Richards J
Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 1 of 36 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 INDICTMENT NO: 22 OF 2020 3 4 5 THE QUEEN 6 7 V. 8 9 OLGA ELIZABETH SMITH 10 11 Appearances: Mrs. Nicole Petit for the Prosecution 12 Mr. Charles Miskin Q.C. instructed by Mr. 13 Oliver Grimwood 14 15 Before: Justice Cheryll Richards Q.C. 16 Submissions on Sentencing: 6th May 2021, 17 Further written submissions: 1st June 2021 18 Further Submissions 19 and Delivery of Judgment: 3rd June 2021 20 21 22 HEADNOTE 23 Criminal Law – Manslaughter – Section 183 and s.186 of the Penal Code – 24 Manslaughter by reason of provocation, Sentencing. 25 26 27 28 SENTENCE JUDGMENT 29 30 31 32 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 2 of 36
The Defendant is before the Court for sentencing following a guilty plea to the offence 1 of Manslaughter. On the 30th March 2020, the Defendant first appeared in the Grand 2 Court on this Indictment which charged her with the murder of Marvin Conolly 3 Almendarez committed on the 15th day of March 2020 in North Side, Grand Cayman. 4 The Defendant, with her former counsel in attendance, was arraigned on the 2nd April 5 2020 and pleaded not guilty. She was granted bail on that day in light of the exceptional 6 circumstances of the onset of the Covid-19 pandemic and her pregnancy. A condition of 7 her bail was a 24-hour curfew. 8 9
In November 2020 she gave birth to a child and has reported that the Deceased is the 10 father of the child. 11 12
Following the arraignment, there were various case management hearings in preparation 13 for a trial. The Defendant was assigned leading Counsel in June 2020. 14 15
On the 30th October 2020 the Defendant was re-arraigned and pleaded guilty to the 16 offence of Manslaughter, by reason of provocation. A Social Inquiry Report (SIR) was 17 ordered. While the SIR was awaited, the Defendant attended the Department of 18 Community Rehabilitation (DCR) on the 24th February 2021 for an interview with the 19 Probation Officer. She advised the Officer that she would be attending Court on the 26th 20 February 2021 “to change her plea”. The interview was aborted and preparation of the 21 SIR ceased. 22 23
On the 26th February 2021, her attorneys then on record applied for and were granted 24 leave to come off record. 25 26 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 3 of 36
New Junior Counsel was assigned by the Legal Aid Office and appeared in Court on the 1 record on the 5th March 2021. A new lead Counsel was assigned in mid-March 2021. On 2 the 1st April 2021, Counsel confirmed that there would be no application to vacate the 3 plea. DCR then re-commenced preparation of the SIR. 4 5 SUMMARY OF FACTS 6 7
The summary facts are these. The Defendant was the girlfriend of the Deceased. They 8 resided together at her home in North Side. She was 36 years old at the material time 9 and he was 27 years old. On the 15th March 2020, the Emergency Services responded to 10 a 911 call which was received from a neighbour of the couple. They traveled to the home 11 where the Deceased was found lying on the floor of the master bathroom and was 12 unresponsive. He was pronounced dead when taken to hospital. A subsequent post 13 mortem examination conducted by Dr. Jyoti of the Cayman Islands Hospital, found the 14 cause of death to be hemorrhagic shock from a punctured left subclavian injury. Dr. Jyoti 15 stated that the wound was not self-inflicted and described it as a stab injury to his neck 16 which was elliptical in shape and was located above the clavicle. The track of the wound 17 was right to left, directed downwards, slightly perpendicular to the stab injury on the 18 skin and measured 13cms in length. There was also a stab injury to the right chest which 19 was inflicted by a sharp-edged weapon. There are no eye witnesses to what occurred. 20 21 THE LAW 22 23
The Penal Code 2019 Revision provides in s.183 that a person who commits the offence 24 of Manslaughter is liable to imprisonment for life. 25 26 27 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 4 of 36
Provocation is defined in s.186 as follows: 1 2 “Where on a charge of murder there is evidence on which the jury can find that the 3 person charged was provoked (whether by things done or things said or by both 4 together) to lose his self-control, the question whether the provocation was enough 5 to make a reasonable man do as he did shall be left to be determined by the jury; 6 and in determining that question the jury shall take into account everything both 7 done and said according to the effect which in their opinion it would have on a 8 reasonable man.” 9 10 AGREED SUMMARY OF FACTS AND BASIS OF PLEA 11 12
There is a signed and agreed basis of plea and summary of facts between the Prosecution 13 and the Defence which is set out below: 14 15 “Agreed Summary of Facts 16 a. On Sunday, 15th March 2020, at 2:49 a.m. Cathy-Ann Seymour, of 17 #156 Splendid View Boulevard, North Side reported to 911 that a 18 female, known to her as Julia (the Defendant, Olga Smith), came to 19 her home covered in blood and said that someone was stabbed. Ms. 20 Seymour stated she was going to the location at #236 Splendid View 21 Boulevard, North Side with the person. 22 b. Police Officers were dispatched to the location at #236 Splendid View 23 Boulevard, North Side where they cordoned off the scene. EMS 24 officers were also dispatched to the location and attempted to 25 resuscitate the victim, Marvin Xavier Connolly, who had been 26 stabbed in the area of his shoulder close to his neck and appeared 27 unresponsive. 28 c. Mr. Connolly was transported to the George Town Hospital, where 29 he was pronounced dead by Dr. Nicole Knight at 4:15 a.m. 30 The Defendant, Ms. Smith, gave the following account to DC Shane Ennis 31 and PC Walshe while at the scene: 32 33 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 5 of 36 i. She and the deceased, her boyfriend, had an argument on Saturday, 1 14th March 2020 at which time both of their phones were damaged. 2 ii. Sometime later that night, they went to a bar called “The Barn” 3 located on Frank Sound Road, North Side. 4 iii. While they were back at home, she was sitting outside, and the 5 Deceased punched her in the face, and said to her, “You think you 6 bad”. She also stated the Deceased said he was going to die today 7 from the corona virus and then said he was joking. The Deceased 8 subsequently went into the bathroom, and she went into the kitchen. 9 iv. While she was in the kitchen, she saw the bedroom door closed and 10 her dog started to bark. 11 v. She went into the bathroom and saw the Deceased laying on the floor 12 in the bathroom and she started to give chest compressions, during 13 which time she saw blood coming from his nose, and saw his chest 14 rise and fall, and noticed when air left his body. 15 vi. She decided to call 911, but then remembered that her phone was 16 damaged. 17 vii. She proceeded on foot to her neighbour’s residence. There, she 18 sought assistance from Kathy-Ann Seymour and her daughter 19 Jasmine Ebanks. 20 The statements of the two officers were admitted as Exhibits 1 (DC Ennis) 21 and 2 (DC Walshe). 22 The statement of EMT Officer Hal Ebanks was admitted as Exhibit 3. 23 ABE Account given by Jasmine Ebanks (admitted as Exhibit 4): 24 i. Jasmine Ebanks stated that she and her mother were awoken by 25 knocks on the front door. After checking they opened the door and the 26 suspect said something about some “stabbed” and “knife”. Jasmine 27 Ebanks then accompanied the Defendant on foot to the residence. 28 ii. Upon their arrival at the residence, the Deceased’s body was 29 partially in the bathroom closet with a white handled knife on the 30 floor by the bathroom vanity. Ms. Jasmine stated she took the knife 31 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 6 of 36 and used it to cut open the victim’s shirt to identify the wound, which 1 she was able to identify in the area of his shoulder. She then placed 2 the knife on the vanity. 3 iii. The Deceased’s mouth was blue and his body was pale. She 4 performed chest compressions and while doing so, no blood came 5 from the wound. 6 iv. She stated she heard the Defendant say, “I tried, I tried, I tried 7 Jasmine, but he’s not breathing”, “He’s not breathing, he’s not 8 breathing, I need help” and while she was conducting chest 9 compressions the defendant further stated, “I tried that Jasmine, I 10 tried that”. 11 ABE Account given by Cathy-Ann Seymour (Jasmine Ebanks’ mother 12 (Admitted as Exhibit 5): 13 i. Cathy-Ann Seymour stated she and her daughter were awoken by 14 knocks on the front door, which was the Defendant, who had blood 15 on her face, arms and the rest of her body. She heard the defendant 16 say “he stabbed, he stabbed”. 17 ii. She stated she left after her daughter and the Defendant as she called 18 911 and then decided to drive to the location. 19 iii. When she arrived at the location, she observed her daughter 20 performing chest compressions as she remained on the telephone with 21 the 911 operator. 22 iv. While at the location, she heard the defendant say, “He mashed my 23 phone and I couldn’t call”, “He stabbed, he stabbed’, “We were 24 fighting and my phone is mashed up”, “I did that, I did that Jasmine,” 25 with regards to Jasmine conducting chest compressions on the victim. 26 v. She stated she observed a first aid kit open on the ground outside the 27 bathroom. 28 vi. She said she could assist with the time the Defendant came to their 29 home and her manner because it was captured on her CCTV. 30 31 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 7 of 36 The Post Mortem Report of Dr. Jhoti (Exhibit 6). 1 … 2 Defendant’s Interviews following her arrest: 3 i. The Defendant was interviewed on three occasions following her 4 arrest. 5 ii. In the course of each of the interviews, she answered “no comment” 6 to the questions put to her, including refusing to say her name or give 7 her date of birth. 8 iii. The investigators put to her the medical opinion that the wound was 9 not self-inflicted 10 iv. They also put to her: 11 a. the history of police reports; 12 b. evidence that someone had been part way through preparing 13 food in the kitchen; and 14 c. evidence of broken furniture at the scene. 15 v. They suggested to the Defendant that there had been a fight during 16 the course of which she had, in frustration, stabbed the Deceased. 17 vi. The defendant answered no comment. 18 vii. She did not repeat or clarify any of her earlier indications that the 19 victim was found dead, which suggested suicide. 20 (Basis of) Defendant’s guilty plea to Manslaughter: 21 i. The Defendant’s plea which is acceptable to the Crown is on the 22 following basis. The Defendant accepts that, whilst her memory of 23 what happened on the night is hazy, the following took place: 24 a. The couple argued earlier in the day. 25 b. The couple went to the Barn where they drank alcohol and 26 argued. 27 c. They travelled home separately. 28 d. At home, the Defendant was preparing food. 29 e. There was a verbal then physical fight. 30 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 8 of 36 f. Fights happened fairly frequently and were usually about 1 money or one of them being jealous of the other. 2 g. During the fight, the Defendant was hit on her forehead. 3 h. The argument moved to the bathroom. 4 i. At some point, the Defendant lashed out and stabbed the 5 Deceased once. 6 j. Her actions were not in self-defence but that she was 7 provoked. 8 k. When the Deceased was on the floor, she recalls trying CPR. 9 l. When she realised her attempts at CPR were ineffective, she 10 went to the neighbour’s home for help.” 11 12 VICTIM IMPACT STATEMENTS 13 14
Levsi Wood is the mother of the Deceased. He was her oldest child. She has provided a 15 statement dated the 22nd February 2021. In this statement she says that it is very hard for 16 her because things will never be the same. She sometimes thinks that this is a nightmare 17 but then something reminds her of the son that she has lost. She speaks of her deep pain 18 and that felt by the family and describes the emotional trauma which she is undergoing. 19 She pleads for justice from the Court. 20 21
Juliana Wood is the sister of the Deceased. She has provided a statement dated 22nd 22 February 2021. She explains the importance of the Deceased in their family. With the 23 loss of their father who died when she was at the young age of six years, the Deceased 24 became the de facto head of the household supporting their mother and his two sisters. 25 He was the only male in their household. She describes her deep pain, feelings of 26 emptiness, loneliness, fear, anger, regret and hopelessness at his death. She states: 27 28 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 9 of 36 1 “Marvin was not just a son and a brother. He was our everything. Is our 2 everything. We wake up and we know that something is off in our lives. 3 Without thinking about it much and what has happened, we just feel that 4 emptiness and sadness. I see my mother who has lost a significant amount 5 of weight and no longer sleeps my sister who resorts to alcohol abuse and 6 risky behaviour, his friends and acquaintances who want answers where 7 there is none. And then I reflect on myself who throughout all of this have 8 tried to be the strong one – the pillar everyone can rely on, the one to 9 prepare all the arrangements, to take care of everything and bear all 10 financial expenses so that everyone else does not need to burden themselves 11 with these things and can instead grieve in their own way. But in fact, inside 12 I am broken and defeated. I have seen the inside of hospital rooms more in 13 the last year than I care to count. This trauma has exasperated existing 14 chronic illnesses and developed new ones. I have thrown myself into my 15 work with little regard to my health and mental wellbeing. And I know that 16 this is not sustainable and surely there is a way to grieve in a healthier way, 17 but it’s not easy to go about your life as if everything is normal and ok. In 18 fact, in a perfect world no one would ever feel this way. 19 Every aspect of our lives have changed. My mom does not go out in public 20 very often because she is often approached and asked “exactly what 21 happened on that night?”, “what are the police saying?” “has she 22 apologised or given any reasons why?”, “so what happened to that women, 23 is she in jail?”. How can one no re-live the pain and anger each time 24 someone asks a wholly insensitive question? … We relive the trauma and 25 pain every day no matter how much we try to heal from it. …Surely a harsh 26 sentence in this case and others like this can serve as an example that these 27 are not trivial crimes with no impact, but that there is a great impact – and 28 impact to the deceased, to their family, friends, co-workers, and the 29 community.” 30 31 32 33 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 10 of 36 SOCIAL INQUIRY REPORT 1 2
The DCR has provided a Social Inquiry Report (“SIR”) dated 16th April 2021. This 3 provides details as to the personal circumstances of the Defendant. Her only child, a 4 daughter is now 5 months old. 5 6
The Defendant reports that she met the Deceased in 2017 and they began a relationship 7 shortly thereafter. In the course of the relationship there was verbal and physical abuse. 8 She says that he would head-butt her and throw things at her. Between the 20th January 9 2018 and the 20th February 2020, there were 16 reports made to the Police in which the 10 Defendant was classified as a victim and the Deceased, the suspect1. The majority of 11 these related to incidents of domestic assault, and damage to property. The Deceased 12 was removed from the home by the police on a number of occasions. He was convicted 13 of the offence of Common Assault in respect of an incident against the Defendant which 14 had been reported to the Police on the 8th May 2019. 15 16
With respect to the night in question, the Defendant told the Probation Officer that in the 17 course of the argument the Deceased had verbally abused her while she had been on her 18 way home from the bar. She drove the rest of the way home alone, leaving him at the 19 side of the road. After he arrived at the home, he had punched her to her face while they 20 were both outside the house. He was upset and drunk. When they went inside, he started 21 to head-butt her and threatened her by saying that a nearby pond was the perfect place 22 to hide a body. When he said this he had a fishing knife in his hand which he was 23 swinging back and forth. She said that she does not know if she lost consciousness but 24 remembers him going into the master bedroom and that she followed him and they 25 1 Hearing Bundle pages 236 to 244 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 11 of 36 continued the argument. He left and went into the bathroom and when she followed him 1 thereafter, she saw him on the floor. 2 3
Members of the community were contacted by the Probation Officer. They describe the 4 Defendant as a good and kind-hearted person and as someone who has always been a 5 victim in relationships. In her past marriage she is said to have been a victim of abuse. 6 She is said to be caring and helpful to others and not known to be violent. The offence 7 is said to be out of character for her. 8 9
Under Assessment /Evaluation the Probation Officer describes her as having had the 10 benefit of a stable upbringing, devoid of dysfunction. She appeared to have presented no 11 behavioural challenges and had no negative relationship issues at home. As an adult she 12 has led a generally productive and law-abiding lifestyle and has no previous criminal 13 convictions. 14 15
She is described by the Officer as having feelings of guilt and remorse and possibly 16 experiencing post-traumatic stress. She was assessed using the LS/CMI Instrument. Her 17 overall risk of re- offending is said to be low, with none of the eight criminogenic factors 18 ranking in the high or very high category. Alcohol/drug problem was one of the two 19 factors in the medium range - given her level of alcohol use while cohabiting with the 20 Deceased. 21 22 23 24 25 26 27 28 29 30 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 12 of 36
Under specific risk/ need factors, the Officer records that the Defendant reports receiving 1 threats via social media from friends of the Deceased and that she engages in 2 denial/minimization – this, given her indication that she lost consciousness and cannot 3 remember fatally injuring the Deceased. 4 5
The Officer recommends that, should a custodial sentence be imposed, the Defendant be 6 offered the opportunity to engage in rehabilitation programmes - in particular those 7 dealing with relationships, substance misuse and counselling. 8 9
Seven letters of support for the Defendant have been provided. These attest to her good 10 character, the toxicity and abusiveness of the relationship between the couple, her 11 hardworking nature, her dependability and honesty as an employee. 12 13 SENTENCING GUIDELINES 14 15
In the absence of offence-specific guidelines in the Cayman Islands, both the Prosecution 16 and the Defence referred the Court to the United Kingdom Guidelines. However there is 17 disagreement between Counsel as to the applicable guidelines following changes to the 18 statutory position in the United Kingdom. 19 20
Sections 54 -56 of the Coroners and Justice Act 2009 [“CJOA”] which abolished the 21 defence of provocation are set out below: 22 “54. Partial defence to murder: loss of control 23 (1) Where a person (“D”) kills or is a party to the killing of another (“V”), D 24 is not to be convicted of murder if— 25 (a) D's acts and omissions in doing or being a party to the killing 26 resulted from D's loss of self-control, 27 (b) the loss of self-control had a qualifying trigger, and 28 (c) a person of D's sex and age, with a normal degree of tolerance and 29 self-restraint and in the circumstances of D, might have reacted in 30 the same or in a similar way to D. 31 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 13 of 36 “55. Meaning of “qualifying trigger” 1 (1) This section applies for the purposes of section 54. 2 (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) 3 applies. 4 (3) This subsection applies if D's loss of self-control was attributable to D's fear 5 of serious violence from V against D or another identified person. 6 (4) This subsection applies if D's loss of self-control was attributable to a thing 7 or things done or said (or both) which— 8 (a) constituted circumstances of an extremely grave character, and 9 (b) caused D to have a justifiable sense of being seriously wronged. 10 (5) This subsection applies if D's loss of self-control was attributable to a 11 combination of the matters mentioned in subsections (3) and (4). 12 (6) In determining whether a loss of self-control had a qualifying trigger— 13 (a) D's fear of serious violence is to be disregarded to the extent that it 14 was caused by a thing which D incited to be done or said for the 15 purpose of providing an excuse to use violence; 16 (b) a sense of being seriously wronged by a thing done or said is not 17 justifiable if D incited the thing to be done or said for the purpose 18 of providing an excuse to use violence; 19 (c) the fact that a thing done or said constituted sexual infidelity is to 20 be disregarded. 21 22 23
Abolition of common law defence of provocation 24 (1) The common law defence of provocation is abolished and replaced by 25 sections 54 and 55. 26 (2) Accordingly, the following provisions cease to have effect— 27 (a) section 3 of the Homicide Act 1957 (c. 11) (questions of provocation 28 to be left to the jury); 29 (b) section 7 of the Criminal Justice Act (Northern Ireland) 1966 (c. 30 20) (questions of provocation to be left to the jury).” 31 32
The Prosecution contends that the new Guidelines in the United Kingdom issued 33 effective from 1st November 2018 which refer to Manslaughter by reason of loss of 34 control should be used as a guide. These Guidelines categorise high culpability as 35 including loss of self-control in circumstances which only just met the criteria for a 36 qualifying trigger and lower culpability where the qualifying trigger represented a very 37 high degree of provocation. 38 39
The Defence contend that the older Guidelines as to Manslaughter by provocation 40 continue to apply in the Cayman Islands where the offence remains unchanged. 41 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 14 of 36
Defence Counsel refers to the abolishment of the blended common law and statutory 1 defence of provocation by the CJOA and submits that the new Sentencing Council 2 Guidelines are tailored to the new defence of “loss of control” as set out in section 54 to 3 56 of the said Act. Counsel submitted that the partial defence of provocation is different 4 from the defence of “loss of control”. 5 6
By way of illustration, Counsel referred to the case of R. v Ward (Arron)2 in which the 7 use of the older Guideline was held to have been justified, notwithstanding the change 8 in the law. 9
Counsel’s primary submission, which is one of some force, is that in the Cayman Islands 10 there has been no statutory change and the language which continues to be used does not 11 contain the term “qualifying triggers”. 12 13
In addition to the cited case of R v. Ward, the Court’s attention has been drawn to a 14 number of decisions of the English Court of Appeal. These include: 15 16 a. R v. Thornley 3 17 b. AG’s Reference (No. 8 of 2011) (Edwards)4 18 19
All three were cases decided after there had been two changes in the legislative position 20 in the United Kingdom but before new sentencing guidelines had been issued. In addition 21 to the reformulated defence of loss of control, Schedule 21 to the Criminal Justice Act 22 inserted a specific provision relating to the use of a knife as a murder weapon and 23 imposed minimum terms where loss of life resulted from injuries caused by such use. 24 25 2 2013 2 Cr. App. R. (S) 35 3 2011 2 Cr. App. R. (S) 62 4 2012 1 Cr. App. R. (s) 53 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 15 of 36
In summary, the Courts stated that the Guidelines with respect to Manslaughter by 1 provocation continued to provide useful assistance but that adjustments needed to be 2 made as a result of the two changes. 3 4
In R v. Thornley the Court summarised the matter in this way: 5 6 “Since the definitive guidance was issued in November 2005 there have been 7 at least four developments relevant to the sentencing decision in cases of this 8 kind. First, this Court has addressed the issue of knife crime generally and 9 the need for courts to be alert on appropriate occasions to impose deterrent 10 sentences on those who carry knives. Secondly, in more recent times the 11 Court has come to appreciate and address the impact of Sch.21 to the 2003 12 Act on sentencing as it applies to cases of manslaughter, not 13 because Sch.21 is directly concerned with manslaughter, but because it 14 identifies aggravating and mitigating features which may well be relevant to 15 any cases of homicide, whether manslaughter or murder; but also because 16 of the disparity (as Calvert-Smith J. put it) between the practical 17 consequences of sentences imposed for the offences of murder and 18 manslaughter, which, depending on whether the defendant was convicted of 19 murder or manslaughter, was becoming excessive. 20 21 The weight to be attached to decisions of this Court on sentencing issues or 22 policy is, in our judgment, undiminished by the issue of guidelines, whether 23 by the Sentencing Guidelines Council or the Sentencing Council. If it had 24 been the intention of Parliament to indicate that somehow or other the 25 authority of this Court had been reduced in any way, the language would 26 have had to have been express and unequivocal. It is not. 27 28 Next we reflect on legislative changes since November 2005. Since then 29 Parliament has introduced into Sch.21 a specific provision relating to the 30 use of a knife as a murder weapon. And finally, lest we overlook it, only a 31 few months ago the entire law on provocation was changed by 32 legislation. These changes cannot be ignored by sentencing judges on the 33 basis of a guideline issued in November 2005. It is clear to us from the 34 developments analysed by Calvert-Smith J. that the use of a knife, even in 35 cases of manslaughter by provocation shall now be regarded as a more 36 significant feature of aggravation than it was when the guideline was 37 published. In the end everything depends upon the individual circumstances 38 of each case: why and how the knife came to be picked up and eventually 39 used. 40 41 In any event, the Sentencing Guidelines Council’s Definitive Guideline for 42 Manslaughter by Provocation in circumstances such as the present offers a 43 starting point of 12 years’ custody, but a sentencing range from 10 years to 44 life imprisonment. That provides an ample bracket, which makes allowance 45 for the changes and developments indicated by this Court in its judgments, 46 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 16 of 36 or indeed by the legislation. Any sentence within that range would be 1 consistent with the proper application of the guideline.” 2 3
In AG’s Reference No. 8 of 2011 (Ronald Edwards)5 the Court noted that the guideline 4 on Manslaughter by reason of provocation applied to offenders being sentenced after 5 28th November 2005. The Court reviewed cases in which doubt had been expressed as 6 to whether there had been any impact upon the Guidelines by the determinate terms in 7 Schedule 21 before stating: 8 9 “On the other hand, more recently, there has been a greater recognition that 10 the significance of loss of life which, at least in part, is reflected in the 11 approach prescribed by Sch.21 , should be matched by a recognition of that 12 fact in sentences passed in manslaughter cases albeit that the lack of intent, 13 diminished responsibility or provocation was also of critical significance.” 14 15
The Court reviewed cases in relation to Manslaughter by diminished responsibility, and 16 involuntary manslaughter before stating: 17 18 “Finally, we refer to Thornley [2011] EWCA Crim 153; [2011] 2 Cr. App. 19 R. (S.) 62 (p.361) . In relation to manslaughter by reason of provocation, 20 where death was caused with a knife, Lord Judge referred not only to this 21 greater recognition of the relevance of Sch.21 but also other changes since 22 the guideline relating to the significance of knife crime generally and the 23 impact of para.5A of Sch.21 (introducing a starting point of a minimum term 24 of 25 years where a knife or other weapon is taken to the scene by a 25 defendant intending to commit an offence or to have it available for use as 26 a weapon). He said (at [15]): 27 28 “It is clear to us from the developments analysed by Calvert-Smith 29 J that the use of a knife, even in cases of manslaughter by 30 provocation shall now be regarded as a more significant feature of 31 aggravation than it was when the guideline was published. In the 32 end everything depends upon the individual circumstances of each 33 case: why and how the knife came to be picked up and eventually 34 used.”” 35 36 5 [2011] EWCA Crim 1461 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 17 of 36
The Court concluded that a higher and different threshold than the common law had been 1 created, which would impact the culpability of the offence. The Court also said that the 2 greater focus on the death of the victim equally fell to be considered 3 4 “Lord Judge noted that even with a starting point (as in this case) of a 5 determinate term of 12 years’ imprisonment, the range was from 10 years 6 to life which provided “an ample bracket which makes allowance for the 7 changes and developments indicated by this Court in its judgments or 8 indeed by the legislation”. Such legislation obviously includes ss.54–55 of 9 the Coroners and Justice Act 2009 which introduces new provisions relating 10 to loss of control to replace the defence of provocation and which came into 11 force for offences committed after October 4, 2010. Although by s.54(2) of 12 the Act, loss of control does not have to be sudden, there must be a qualifying 13 trigger: see s.54(1)(b). These consist of fear of serious violence from the 14 victim or another and things said and/ or done constituting circumstances 15 of an extremely grave character and causing the defendant to have a 16 justifiable sense of being seriously wronged: s.55 . 17 18 19 Thus, what appears to be a higher (and certainly a different) threshold than 20 the common law has been created and will have to be taken fully into 21 account in its impact on the culpability of the offence while, at the same 22 time, the greater focus on the death of the victim as represented by the 23 authorities to which we have referred equally falls to be considered. Just as 24 important will be the adjustment to minimum terms in sentences for murder 25 (a mitigating factor being provocative conduct albeit not sufficient to 26 provide a partial defence in circumstances such as sexual infidelity), which 27 might have generated a partial defence under the old law. At this stage, it is 28 inappropriate to seek to elaborate upon the likely impact of these changes 29 by reference to hypothetical situations although we anticipate that they will 30 shortly fall for consideration.” 31 32 33
In the local case of Paul Gordon v. R.6 the Cayman Islands Court of Appeal (CICA) 34 referred with approval to the cases of Thornley and Edwards and other cases from the 35 English Court of Appeal. The Court held that in cases of Manslaughter by provocation 36 the United Kingdom Sentencing Guidelines on Manslaughter by reason of provocation 37 as modified by later English case law should be applied. 38 39 6 2012 (2) CILR 68 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 18 of 36
Those Guidelines refer specifically to s.3 of the Homicide Act 1957 which is in similar 1 terms to the Cayman provision set out above: 2 “Where on a charge of murder there is evidence on which the jury can find 3 that the person charged was provoked (whether by things done or by things 4 said or by both together) to lose his self-control, the question whether the 5 provocation was enough to make a reasonable man do as he did shall be 6 left to be determined by the jury; and in determining that question the jury 7 shall take into account everything both done and said according to the effect 8 which, in their opinion, it would have on a reasonable man.” 9 10
The CICA approved the approach of the English Court of Appeal in the case of AG’s 11 Reference (Nos. 74, 95 and 118 of 2002) (Suratan)7 which was later encapsulated in 12 those Guidelines. This requires the Sentencing judge when sentencing an offender in 13 such a case to make four assumptions in favour of the offender in order to be faithful to 14 the verdict of manslaughter. 15 16
In relation to the starting points the Court stated: 17 18 “20 From this review of the decisions of the Court of Appeal in England 19 and Wales which post-date the Sentencing Guidelines Council’s 20 guideline, issued in 2005, this court concludes that in cases of 21 manslaughter involving the use of a knife, where the degree of 22 provocation is low, occurring over a short period, the appropriate 23 starting point, after a trial, in that jurisdiction, is not more than 12 24 years (and, perhaps, a little less), within a sentencing range of 10 25 years to life.” 26 27 … 28 29 23 We have taken into account what are said to be the special 30 circumstances prevailing in this jurisdiction. In our view, those 31 circumstances do not provide sufficient reason for the courts of the 32 Cayman Islands to differ so substantially from the approach set out 33 by the Sentencing Guidelines Council in England and Wales. We 34 are satisfied that, in a case of manslaughter by reason of 35 provocation involving the use of a knife, where the degree of 36 provocation is low and has occurred only over a short period, the 37 appropriate starting point, after a trial, in this jurisdiction also, is 38 12 years within a sentencing range of 10 years to life.” 39 7 2003 2 Cr. App. R. (S) 42 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 19 of 36
In the case of R v. Elsy Barralaga,8 the Grand Court, following review of the case of 1 Gordon, followed the SGC Guidelines on Manslaughter by provocation. The Court 2 found both self defence and a substantial degree of provocation and adopted a starting 3 point of eight years. 4 5
In this Court’s view given the absence of legislative change to the defence in this 6 jurisdiction, and the clear position of the CICA in the cited case, the Guidelines which 7 are presently applicable are those in relation to Manslaughter by provocation. 8 9
The Prosecution also submitted that while there has been no legislative change in respect 10 of the defence of provocation, there has been one significant development since these 11 cases were decided. This is that the Cayman Islands now has the imposition of minimum 12 terms in respect of cases involving loss of life where a person is convicted for the offence 13 of murder. These were brought into force by the Conditional Release Act, Law 18 of the 14 30th October 2014. This provides for minimum terms of 30 years in cases of murder 15 unless there are circumstances exceptional in nature which aggravate or mitigate the 16 sentence. It is submitted that these minimum terms clearly reflect the view which must 17 be taken as to the sanctity of life and thus that this Court in light of that change should 18 if it determines to be guided by the older Guidelines take what is described as a blended 19 approach between the two sets of Guidelines which recognizes this newer emphasis on 20 the loss of life. The submission of greater emphasis on loss of life is one which is 21 accepted by this Court noting that the minimum terms in the Cayman Islands are in some 22 respects higher than those in the United Kingdom. This may well mean that in the 23 future, there will be changes in the approach to sentencing or in the Guidelines in this 24 jurisdiction. 25 8 Unreported……….. Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 20 of 36 THE CASES – APPLICATION OF THE GUIDELINES 1 2
In the case of R. v. Ward (Arron), the English Court of Appeal considered an appeal 3 against a sentence of 9 years’ imprisonment following a guilty plea to Manslaughter by 4 reason of lack of control. The sentencing judge had adopted a starting point of 12 years 5 - applying the Guidelines on Manslaughter by reason of provocation. The Court 6 categorised the provocation as low over a short period of time. 7 8
The sentence was upheld on appeal. The Appellate court concluded that the Sentencing 9 Judge was correct and stated: 10
In this case, in our view there was a low degree of provocation over 11 a short period of time. It is true there was a short period between 12 the provocation and the killing, a factor capable of lowering 13 culpability, and that the threshold trigger was actual and 14 anticipated violence. But as the judge pointed out, the offence 15 occurred in the context of a trivial argument. There was a headbutt 16 to the appellant's brother by someone who was a friend to both 17 which caused an insignificant injury. Despite the victim's violent 18 background, there was no evidence that there had been any 19 animosity between them. Following his loss of control, the appellant 20 then picked up a pick axe handle and used violence which was 21 disproportionate to the force used or threatened by the deceased. 22 None of the aggravating features identified in the guidelines were 23 present. However, there were other aggravating features including 24 that the appellant left Mr Worton dead or severely injured, and 25 failed to call the emergency services.” 26 27
In AG’s Reference No. 8 of 2011 (Ronald Edwards) the Appellant pleaded guilty to 28 Manslaughter by reason of provocation. He was sentenced to 5 years’ imprisonment 29 which was increased to 7 ½ years on appeal. He had stabbed his former partner who 30 resided in the same house with him. She had constantly nagged and belittled him over a 31 period of time. On the day in question he picked up a knife from the kitchen of the 32 home, followed her into the study where she sat at a desk and stabbed her 1 to 2 times 33 to parts of her body including her head, neck and upper body. He said that he could not 34 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 21 of 36 remember the attack. The evidence indicated that after the attack he had telephoned two 1 sets of lawyers and had spoken for a combined time of about 15 minutes before he 2 telephoned the emergency services. A jury acquitted him of murder and he fell to be 3 sentenced for the offence of manslaughter on his own plea. 4 5
On the facts of that case, the Appellate Court said that although the impact of prolonged 6 low level provocation was recognized, the deceased did not present a threat to the 7 appellant who could have left the house or found some other way of dealing with the 8 tension between them. Additionally, while he did not bring the knife to the scene, he did 9 pick it up from the kitchen and followed the deceased into the study. The Court said that 10 for every offence of violence, the use of a weapon, in particular a knife, will always be 11 an aggravating feature. 12 13
In R v. Elsy Barralaga, the Grand Court summarised the key factual circumstances as 14 being a violent disagreement over a trivial argument – as to whether to go to another bar 15 or to go home. Having returned home, the deceased lost his temper and swept all the 16 bottles, jars and, most significantly, kitchen knives from the counter on to the floor. The 17 deceased held on to the defendant’s hair and punched her to her head. The defendant 18 initially used one of the kitchen knives which was close at hand in lawful self defence 19 to stab the deceased while he was behind her. The Court considered that the degree of 20 provocation was substantial. In applying the SGC Guidelines, the Court said that on 21 examining the aggravating and mitigating factors it could find no good reason for 22 departing from the starting point of 8 years. To this, the court applied a discount of 25%, 23 on the basis that although her guilty plea was not at the very earliest opportunity it was 24 still at an early stage of the proceedings. 25 26 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 22 of 36 THE SUBMISSIONS 1 2
By reference to the Guidelines with respect to Manslaughter by reason of loss of self- 3 control, the Prosecution submits that the instant offence is one of high culpability with 4 a starting point of 14 years’ custody and a sentencing range of 10 to 20 years’ custody. 5
In support of this submission the Prosecution points to the following factual 6 circumstances: 7 8 a. The initial indication from the Defendant to the First Responders was that 9 the couple had had an argument and the Deceased had committed suicide; 10 11 b. There is no indication that at the time of the incident there was any imminent 12 or continuing assault upon her by the Deceased. She had no serious or life 13 threatening injuries on her body and did not complain of any; 14 15 c. She said that injuries to her wrist were caused by the Deceased at an earlier 16 date but on the 23rd February 2020 she advised medical officers at Health 17 City that the injury was self-inflicted. 18 19
In summary, the Prosecution submitted that there is nothing in the circumstances which 20 is suggestive of lower culpability. 21 22
The Defence submit that on the facts, the background to the killing is a toxic relationship 23 marked by love, alcohol, jealousy, rows, exploitation and abusive violence. Counsel 24 argues that this case falls into the lower end of offending for a number of reasons 25 including the following:- 26 27 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 23 of 36 a. Account needs to be taken of the nature of the conduct of the Deceased 1 toward the Defendant over the course of the relationship and the cumulative 2 effect of that conduct upon her; 3 4 b. The impact of the provocative behaviour built up over a period of time; 5 6 c. The provocation on the night consisted of actual violence towards her; 7 8 d. There was no significant gap of time between the provocation and the fatal 9 blow nor is it one where favourable circumstances were chosen to facilitate 10 the killing; 11 12 e. The balance of power between the parties, including as to the use of a knife; 13 14 f. There is no suggestion nor evidence that the Defendant had attacked him in 15 a similar way before. 16 17 AGGRAVATING FACTORS 18 19
The Prosecution submits that the aggravating factors are use of a knife to commit the 20 offence, and the suggestion of the Defendant to First Responders that the Deceased had 21 committed suicide. Counsel also points to the possible delay in summoning assistance 22 and highlights the following circumstances: 23 24 a. The statement of the EMT Officer Hal Ebanks that the incident appeared to 25 have occurred sometime before assistance was sought or EMS arrived. 26 There was a significant amount of water on the floor of the bathroom and a 27 strong scent of isopropyl alcohol was noted. 28 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 24 of 36 b. Jasmine Ebanks noted on her arrival at the home that the Deceased was 1 white and the blood was dry. 2 3
The Defence submitted that it has to be accepted that the Defendant tried to pretend that 4 the Deceased had committed suicide. 5 6 REDUCTION FOR GUILTY PLEA 7 8
The Prosecution submitted that the Defendant did not enter the plea at the first reasonable 9 opportunity. The Defendant pleaded not guilty and maintained the not guilty plea until 10 30th October 2020 when she pleaded guilty to Manslaughter. The Prosecution therefore 11 submits that the plea should not attract a discount of one third but closer to one quarter. 12 This submission is accepted. 13 14 THE SENTENCE 15 16
This was a serious and tragic incident which has resulted in loss of life and deep grief to 17 the families of both the Defendant and the Deceased. The couple had been out drinking 18 earlier that evening at a local bar. There was evidence - from damaged furniture and 19 damage seen by officers to the bathroom door and door to the master bedroom - that a 20 fight had taken place. There were ornaments on the floor and broken glass. The 21 Defendant was hit to the face at one point and the Deceased, on examination, had bruises 22 to his knuckles. 23 24
The applicable United Kingdom Sentencing Guidelines state that the starting point in 25 the usual case should be a custodial sentence given the loss of life but that: 26 27 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 25 of 36 “Although both murder and manslaughter result in death, the difference in 1 the level of culpability creates offences of a distinctively different character. 2 Therefore the approach to sentencing in each should start from a different 3 basis.” 4 5
In establishing the basis for sentencing in this case, the Court makes the following 6 assumptions: 7 a. The Defendant had, at the time of the killing, lost her self-control; 8 9 b. She was caused to lose self-control by things said or done, by the Deceased; 10 11 c. Her loss of control was reasonable in all the circumstances, even bearing in 12 mind that people are expected to exercise reasonable control over their 13 emotions and that, as society advances, this ought to call for a higher 14 measure of self-control; 15 16 d. The circumstances were such as to make the loss of self-control sufficiently 17 excusable to reduce the gravity of the offence from murder to manslaughter. 18 19
In assessing the degree of provocation as shown by its nature and duration, account is 20 taken of the following: 21 a. The nature of the provocation, whether it involved gross and extreme 22 conduct on the part of the victim, which would be a more significant 23 mitigating factor than conduct which, although significant, is not as 24 extreme: 25 - In this case on the agreed facts the provocation involved abusive 26 words in the course of an argument and a punch to the face. This is 27 significant but not in my view extreme. 28 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 26 of 36 b. The offender’s previous experiences of abuse and/or domestic violence 1 either by the victim or by other people. 2 - The Defendant is said to have had a previous abusive relationship 3 and there had been physical and verbal abuse of her by the Deceased 4 in the course of their three year relationship. 5 6 c. The nature of the conduct, the period of time over which it (the provocation) 7 took place and its cumulative effect: 8 - The conduct occurred with breaks over a matter of hours on the 9 night in question. There is additionally the cumulative effect over 10 time of the physical and verbal abuse. 11 12
In this regard the Court is mindful that the impact of provocative behavior on an offender 13 can build up over a period of time and that consideration should not be limited to acts of 14 provocation that occurred immediately before the victim was killed. The Guidelines state 15 that in domestic violence cases, cumulative provocation may eventually become 16 intolerable, with the latest incident seeming all the worse because of what went before. 17 18
In this case there was actual violence from the Deceased in the course of the argument. 19 The time gap of the response of the Defendant appears to have been a short one. 20 21
The Guidelines state that the use or not of a weapon is a factor heavily influenced by the 22 gender of the offender. Use of a weapon should not necessarily move a case into another 23 sentencing bracket. Whereas men can and do kill using physical strength alone, women 24 often cannot and thus resort to using a weapon. Thus it may reflect the imbalance in 25 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 27 of 36 strength between the offender and the victim. How it came to hand is more important 1 than the use of the weapon itself. 2 3
On the agreed evidence there is no evidence as to how the knife came to be in the 4 bathroom where the Deceased was stabbed. On the account of the Defendant there is 5 movement from outside to inside the house and into different rooms of the house 6 7
Under Sentence Ranges and Starting Points, the Guidelines state: 8 9 “This guideline establishes that: 10 There are three sentencing ranges defined by the degree of provocation – 11 low, substantial and high within the three ranges, the starting point is based 12 on provocation taking place over a short period of time. 13 14 The court will move from the starting point (based upon the degree of 15 provocation) by considering the length of time over which the provocation 16 has taken place, and by reference to any aggravating and mitigating 17 factors.” 18 19
The additional aggravating factors include concealment or attempts to dispose of 20 evidence subject to para 3.6. Para 3.6 of the Guidelines states: 21 22 “Post-offence behaviour – The behaviour of the offender after the killing can be 23 relevant to sentence: 24 a. immediate and genuine remorse may be demonstrated by the summoning 25 of medical assistance, remaining at the scene, and co-operation with the 26 authorities. 27 b. concealment or attempts to dispose of evidence or dismemberment of the 28 body may aggravate the offence. 29 Post-offence behaviour is relevant to the sentence. It may be an aggravating or 30 mitigating factor. When sentencing, the judge should consider the motivation 31 behind the offender’s actions.” 32 33 34 35 36 37 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 28 of 36
Additional mitigating factors include, spontaneity and lack of premeditation, previous 1 experiences of abuse and/or domestic violence, evidence that the victim presented an 2 ongoing danger to the offender or another and actual (or reasonably anticipated) act of 3 violence from the victim. 4 5
On the agreed evidence the Defendant received a single blow resulting in a very minor 6 injury. There was also verbal abuse. While each case must be decided on its own facts, 7 it is noted that in the case of Edwards, in a domestic violence context, the Appellate 8 Court considered that the Appellant could have considered other options such as 9 leaving the home when faced with abuse. In R v. Barralaga, the level and extent of the 10 provocation was considered in circumstances where the Defendant was subject to 11 repeated assaults such that she feared for her life. 12 13
In my view in the instant case the provocation appears to be to a low degree in relation 14 to the events of that night. 15 16
This Court will thus adopt a starting point of 12 years as recommended by the CICA in 17 the case of Gordon. 18 19
In Thornley the Court considered the behaviour of the Appellant to be an aggravating 20 factor where he tried to direct attention from himself. 21 22
In this case, the Defendant’s post-offence behavoiur is an aggravating factor in this case. 23 There was a clear attempt to mislead the authorities as to what had happened which may 24 well have persisted, had the medical evidence not been so clear that the wound was not 25 self-inflicted. 26 27 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 29 of 36
In the view of this Court, this aggravating factor would increase the sentence to one of 1 12 years and 6 months. 2 3
This case could have been approached in one of two ways, - either to use a lower starting 4 point on the basis of history of abuse and actual violence or to consider those aspects as 5 is suggested by the Guidelines as mitigating factors. 6 7
The latter option is chosen. 8 9
The Court considers that there are a number of significant mitigating factors in this case. 10 Under this heading account is taken in particular of: 11 12 a. The Defendant’s previous experiences of abuse and or domestic violence; 13 and 14 b. Actual violence from the victim. 15 16
Relatives of the Deceased who had been around the couple described them as always 17 fighting. Relatives on both sides have provided statements as to bruises seen on both 18 from time to time. 19 20
The Defendant was subject to actual violence on the night in question at some time 21 before the killing. 22 23
She has a past history of being in abusive relationships. This was clearly one such. 24 25
On the 23rd February 2020 the Defendant attended Health City Hospital in relation to a 26 wound in the flexor aspect of her right wrist. Two of the tendons had been completely 27 severed and one was partially cut. The doctor’s report records an alleged history of her 28 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 30 of 36 using the kitchen knife on herself and questioned whether she was suicidal. This appears 1 to have been her state of mind about 22 days before this incident. 2 3
Following the hearing on the 6th of May 2021, on the 2nd June 2021, Defence Counsel 4 sought leave to make further submissions in mitigation on the basis that they have had 5 been made aware that the Deceased had been on bail awaiting sentence for an offence 6 of Possession of an Unlicensed Firearm, a .38 Revolver contrary to s.15(1) and s.15(5) 7 of the Firearms Act (2008 Revision) – Indictment 28/17. This offence was committed 8 in March 2016 and thus about one year before the couple began a relationship. The 9 Police became aware of this offence when a photograph was discovered on the telephone 10 of the Deceased which showed him to be in possession of the firearm. His defence was 11 that the firearm belonged to an acquaintance, and he chose to pick up the firearm and 12 take a photograph(s) of himself in possession of it. The Defence suggest this is relevant 13 to the sentencing of the Defendant in two ways: 14 15 a. Firstly, the fact that he was the type of person who had access to deadly 16 weapons, and/or associated with people that had access to deadly weapons 17 would have been known by the Defendant. This, it is suggested, would have 18 amplified for the Defendant any violence or threats of violence that the 19 Deceased directed towards her. 20 21 b. Alternatively it is suggested that coming into possession of a firearm in the 22 way referred to above speaks to an unpredictable and challenging nature, on 23 the part of the Deceased, which would also have played a part in how the 24 Defendant would have perceived any threats or acts of violence that he may 25 have directed towards her. 26 27 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 31 of 36
It is submitted that these features of this offence should have a bearing upon the Court’s 1 assessment of the level and context of the provocation that on the 15th of March 2020 2 was directed towards the Defendant that caused her complete loss of self-control. 3 4
The Court considers it surprising that the Defendant herself did not raise at any time 5 prior to this any fear of the Defendant due to his having access to guns or being 6 associated with persons having access to guns. 7 8
Nevertheless the Court will consider as a relevant circumstance the alternative of the 9 unpredictable and challenging nature of the Deceased and how this may have affected 10 the Defendant’s perception of him. 11 12
Account is also taken of all the Defendant’s personal circumstances as outlined in the 13 SIR and by Counsel on her behalf - her low risk of reoffending and her genuine remorse. 14 15
This was on all accounts a difficult and abusive relationship which members of the 16 community say that they encouraged her to leave. Unfortunately she did not do so, no 17 doubt, because as Counsel submitted, she loved the Deceased. For the rest of her life 18 she will have to live with what happened on this night and going forward will face the 19 difficult circumstance of the absence of a father for her young child. 20 21
When all the mitigating circumstances are considered they serve to significantly reduce 22 the sentence to one of 9 years’ and 6 months’ imprisonment. 23 24
The Defendant’s guilty plea was not made at the first reasonable opportunity. A discount 25 of one quarter is applied rather than one third. This reduces the sentence to one of seven 26 years and one month imprisonment. 27 28 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 32 of 36 TIME SPENT ON CURFEW 1 2
The Defendant has been on bail since the 2nd April 2020 and was subject to a 24-hour 3 curfew. To date this is a period of 427 days. 4 5
The Cayman Islands Sentencing Guidelines at paragraph 12 deals with reduction in 6 sentence for time spent on remand subject to conditions curtailing liberty. It states that 7 the court should: 8 9 “Consider whether credit should be given for time spent on bail where conditions 10 have been imposed which curtail the liberty of the defendant. This is most likely to 11 be relevant where a defendant has been subjected to a curfew, especially where 12 compliance with that curfew can be verified through electronic monitoring.” 13 14 15
The relevant factors to be taken into account in the exercise of discretion include: 16 The total length of time the defendant has been subject to a curfew; 17 The number of hours each day that curfew was imposed during the curfew 18 period; 19 Whether the curfew included daytime hours or was solely a night time curfew 20 (recognising that being indoors at night during, for example, normal sleeping 21 hours may be less of a curtailment of liberty than being indoors during the day); 22 Any breach of the conditions of curfew. 23 24
The Guidelines further provide that in deciding how to exercise its discretion in the 25 absence of statutory provisions in the Cayman Islands, the Court will bear in mind the 26 statutory provisions in England and Wales as set out in s.240A of the Criminal Justice 27 Act (CJA) 2003 as amended in relation to electronically monitored curfew. 28 29 30 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 33 of 36
Section 240 as amended states: 1 “(1) This section applies where— 2 3 (a) a court sentences an offender to imprisonment for a term in 4 respect of an offence committed on or after 4th April 2005, 5 6 (b) the offender was remanded on bail by a court in course of or in 7 connection with proceedings for the offence, or any related 8 offence, after the coming into force of section 21 of the Criminal 9 Justice and Immigration Act 2008, and 10 11 (c) the offender's bail was subject to a qualifying curfew condition 12 and an electronic monitoring condition (“the relevant 13 conditions”). 14 15 (2) Subject to subsection (4), the court must direct that the credit period is to 16 count as time served by the offender as part of the sentence. 17 18 (3) The “credit period” is the number of days represented by half of the sum 19 of— 20 21 (a) the day on which the offender's bail was first subject to 22 conditions that, had they applied throughout the day in 23 question, would have been relevant conditions, and 24 25 (b) the number of other days on which the offender's bail was 26 subject to those conditions (excluding the last day on which it 27 was so subject), 28 29 rounded up to the nearest whole number. 30 31 (4) Subsection (2) does not apply if and to the extent that— 32 33 (a) rules made by the Secretary of State so provide, or 34 35 (b) it is in the opinion of the court just in all the circumstances not 36 to give a direction under that subsection. 37 38 (5) Where as a result of paragraph (a) or (b) of subsection (4) the court does 39 not give a direction under subsection (2), it may give a direction in 40 accordance with either of those paragraphs to the effect that a period of 41 days which is less than the credit period is to count as time served by the 42 offender as part of the sentence. 43 44 (6) Rules made under subsection (4)(a) may, in particular, make provision in 45 relation to— 46 47 (a) sentences of imprisonment for consecutive terms; 48 49 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 34 of 36 (b) sentences of imprisonment for terms which are wholly or partly 1 concurrent; 2 3 (c) periods during which a person granted bail subject to the 4 relevant conditions is also subject to electronic monitoring 5 required by an order made by a court or the Secretary of State. 6 7 (7) In considering whether it is of the opinion mentioned in subsection (4)(b) 8 the court must, in particular, take into account whether or not the offender 9 has, at any time whilst on bail subject to the relevant conditions, broken 10 either or both of them. 11 12 (8) Where the court gives a direction under subsection (2) or (5) it shall state 13 in open court— 14 15 (a) the number of days on which the offender was subject to the 16 relevant conditions, and 17 18 (b) the number of days in relation to which the direction is given. 19 20 (9) Subsection (10) applies where the court— 21 22 (a) does not give a direction under subsection (2) but gives a 23 direction under subsection (5), or 24 25 (b) decides not to give a direction under this section. 26 27 (10) The court shall state in open court— 28 29 (a) that its decision is in accordance with rules made under 30 paragraph (a) of subsection (4), or 31 32 (b) that it is of the opinion mentioned in paragraph (b) of that 33 subsection and what the circumstances are. 34 35 (11) Subsections (7) to (10) of section 240 apply for the purposes of this section 36 as they apply for the purposes of that section but as if— 37 38 (a) in subsection (7)— 39 40 (i) the reference to a suspended sentence is to be read 41 as including a reference to a sentence to which an 42 order under section 118(1) of the Sentencing Act 43 relates; 44 45 (ii) in paragraph (a) after “Schedule 12” there were 46 inserted or section 119(1)(a) or (b) of the 47 Sentencing Act; and 48 49 50 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 35 of 36 (b) in subsection (8) the reference to subsection (3) of section 240 1 is to be read as a reference to subsection (2) of this section and, 2 in paragraph (b), after “Chapter” there were inserted or Part 3 2 of the Criminal Justice Act 1991. 4 5 (12) In this section— 6 7 “electronic monitoring condition” means any electronic 8 monitoring requirements imposed under section 3(6ZAA) of the Bail 9 Act 1976 for the purpose of securing the electronic monitoring of a 10 person's compliance with a qualifying curfew condition; 11 12 “qualifying curfew condition” means a condition of bail which 13 requires the person granted bail to remain at one or more specified 14 places for a total of not less than 9 hours in any given day; and 15 16 “related offence” means an offence, other than the offence for 17 which the sentence is imposed (“offence A”), with which the 18 offender was charged and the charge for which was founded on 19 the same facts or evidence as offence A.]” 20 21
In the case of R v. Nicholas Tibbetts9 the Grand Court stated: 22 23 “74. I take the Cayman Islands Guidelines as a starting point. There is clearly a 24 discretion as to whether, and to what extent, credit should be given. To 25 adopt the defence submission that the practice of the Cayman Islands is to 26 automatically deduct half the time on curfew, would take away the 27 discretion clearly set out in the Guidelines. Each case has to be considered 28 on its own facts – for example the conditions of the curfew will vary 29 considerably in cases – some being more onerous than others.” 30 31
In this case, at the time the 24-hour curfew was imposed, the entire Island was subject 32 to hard and soft curfews six days of the week and 24-hour curfews on Sundays. This 33 continued with some changes for the period March to July 2020. 34 35 36 37 9 Grand Court, Ind. 71/2015 unreported judgment dated 16th December 2016 Judgment: The Queen v. Smith (Olga Elizabeth). Ind. 22 of 2020. Coram: Richards J, Q.C. Date: 3rd June 2021 Page 36 of 36
It is proposed to apply a reduction of 25 % rather than one half during this period and 1 from there on through to the present a reduction rate of 50%.10 2 3 4 Dated this the 3rd June 2021 5 6 Honourable Justice Cheryll Richards Q.C. 7 Judge of the Grand Court 8 10 The calculation was subsequently agreed by Counsel to be one half the qualifying curfew days of 420 for a total of 210 days of remand time to be taken into account. 7 of the 420 days were complete lock downs as a result of hard curfews.