Williams F J
```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>CRIMINAL SIDE</td> </tr> <tr> <td>INDICTMENT NO：0063/2017 & 0099/2017</td> </tr> <tr> <td>REGINA</td> </tr> <tr> <td>v.</td> </tr> <tr> <td>CLAYBURN WILLIE EBANKS</td> </tr> <tr> <td>Appearances：</td> </tr> <tr> <td>Ms. Toyin Salako for the Crown</td> </tr> <tr> <td>Mr. Nicholas Dixey of Nelson & Co for Defendant</td> </tr> <tr> <td>(Ind. 63/17)</td> </tr> <tr> <td>Mr. Crister Brady of Brady Attorneys for Defendant</td> </tr> <tr> <td>(Ind. 99/17)</td> </tr> <tr> <td>Before：</td> </tr> <tr> <td>Justice Frank Williams (Actg.)</td> </tr> <tr> <td>Heard：</td> </tr> <tr> <td>1st March 2019</td> </tr> <tr> <td>HEADNOTE</td> </tr> <tr> <td>Criminal Law - Wounding with intent - Wounding - Sentence following trial -</td> </tr> <tr> <td>Aggravating factors - Mitigating Factors.</td> </tr> <tr> <td>SENTENCE JUDGMENT</td> </tr> </table> ```
```html <table> <tr> <td>1.</td> <td>This matter comes before me for the convict, Clayburn Ebanks, to be sentenced on two indictments. The indictment that was first in time was indictment number 63/2017 which charged him with the offence of wounding with intent, contrary to s.203 of the Penal Code (2017 Revision). He was convicted of that offence on 20 September 2018 after a jury trial over which I presided and on that day remanded in custody for sentencing. The incident giving rise to that charge and conviction occurred in the early morning of 29th July 2017. The complainant in that case was Mr Neill Fellner, on whom Mr Ebanks inflicted some 8 wounds.</td> </tr> <tr> <td>2.</td> <td>The other indictment is indictment number 99/2017 which was tried by Chapple，J (Actg.)，sitting alone. On that indictment the Defendant was convicted for the offence of wounding，contrary to s.204 of the Penal Code (2017 Revision). The complainant in that matter was his brother，Mr Alvaro Rohelio Wright，who received some three wounds.</td> </tr> <tr> <td>3.</td> <td>The Defendant，Mr. Ebanks，was injured as well in both incidents.</td> </tr> </table> <h3>THE APPROACH TO SENTENCING</h3> <p>In approaching this always-difficult task of sentencing, the court bears in mind the objects of sentencing as set out in a number of authorities and in the Cayman Islands Sentencing Guidelines of 2015. The relevant part of the Sentencing Guidelines is as follows:</p> <blockquote> <p>“1. Aims of Sentencing</p> <p>In sentencing an offender, the Court has to balance a number of interests and objectives. A tailoring of the punishment to the offence or circumstances of the case will be rare. The aims governing the seriousness of the offence and the individual circumstances of the offender will be best served by the sentence to be passed on an individual offender.”</p> </blockquote> <footer> <p>Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019</p> <p>Page 2 of 10</p> </footer> ```
The following are the principal aims of sentencing: (a) Incapacitation (b) Deterrence (c) Punishment (d) Rehabilitation, (e) Restitution.”
The court also has to bear in mind other principles, such as proportionality: that is, trying to ensure that the severity of the punishment imposed is proportionate to the seriousness of the offence. The court, in looking at cases cited by counsel in an attempt to persuade it to look at the offences in a certain way, or in deciding what sentences to impose, must also have regard to the principle of parity of sentences, in that there should be parity or relative equality or similarity of sentences imposed in other cases for similar offences, notwithstanding the fact that each person before the court must be considered and sentenced as an individual and having regard to the particular facts and circumstances of each case.
One other principle that is of particular significance in this case is that of totality – considering that Mr. Ebanks is here being sentenced for two offences. The court has to give careful consideration to the question of whether the sentences to be imposed will run concurrently or consecutively and to the fairness of the overall sentences. At the end of the day it is the court’s duty to impose a sentence that is fair and just in all the circumstances. Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019 Page 3 of 10
```html <table> <tr> <td>1</td> <td>INDICTMENT NUMBER 63/2017</td> </tr> <tr> <td>2</td> <td>SUMMARY OF SUBMISSIONS FOR THE CROWN</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>7.</td> <td>The Crown, in summary, sought to persuade the court of the view that, in sentencing the</td> </tr> <tr> <td>5</td> <td>offender, the matter should be treated as a category 1 offence. According to the UK Assault</td> </tr> <tr> <td>6</td> <td>Definitive Guidelines, this category carries a sentencing range of 9-16 years, with a starting</td> </tr> <tr> <td>7</td> <td>point of 12 years.</td> </tr> <tr> <td>8</td> <td>8.</td> <td>In support of its submissions that a sentence for this offender for this offence should fall</td> </tr> <tr> <td>9</td> <td>within that range, the Crown cited the following cases:</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>12</td> <td>i. Rv Mark A Seymour'</td> <td>- in which a sentence of 8 years imprisonment after trial</td> </tr> <tr> <td>13</td> <td>was upheld;</td> </tr> <tr> <td>14</td> <td>14</td> <td>ii. Kenroy Howe v R'</td> <td>- in which a sentence of 6 years imprisonment after trial was</td> </tr> <tr> <td>15</td> <td>upheld; and</td> </tr> <tr> <td>16</td> <td>17</td> <td>iii. Rv Ricardo Azenyo Hyre'</td> <td>- in which a sentence of 7 years imprisonment after</td> </tr> <tr> <td>17</td> <td>trial was upheld.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> </tr> </table> <image src="https://example.com/image.jpg" alt="Court Seal" /> <sup>1</sup> Criminal Appeal No: 11 & 14 of 2016 <sup>2</sup> Criminal Appeal No: 9 of 2015 <sup>3</sup> Criminal Appeal No: 9 of 2009 Sentence Judgment. Rv. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019 Page 4 of 10 ```
```html <table> <tr> <td>1</td> <td>FOR THE DEFENCE</td> </tr> <tr> <td>2</td> </tr> <tr> <td>3</td> <td>9.</td> <td>On the other hand, the defence sought to rely on cases based on convictions under s.204 of</td> </tr> <tr> <td>4</td> <td>the Penal Code which deal with the lesser offence of wounding. These were the cases of:</td> </tr> <tr> <td>5</td> <td>i. R v Erin Logan</td> </tr> <tr> <td>6</td> <td>ii. R v Carla Davis</td> </tr> <tr> <td>7</td> <td>iii. R v Kenneth Green</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>10.</td> <td>The defence sought to place heaviest reliance, however, on the case of R v Travis Arlington</td> </tr> <tr> <td>10</td> <td>Ebanks, in which a sentence of 14 months’ imprisonment was imposed after a guilty plea.</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>11.</td> <td>These cases were cited by Mr Dixey in support of his submissions that the applicable</td> </tr> <tr> <td>13</td> <td>category for this case is category 3, which carries with it a sentencing range of 3-5 years, with</td> </tr> <tr> <td>14</td> <td>a starting point of 4 years. He submitted that it might not be inappropriate for the court to</td> </tr> <tr> <td>15</td> <td>impose a sentence of 3 years.</td> </tr> <tr> <td>16</td> <td>DISCUSSION</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>12.</td> <td>The court has given very careful consideration to the cases cited by counsel on both sides, as</td> </tr> <tr> <td>19</td> <td>well as other cases, and has endeavoured to find sentences that might objectively be viewed</td> </tr> <tr> <td>20</td> <td>as condign punishment for these offences. It has been a difficult task.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>4 Ind. #2ted 21 Octobe</td> </tr> <tr> <td>9/16, unreportr 2016</td> </tr> <tr> <td>5 Ind. # 56/13, unreported 21 March 2014</td> </tr> <tr> <td>6 Ind. # 84/13, unreported, 10 February 2014</td> </tr> <tr> <td>7 Ind. # 61/16, unreported, 7 December 2016</td> </tr> <tr> <td>Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019</td> </tr> <tr> <td>Page 5 of 10</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>13.</td> <td>In relation to the submission that the matter ought to be viewed as a category 1 offence, the</td> </tr> <tr> <td>2</td> <td>court is unable to agree.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>14.</td> <td>I am of the view that the injuries in this case, although stated to be serious by the medical</td> </tr> <tr> <td>5</td> <td>evidence, do not approach the seriousness of the injuries in the cases cited by the Crown. For</td> </tr> <tr> <td>6</td> <td>example, in the case of Mark Seymour v R, although the injury in that case consisted of a</td> </tr> <tr> <td>7</td> <td>single stab wound, paragraph 3 of the judgment reveals that that single wound punctured his</td> </tr> <tr> <td>8</td> <td>lung, causing it to collapse, and resulting in the complainant having difficulty breathing. The</td> </tr> <tr> <td>9</td> <td>Cayman Islands Court of Appeal (CICA) referred to the stabbing as “a gratuitous act of</td> </tr> <tr> <td>10</td> <td>extreme violence” (vide para 42 of the judgment); and, noting the applicant’s 60 previous</td> </tr> <tr> <td>11</td> <td>convictions, including for offences such as assault occasioning actual bodily harm and</td> </tr> <tr> <td>12</td> <td>assaulting the police, commented on the applicant’s “appalling criminal record” (paragraph</td> </tr> <tr> <td>13</td> <td>44). At the same paragraph it was also observed that the attack was “wholly unprovoked”.</td> </tr> <tr> <td>14</td> <td>From the discussion at paragraphs 43 and 44, it appears that the trial judge and the court of</td> </tr> <tr> <td>15</td> <td>appeal dealt with the offence as falling within category 2. To similar effect is the case of</td> </tr> <tr> <td>16</td> <td>Kenroy Rowe v R another case in which there was a single stab wound. A close reading of</td> </tr> <tr> <td>17</td> <td>that case, however, indicates that the court dealt with the matter as a category 2 offence. The</td> </tr> <tr> <td>18</td> <td>effect of the single stab wound in that case and the circumstances of the stabbing are also of</td> </tr> <tr> <td>19</td> <td>some significance. In that case, the appellant had stabbed the complainant with a flick knife</td> </tr> <tr> <td>20</td> <td>as he, the complainant, lay on the ground. The stab wound went just below the heart. The</td> </tr> <tr> <td>21</td> <td>complainant was bleeding into his chest cavity and a tube had to be inserted to evacuate the</td> </tr> <tr> <td>22</td> <td>blood. Tappeal opinellant was luc</td> </tr> <tr> <td>23</td> <td>murder murder for t</td> </tr> <tr> <td>24</td> <td>he court of d that the ape faced a c</td> </tr> <tr> <td>25</td> <td>speharge of 3</td> </tr> <tr> <td>or attempted that offen</td> </tr> </table> Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019 Page 6 of 10
Similarly, the appellant Rowe’s victim was said by the court to be lucky to have been alive.
By comparison, these were the injuries in the indictment # 63/2017:
i. A 5 cm curved laceration to the right forehead;
ii. A 6 cm laceration to the base of the back of the head;
iii. A stab wound between his ribs;
iv. A 7-8 cm incised wound to the left side of his lower back;
v. Two 5 cm stab wounds to the left side of his ribs and hip;
vi. A 2 cm incised wound to the upper right arm; and
vii. A 5 cm incised wound to the left elbow.
Mr. Fellner was admitted to the surgical ward but did not have to undergo life-saving surgery, as did the complainants in the cases cited.
Looking at the degree of harm, the degree of culpability and other factors by way of comparison between those cases cited, other cases and the instant case, it seems that this case would fall within category three (or, just possibly, towards the lower end of category 2). The starting point for category 3 is 4 years’ imprisonment. To impose that, however, would be to completely ignore the Defendant’s several convictions, although the most recent one for violence or the threat of violence was recorded in July of 2014 for common assault. Considering that and counterbalancing that consideration with the fact that he is to be sentenced for another offence, the court considers to be fair and just in all the circumstances is 5 years’ imprisonment. Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019 Page 7 of 10
```markdown # INDICTMENT # 99/17
In respect of the offence of wounding for which he was convicted by Chapple J (Actg.) the verdict judgment reflects the likelihood that the complainant, Mr. Wright, was the aggressor on the night in question<sup>8</sup>. However, at paragraph 31 of the verdict judgment the learned judge also found that Mr. Ebanks used unreasonable force in response to the initial attack (being hit with a fan belt), by using a knife to inflict wounds to Mr. Wright. The wounds to Mr. Wright were: a stab wound to the chin and to the right anterior chest and to the abdomen. However, the verdict judgment indicates, as Mr. Brady submitted on Mr. Ebanks’ behalf, some mitigating factors. These might be noted to include: a lack of premeditation; and some amount of provocation.
Considering all the circumstances, the question arising is whether the case on this indictment properly falls to be dealt with under category 3 or category 2, as Mr Brady argues; or category 1, as Ms. Salako contends. For category 3, the sentencing guidelines indicate a range of between a low level community service order at the lower end, and 51 weeks’ imprisonment on the upper end, with a high-level community order being the starting point. For category 2, the guidelines indicate a range of between 1 and 3 years’ imprisonment, with a starting point of 18 months’ imprisonment. The category 1 range is between 2 years and six months’ at the lower end and 4 years’ imprisonment at the upper end with a starting point of 3 years’ imprisonment.
To my tures of this category 2: a lity on the lthough the i 26 as sericumstances of culpae mind the featase place it injuries are c lower levbil in described 4 ous, the circ indicatevel part of the Defendant. The fact that the offence was committed whilst the Defendant was on bail for a <sup>8</sup> (see paragraph 26 of the judgment) Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019 Page 8 of 10 ```
```html <table> <tr> <td>1</td> <td>similar offence must be taken into account. But that will have to be considered against the</td> </tr> <tr> <td>2</td> <td>background of the particular (and what I would consider to be the unusual and unfortunate)</td> </tr> <tr> <td>3</td> <td>features of this case in which the complainant initiated the physical confrontation. In the</td> </tr> <tr> <td>4</td> <td>result, it seems to me that a sentence of two years imprisonment would be fair and just.</td> </tr> <tr> <td>5</td> <td>6</td> <td>CONSECUTIVE OR CONCURRENT</td> </tr> <tr> <td>7</td> <td>8</td> <td>22.</td> <td>In the Cayman Islands Sentencing Guidelines, at s.6, the following guidance, inter alia, is</td> </tr> <tr> <td>9</td> <td>given about concurrent and consecutive sentences:</td> </tr> <tr> <td>10</td> <td>11</td> <td>12</td> <td>13</td> <td>14</td> <td>15</td> <td>16</td> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> </tr> <tr> <td>Concurrent sentences will ordinarily be appropriate where:</td> </tr> <tr> <td>(a)</td> <td>Offences arise out of a related incident or facts</td> </tr> <tr> <td>(b)</td> <td>There is a series of offences of the same or similar kind especially when</td> </tr> <tr> <td>committed against the same victim</td> </tr> <tr> <td>Where concurrent sentences are passed, the sentence should reflect the overall</td> </tr> <tr> <td>criminality involved.</td> </tr> <tr> <td>The sentence should be appropriately aggravated by the presence of</td> </tr> <tr> <td>the associated offences and thus the court may increase sentence for the principal</td> </tr> <tr> <td>offence to reflect the gravity of conduct:</td> </tr> <tr> <td>Consecutive sentences will ordinarily be appropriate where:</td> </tr> <tr> <td>(a)</td> <td>Offences arise out of unrelated facts or incidents</td> </tr> <tr> <td>(b)</td> <td>Offences are of the same or similar kind but where the overall</td> </tr> <tr> <td>criminality will not sufficiently be reflected by concurrent sentences for</td> </tr> <tr> <td>example:</td> </tr> <tr> <td>I.</td> <td>Where offences are committed against different victims</td> </tr> <tr> <td>II.</td> <td>Where sexual offences or domestic violence are committed</td> </tr> <tr> <td>against the same individual</td> </tr> <tr> <td>III.</td> <td>Where the offender commits the same or similar offence after</td> </tr> <tr> <td>being arrested for the original offence...</td> </tr> <tr> <td>To my mind, the underlined portions of the above quotation, show, where they relate to the</td> </tr> <tr> <td>appropriateness of concurrent sentences, why it might be inadvisable to impose concurrent</td> </tr> <tr> <td>sentences and, where</td> </tr> <tr> <td>these matters.</td> </tr> </table> Sentence Judgment. R v. Ebanks (Clayburn Willie) Ind. 63 & 99/17. Coram: Acting Justice Frank Williams. Date: 12.04.2019 ```
```html <table> <tr> <td>24.</td> <td>It will be seen that the emphasized parts of the quotation touch and concern factors that are</td> </tr> <tr> <td>2</td> <td>present in the instant matters. They need not be rehearsed. Additionally, as is indicated earlier</td> </tr> <tr> <td>3</td> <td>in this Judgment, the totality principle of sentencing was considered when the sentence on</td> </tr> <tr> <td>4</td> <td>indictment number 63/2017 was being considered.</td> </tr> <tr> <td>5</td> <td>6</td> <td>25.</td> <td>The sentences of the court are, therefore, as follows:</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>SENTENCES</td> </tr> <tr> <td>9</td> <td>26.</td> <td>On indictment # 63/2017:</td> </tr> <tr> <td>10</td> <td>a.</td> <td>Five (5) years’ imprisonment. From this must be deducted the 204 days that the prisoner</td> </tr> <tr> <td>11</td> <td>has spent in custody since being remanded in custody on 20 September 2018.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>27.</td> <td>On indictment # 99/2017:</td> </tr> <tr> <td>14</td> <td>a.</td> <td>Two (2) years’ imprisonment; and that sentence will run consecutively to the sentence</td> </tr> <tr> <td>15</td> <td>imposed on indictment # 63/2017.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>Dated this the 12th April 2019</td> </tr> <tr> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> </tr> <tr> <td>23</td> <td>Justice Frank Williams (Actg.)</td> <td>Acting Judge of the Grand Court</td> </tr> </table>