R v Wright (Elmer Watler) - Sentence Judgment

¶ ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 1 of 15 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 IND. No: 0011/2018 4 & 5 IND. No.: 0002/2018 6 7 8 THE QUEEN 9 10 V 11 12 ELMER WATLER WRIGHT 13 14 15 16 Appearances: Mr. Patrick Moran, DPP for the Crown 17 18 Mr. Keith Myers of Barton Attorneys for 19 Defendant 20 21 Before: Justice Roger Chapple (Actg.) 22 MFS submissions Heard: 29th and 31st January 2020 23 24 25 26 27 HEADNOTE 28 Criminal Law – Aggravated Burglary, Robbery, Attempted Burglary, Possession 29 of an imitation firearm – Possession of Ammunition and Bulletproof vest – 30 Sentence following 2 trials by Judge Alone (before separate tribunals) – Life 31 sentence – Notional Determinate Sentence. 32 33 SENTENCE JUDGMENT 34 35 Note: 36 This Judgment, dated the 31st January 2020, was not released for circulation on any website or 37 publication until the conclusion of the case of Ind. 102/19 R v Shane Edward Connor. 38 Mr. Shane Connor was sentenced on Ind. 102/19 on the 10th December 2021 and thus this Judgment was 39 approved for circulation following that date. 40 41 42 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 2 of 15

¶ [1] Elmer Watler Wright. Each and every one of the many offences of which you have 1 been convicted this week, is plainly serious - and the cumulative effect of them 2 particularly so. It is now my duty to pass sentence upon you for those offences. 3 4

¶ [2] The offences for which you now fall to be sentenced are contained in two 5 indictments which I set out for ease of reference as follows: 6 7 Ind. # Count Offence Particulars 2/18 1 Possession of an unlicenced firearm (ammunition) 112 rounds 2 Possession of bulletproof vest 11/18 2 Attempted Burglary #2 Camelot Palms 3 Possession of an imitation firearm with intent to commit an offence # 2 Camelot Palms 4 Damage to property # 2 Camelot Palms – doors and a CCTV camera - $11,800 5 Aggravated Burglary Amity Street – firearms 6 Robbery Amity Street - $30,000 8 9

¶ [3] A substantial sentence of imprisonment is inevitable. In those circumstances I 10 would not be helped by a Social Inquiry Report (SIR) and that is a proposition with 11 which Mr. Myers, on your behalf, agrees. 12 13

¶ [4] You are now 26 years old. You started offending in 2008 when you were just 15 14 years of age. You have been consistently committing offences since then, 15 whenever you have been free to do so, and, even when serving sentences of 16 imprisonment. 17 18

¶ [5] In 2012, you were sentenced to a total term of imprisonment of 9 years for 19 firearms’ offences and an armed robbery. You were only 16 years old when you 20 committed those offences. You and others robbed a gas station at gunpoint. You 21 used the firearm you carried to beat two of the customers. In the course of the 22 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 3 of 15 police chase that followed, you pointed your firearm in the general direction of the 1 officers and discharged that weapon. You were released from that sentence in 2 August 2016. 3 4

¶ [6] Ten months later, on the 17th of June 2017, you embarked upon a night of 5 criminality culminating in the shocking events that unfolded at the home of 6 Mr. and Mrs. Butler in Prospect. You were first arrested on suspicion of 7 involvement in those offences on the 18th of July 2017. You were interviewed and 8 bailed. 9 10

¶ [7] Eleven days later you were in possession of 112 rounds of ammunition and a 11 bulletproof vest. That is the timescale and background against which I must 12 consider these offences. 13 14 AMITY STREET 15 16

¶ [8] I have described what happened at Amity Street as shocking. The ordeal to which 17 you and others subjected Mr. and Mrs. Butler, has rightly been described by your 18 own attorney as horrific. They awoke in the small hours of the morning to find 19 three men at the bottom of their bed either wearing masks or their faces covered; 20 two of them had guns. Since the weapons were never recovered, it's not possible to 21 say whether they were real or imitation weapons. That does not matter very much. 22 The Butlers had every reason to think, and did think that, they were real weapons, 23 capable of killing or causing serious injury. Given all that you and your 24 accomplices said and did, they had every reason to fear for their lives. It is 25 impossible, truly, to imagine how terrified they must have been. One of you told 26 them that if they did not tell you where the valuables were, they would be killed. 27 They were told by the gunman that he had already killed five people. The hard 28 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 4 of 15 metal of one weapon was put to the back of Mr. Butler's head and he was told that 1 he was going to be shot. They were tied to chairs, their hands and feet bound with 2 duct tape. Loathsome sexual suggestions were made so they feared in addition that 3 Mrs. Butler would be raped. Mr. Butler was hit with a hammer. 4 5

¶ [9] There are victim impact statements that make for sad and distressing reading. It is 6 no surprise that Mrs. Butler describes what the three of you did as the worst thing 7 she had experienced in all her life. She concludes her victim impact statement in 8 this way, and I quote: 9 "My family and I have since moved away from our house at 10 Amity Street 10 and we presently reside somewhere else because we are afraid to continue 11 living at that address. I'm still traumatized by the events that unfolded at my 12 home on Saturday the 17th of June 2017. Since the gunmen invaded my home, I 13 have been having several nightmares about it. I [have] also become very 14 anxious whenever I'm in any gathering which consists of young men with local 15 accents. Every day I have to depend on the support and strength of my 16 husband to get me through the trauma that I suffer whenever I get a nightmare 17 about the attack on our home by the three armed men." 18 19 CAMELOT PALMS 20

¶ [10] It is perhaps a blessing that Mr. and Mrs. Vincentini were not at home (at Camelot 21 Palms) to risk encountering you when you tried to burgle their premises. 22 Construction on their home was only finished in early 2017. They took up 23 residence in March 2017. They were abroad on the 17th of June when you tried to 24 break in. Mr. Vincentini, in his victim impact statement, explains the effect your 25 actions have had upon him and his family. He says: 26 27 28 29 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 5 of 15 "I returned to the island. I'd left my family behind because my wife did not 1 want to return to the Cayman Islands if we had to live at our new home. On 2 my return to the Cayman Islands, I went and reviewed the CCTV footage. I 3 saw the persons who had attempted to burgle my home were armed with a 4 firearm. As a result of my observation I became very fearful for my safety and 5 that of my family. I was not certain if this was a random attack or if I was the 6 target of organized criminal gangs. The situation has brought me great stress 7 and affected my work and personal life. As a result of the crime and the fact 8 that my wife said that she wouldn't return to live at our new home, I had to put 9 our new home up for rent and rent another house to live with my family. I 10 thought I would be safe constructing my home in a quiet neighborhood of 11 Camelot Drive and I never expected to be the victim of such a heinous crime. 12 I'm happy that my family was not home at the time that this crime was 13 perpetrated, as I know it would have affected my family even worse." 14 15 16

¶ [11] I cannot help but compare what he says to the sickening image of you and your 17 accomplices dancing to the security camera at those premises, singing - and I 18 accept Caine Thomas' evidence on the point - about breaking into their home. 19 20 COUNT 5 & COUNT 6 – CONSIDERATION OF A LIFE SENTENCE 21 22

¶ [12] Counts 5 and 6 of indictment 11 of 2018 - offences of aggravated burglary and 23 robbery – carry a maximum sentence of life imprisonment. 24 25

¶ [13] Despite the order of events suggested in the Cayman Islands Sentencing 26 Guidelines, it seems to me sensible to consider at the outset whether an 27 indeterminate sentence is appropriate and necessary in your case. 28 29

¶ [14] According to the Guidelines, I should consider a life sentence if the offence or 30 offences are of extreme seriousness or if there is a risk that you will commit a 31 serious offence if released. In the United Kingdom, there is a narrower two-stage 32 test for the imposition of a discretionary life sentence. 33 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 6 of 15

¶ [15] A life sentence should be imposed if, firstly, the offender has committed a very 1 serious offence and secondly, there are good grounds for believing that the 2 offender may remain a serious danger to the public for a period which cannot be 3 reliably estimated on the date of sentence. The authority for that proposition is the 4 Attorney General's Reference No 32 of 19961. That approach was very recently 5 endorsed by the Cayman Islands Court of Appeal (CICA) in the case of Ali2. 6 7

¶ [16] The differing tests in the Cayman Islands Guidelines and the Attorney General's 8 reference were discussed by the CICA in the case of Barnes3 to which I've been 9 referred. It is clear that I should apply the two-stage test as set out in Attorney 10 General's reference 32 of 1996. 11 12

¶ [17] I also keep firmly in mind that a life sentence is a sentence of last resort to be 13 reserved for exceptional circumstances. There can be no serious dispute or doubt 14 that the offences at Amity Street were very serious. Defence counsel, Mr. Myers, 15 does not seek to argue otherwise. 16 17

¶ [18] In considering the risk and danger you pose, I've looked at all the material placed 18 before me. Your record shows persistent offending from the age of 15 years. 19 Firearms were at the heart of the offences for which you were sentenced in 2012. 20 They are a prominent feature of the offences of the 17th of June 2017 and of course, 21 you were in possession of 112 rounds of ammunition and a bulletproof vest just 22 over a month later. It does not end there. 23 24 25 26 1 [1997] 1 Crim App R (S) 261 2 2019 EWCA Crim 586 3 CICA Criminal Appeal No. 21 of 2013 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 7 of 15

¶ [19] The prosecution submit that you have a deep-rooted interest in firearms. I agree. It 1 borders on an obsession. The photographs recovered from that phone BH1 and 2 exhibited during the trial show you in possession of a firearm a week before the 3 offences on the 17th June 2017. You display it in that photograph with apparent 4 pride, sending a picture of it, your finger on the trigger and your thumb about to 5 cock the weapon, bragging about it to your brother. 6 7

¶ [20] The prosecution has drawn my attention to photographs of a number of other 8 firearms, also recovered from your phone. These were properly not adduced at 9 trial but I am satisfied they now do have a relevance. 10 11

¶ [21] I emphasize as I did on Wednesday (the 29th January 2020) and this morning that 12 I'm not sentencing you for offences of which you have not been convicted but I am 13 entitled to consider why you should have photographs such as those stored on your 14 phone when assessing, as I must, the risk of you committing other serious offences. 15 The authority for that proposition is the R v J4. Those photographs reinforce the 16 view that I've already taken about your obsession with firearms. 17 18

¶ [22] You say, I understand, that those photographs were sent to you by others. But of 19 course that only begs the question as to why others should send you photographs 20 such as those. I link all that with your having in your possession 112 rounds of 21 ammunition of varying calibres and a bulletproof vest. The likelihood is that you 22 were trying to put some distance between yourself and those items knowing that it 23 was likely you would again be arrested for the Amity Street offences. That amount 24 of ammunition and a bulletproof vest are indications of involvement in serious 25 organized crime. Why else would you have a bulletproof vest? That makes more 26 4 [2012] EWCA Crim 132 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 8 of 15 sinister still, your boast in subsequent messages shared with [C, S] about “running 1 this town”. 2 3

¶ [23] You have been for some years, and you still are, steeped in serious violent crime – 4 firearms being a consistent theme. 5 6

¶ [24] You have shown not one jot of remorse for what you have done. I don't think for a 7 moment you care about anyone but yourself. I doubt that you have any real 8 understanding of the impact your actions have on others. 9 10

¶ [25] You involved Caine Thomas and Nikel Thomas, young men of good character, in 11 these offences, potentially setting them on a path of criminality. You, I'm sure, 12 brought intense pressure to bear upon Caine Thomas to perjure himself for you. 13 These are all hallmarks of a ruthless, dangerous man. I have no doubt if you were 14 released in the near to medium future, that you would carry on committing serious 15 offences, carry on presenting a risk of serious harm to the public. 16 17

¶ [26] I am satisfied that an indeterminate sentence is both appropriate and necessary to 18 protect the public from serious harm occasioned by you committing other serious 19 offences. You show no signs whatever of wanting to change your ways. 20 21 COUNT 5 & COUNT 6 – NOTIONAL DETERMINATE SENTENCE (NDS) 22 23

¶ [27] I am required to set a minimum period to be served before you can be considered 24 for release on licence. That involves me determining the Notional Determinate 25 Sentence (NDS), that is to say, the sentence I would have passed, had I been 26 passing a fixed term sentence. 27 28 29 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 9 of 15

¶ [28] My starting point must be the Sentencing Guidelines. There are Cayman Islands 1 Sentencing Guidelines for both offences of Burglary and offences of Robbery. 2 3

¶ [29] The Amity Street burglary starts in category 1 since it is of high culpability 4 (production of a firearm) and high harm (psychological harm caused, householders 5 on premises), giving a starting point of 7 years' imprisonment with a range of 5 to 6 14 years' imprisonment - but that is for simple burglary. When the offence is one 7 of aggravated burglary, to quote the guidelines: 8 9 "All starting points and ranges will increase. The increase will be 10 considerable where significant physical or psychological injury or other 11 significant trauma is inflicted within a home" 12 13 14 – as was the case here. 15 16 17

¶ [30] The attempted burglary at Camelot Palms was considerably less serious but it does 18 not pale into insignificance – far from it. I recall the effect the attempted burglary 19 has had on the householders. 20 21

¶ [31] I turn to the guidelines for robbery. Clearly, category 1 as the starting point 22 because of high culpability, a firearm used to threaten, high harm because of 23 serious psychological harm. That gives a starting point of 11 years' imprisonment 24 with a range of 9 to 13 years. I have no hesitation whatsoever in concluding that 25 on the face of it, the application of the guidelines does not properly reflect the 26 overall gravity of the offences. 27 28 AGGRAVATING FACTORS 29 30

¶ [32] There are many aggravating features and here are some of them. 31 32 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 10 of 15

¶ [33] Your previous convictions: Schedule 12, paragraph 3(1) of the Conditional 1 Release of Prisoners Regulations 2016 provides that I must treat each previous 2 conviction as an aggravating circumstance if I conclude that it can reasonably be so 3 treated, having regard to the nature of the offence, its relevance to the offences for 4 which I have to sentence you now and the time that has elapsed since conviction. I 5 have already discussed your previous criminal record. Each previous conviction is 6 an aggravating circumstance - particularly of course, your previous conviction for 7 armed robbery. 8 9

¶ [34] Factors that increase seriousness: Other aggravating features are these: firstly, 10 looking at the robbery guidelines, these factors increase seriousness: there was 11 restraint; there was detention; there was degradation of your victims. There was a 12 degree of planning. The planning was not meticulous but it was discussed in the 13 days leading up to the Amity Street robbery and it is clear that you had a particular 14 property in mind. 15 16

¶ [35] A leading role: Yours was, I'm satisfied, a leading role. That is plain from the 17 evidence of Caine Thomas. It is plain from the phone messages that passed from 18 you to others. There was an attempt made, albeit unsuccessful, to dispose of 19 evidence - your clothing – and that, I am satisfied, was at your direction. 20 21

¶ [36] Disguises: Disguises were worn and Caine Thomas' disguise particularly terrifying. 22 He says - and I believe him - that you provided him with that mask. 23 24

¶ [37] Time of the offending: I bear in mind the timing of the offences, the early hours of 25 the morning. 26 27 28 29 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 11 of 15

¶ [38] Multiple persons committing the offence and multiple victims: It does not stop 1 there. I look at the Cayman Islands Sentencing Guidelines General Principles to 2 find further aggravating features. The offence was committed by three people, 3 making the ordeal for those at the wrong end of you three, even more terrifying. 4 And of course there was more than one victim. 5 6 MITIGATING FACTORS 7 8

¶ [39] There is very little I can find in the way of mitigating factors. As I have already 9 said, particularly, you have demonstrated not one jot of contrition or regret for 10 what you have done. 11 12

¶ [40] I should emphasise that when arriving at the NDS, I have left out of account any 13 question of risk and need to protect the public. That is taken into account by my 14 decision to pass a life sentence. To take those matters into account again when 15 fixing the minimum period you will serve, would amount to double-counting. 16 17

¶ [41] Had the offences of robbery and aggravated burglary (Amity Street) stood alone, 18 they would have attracted, in your case, a sentence of around 18 years' 19 imprisonment. However, they emphatically do not stand alone. They were the 20 culmination of a night of criminality. 21 22

¶ [42] If the events at Camelot Palms had stood alone, they would have attracted a total 23 sentence in the region of 10 years' imprisonment, particularly bearing in mind 24 firstly, the effect your actions had upon the householder; he, thanks to you, enjoyed 25 his home for only a few months. 26 27 28 29 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 12 of 15 Albeit, I approach matters on the basis that this was an imitation firearm, you were 1 nevertheless armed when burgling and, as subsequent events proved, prepared to 2 use it to threaten, to frighten, to terrify. 3 4 Had all other things been equal, the sentences for the Camelot Palms offences 5 would have been consecutive to the Amity Street offences. However, I keep in the 6 forefront of my mind the question of totality and I keep firmly in mind the remarks 7 of Rafferty, L.J. in Attorney General's Reference No 80 of 20135, when she 8 emphasised the important thing is the total sentence rather than how it is made up. 9 10 INDICTMENT 2 OF 2018 11 12

¶ [43] There are no guidelines either in this jurisdiction or in the United Kingdom for 13 possession of ammunition or a bulletproof vest. 14 15

¶ [44] As I have said, the possession of such a large quantity of ammunition for at least 16 three different weapons together with the bulletproof vest strongly suggests 17 involvement in serious crime. 18 19

¶ [45] The attitude of these courts to firearms in these islands is very well known. There 20 must inevitability be a firm deterrent element in sentencing for offences such as 21 these. These courts will do whatever they can to rid these islands of illegal 22 firearms. 23 24

¶ [46] Additionally, of course, those offences were committed whilst on bail and only two 25 weeks after that release on bail. 26 27 5 [2014] EWCA Crim 342 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 13 of 15

¶ [47] I bear in mind that the minimum sentence provided by law for possession of an 1 unlicensed firearm is 10 years. That does not apply to ammunition but it provides 2 me with some guidance. 3 4

¶ [48] Had I been passing determinate sentences, a total sentence for those offences of 5 around 8 years would I think have been appropriate, particularly bearing in mind 6 your record, your obsession with firearms and your activities at Amity Street only 7 two weeks earlier. 8 9

¶ [49] If I add up the determinate sentences and the way I would have distributed them, I 10 arrive at a figure of 36 years' imprisonment. That sentence is somewhat too long. I 11 must then reduce the NDS to the sentence which properly marks the criminality 12 involved, viewed against the background of previous criminal offences, the need 13 for deterrence and to mark public abhorrence and outrage for offences such as this. 14 15

¶ [50] In all the circumstances, had I been passing a determinate sentence, it would have 16 been a total sentence of 30 years. In order to arrive at the minimum term to be 17 served under s.14 of the Conditional Release Law, I must apply a 40 percent 18 reduction to that sentence in accordance with usual principles. Having done so, I 19 arrive at a minimum term to be served of 18 years' imprisonment. 20 21 SENTENCES 22 23

¶ [51] Accordingly, upon counts 5 and 6 on Ind. 11/18: 24 25 a. There will be concurrent sentences of life imprisonment. 26 b. I order that the minimum period you must serve before your case can be 27 considered by the Conditional Release Board, is one of 18 years less the time 28 that you have already spent on remand. 29 30 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 14 of 15 c. It does not follow that you will be released when you have served 18 years. 1 You will only be released when and if the Conditional Release Board is 2 satisfied that you no longer pose a risk of danger to the public. 3 4

¶ [52] On the remaining counts of the indictment 11/2018 I impose the following 5 sentences: 6 a. Count 2: 7 i. 5 years' imprisonment – concurrent to the sentence imposed for Counts 8 5 and 6; 9 b. Count 3: 10 i. 10 years' imprisonment – concurrent to the sentence imposed for 11 Counts 5 and 6; 12 c. Count 4: 13 i. 2 years' imprisonment – concurrent to the sentence imposed for Counts 14 5 and 6. 15

¶ [53] On Indictment 2 of 2018 I impose the following sentences: 16 17 a. Count 1: 18 i. 8 years' imprisonment – concurrent to the sentences imposed on 19 Indictment 11 of 18. 20 b. Count 2: 21 i. 5 years' imprisonment - – concurrent to the sentences imposed on 22 Indictment 11 of 18. 23 24 ____________________________________________________________________________________ Sentence Judgment. R v. Wright (Elmer Watler). Ind. 11/2018 and Ind. 2/2018: Chapple J. (Actg.). Date: 31.01.2020 Page 15 of 15

¶ [54] Unopposed by the defence, I herein make an order for forfeiture and destruction of 1 those items. 2 3

¶ [55] A summary of the Sentences imposed is as below: 4 5 Ind. # Count Offence Particulars Sentence 11/18 5 Aggravated Burglary Amity Street – firearms Life imprisonment – 18 years minimum to be served before consideration for conditional release 6 Robbery Amity Street - $30,000 Life imprisonment CONCURRENT - 18 years minimum to be served before consideration for conditional release 2 Attempted Burglary #2 Camelot Palms 5 years’ imprisonment CONCURRENT 3 Possession of an imitation firearm with intent to commit an offence # 2 Camelot Palms 10 years’ imprisonment CONCURRENT 4 Damage to property # 2 Camelot Palms – doors and a CCTV camera - $11,800 2 years’ imprisonment CONCURRENT 2/18 1 Possession of an unlicenced firearm (ammunition) 112 rounds 8 years’ imprisonment CONCURRENT 2 Possession of bulletproof vest 5 years’ imprisonment CONCURRENT TIC to be deducted 6 7 Dated this the 31st day of January 2020 8 9 10 11 Justice Roger Chapple 12 Acting Judge of the Grand Court 13