again placing the matter in the category of higher 2 Culpability. Care must be taken not to double count 3 4

¶ [38] The view is taken that there is a single aggravating factor of previous convictions for a 5 similar offence. 6 7

¶ [39] From a starting point of 5 years (60 months), the sentence is increased by 3 months for 8 the single aggravating factor (63 months). 9 10

¶ [40] The Court has taken into account all that has been said about the Defendant in mitigation 11 and in the SIR. This includes his personal circumstances involving a relatively crime 12 free life at 52 years of age, his genuine remorse, his immediate acceptance of 13 responsibility at the earliest stage when approached by the Police and the fact that there 14 was some degree of provocation which included the infliction of an injury upon him as 15 well as possible past assaults by the victim upon him. The SIR describes him as 16 demonstrating a degree of victim empathy and as feeling bad about the altercation and 17 the harm it caused the victim. 18 19

¶ [41] Significant weight is given by this Court to the Defendant’s medical condition. It is 20 accepted that he has an eleven-year history of suffering from depression for which he is 21 stabilized by medication. The Report describes his history as possibly indicating trauma 22 or physical, mental and emotional difficulties that will require special consideration in 23 order to address his belief systems in the context of offending behaviours. 24 25 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 14 of 16

¶ [42] Indeed his early responses to the Police indicate that he saw his own actions as a 1 protective and pre-emptive measure to prevent further assault on himself. While this 2 does not constitute legal justification it does point to the possible traumatic impact of 3 past events upon his misguided approach to them. 4 5

¶ [43] With the significant’ level of weight which is given to his ongoing medical issues, in 6 mind, he is given a reduction which would not otherwise be given outside of these 7 circumstances. 8 9

¶ [44] All the mitigating factors taken together serve to reduce his sentence to one of 35 10 months’ imprisonment. He is given full credit for his guilty plea reducing his sentence 11 to one of 23 months’ imprisonment. 12 13

¶ [45] The Cayman Islands Sentencing Guidelines provides general guidance as to the aims 14 of sentencing, assessing the seriousness of an offence, the custody threshold and the 15 principle of proportionality. The Court reminds itself of this guidance including that in 16 sentencing an offender, the Court has to balance a number of competing interests and 17 objectives and to tailor the punishment to the individual circumstances of the offender 18 while ensuring that it is in line with the seriousness of the offence. A Court should 19 consider which of the aims which govern the sentencing process will be best served by 20 the sentence to be passed. The aims which are set out in the Alternative Sentencing Act 21 2008 Revision include deterrence, punishment, rehabilitation and restitution. A custodial 22 sentence should not be passed unless the offence is so serious that no other sentence can 23 be justified for the offence. Custody should be reserved for the most serious offences. 24 Even where the custody threshold is passed, custody can still be avoided in light of 25 personal mitigation or if there is suitable community intervention which would meet the 26 aims of punishment and rehabilitation. 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 15 of 16

¶ [46] In this case this is a serious offence in which the victim sustained serious life-threatening 1 injuries. The Defendant is assessed as being at high risk of re-offending - in part because 2 of his alcohol/drug addiction issues and his particular mind set. The custody threshold is 3 firmly passed. Nevertheless, he is described by the Probation Officer as being open to 4 diverse intervention options. He has completed a course of probation in relation to 5 previous offending successfully. He has accepted responsibility for his actions in relation 6 to this offence at the earliest stages. He is said to be in continuing fear of the Complainant 7 and possible reprisals. He is willing to undergo counselling to deal with his issues and 8 to participate in any programmes as directed. 9 10

¶ [47] The view is taken in this case that the sentence can properly be suspended and that there 11 is suitable community intervention which would meet both the aims of punishment and 12 rehabilitation. 13 14

¶ [48] The sentence imposed is thus: 15 16 i. Suspended sentence of 23 months’ imprisonment suspended for two (2) 17 years. 18 19 ii. Pursuant to s.42 of the Penal Code, Community Service Order (CSO) of 20 240 hours of community service to be completed over the course of two (2) 21 years. 22 23 iii. Supervision Order for two (2) years with the following conditions: 24 25

¶ [1] Not to enter the district of Bodden Town unless in transit to his 26 home or another area of the Island; 27 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Watler (Kurt Lindsay): Ind. 22/2021. Coram: Richards J. Q.C. Date: 23rd September 2021 Page 16 of 16

¶ [2] Not to frequent any area where the victim Robbie Berry attends and 1 to remove immediately from an area where the victim Robbie Berry 2 is present. 3 4

¶ [3] To complete intervention programmes as identified by his assigned 5 Probation Officer to include Anger Management and Changes 6 programmes. 7 8

¶ [4] Engage in individual counselling with the Counselling Centre. 9 10 11 Dated this the 23rd day of September 2021 12 13 Honourable Justice Cheryll Richards Q.C. 14 Judge of the Grand Court 15 16