Chadwick P, Mottley JA, Vos JA
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
APPEAL NO. 30 OF 2008
IND No. 30/08
C# 00648/08
BETWEEN:
ALVIN WINSTER BROWN
Appellant
and
HER MAJESTY THE QUEEN
Respondent
BEFORE: THE RT. HON. SIR JOHN CHADWICK P.
THE HON. MR. JUSTICE MOTTLEY J.A.
THE HON. MR. JUSTICE VOS J.A.
Reasons for Judgment delivered orally on 2 September 2009
APPEARANCES:
Mr. N. Dixey for the Appellant
Mr. T. Ward for the Respondent
THEIR LORDSHIPS' RULING
The Honourable Justice Mottley
(1) The appellant was originally charged on a two-count indictment. Count 1 charged him with grievous bodily harm with intent, and Count 2 grievous bodily harm.
(2) He pleaded guilty to the second count, which was that on the 16th of November 2007, at Kelly's Bar on Birch Tree Hill Road in West Bay, he unlawfully and maliciously wounded Howard Ron Mack Rivers.
(3) The incident arose, as I said, at Kelly's Bar where the complainant was sitting with friends at a table and, after an exchange of words between the appellant and the complainant, the complainant was struck in the face by the appellant and causing him injury to his eye.
(4) The injury, which led to a detached retina, required surgery eventually in Jamaica. In the medical reports which were submitted at the trial, the doctor stated that it was highly probable that the assault and the blow to the
Ruling -- Mottley J.A.
eye precipitated a consequent retinal detachment which was likely to result in permanent reduction of the right eye. The doctor was of the opinion that the condition was serious and likely to be permanent, in that the complainant may lose vision in the eye completely.
(5) It is clear that the attack which led to the injury was unprovoked and uncalled for and was, indeed, in the circumstances, a very silly thing to have done. In the appellant's favour, however, it is accepted that the attack was not premeditated. Also in his favour, the attack was not a sustained attack.
(6) The appellant showed early remorse for his conduct and this was evident in the interview which he gave to the police.
(7) At the trial he pleaded guilty and was sentenced to five years' imprisonment. He now appeals against that sentence.
(8) The appellant complains that the sentence of five years which was imposed on him was manifestly excessive having regard to all the circumstances of the case.
(9) Before the judge the Crown relied on
Ruling -- Mottley J.A.
the case of R. v. Dorlan Ebanks. In that case, the victim also suffered a detached retina. The sentence imposed was one of three and a half years. In that case, a weapon, namely a bottle, was used to inflict the injury. This is to be contrasted with this case where the appellant did not use any weapon, but struck the complainant with his fist. In Ebanks' case, the fact that a weapon was used was an aggravating circumstance, however, he had a clean record. While the appellant used his fist to inflict the injury, he did not have a clean record, having previous convictions, one at least for inflicting grievous bodily harm with intent. This would be an aggravating circumstance.
(10) When these aggravating factors are balanced out against each other, it is difficult to see why the learned trial judge, as he stated in his sentencing remarks, felt that he was bound, his hands were tied by the authority of Ebanks and considered it was necessary for him to impose a sentence of five years.
(11) The maximum sentence under section
Ruling -- Mottley J.A.
204 of the Code under which he was charged is seven years' imprisonment. Having pleaded guilty, the appellant was in fact entitled to a one-third discount and this would have brought his sentence to something below the region of five years' imprisonment.
(12) It is accepted that if the appellant had pleaded not guilty and had gone to trial the sentence which would have been imposed after trial would have been in the vicinity of four to five years' imprisonment.
(13) The learned trial judge started with the maximum of seven years and then discounted a one-third allowance for the plea of guilty. As a result, the judge came to the conclusion that the sentence imposed would have been in the vicinity of four years eight months and perhaps rounded it off at five years. But that would be adequate if the circumstances were such that the injury inflicted would have been considered to be the worst case scenario. In this case, it certainly could not be considered to be the worst case scenario, and the learned trial judge ought not to have started with a maximum sentence and then allow a discount.
Brown v. R. 2/09/09 (c.a.r.)
Ruling -- Mottley J.A.
If, as I said earlier, that after trial the sentence imposed would have been between five to six years, then, starting at that point, the discount allowed for a guilty plea would be from that figure of five to six years. In such circumstances, this would have brought the sentence down to about three and a half years.
(14) In these circumstances, we consider that the sentence imposed by the learned trial judge was excessive. The sentence is quashed and we substitute a sentence of three and a half years. Time spent before sentence to be taken into account.
REPORTER'S CERTIFICATE
Certified correct to the best of my skill and ability, dated the 4th day of September 2009.