Richards J
Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 1 of 36 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 105/2019 3 4 5 THE QUEEN 6 V. 7 JEREMY RALPH PARCHMAN 8 KEVIN STEPHAN PARCHMAN 9 SHIMAR JOSE JULIO KELLY 10 11 Appearances: Mrs. Nicole Petit for the Prosecution 12 Mr. Ben Tonner instructed by Jonathon 13 Hughes of Samson Law for Defendant 14 Parchman 15 16 Mrs. Prathna Bodden of Samson Law for 17 Defendant Kelly 18 19 20 Before: Justice Cheryll Richards Q.C. 21 Submissions on Sentencing: 3rd June 2021 22 Delivery of Judgment: 3rd August 2021 23 24 25 HEADNOTE 26 Criminal Law – Manslaughter - Section 183 of the Penal Code – United 27 Kingdom Sentencing Guidelines, pre-existing condition of victim, level of culpability of 28 offenders. 29 30 31 32 33 34 35 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 2 of 36
The two defendants, Jeremy Parchman and Shimar Kelly are before the Court for 1 sentencing following their convictions after trial for the offence of Manslaughter. 2 3
The particulars of the Indictment are that they on the 30th of November 2019 at Bananas 4 Restaurant and Lounge, 190 Eastern Avenue, George Town, Grand Cayman, Cayman 5 Islands did by an unlawful act cause the death of Dinesh A. F. W. Waduge. 6 7
By s.183 of the Penal Code (2019 Revision), the maximum sentence for this offence is 8 life imprisonment. 9 10
The facts are that on the said day at about 2a.m., the two defendants were patrons at the 11 said location which also operates as a Nightclub. They were present together with Kevin 12 Parchman, the brother of the defendant, Jeremy Parchman, and with a girlfriend of Kevin 13 Parchman. CCTV footage showed that in the course of the evening the deceased, Dinesh 14 Waduge who was also a patron at the establishment, either touched or made contact with 15 the body of the girlfriend of Kevin Parchman. 16 17
Kevin Parchman responded by punching Dinesh Waduge to his face. Dinesh Waduge 18 fell to the ground inside the club and got back to his feet. Shortly thereafter he was 19 assisted by a security guard with going out of the club. CCTV footage showed Dinesh 20 Waduge exiting the front door of the club and walking to an area to the left of it. 21 Moments thereafter, Jeremy Parchman and Shimar Kelly also exited the club and they 22 also went in the same direction. This area is not covered by CCTV cameras. 23 24 25 26 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 3 of 36
From eyewitnesses, one or both defendants (Jeremy Parchman and Shimar Kelly) 1 punched Dinesh Waduge to his upper body, to his face, head and neck. He fell to the 2 ground. These two defendants (Jeremy Parchman and Shimar Kelly) left the area and 3 returned to the inside of the club. Persons outside called the ambulance which attended. 4 EMT officers assisted Dinesh Waduge to the George Town hospital where he was 5 pronounced dead. 6 7
The medical evidence is that Dinesh Waduge had been suffering from a pre-existing 8 condition which had led to the thinning of his arterial walls and made him more 9 susceptible to injuries, such as from a punch. He had obtained surgical treatment in 10 Florida in mid-2019 after which he was prescribed medication including blood thinners. 11 A Pathologist gave his opinion that the ultimate cause of death was blunt force injury to 12 the left side of the head, behind the ear, just below it. This resulted in rotation of the head 13 and rupture or dissection of the vertebral arteries, resulting in a large subarachnoid 14 hemorrhage in the brain. 15 16 VICTIM IMPACT REPORT 17 18
The deceased was a Sri Lankan national, who had been living here in the Cayman Islands 19 while he worked as a chef at a local restaurant. 20 21
His wife has provided a statement dated the 27th January 2021. She states that the couple 22 has one child, a daughter, who was 2 years and 8 months old at the time of the death of 23 the deceased. The deceased would work and send money back home to support her and 24 the child. The wife is presently unemployed as she is unable to work because she is 25 suffering from cancer. She says that her husband, the deceased, would provide for her 26 financially to be able to have the chemotherapy treatments that she needs. These 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 4 of 36 treatments have ceased because she presently has no financial support and is unable to 1 pay for them. The cost for the chemotherapy treatments is 200,000.00 Sri Lankan rupees, 2 which is about US$1,500.00 per month. 3 4
In summary she has been deeply affected both financially and emotionally by his death. 5 She says that she is still crying and their daughter keeps asking for her father. She 6 describes the deceased as a good man and a good father, who would remain in contact 7 with them while he was here. He would call them three or four times a day and would 8 provide for them. Now they have no one. 9 10 ANTECEDENT HISTORIES 11 12
The defendant Jeremy Parchman has an antecedent record, CRO number 11200. This 13 shows a history of seven (7) previous convictions, six (6) are for offences which are 14 dissimilar to the present offence being for drug possession or consumption and one 15 conviction for Failing to Provide a Specimen of Urine. He is listed as having one 16 previous conviction for Assault Causing Actual Bodily Harm for which he was sentenced 17 on the 3rd April 2019 to a Probation Order for 2 years and ordered to pay compensation 18 of $500.00 to the victim in that case. Also on the 3rd April 2019 he was sentenced for 19 Possession of Cocaine and Possession of Ecstasy to terms of 6 months’ imprisonment 20 suspended for 2 years. For Consumption and Possession of Ganja he was sentenced to a 21 Community Service Order (CSO) for 40 hours. 22 23
The defendant Shimar Kelly has an antecedent record, CRO number 10743. He has four 24 (4) previous convictions. Three are for offences which are dissimilar to the present 25 offence, being for Consumption, and Possession of Ganja. He has one conviction for 26 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 5 of 36 Assault Causing Actual Bodily Harm for which he was sentenced on the 3rd April 2019 1 to 90 days’ imprisonment and ordered to pay compensation of $500.00 to a victim of the 2 same name as that on Jeremy Parchman’s antecedent record. On the said 3rd April 2019, 3 he was also sentenced for the offence of Possession of Ganja and he was placed on a 4 Probation Order for 18 months. There is a note on the antecedent record which states in 5 relation to that offence that he committed further offences whilst on probation and a CSO 6 for 80 hours was then substituted. 7 8 SOCIAL INQUIRY REPORT – JEREMY PARCHMAN 9 10
The Department of Community Rehabilitation (DCR) has provided a Social Inquiry 11 Report (SIR) on the defendant Jeremy Parchman which is dated the 1st March 2021. 12 13
The defendant is 21 years old. He reported a relatively happy childhood and no family 14 issues except for the separation of his parents. He spent most of his early years in 15 Cayman Brac. He had some behavioural issues while in high school, which resulted in 16 a number of suspensions but he had never been expelled from school. He said that the 17 suspensions which he received were not related to violence. 18 19
He was transferred from the high school in Cayman Brac when he was moved to Grand 20 Cayman to be with his father. He was then enrolled in the John Gray High School in 21 George Town. He did well in school academically, achieving 5 CXC passes on 22 graduation – this, despite being suspended on three occasions for misbehavior. The last 23 occasion was for an altercation during his last year at that school in 2016. 24 25
He enrolled in but did not complete tertiary education at the University College of the 26 Cayman Islands. This was due to his having to leave the college because of altercations. 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 6 of 36
With respect to health and substance misuse, he reports that between the ages of 15 years 1 and 16 years he used ganja daily and between the ages of 17 and 18 he started consuming 2 alcohol on a regular basis at a social level. 3 4
The Probation Officer notes, under the heading Previous Offending Behaviours and 5 Previous Response to Supervision, that he was subjected to a two-year suspended 6 sentence and curfew order as well as 120 hours of community service and that these 7 sentences remain in effect and have been breached due to the current offence. In relation 8 to his response to supervision: He did complete the CSO, after the Summary Court gave 9 him additional time to do so. However, his response to the Probation Order was 10 sporadic, in that, he did not attend all of his appointments. 11 12
The relatives of the defendant were contacted by the Probation Officer and his aunt, Mrs. 13 Kerry Parchman gave a good account of him. To her he has always presented as being 14 honest, loving and helpful. She indicated that he has been trying to reduce his level of 15 drinking and he has been making every effort while he was on bail to remain active in 16 order not to get into any trouble. His aunt expressed the view that his problems began 17 when the marriage of his parents broke down. 18 19
She recounts that he had been unwilling to relocate to Grand Cayman and that shortly 20 after coming here, he was beaten up while outside the cinema, in Camana Bay and a 21 video was posted of this beating on social media. She said that it was subsequent to this 22 that he appeared to, “take up with friends who supported him”. 23 24 25 26 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 7 of 36
The defendant’s father describes him as a child who gave no trouble and who was an 1 intelligent boy. He said that his suspensions from school related to his hairstyle and the 2 school not allowing long hair. He reported that the problems began for the defendant 3 when he came to reside in Grand Cayman and he was having a hard time because, having 4 lived in Cayman Brac, he was seen as different. 5 6
A member of the community, Ms. Beryl Ramoon has provided a letter which is attached 7 to SIR. The letter is addressed to the DCR and relates to Kevin Parchman and Jeremy 8 Parchman. Ms. Ramoon states that, for the past 20 plus years, she has been the owner of 9 the Sea Inn Bar, which is located at 216 Shedden Road, Central Plaza. She has known 10 the two brothers for a number of years as they were customers at the Bar and, on more 11 than one occasion, whenever they had too much to drink they would act in a very drunk 12 and disorderly manner with other customers in the Bar. As a result of this, she would 13 have to ask them to leave due to their behaviour and ban them from coming for a period 14 of time. After those periods, they were allowed to return to the Bar. However, since the 15 last incident she has told their father that they are banned from entering the premises. 16 17
The defendant’s employment history indicates that he worked full-time in 2018 for a 18 year – this, is after leaving school. In the summer of 2020 he was able to get a job on the 19 road crew in Cayman Brac where he did landscaping for the Government and he 20 continued this through to his being remanded in custody. 21 22
He was assessed using the LS/CMI Risk/Need Assessment tool. His overall risk of 23 reoffending was assessed as high. Of the eight (8) criminogenic factors, three (3) were 24 in the high category. These are leisure/recreation, companions who are said to be pro- 25 criminal and a pro-criminal attitude and orientation. 26 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 8 of 36
Under this latter factor the Officer states that he continues to use ganja – an indication 1 that he is supportive of crime, as ganja is illegal. The Officer states further that his 2 attitude is poor towards supervision. This offence was committed whilst he was subject 3 to both a Probation Order and a suspended sentence. 4 5
Under his Specific Risk/Need Factors, the Officer states that there are clear problems. 6 His continued use of illegal substances indicates that there will be a problem with 7 compliance. The Defendant’s skills deficits in problem solving and self-management are 8 indicated by suspensions as well as an expulsion and a ban involving altercations. Anger 9 management deficit is also a problem identified. This is assessed by his attitude in 10 school, the previous physical assault conviction and poor social skills. 11 12
The Officer concludes with the following analysis: 13 14 “Mr. Parchman is an educated man who had the ability to complete tertiary 15 education, however, from middle and high schools he has had behavioural 16 difficulties and the consequences of this has been his temporary removal from the 17 schools (environment). 18 19 On the face of it these appear to have been misdemeanors but sufficient enough for 20 numerous suspensions. He had also been expelled from UCCI and banned from a 21 social establishment as such behavior has occurred throughout his childhood, 22 teenage and adult years. The behaviour can be considered anti-social and should 23 be professionally addressed by way of a psychological assessment. 24 25 Although he does have a supportive family who made the decision to remove him 26 from the problem when at school or he has been removed by others, a Principal and 27 a Proprietor for altercations. What is not indicated is Mr. Parchman being able to 28 take responsibility for his actions, learn from his mistakes and appropriate 29 restorative justice for any given situation if it was deemed necessary.” 30 31 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 9 of 36 SOCIAL INQUIRY REPORT – SHIMAR KELLY 1 2
The DCR has provided a SIR which is dated 23rd February 2021 in relation to the 3 defendant Shimar Kelly. He is 23 years old. 4 5
The Report identifies a limitation and states that he was very cordial in the interview 6 sessions but the information which he provided did not mirror information provided in 7 previous reports or information from collateral contacts. It states further that in the 8 timeline he reported of his life, he appeared confused or to be misrepresenting the facts. 9 He was also vague and elusive regarding his current living situation. 10 11
He had a difficult childhood. There was a breakdown of the relationship between his 12 parents who were unmarried. They had what is described as a tumultuous relationship 13 until their separation in 2000. Following that breakdown, he initially lived with his 14 mother in Grand Cayman. He and his four siblings were considered to have been 15 abandoned, due to the frequent absence of their parents. The Department of Children 16 and Family Services (DCFS) intervened and the children were removed from the 17 mother’s care after investigations revealed that the children were being neglected and 18 physically abused by their mother. The defendant and his siblings were relocated to 19 Cayman Brac to live with his father and after a few months to live with his aunt who 20 then raised him and was a constant in his life. 21 22
The defendant described his early childhood years as difficult as he says that he was hurt 23 and angry because his parents had abandoned him. He also noted that the environment 24 around his parents was aggressive (to use his word), as his father was an alcoholic and 25 his mother would administer corporal punishment which included multiple beatings 26 which he described as “insane”, and which left him with scars and bruises. 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 10 of 36
He was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) during 1 primary school. This disorder caused difficulties during his school years. He was placed 2 on ADHD medication which assisted him to some extent. 3 4
The records at the DCFS outline details of what the Probation Officer describes as a 5 history of his violence and aggression throughout those school years. He himself says 6 he was suspended approximately fifteen (15) times throughout his school years for, 7 “fighting, cursing and being disruptive”. 8 9
It is said in relation to his employment history that he has worked regularly with the 10 National Community Enhancement Project in Cayman Brac but the Officer states that 11 there are contradictory accounts as to the extent of the period of his employment and the 12 timeline in relation to this. 13 14
Under the topic Health Substance Misuse, the defendant reports that his ADHD made 15 learning difficult, however, his feeling is that the medication affected his thinking and 16 resulted in him being diagnosed with suffering from depression. In Year 8, he struggled 17 with suicidal ideation which escalated into suicidal tendencies. In 2015, there was an 18 incident in which he had to be rushed to the hospital having taken an over dose of over 19 the counter liquid medication. 20 21
He also reports that was seen by psychiatrist, Dr. McGill, throughout high school. He 22 said that on leaving school, he discontinued taking the prescribed medication, stopped 23 seeing psychiatrists and has been self-medicating with ganja. He has had a significant 24 history of consumption of ganja and on two occasions using one other illicit substance. 25 He asserts that smoking ganja helps him to sleep. 26 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 11 of 36
The Officer states that the defendant presents as having, “cognitive impairment and 1 lapses in memory”, which could be as a result of his longstanding substance misuse and 2 or any ongoing untreated mental health condition and recommended that he be further 3 assessed mentally. 4 5
The Defendant said that his alcohol use has increased in the past years but he does not 6 see it as a problem. He says that he is usually calm when he drinks. The Officer states 7 that in his previous assault offence, alcohol use was a precursor and that he might be 8 under reporting the effects of alcohol on his behaviour. Additionally, the Officer also 9 says that in relation to the assault offence for which he was sentenced on the 3rd April 10 2019, this occurred under similar circumstances to the present offence. 11 12
Under community contacts, his brother describes the defendant as a quiet and reserved 13 individual who gave no trouble. His brother also noted that the family separation as 14 brothers which occurred from a young age may have had an impact on his behaviour. 15 16
His aunt described him as a child who was very kind, loving and says that his main 17 problem is negative company. She observes that in recent years he does not seem to 18 make sense and he often contradicts himself. She suggests that his ADHD or drug and 19 alcohol abuse may have impaired his thinking. It is her belief that he would benefit 20 greatly from in-patient treatment alongside drug and alcohol rehabilitation. 21 22
Under Assessment/ Evaluation, The Probation Officer states: 23 24 25 26 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 12 of 36 “This is not Mr. Kelly’s first appearance before a court and it seems his offending 1 behaviour has escalated. Client has seemingly undergone some strenuous and 2 challenging situations throughout his upbringing and current situation. One might 3 construe that the impact of his experience during his developmental years might still 4 be impacting the decisions he makes and his level of functioning in the community. 5 6 Mr. Kelly has obvious difficulty managing his anger emotion which seems to be 7 exacerbated by his drug and alcohol use, his ADHD, his reports of depressive 8 symptoms and his associations.” 9 10
The defendant was assessed using the LS/CMI instrument. His overall risk of 11 reoffending was assessed as very high with four of the eight criminogenic factors in the 12 very high category and four in the high category. 13 14
The four factors in the very high category include firstly his alcohol/drug problem. The 15 Officer states that his substance abuse has been directly related to all of his criminal 16 convictions and continues to place him at risk for further involvement in the system. It 17 also appears to be impacting his mental wellbeing and that he will likely require intensive 18 treatment to reduce his risk in this area. 19 20
The second factor is his companions - the majority of whom it is said are involved in 21 anti-social behaviours. He is negatively influenced by them and they tend to get in 22 trouble together. 23 24
Thirdly there is his, anti-social pattern. He has demonstrated early and diverse anti-social 25 behaviour which has manifested into various problem areas as an adult. Fourthly, his 26 pro-criminal attitude and orientation. This is in relation to his general attitude, thinking 27 and lifestyle which suggest that he is supportive of crime and unfavourable towards 28 convention. 29 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 13 of 36
Under specific risk/need factors which should be considered in sentencing, the Officer 1 lists, clear problems of compliance, problem solving/self-management skills deficits, 2 anger management deficits, poor social skills, physical assault, extra-familial, financial 3 problems, past suicide attempt (2015), past victim of family violence (neglect, emotional 4 and physical abuse), motivation as a barrier to development of social skills and mental 5 disorder – diagnosed ADHD. 6 7
Under Sentencing Options, the Officer states: 8 9 “Based upon the information gathered throughout the interviewing process and from 10 the risk assessment instrument, it appears as though Mr. Kelly is in dire need of 11 intervention services and he does seem motivated at this time to capitalize on the 12 services being offered. It is hoped that if client actively engages in the intervention 13 services his level of recidivism might be greatly reduced and he might become an 14 industrious member of society.” 15 16 PSYCHIATRIC REPORT 17 18
Given the indications in the SIR of Shimar Kelly, sentencing was delayed at the request 19 of his Counsel who asked that a psychiatric report be ordered. This was done and a report 20 has been provided by Dr. Arlene McGill of the Health Services Authority which is dated 21 the 22nd April 2021. 22 23
Under Mental Status Examination the report states: 24 “…he was alert and oriented in time, person and place. 25 … 26 His memory and concentration were intact and his problem solving skills were in 27 the normal range. During the interview he displayed no sign of delusions, 28 hallucinations or seizure type episodes. There was no evidence of disassociation or 29 perseveration.” 30 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 14 of 36
Under the concluding paragraph, “Impression”, Dr. McGill states: 1 2 “Mr. Shimar Kelly is a young man who suffers from moderate Attention Deficit 3 Hyperactivity Disorder, a cannabis dependent and moderate anxiety disorder, 4 which may be connected to his unstable childhood and early physical abuse. 5 6 He demonstrated a significant level of unrealistic thinking in his adolescence and a 7 tendency to admire risk behavior and the party going social culture on Cayman 8 Brac. 9 10 He continues to have a simplistic view of life which makes him liable to behaviours 11 that are not the result of good judgment. 12 13 Apart from free floating suicidal ideation, he is not known to self-harm or have intent 14 to self-harm. He is likely to reoffend if he does not have residential dual diagnosis 15 intervention for an extended period. However, this is currently only available 16 overseas.” 17 18 CHARACTER REFERENCES 19 20
In relation to the defendant Jeremy Parchman, the Court has received eleven (11) 21 character references from members of the community1. Some of these persons have 22 known his parents for over 30 years and have known him from birth. They speak to his 23 struggle with self-discovery following the breakdown of the family in his earlier years, 24 describe him as respectful, hardworking and extremely knowledgeable in a large number 25 of areas and say that he has the potential to become a productive member of society. 26 While working in Cayman Brac recently on the road clean-up programme, he proved 27 himself to be hard working and reliable and a good member of the work team. During 28 1 Lyndon Martin dated 2nd March 2021, Dennis Bodden dated 1st March 2021, Mexi-Ann Grant dated 1st March 2021, Ernie Scott JP dated 5th March 2021, Dorcus C. Scott dated 3rd March 2021, Garin Ritch dated 8th March 2021, B.L. Mark Tibbetts Jr. JP dated 25th March 2021, Frauleen Brown dated 26th March 2021, Moses Kirkconnell dated 25th March 2021, Delcy A. Santos dated 8th April 2021 and Elsa Scott dated 20th May 2021. Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 15 of 36 his growth, and in later years, he was respectful to his elders and to those with whom he 1 came in contact. He is also described as well-mannered, and a good citizen in the 2 community. He is thoughtful, caring and kind to his co-workers and others. He has a 3 pleasant and generous disposition. Persons say that he has witnessed trauma in his young 4 life and was not afforded therapeutic interventions, that he has made efforts to try to turn 5 his life around and that he is now more focused. 6 7
In respect of the defendant Shimar Kelly, the Court is in receipt of three (3) letters from 8 members of the community - from Mr. Moses Kirkconnell, dated the 25th March 2021, 9 Mr. Mark Tibbetts dated the 25th March 2021, and from Mr. Keino Daley dated the 25th 10 March 2021. Mr. Kelly is described as respectful and polite, caring, well-liked by his 11 peers and as being known for his love of life and youthful zest. The impact of the hurts 12 experienced during his youth and his sense of abandonment are described as issues 13 which affected him deeply. 14 15
The Court has read and takes the contents of all of these letters into account. 16 17 THE UNITED KINGDOM SENTENCING COUNCIL GUIDELINES 18 19
The Cayman Islands Sentencing Guidelines provides general guidance with respect to 20 the approach to sentencing and the applicable principles. In the absence of offence- 21 specific guidelines for the offence of Manslaughter, reference is made to the United 22 Kingdom Sentencing Council Guidelines. The maximum penalty for the offence is life 23 imprisonment in both jurisdictions. 24 25 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 16 of 36
The first step under these Guidelines is determining culpability by reference to a number 1 of factors. The Guidelines caution against applying the factors in a mechanistic way. 2 Culpability is in four levels A to D, very high, high, medium and lower. 3 4
The issue between the Prosecution and the Defence is whether this case falls into 5 culpability B or C of these Guidelines. 6 7
Culpability B lists four factors indicating high culpability – three of which are: 8 “Death was caused in the course of an unlawful act which involved an intention by 9 the offender to cause harm falling just short of GBH; 10 11 Death was caused in the course of an unlawful act which carried a high risk of death 12 or GBH which was or ought to have been obvious to the offender; and 13 14 Death was caused in the course of committing or escaping from a serious offence in 15 which the offender played more than a minor role.” 16 17 18
Culpability C lists two factors indicating medium culpability. It states: 19 20 “Cases falling between high and lower including but not limited to: 21 Where death was caused in the course of an unlawful act which involved an 22 intention by the offender to cause harm (or recklessness as to whether harm 23 would be caused) that falls between high and lower culpability. 24 25 Where death was caused in the course of committing or escaping from a less 26 serious offence but in which the offender played more than a minor role.” 27 28 29
Under step 2 of the Guidelines the starting point for Culpability B is 12 years’ custody 30 with a sentencing range of 8 to 16 years’ custody. For culpability C it is 6 years’ custody 31 with a sentencing range of 3 to 9 years’ custody. 32 33 34 35 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 17 of 36
The notes to the Guidelines state that these apply to a single offence of manslaughter 1 resulting in a single fatality and that where a case does not fall squarely within a category, 2 adjustments from the starting point may be required before adjustment for aggravating 3 and mitigating features. 4 5 THE SUBMISSIONS – PROSECUTION 6 7
The Prosecution submits that while there is no evidence upon which the Court could 8 conclude that the defendants intended to cause the GBH of the victim, there was an 9 intention by the defendants to cause harm falling just short of GBH. 10 11
Counsel submits that the blows struck were deliberate, aggressive and violent. They were 12 delivered to the head and neck of the victim. The force of one blow was sufficient to 13 rotate the head of the victim causing the fatal tear to his arteries. The motive for the 14 assault upon the victim was retaliatory and senseless. Counsel submits further that the 15 defendants assumed the risk that the conduct could result in significant and potentially 16 fatal harm to the victim and that the principle that you take your victim as you find him 17 applies. Reliance is placed upon the case of R v. Taiwo2 . 18 19
The Prosecution submits that in the alternative, should the Court conclude that it is 20 properly a category C case, then an upward shift in the starting point and range is 21 necessary as the categorization of Harm falls much closer to high culpability. Reliance 22 is also placed on the case of R v. Lynch3 and what is said to be the distinctions between 23 the factual circumstances of that case and the case at hand. 24 25 2 2020 EWCA Crim 902 3 2015 EWCA Crim 1130 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 18 of 36 AGGRAVATING FACTORS 1 2
The Prosecution submits that there are seven aggravating factors in this case as follows: 3 i. Both offenders have criminal records for violent offences as represented in 4 the antecedent records (a statutory aggravating factor). They have failed to 5 respond to previous sentences imposed upon them for violence and violent 6 offences are not out of character for them. 7 ii. The offence was unprovoked. There were no actions by the victim that 8 required any response by the offenders and certainly no action that could 9 justify any violent assault upon the victim by the offenders. 10 iii. Targeting the victim by pursuing him out of the bar. 11 iv. Commission of the offence while under the influence of alcohol. 12 v. The offenders acted together in the commission of the offence. 13 vi. The offenders rendered no aid or assistance to the victim, and did not alert 14 anyone to his obvious need for medical assistance. 15 vii. Violence at drinking establishments in the Cayman Islands are prevalent 16 offences. 17 18 THE SUBMISSIONS –DEFENDANT JEREMY PARCHMAN 19 20
Counsel on behalf of the defendant Parchman submitted that none of the factors for 21 category B are established in this case. Counsel also submitted that it is not clear from 22 the evidence whether the fatal injury was caused by the punches inflicted or from the 23 deceased falling after the assault. It is said that category C is more appropriate because 24 the defendants could not have anticipated the pre-existing medical condition of the 25 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 19 of 36 deceased and thus it could not have been obvious to them that their unlawful act carried 1 a high risk of death or grievous bodily harm. 2 3
Counsel also submitted that it is accepted that there is one statutory aggravating factor, 4 namely a previous conviction for Assault Causing Actual Bodily Harm in 2017 5 (BC00012/2017) and for which the Defendant was sentenced on 3rd April 2019. 6
Other aggravating factors are accepted as follows: 7 8 a. The offence was committed at a time when the defendant had consumed some 9 alcohol. Counsel notes however that there is no evidence that the defendant was 10 heavily intoxicated. 11 12 b. The defendants left the scene after the offence was committed. 13 14 i. However, Counsel notes that other persons were present at the scene and 15 were able to render assistance and that there is no evidence that the 16 defendant attempted to conceal evidence. 17 18 c. The defendant was subject to a probation order (for BC000112/2017 above) at the 19 time the offence was committed. 20 21 MITIGATING FACTORS 22 23
Under factors reducing seriousness, Counsel on behalf of the defendant Parchman 24 submits that the offence was not a premeditated act but an opportunistic one. In support 25 Counsel points to the evidence that the defendants went outside to smoke cigarettes 26 almost one minute after the deceased had left the club. It is submitted that they could not 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 20 of 36 have known that he was still outside the club and near to the location which they had used 1 to smoke earlier in the evening. 2 3
In mitigation, Counsel referred to the young age of the defendant. He was 20 years old 4 at the time of the offence and his behaviour has been exemplary since his arrest. He has 5 maintained employment and kept out of trouble whilst on bail. 6 7
Counsel submitted that: 8 9 “34. The aggravating factors slightly outweigh the mitigating factors 10 thereby supporting a modest upward shift from the 6 year starting 11 point to 6 ½ years approximately.” 12 13
Counsel said that the defendant is a young man, that he knows custody is inevitable but 14 asks that the Court give him some hope for the future. 15 16 THE SUBMISSIONS – DEFENDANT SHIMAR KELLY 17 18
Counsel on behalf of the Defendant Shimar Kelly accepts that one aggravating factor is 19 that of his previous conviction for Assault Causing Actual Bodily Harm committed in 20 2017 for which he was sentenced in April 2019. It is also accepted that all parties were 21 drinking alcohol but said that nothing on the CCTV footage showed any level of serious 22 intoxication on the part of Mr. Kelly. 23 24
Under factors reducing seriousness, it is submitted that the offence was not pre- 25 meditated and that there is no evidence to support the Prosecution’s contention that he 26 went outside the night club in pursuit of the deceased. 27 28 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 21 of 36
In mitigation the Court is asked to consider his age, he was 22 years old at the time of 1 the offence. He has shown genuine remorse for the loss of life. There is a family history 2 of mental health issues and he has had mental health issues and learning difficulties 3 throughout his life. He has ADHD and was negatively impacted by abuse, neglect and 4 then the death of his mother. Counsel said that it is if of note that despite his unstable 5 childhood and early physical abuse, persons in the community still describe him as well- 6 mannered. This means it is said that there is still hope for his future. 7 8 ENGLISH CASE LAW 9 10
Both the Prosecution and the Defence relied on a number of cases determined by the 11 English Court of Appeal. The Prosecution relied on the cases of AG’s Reference (R v 12 Taiwo)4 and R v Lynch5. The Defence provided a bundle containing some thirteen cases. 13 Counsel on behalf of the Defendant Parchman addressed these cases globally by stating 14 that the general submission from the thirteen cases is that a sentence of approximately 15 6½ years appears to be proportionate to offending of this nature. 16 17
It is further submitted by the Defence that the two cases on which the Prosecution rely 18 namely AG’s Reference (R v Taiwo) and R v Lynch can be distinguished on the basis 19 that in neither case was there a suggestion that the victim suffered from a pre-existing 20 illness that made him more vulnerable. 21 22
In the case of R v. Taiwo the defendant T, had been sentenced to a term of imprisonment 23 of 4 years and 10 months following a guilty plea to the offence of manslaughter. While 24 at a drinking establishment, there had been an altercation among a number of persons in 25 4 [2020] EWCA Crim 902, 2021 1 Cr. Appl R. S. 17, 5 [2015] 2 Cr App R S 73 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 22 of 36 which T had intervened and assaulted the victim. Thereafter, following a break and a 1 change of location he had delivered a single punch to the back of the victim’s head. The 2 victim collapsed almost immediately and died as a result of a subarachnoid haemorrhage 3 or bleeding at the base of the brain and axonal injury. The injuries were consistent with 4 severe trauma to the back of the head and also with violent twisting of the head and neck 5 resulting from impact. The Doctor’s evidence in that case was that he had been struck 6 towards the back of the head or neck. After this he was unsteady and collapsed within 7 seconds, which sequence is consistent with the effects of traumatic subarachnoid 8 haemorrhage. 9 10
T was of good character. The sentencing judge concluded that the matter fell within 11 category C of the Guidelines. The Attorney General submitted to the Appellate Court 12 that the offence was properly a category B offence. 13 14
The Appellate Court reviewed the circumstances and concluded that this was a “very 15 bad case of manslaughter” involving a single punch and was properly one of category 16 B. The Court stated that the aggravating factors were alcohol consumption and an 17 attempt to evade detection. The Court stated further that, as noted in the case of R. v. 18 Bola6, the context of the offending was highly material. The sentence was increased to 19 one of seven years’ and two months’ imprisonment. The Court stated that the use of a 20 weapon was not definitive of categorization and that whilst many single-punch 21 manslaughter cases would properly be assessed as falling within Category C, it was by 22 no means the case that all had to be so categorized. It was held that: 23 24 25 26 6 2019 EWCA Crim 1507 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 23 of 36 “(1) … The circumstances in which single punches could give rise to fatalities, 1 with no actual intent to kill or to cause grievous bodily harm, varied from 2 case to case. At all events, T’s case, most emphatically, was not the kind of 3 case, for example, where there was a relatively light punch to the face 4 causing a victim to stumble back and then to strike their head on the ground, 5 with fatal consequences. Here the fatal punch had been preceded by the 6 violent fracas in which T had played a full part. That was significant, even 7 if T had initially been trying to assist SS. It was also important, of course, 8 to bear in mind that, having been escorted away, T then deliberately 9 returned to the scene, clearly intent on violent retaliation. There were also 10 the other identified aggravating factors involved in drink and his trying to 11 conceal his involvement thereafter. It was not arguable that the sentence 12 was manifestly excessive and the application would be refused ([21] and 13 [22]). 14 15 (2) Single-punch manslaughter cases could vary greatly as to their facts and 16 circumstances. Certainly, there was no principle that a single-punch 17 manslaughter could never come within the first two factors identified in the 18 sentencing guideline relating to high culpability (i.e. Category B). In the 19 guideline, the use of a weapon was a specified aggravating factor: which 20 connotes that the guideline was framed on the footing that it was capable, 21 in terms of culpability, of applying across the range of categorisations 22 where no weapon was used. It was, thus, correspondingly to be noted that 23 lack of use of a weapon was not identified in the guideline as a mitigating 24 factor reducing seriousness. Thus, whilst no doubt many single-punch 25 manslaughter cases would properly be assessed as falling within Category 26 C, it was by no means the case that all had to be so categorised; although, 27 certainly, it would always be relevant to consider whether or not a weapon 28 had been involved ([26]).” 29 30
The Court referred7 with approval to the case of AG’s Reference (R v Coyle)8. In that 31 case the defendant had received a sentence of 7 years and 6 months following a guilty 32 plea to the offence of manslaughter. He had approached the victim from behind and 33 punched him in the head. The victim fell to the ground and suffered a serious brain 34 injury. The defendant who was 23 years old had previous convictions for possession of 35 an offensive weapon and battery. 36 37 7 Paragraph 27 of the judgment 8 2020 2 Cr App R (s) 36 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 24 of 36
The sentencing Judge placed the offence into Category B of the Guidelines but moved 1 that sentence towards the bottom of the range and excluded as an aggravating factor that 2 the defendant had left the scene without calling for help for the victim. The Solicitor 3 General on a reference of the sentence to the Court as being unduly lenient submitted 4 that this was an unprovoked attack from behind and that the force of the blow had been 5 such as to render the victim almost immediately unconscious. 6 7
The Appellate Court held that this was a classic one-punch manslaughter case which 8 properly fell within Category B. The circumstances included the aggressive behaviour 9 of C shortly before the punch and his previous convictions. The Court was of the view 10 that the sentencing Court should have moved up the sentencing scale to reflect the 11 aggravating factors. The Court said that the appropriate starting point was 12 years and 12 increased the sentence to one of nine years’ and nine months’, after considering 13 aggravating and mitigating factors. 14 15
In the cited case of R v Lynch, the Appellate Court dismissed the appeal of the appellant 16 against his sentence of 4 years’ and 3 months’ for the offence of manslaughter. The 17 appellant had been engaged in an altercation with his brother at a drinking establishment. 18 He punched at his brother and accidentally struck the victim. This caused a severe 19 fracture to the victim’s neck and led to his death. 20 21
The Court held that this was a deliberate and aggressive blow. L was intoxicated and 22 had been engaged in an argument and fight with his brother in the course of which 23 property had been damaged. All the factors suggested that his culpability was at a high 24 rather than low level despite this being a single punch. The Court said that the 25 appropriate range of sentence for a single blow manslaughter case was 6 - 8 years after 26 trial. 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 25 of 36
In R v Abdul Qayum and Another9, the appellants were sentenced after trial to 8 ½ 1 years’ imprisonment for the offence of manslaughter. They were 18 at the time of the 2 offence and 19 years old at the time of sentence. They had kicked the victim to the rib 3 area of the body as he lay defenceless and drunk on the ground. The Appellate Court 4 dismissed the appeal against sentence and stated that: 5 6 “26. The grounds of appeal raise a number of points. Essentially, the argument 7 is that the eight-and-a-half years was manifestly excessive for the offence of 8 manslaughter. It is said on behalf of Mr Qayum, in the notes in the grounds 9 of appeal that the meeting was coincidental, there was some provocation by 10 the deceased, the assault was very quick, it was not concerted nor to an 11 obviously vulnerable part of the body. The refusal of the deceased to accept 12 hospital treatment meant that he forwent the possibility of life saving 13 treatment there. The cases cited by the judge, in particular Ahad , were 14 much more serious. The personal mitigation of Qayum included his age, his 15 previous convictions as it was thought and his compliance with a 16 supervision order.” 17 18 … 19 20 “30. We emphasise that those who kick helpless people are responsible for what 21 happens. The risk of significant harm is obvious. Those who kick people take 22 the victim as they find him. If he has a liver more susceptible to injury, if he 23 is intoxicated so he is less able to appreciate what is being done to him and 24 the need to seek urgent medical treatment, the risk lies with the person who 25 has committed the violence. It cannot be regarded as a feature which 26 significantly affects the culpability.” 27 28 29
In R v Jordan Folkes10, the appellant who was 20 years old received a sentence of 3 30 years’ detention following his guilty plea to the manslaughter of his father. Following a 31 quarrel with his brother, the father told him to leave the family home. The appellant 32 struck his father to the face causing him to fall over backward and hit his head on the 33 floor. He received injuries to the brain from which he later died. 34 35 9 2013 EWCA Crim 1312 10 2011 2 Cr App R (S) 76 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 26 of 36
The Appellate Court held in response to the submission that too high a starting point had 1 been taken for a one-punch manslaughter that the sentence was not too long to reflect 2 the culpability of the appellant and the gravity of the offence. The Court concluded that 3 the sentence was not manifestly excessive. It was held: 4 5 “In the Court’s judgment every case of “one punch manslaughter” was unique in 6 its facts and the circumstances lying behind it. Each of the cases cited was different 7 from the appellant’s case. The Court recognised that there could be a real and 8 important distinction between the crime of manslaughter when committed in public 9 and same offence committed in private. The sentencing judge noted that the 10 appellant’s father had done nothing on the evening concerned which could justify 11 the appellant’s action. A single blow was struck, but it was a deliberately heavy 12 blow. This was far from being almost an accident.” 13 14
It was further stated that: 15 16 “…Nevertheless, there are features of this case which clearly make it different from 17 Furby and Harvey. These were differences of which the judge, to whom Appleby 18 and Harvey were cited, was well aware. As he observed, this was not a case of a 19 justifiable reaction to provocative or unreasonable behaviour on the part of the 20 victim on the occasion when the fatal attack took place. The judge was conscious of 21 the difficulties in the Folkes' household. No doubt the appellant harboured the 22 resentments which he described to the probation officer. But, as the judge noted, the 23 appellant's father had done nothing on that evening which could be seen as justifying 24 what the appellant did to him. The violence came only from the appellant. A single 25 blow was struck, but the punch was, on the appellant's admission, a deliberately 26 heavy one —heavy enough to put his father on the floor apparently unconscious. 27 28 Tragic as its result most certainly was, this was far from being almost an accident. 29 Nor was it an instance of any pre-existing and unknown vulnerability in the victim 30 which could merit its being described as a case of an “eggshell skull”. 11 31 32 33
In R v Paul Harvey12 the appellant threw a television remote control at his wife. Because 34 of her particular medical circumstances, she had an unusual weakness of the vertebral 35 artery, she suffered traumatic subarachnoid haemorrage. The medical evidence was that 36 at any stage death could have resulted from a simple turn of her head. 37 38 11 Paragraphs 20 and 21 12 [2011] 1 Cr. App R.(S) 42 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 27 of 36
The Appellate Court reduced the sentence of 3 years’ to one of 21 months’. The appellant 1 had 4 previous convictions. Two for Assault Occasioning Actual Bodily Harm. There 2 was no evidence that drink or drugs played any part in the offence. The Court said that 3 that was a genuinely singular set of circumstances. This was not a one-punch 4 manslaughter but the throwing of a remote control. 5 6
In the case of Attorney General’s Reference No. 60 (Appleby and Others)13 the 7 Appellate Court was concerned with sentencing in cases of involuntary manslaughter, 8 for which at the time no guideline was then available as it is presently. Guidance was 9 being given to sentencing courts in circumstances where many of the decided cases pre- 10 dated changes in the Law in particular the Criminal Justice Act 2003 and thus pre-dated 11 the approach to murder as identified in Schedule 21 thereof. 12 13
The Appellate Court considered a number of authorities including three which have been 14 cited by the Defence in the instant case, R v. Furby14 , R v. Coleman15 and R v. 15 Harrison16. The Court stated: 16 17 “The decisions which we have examined are set out in an Annex to this judgment. 18 For the future we doubt the value of reference to any sentencing decisions prior to 19 Furby itself. Furby provides an illuminating example of facts which demonstrate 20 that a sentence at the lower end of the scale may be appropriate. If it is necessary to 21 examine any sentencing decisions prior to Furby, and indeed prior to this judgment, 22 they should be examined with the clear understanding that none of the decisions we 23 have seen, and each member of the Court has studied a good many more sentencing 24 decisions than those cited to us, has proceeded on the basis which we have now 25 addressed, that crimes which result in death should be treated more seriously, not 26 so as to equate the sentencing in unlawful act manslaughter with the sentence levels 27 suggested in Sch.21 of the 2003 Act, but so as to ensure that the increased focus on 28 the fact that a victim has died in consequence of an unlawful act of violence, even 29 where the conviction is for manslaughter, should, in accordance with the legislative 30 intention, be given greater weight.” 31 13 2010 2 Cr. App. R. (S) 46, 14 2006 2 Cr. App. R. (S) 8 15 (1992) 13 Cr. App. R. (S) 508 16 1996 2 Cr. App. R. (S) 250 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 28 of 36
In R v. Furby, the Court drew a distinction between cases in which the punch was the 1 cause of the injury with no preexisting issues. The Court said: 2 3 “11. The judge was right to say that cases such as this present a difficult 4 sentencing exercise. A sentence must reflect the seriousness of the offence. 5 The seriousness depends on the culpability of the offending conduct and on 6 the harm that has resulted from it. Difficulty arises where there is a wide 7 disparity between the culpability of the offender and the harm that he has 8 caused. In the crime of manslaughter the harm caused is an element of the 9 offence. No harm can be more serious than the death of a victim. Its impact 10 usually extends, as it does in this case, to the relatives who have lost a loved 11 one. They may, understandably, feel that no sentence can properly reflect 12 the harm that has been caused. Because of the harm caused, the offence of 13 manslaughter will usually, though not inevitably, attract a custodial 14 sentence, regardless of the nature of the wrongdoing that has caused the 15 death. 16 17
It is right, however, that the length of the sentence must reflect the 18 culpability of the offender. This can vary widely in the case of manslaughter 19 from violent or reckless behaviour that foreseeably carries the risk of 20 causing death, to a case where death results from an unlawful act as a 21 consequence of a fortuity which the offender could not reasonably have 22 foreseen. Death resulting from a single punch usually falls into this 23 category.” 24 25
In R v. Harrsion, the Court said: 26 27 “H, aged 34, appealed against a sentence of imprisonment of six years on a guilty 28 plea to manslaughter. H's drinking partner was knocked out in a fight at a nightclub. 29 In a rage, H made an unprovoked attack on the victim, striking him one blow on the 30 head with his fist, on a finger of which he wore a large protruding ring. The victim's 31 skull was fractured by the blow and he died later of a brain haemorrhage. H 32 emphasised his remorse and claimed that the sentence was out of line with the 33 authorities. Held, allowing the appeal in part, that a term of four years was 34 substituted. Though H had several convictions, they were mainly for illegal fishing 35 and he had only one minor conviction for violence, for which he had received a 36 suspended six month sentence. A starting point of five or six years would have been 37 appropriate, but H's guilty plea made it excessive. 38 39 “As to that, it has to be said that cases of this sort which are superficially similar 40 are often found on closer examination to differ in important details. A blow sufficient 41 to fracture an egg shell skull is very much less culpable than one which fractures a 42 normal skull. An unlucky punch in the course of a spontaneous fight is very different 43 from a wholly unprovoked blow to an innocent bystander. Cases in which blows 44 have been repeated or kicks delivered are obviously more serious by reason of those 45 features.” 46 47 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 29 of 36 SENTENCE 1 2
This Court has considered all of the submissions, the cases provided and the factual 3 circumstances of the instant case. While each case must be decided on its own facts and 4 previous cases can only be of limited assistance, this case is similar in some respects to 5 the cases cited of a single–punch manslaughter. Additionally the facts bear some 6 resemblance to those in the case of R v. Taiwo. 7 8
There is, however, in the instant case, the added factor of the pre-existing condition of 9 the deceased. In this regard the submission of the Defence is accepted that it cannot be 10 said that death was caused in the course of an unlawful act which carried a high risk of 11 death or GBH which was or ought to have been obvious to the offender. 12 13
From some of the cases cited, Furby and Harrsion for example the level of culpability 14 in respect of the factual circumstance of “thin or egg shell skull” has been referred to 15 as being lower in the range of offending, closer to recklessness or accidental than 16 deliberate. 17 18
In respect of the more recent Sentencing Guidelines, the presence of this circumstance 19 may make it difficult to conclude with any positivity that death was caused in the course 20 of an unlawful act which involved an intention by the offender to cause harm falling just 21 short of GBH. This is as distinct from the basic intent of Common Assault or Assault 22 ABH. 23 24
By reason of the pre-existing condition the offending in this matter is placed into 25 category C. However the Guidelines provide that a mechanistic approach should not be 26 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 30 of 36 taken and that where a case does not fall squarely within a category adjustments may be 1 made from the starting point. 2 3
In R. v. Lynch the Court stated: 4 5 “Moreover, as this court has said in Attorney General’s Reference No.16 of 2014 , 6 the decision in Appleby signalled a significant change in the approach to be taken 7 to cases of manslaughter arising from a single punch. That change of approach 8 resulted from a greater focus on the fact that the consequence of the defendant’s 9 actions was death. In Attorney General’s Reference No.16 of 2014, this court, 10 having referred to a number of cases since Appleby, concluded that there was now 11 a relatively consistent approach to the levels of sentencing in such cases. Those 12 cases illustrated the level of sentencing of the order of six to eight years. 13 14 The court also said that when assessing the culpability of the offender it is important 15 to examine the nature of the blow which was struck. In this case it was a deliberate 16 and aggressive blow, although one aimed at the appellant’s brother rather than at 17 the deceased. The appellant was intoxicated and had an argument with his brother. 18 These factors suggest that the appellant’s culpability was at a high rather than at a 19 low level. It must also be borne in mind that although the victim died as a result of 20 a single punch, that punch was thrown in the context of a fight between the appellant 21 and his brother preceded by criminal damage.” 22 23 24
In the case of R v. Qayum, the Court did not consider susceptibility as a significant 25 feature affecting culpability. 26 27
In the view of this Court, considering the nature and circumstances of the assault in the 28 instant case, the culpability of the offending was closer to high rather than medium level 29 and certainly above mid-level. 30 31
The Court considers that it falls between category B and C and adopts an adjusted 32 starting point of 7 years rather than 6 years. 33 34
In respect of the Defendant Jeremy Parchman: From a starting point of 7 years custody, 35 account is taken of four aggravating factors which are listed in the Guidelines and which 36 are present in this case as follows: 37 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 31 of 36 i. He has an antecedent history for the offence of Assault Causing Actual 1 Bodily Harm. 2 3 ii. This offence was committed while he was subject to Court orders. At the 4 time of this offending he was subject to both a suspended sentence and a 5 Probation Order. His response to the Probation Order was described as 6 sporadic. 7 8 iii. The offence was committed whilst under the influence of alcohol to some 9 extent. 10 11 iv. He rendered no aid to the deceased and walked away leaving him on the 12 ground. 13 14
In the Court’s view the first two factors are of significant weight. Taking all factors and 15 circumstances together, the sentence is thereby increased to one of 9 years’ 16 imprisonment. 17 18
Account is taken of everything that has been said about the Defendant in mitigation, the 19 SIR and character references. He is of youthful age, only 21 years old at the time of the 20 offending. The offence was not premeditated. He is remorseful as to the loss of life which 21 has occurred. His childhood was impacted by the separation of his parents, and resulting 22 behavioural issues. He has had personal trauma including the beating which he suffered 23 in public while outside the cinema in Camana Bay and another incident where his brother 24 was seriously injured in his presence. Members of the community describe him as having 25 good personal qualities and it appears that whilst on bail for this offence he was gainfully 26 employed, hardworking and made every effort to stay out of trouble. The Court also 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 32 of 36 takes into account that there has been some delay in this matter, the offence having been 1 committed in 2019. This is no fault of the Defendant. 2 3
When all these circumstances are taken into account, the sentence is reduced to one of 7 4 ½ years’ imprisonment. 5 6
In respect of the Defendant Shimar Kelly: The Court has first considered whether his 7 culpability is reduced because of his mental health issues and asked the relevant 8 questions in accordance with the UK Sentencing Council Guidelines for Sentencing 9 Offenders with mental disorders. While ADHD is listed in Annex A thereto there is no 10 evidence of a sufficient connection between this disorder or to other disorders and the 11 offending behaviour and no evidence that at the time of the offending, the disorders 12 impaired his ability to make rational choices, understand the nature and consequence of 13 his actions or cause him to behave in a disinhibited way. The conclusion is that his 14 culpability is not reduced by reason of these disorders. 15 16
From a starting point of 7 years, account is taken of the aggravating factors which are 17 listed in the Guidelines and which are present in this case as follows: 18 19 i. He has an antecedent history for the offence of Assault Causing Actual 20 Bodily Harm. 21 22 ii. This offence was committed while he was subject to court orders. At the 23 time of this offending he was subject to both a suspended sentence and a 24 Probation Order. 25 26 iii. The offence was committed whilst under the influence of alcohol to a certain 27 extent. 28 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 33 of 36 iv. He rendered no aid to the deceased and walked away leaving him on the 1 ground. 2 3
In the Court’s view the first two factors are of significant weight. Taking all factors and 4 circumstances together, the sentence is thereby increased to one of 9 years’ 5 imprisonment. 6
Account is taken of everything that has been said about the defendant in mitigation, the 7 SIR and character references. He is of youthful age, only 22 years old at the time of the 8 offending. The offence was not premeditated. He is remorseful as to the loss of life which 9 has occurred. He had a very difficult childhood in which he was ill-treated by his mother 10 who beat him severely and his father was an alcoholic. He was abandoned by his parents 11 and had to be raised by his aunt. His mother died which also affected him. He suffers 12 from ADHD and self-medicates with non-medical substances. Members of the 13 community describe him as having some good personal qualities and it appears that he 14 has made efforts to be gainfully employed. The Court also takes into account that there 15 has been some delay in this matter, the offence having been committed in 2019. This is 16 no fault of the defendant. 17 18
When all these matters are taken into account, the sentence is reduced to one of 7 ½ 19 years’ imprisonment. 20 21
The Court has given consideration to whether this sentence is proportionate to the gravity 22 of the offending. This is an offence of the most serious kind involving as it does harm 23 which is irreparable. A life has been lost which cannot be replaced. A young daughter 24 will grow up never to know a father. The resulting grief and negative impact on the 25 family of the deceased as described by his wife cannot be overstated. 26 27 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 34 of 36
The culpability of the offenders arises as a result of an unprovoked, callous and 1 deliberate attack by two men acting together against the single victim. It may have been 2 opportunistic but was plainly retaliatory in nature. The victim was defenseless and had 3 done nothing to deserve this assault. The sound of the blow, as forceful as it was, caught 4 the attention of bystanders. This occurred in public, during the night. It was in the 5 precincts of a liquor licensing establishment where all parties to this offence had been 6 drinking. Both defendants have previous offending behaviours involving an assault. 7 According to the Probation Officer, in respect of Mr. Kelly alcohol was also said to be 8 a factor in that previous offence. Both defendants were on Court orders imposed just 9 seven months before this incident. These were orders, the essence of which required 10 them to be on good behavior so as not to re-offend. The orders were clearly ignored. 11 Both defendants are said to be at high or very high risk of re-offending. The custody 12 threshold is firmly passed. 13 14
The primary aims of sentencing are set out in the Cayman Islands Sentencing 15 Guidelines. In the circumstances of this case they must include, deterrence, punishment 16 and rehabilitation. Standing back and considering the offending as a whole, this Court is 17 of the view that the proposed sentence meets the justice of this case, in that it is 18 proportionate to the gravity of the offence and to the degree of responsibility of the 19 defendants. It is the least sentence which could be imposed balancing all factors. 20 21
The Defendant Jeremy Parchman is sentenced to a term of imprisonment of 7 ½ years. 22 From this any time served is to be deducted. 23 24 25 26 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 35 of 36
On the 17th December 2019 the Defendant was granted bail with an electronically- 1 monitored curfew between the hours of 7pm and 6am. He remained on bail until the 7th 2 January 2021, a total of 387 days. 3 4
The curfew restriction which was mostly during the night hours would have amounted 5 to a modest rather than substantial restriction on his daily activities. The Court is guided 6 in this by the approach taken by the Grand Court (Dame Dobbs J.) in the case of R .v. 7 Nicholas Tibbetts17. 8 9
Credit is given for one-quarter of the time spent on curfew or 97 days. 10 11
While in custody as recommended by the Probation Officer, he should receive assistance 12 to address the criminogenic need areas of concern. It is also recommended that a 13 psychological assessment be undertaken. 14 15
The Defendant Shimar Kelly is sentenced to a term of imprisonment of 7 ½ years. From 16 this time served is to be deducted. 17 18
On the 17th December 2019 the Defendant was also granted bail with an electronically- 19 monitored curfew between the hours of 7pm and 6am. He remained on bail until the 7th 20 January 2021, a total of 387 days. As for the Defendant Parchman, and for the same 21 reason the Defendant Kelly is given credit for one quarter of the time spent on curfew or 22 97 days. 23 24 17 Grand Court, Ind. 71/2015 unreported judgment dated 16th December 2016 Sentence Judgment: The Queen v. Parchman (Jeremy Ralph), Kelly (Shimar Jose Julio). Ind. 105/2019. Coram: Richards J Q.C. Date: 3rd August 2021. Page 36 of 36
While in custody, as recommended by the Probation Officer, he should receive 1 assistance to address his issues such as a substance abuse assessment along with a 2 psychological assessment and intervention services. 3 4 Dated this the 3rd August 2021 5 6 Honourable Justice Cheryll Richards Q.C. 7 Judge of the Grand Court 8 9