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Judgment · jid 5546 · pdb #369

R v Luis Duquesne-Eden

[2009] CIGC (CA) 162 · Crim App 0007/2009 · 2009-08-27

Aggravated burglary; Grievous bodily harm; Unduly lenient sentence; damage to property

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In the Court of Appeal of the Cayman Islands — Criminal Division
[2009] CIGC (CA) 162
Cause No. Crim App 0007/2009
Between
R
- v -
Luis Duquesne-Eden
Before
Chadwick P, Mottley JA, Vos JA
Judgment delivered 2009-08-27

```html <table> <tr> <td>IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>SEP 162009</td> </tr> <tr> <td>CAYMAN ISLANDS GOVERNMENT</td> </tr> <tr> <td>BETWEEN:</td> </tr> <tr> <td>CAYMAN ISLANDS</td> </tr> <tr> <td>DIRECTOR OF PUBLIC</td> </tr> <tr> <td>PROSECUTION LIBRARY</td> </tr> <tr> <td>HER MAJESTY THE QUEEN</td> </tr> <tr> <td>Appellant</td> </tr> <tr> <td>and</td> </tr> <tr> <td>LUIS DUQUESNE-EDEN</td> </tr> <tr> <td>Respondent</td> </tr> <tr> <td>BEFORE: THE RT. HON. SIR JOHN CHADWICK P.</td> </tr> <tr> <td>THE HON. MR. JUSTICE MOTTLEY J.A.</td> </tr> <tr> <td>THE HON. MR. JUSTICE VOS J.A.</td> </tr> <tr> <td>Reasons for Judgment delivered orally on 27 August, 2009.</td> </tr> <tr> <td>APPEARA</td> </tr> <tr> <td>Ms. N. Moore</td> <td>For the Appellant</td> </tr> <tr> <td>Mr. A. King</td> <td>For the Respondent</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>Thursday, August 27, 2009</td> </tr> <tr> <td>2</td> </tr> <tr> <td>3</td> <td>CHADWICK, President: I've asked Vos, J.A.</td> </tr> <tr> <td>4</td> <td>to give the judgment of the Court in this</td> </tr> <tr> <td>5</td> <td>matter. It is a judgment in which we are all</td> </tr> <tr> <td>6</td> <td>agreed.</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>REASONS FOR JUDGMENT</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>VOS, J.A.</td> </tr> <tr> <td>11</td> <td>Introduction</td> </tr> <tr> <td>12</td> <td>Luis Manuel Duquesne-Eden (whom I shall</td> </tr> <tr> <td>13</td> <td>call "Duquesne") was a friend of Mr. Jermaine</td> </tr> <tr> <td>14</td> <td>Jackson. On the 18th of February, 2008,</td> </tr> <tr> <td>15</td> <td>Duquesne telephoned his ex-girlfriend,</td> </tr> <tr> <td>16</td> <td>Ms. Martha Quintero, on several occasions but</td> </tr> <tr> <td>17</td> <td>she refused to speak to him. In addition, he</td> </tr> <tr> <td>18</td> <td>called Mr. Jackson and he had been told by</td> </tr> <tr> <td>19</td> <td>Mr. Jackson that Ms. Quintero was not with him</td> </tr> <tr> <td>20</td> <td>at his house. Duquesne suspected that this was</td> </tr> <tr> <td>21</td> <td>a lie and that Ms. Quintero was with</td> </tr> <tr> <td>22</td> <td>Mr. Ja</td> <td>23</td> <td>as a result</td> </tr> <tr> <td>24</td> <td>At, he</td> </tr> <tr> <td>25</td> <td>what is described by the Crown as a 'jealous</td> </tr> </table>

rage', suspecting that his ex-girlfriend was

romantically linked with Mr. Jackson and that

Mr. Jackson had lied to him about their

relationship and her whereabouts.

Duquesne broke the glass in the rear door

to Mr. Jackson's house with his baseball bat

and entered the house flailing the bat around.

Mr. Jackson came down a corridor into the room

which Duquesne had entered, and Duquesne then

brought the baseball bat down towards

Mr. Jackson's head. Mr. Jackson put up his

hand to deflect the blow and was struck on the

arm, causing a displaced fracture, requiring

surgery and fixing with metal plates and screws

and physiotherapy for nearly a year.

Duquesne then went to the bedroom of

Mr. Jackson's house looking for Ms. Quintero

and broke down the door of the cupboard in

which she was hiding and smashed Mr. Jackson's

computer and hi-fi equipment with his baseball

bat. At that point, Mr. Jackson managed to

Mr. Duquesne picked up a

and started to disarm Mr. Jackson

knife managed to cause

cut to the hand in the course of so doing.
Duquesne was charged with the following three offences: (i) aggravated burglary; (ii) causing grievous bodily harm with intent; and (iii) damage to property. Duquesne pleaded guilty to the third charge but not guilty to the first two charges. He was duly convicted after a trial before Madam Justice Mangatal, lasting between the 4th and the 10th of February, 2009, of both aggravated burglary and of the lesser offence of inflicting grievous bodily harm. The social inquiry report dated the 17th March, 2009, which was produced before Duquesne was sentenced provided the following information: I) Duquesne was born on the 14th of September, 1982, so that he was then 26 years old; II) Duquesne was single with one child whose custody he shared; III) Duquesne owned a property in Cayman Islands with parents, Mr. and Mrs. Dora Rolles. Duquesne had achieved well-received tertiary education in the Cayman Islands and

had been employed as a licensed electrician by

Corporate Electrical since February 2002;

V) Duquesne reported no mental or

physical health problems and no history of

substance misuse;

Vi) Duquesne had no previous convictions

and these offences constituted his first

involvement with the criminal justice system;

Vii) Duquesne continued to deny the

offences of which he had been convicted and

claimed that on entering Mr. Jackson's house he

tried to talk to him but was attacked by

Mr. Jackson with a knife which led him to

retaliate with the baseball bat, an account

which the jury seems to have rejected.

Duquesne did not appear to show remorse

but was willing to accept the penalty imposed

by the Court.

In his plea in mitigation, Mr. Edward

Renvoize, who then appeared for Mr. Duquesne,

submitted that: "It would be disingenuous of

suggest fat that the offence is of considerable

extremity. It is one of the most serious and

which must attract a custodial sentence." And
```html <table> <tr> <td>1</td> <td>he sought a suspended sentence and community</td> </tr> <tr> <td>2</td> <td>service on the basis that such sentences "must</td> </tr> <tr> <td>3</td> <td>be deemed exceptional leniency".</td> </tr> <tr> <td>4</td> <td>Madam Justice Mangatal acceded to Mr.</td> </tr> <tr> <td>5</td> <td>Renvoize's submissions saying expressly that:</td> </tr> <tr> <td>6</td> <td>"When I look at everything, it seems to me that</td> </tr> <tr> <td>7</td> <td>the Court should take your case as one to</td> </tr> <tr> <td>8</td> <td>exercise great leniency. It does appear that</td> </tr> <tr> <td>9</td> <td>it was an aberration."</td> </tr> <tr> <td>10</td> <td>On the 20th of March, 2009, Madam Justice</td> </tr> <tr> <td>11</td> <td>Mangatal sentenced Duquesne as follows:</td> </tr> <tr> <td>12</td> <td>I) for aggravated burglary two years</td> </tr> <tr> <td>13</td> <td>imprisonment suspended for two years;</td> </tr> <tr> <td>14</td> <td>II) for inflicting grievous bodily harm a</td> </tr> <tr> <td>15</td> <td>three-year probation order with conditions</td> </tr> <tr> <td>16</td> <td>involving living at home with his parents and</td> </tr> <tr> <td>17</td> <td>completing an anger management course and</td> </tr> <tr> <td>18</td> <td>performing 240 hours community service within</td> </tr> <tr> <td>19</td> <td>one year;</td> </tr> <tr> <td>20</td> <td>III) for damage to property a probation</td> </tr> <tr> <td>21</td> <td>order to run concurrently and compensation of</td> </tr> <tr> <td>22</td> <td>to be packson.</td> </tr> <tr> <td>23</td> <td>Th</td> </tr> <tr> <td>24</td> <td>he Appeal</td> </tr> <tr> <td>25</td> <td>Against that background, this is the</td> </tr> </table>

Crown's appeal against the sentences imposed by

Madam Justice Mangatal on the grounds that they

were unduly lenient in all the circumstances

under s. 30(1)(a) of the Court of Appeal Law

(2006 Revision). Ms. Nicola Moore, who

appeared for the Crown, has submitted that

anything but an immediate custodial sentence

would be unduly lenient and that although there

are no specific guidelines or tariffs in the

Cayman Islands for sentences of either

aggravated burglary or inflicting grievous

bodily harm, the English and local cases show

that anything but an immediate custodial

sentence for these offences would be

inappropriate.

Submissions on Behalf of Duquesne

Mr. King has argued on Mr. Duquesne's

behalf, in addition to the matters mentioned

above and recorded in the social inquiry

report, that a custodial sentence would have a

ating effchild and

devastect on his

First, a letter from Corporate Electric Limited

dated the 28th of January, 2008, which we are

informed was placed before the trial judge,

giving what I think would be appropriately

described as a glowing report on his employment

history. Secondly, Mr. King has placed before

us a recent letter from Ms. Quintero asking the

Court to exercise leniency on Duquesne and

saying that she has forgiven herself and

forgiven him for what he did, and giving a

clear account of his support, both financial

and emotional, for their child.

Mr. King has sought to distinguish the

cases relied upon by the Crown and he has, as I

say, supported the arguments advanced in the

social inquiry report. 16.

Discussion

It is undoubted that the offence of

aggravated burglary is a very serious offence.

There can be no justification for such an

offence which involved in this case

itatedly to Mr. Jackson's

premeditated breaking into

house with the intent of committing

bodily harm. We might interpose that it is

anomalous that the jury reduced count 2 from

causing grievous bodily harm with intent to

causing grievous bodily harm when they had

found Duquesne guilty of aggravated burglary.

It is possible to justify this anomaly,

although it is not easy to do so. But this

anomaly does not seem to us to affect the fact

that Duquesne ought to receive the proper

sentence for the offences for which he has been

convicted.

The question for this Court is whether the

sentences passed by Madam Justice Mangatal were

in the result unduly lenient bearing in mind

the considerable mitigation available to

Duquesne, much of which we have set out above.

The cases which have been cited to us make

clear that an offence of aggravated burglary of

the kind with which we are concerned would

almost inevitably attract a custodial sentence.

In the AG's Reference No. 1 of 1995 David

James Henry, [1996] 1 Cr App R(S) 11, a

sentence of 15 months for burglary with intent

to inflict grievous bodily harm was

increased to five years.
```html <table> <tr> <td>1</td> <td>home in the middle of the night</td> </tr> <tr> <td>2</td> <td>with the intention of inflicting</td> </tr> <tr> <td>3</td> <td>grievous bodily harm</td> </tr> <tr> <td>4</td> <td>particularly if he takes others</td> </tr> <tr> <td>5</td> <td>with him and has weapons, can</td> </tr> <tr> <td>6</td> <td>expect to receive a substantial</td> </tr> <tr> <td>7</td> <td>sentence. An offence of that</td> </tr> <tr> <td>8</td> <td>kind is outrageous."</td> </tr> <tr> <td>9</td> <td>In the AG's Reference No 47 of 1997</td> </tr> <tr> <td>10</td> <td>Kenneth Anthony Oldsworth [1998] 2 Cr App R(S)</td> </tr> <tr> <td>11</td> <td>68, a sentence of nine months for burglary with</td> </tr> <tr> <td>12</td> <td>intent to inflict grievous bodily harm was</td> </tr> <tr> <td>13</td> <td>increased to two and a half years after a plea</td> </tr> <tr> <td>14</td> <td>of not guilty taking double jeopardy into</td> </tr> <tr> <td>15</td> <td>account. The offender forced his way into the</td> </tr> <tr> <td>16</td> <td>home of his ex-girlfriend in the early hours of</td> </tr> <tr> <td>17</td> <td>the morning, armed with a baseball bat, wrongly</td> </tr> <tr> <td>18</td> <td>believing that she had stolen his current</td> </tr> <tr> <td>19</td> <td>girlfriend's handbag. He headbutted and beat</td> </tr> <tr> <td>20</td> <td>her around the face and stole some of her</td> </tr> <tr> <td>21</td> <td>possessions, terrifying her in the process for</td> </tr> <tr> <td>22</td> <td>od of som. Rose L</td> </tr> <tr> <td>23</td> <td>n offence</td> </tr> <tr> <td>24</td> <td>that a</td> </tr> <tr> <td>25</td> <td>following a trial attract a sentence measurable</td> </tr> </table>

in years rather than months. A concurrent

sentence of one year was imposed for assault

occasioning actual bodily harm.

In the Cayman case of Andy James Myles

reported only in the Cayman Compass for the

17th of September, 2006, the defendant was

given five years for two aggravated burglaries

after pleading not guilty, with no previous

offences except those involving ganja. Both

cases involved breaking in with weapons – a

knife and machete respectively – in the first

case injuring the lady householder’s face with

the knife.

In the light of these cases, which are the

ones cited to us which we consider most

relevant, and giving full weight to the

mitigation urged upon Madam Justice Mangatal

and upon us, we have formed the clear view that

the sentences passed on Duquesne were unduly

lenient. 21.

he Appropce

e have th

Triate Sent

impose at the trial and, second, what the
The appropriate sentence is to impose now. We have in mind the power of the Court under s.30 (1)(d) of the Court of Appeal Law (2006 Revision). That section provides as follows: (1) If it appears to the Attorney General (a) that the sentencing of a person in a proceedings in Grand Court has been unduly lenient or is wrong in law; and (b) the case is a case in which sentence is passed on a person for an offence triable on indictment, he may, with leave of the Court, refer the case to it to review the sentencing of that person; and on such reference the Court may (c) quash any sentence passed on the person in the proceedings; and (d) in place of it pass such sentence as they think appropriate for the case and that the Court below had power to pass when dealing with the accused. The aggravating factors here were the attack on Mr. Jackson's home with a weapon; the serious injuries caused to

Mr. Jackson; and the potentially very serious

injuries that would have resulted had he hit

Mr. Jackson's head to which the bat was

apparently directed.

The mitigating factors are those we have

set out above from the social inquiry report

including, in particular, Mr. Duquesne's good

character; the emotional upset which seems to

have led to his misconduct, including the fact

that Mr. Jackson admitted that he had lied to

the defendant about the whereabouts of

Ms. Quintero; his good employment record; his

supportive family; and the support both

emotional and financial which he offers to his

child.

Giving, as we have said, full weight to

these mitigating factors, we take the view that

the appropriate sentences to be passed at trial

would have been: (i) three years' imprisonment

on count 1; (ii) twelve months' imprisonment on

count 2 to run concurrently to count 1; (iii)

months' imprisonment on count 3

to run concurrently to count 2.

concur: both cad 25.
Double Jeopardy and the Appropriate Sentence Now It is axiomatic that we should consider at this stage whether Duquesne's sentence should nonetheless be reduced because he would have been subjected to some unwarranted additional anxiety as a result of having been given a very lenient sentence in March of this year before being now sent to prison. We have in mind paragraphs 57 to 61 of the judgment of a five-member English Court of Appeal in the AG's Reference Nos 14 and 15 of 2006 Tania French and Alan Robert Webster [2007] 1 Cr App R(S) 40, indicating that where anxiety has been created by this kind of situation, a discount of between 12 and 30 per cent in the ultimate sentence is appropriate. In addition, we need to bear in mind and take account of the fact that Duquesne has already completed his 240 hours community service order. He has also completed his anger management course that was undertaken on the 25th of August 2009. Finally, we have to consider the

position as it is now, some five months after

the sentencing by Madam Justice Mangatal took

place. We take particular note of the fact

that Duquesne has made, as it seems to us,

appropriate efforts to rebuild his life

following the sentence which was imposed on

him. We take the view that the Court should

have specific regard to the fact that he has

done precisely as the Court asked him to do.

He has performed his community service order in,

what can only be regarded as an extremely short

period of time, and he has undertaken the

course and complied, as far as we are aware,

with his probation conditions. We would not

want to put Duquesne in the position of being

punished for doing what the Court told him to

do.

We also take the view that the appropriate

sentence to impose now should also recognise

that he has already substantially served the

sentences for both counts 2 and 3 that were

imposed at the time.

and the term of six months' imprisonment that

we take the view should have been imposed upon

him five months ago.

That leaves the term of three years which

ought to have been imposed upon him for the

offence of aggravated burglary. If we deduct

from that the one year which, effectively, he

has already served by complying with the

(non-custodial) sentences that were in fact

passed for counts 2 and 3, it would leave him

with two years left to serve.

In our judgment, the factors that we have

referred to that have occurred since he was

actually sentenced and the double jeopardy in

which he has been placed leave us exceptionally

to consider that the remaining two years of the

three-year sentence for aggravated burglary

should be, in this most exceptional case,

suspended. We take the view that s.30(1)(d) of

the Court of Appeal Law (2006 Revision) set out

above provides power for this Court to pass

such sentence as we think appropriate for the

taking inhe matter

s we have

case, to account 25.
Conclusion For the reasons that we have set out above, the Crown's appeal will be allowed, and we will re-impose the following sentences: (i) For aggravated burglary, two years' imprisonment suspended for two years from 20th March, 2009; (ii) For inflicting grievous bodily harm, a three-year probation order with conditions involving living at home with his parents and completing an anger management course and performing 240 hours community service within one year; (iii) For damage of property, a probation order to run concurrently and compensation of $1,201 payable to Mr. Jackson. We should make clear that though we are, in the result, re-imposing the sentences ordered by the judge, Duquesne is not expected either to pay the compensation again, to perform any other sentence, or to complete any other course of management. However, he will have to serve the three-year probation order subject to the
```html <table> <tr> <td>1</td> <td>conditions imposed by the trial judge.</td> </tr> <tr> <td>2</td> <td>CHADWICK, President: The appeal is</td> </tr> <tr> <td>3</td> <td>allowed. We quash the sentence imposed under</td> </tr> <tr> <td>4</td> <td>the power conferred by s. 30(1)(c) of the Court</td> </tr> <tr> <td>5</td> <td>of Appeal Law. In place of that sentence, we</td> </tr> <tr> <td>6</td> <td>pass the sentences indicated in the judgment</td> </tr> <tr> <td>7</td> <td>just delivered, those being the sentences which</td> </tr> <tr> <td>8</td> <td>pursuant to paragraph (d) of that subsection,</td> </tr> <tr> <td>9</td> <td>we think appropriate for this case in the</td> </tr> <tr> <td>10</td> <td>circumstances as they now are. We impose a</td> </tr> <tr> <td>11</td> <td>sentence on count 1 of two years, suspended for</td> </tr> <tr> <td>12</td> <td>two years from the 20th of March, 2009; on</td> </tr> <tr> <td>13</td> <td>count 2, a probation order for three years from</td> </tr> <tr> <td>14</td> <td>the 20th of March, 2009, with the conditions as</td> </tr> <tr> <td>15</td> <td>to residence and the completion of the anger</td> </tr> <tr> <td>16</td> <td>management course which are in the original</td> </tr> <tr> <td>17</td> <td>order, and a community sentence of 240 years,</td> </tr> <tr> <td>18</td> <td>but we record (i) that the community service</td> </tr> <tr> <td>19</td> <td>order has been performed, and no further</td> </tr> <tr> <td>20</td> <td>community service is required under the</td> </tr> <tr> <td>21</td> <td>sentence we now pass, and (ii) that we are told</td> </tr> <tr> <td>22</td> <td>the anger programme</td> </tr> <tr> <td>23</td> <td>has been</td> </tr> <tr> <td>24</td> <td>completed therefore b</td> </tr> <tr> <td>25</td> <td>same terms, with the compensation order in the</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>sum of $1, 201, but we record that we are told</td> </tr> <tr> <td>2</td> <td>that that sum has been paid and need not be</td> </tr> <tr> <td>3</td> <td>paid again.</td> </tr> <tr> <td>4</td> <td>Mr. Duquesne, you should stand up. You</td> </tr> <tr> <td>5</td> <td>will, I hope, have understood what we have</td> </tr> <tr> <td>6</td> <td>said. But I can tell you that you have been</td> </tr> <tr> <td>7</td> <td>fortunate in this case. If the appropriate</td> </tr> <tr> <td>8</td> <td>sentence had been passed at the time when you</td> </tr> <tr> <td>9</td> <td>were sentenced in March 2009, you would have</td> </tr> <tr> <td>10</td> <td>gone to prison for a period of three years.</td> </tr> <tr> <td>11</td> <td>This was a serious offence. It is simply</td> </tr> <tr> <td>12</td> <td>not acceptable to break into a dwelling house</td> </tr> <tr> <td>13</td> <td>by smashing the door, armed with a baseball</td> </tr> <tr> <td>14</td> <td>bat; notwithstanding that, as you say, you were</td> </tr> <tr> <td>15</td> <td>motivated by jealousy. It was very fortunate</td> </tr> <tr> <td>16</td> <td>that the injuries to Mr. Jackson - which were</td> </tr> <tr> <td>17</td> <td>in themselves serious enough - were not much</td> </tr> <tr> <td>18</td> <td>more serious, causing permanent damage and</td> </tr> <tr> <td>19</td> <td>disability and even perhaps threatening his</td> </tr> <tr> <td>20</td> <td>life.</td> </tr> <tr> <td>21</td> <td>But you have responded to the confidence</td> </tr> <tr> <td>22</td> <td>the judge you in Mar</td> </tr> <tr> <td>23</td> <td>ch 2009,</td> </tr> <tr> <td>24</td> <td>and you ve the f t</td> </tr> <tr> <td>25</td> <td>So you will not go to prison if you</td> </tr> </table>

continue to behave yourself. The sentence of

imprisonment which we have passed will remain

suspended for two years from March 2009. If,

during that period, you are convicted of

another offence, you can expect that that

sentence will be activated so that you will

serve it in prison together with any further

sentence that might be passed on you.

I hope you understand that; and that you

will now be able to get on with your life. The

testimonials that we have seen provide grounds

for confidence that you have the prospect of a

bright future. You should seize that prospect.

You may stand down. ```html <table> <tr> <td>15</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>COURT REPORTER'S CERTIFICATE</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>Certified correct to the best of my skill and ability, dated</td> </tr> <tr> <td>20</td> <td>the 4th day of September 2009.</td> </tr> </table> ``` ```latex \begin{table}[h] \centering \begin{tabular}{|c|c|} \hline 15 & \\ \hline 16 & \\ \hline 17 & COURT REPORTER'S CERTIFICATE \\ \hline 18 & \\ \hline 19 & Certified correct to the best of my skill and ability, dated \\ \hline 20 & the 4th day of September 2009. \\ \hline \end{tabular} \end{table} ``` ```latex \begin{figure}[h] \centering \includegraphics[width=0.5\textwidth]{court_reporter_certificate.png} \caption{Court Reporter's Certificate} \end{figure}

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