The Queen v Annik Lawrence

EASTERN CARIBBEAN SUPREME COURT TERRITORY OF ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. ANUHCR 2020/0094 BETWEEN: THE QUEEN and ANNIK LAWRENCE Appearances: Ms. Rashida Jonas, Counsel for the Crown Mr. Pete Semaj McKnight, Counsel for the Defendant ---------------------------------------------- 2021: June 15th, July 23rd, August 6th ---------------------------------------------- JUDGMENT ON SENTENCING Background

[1]WILLIAMS J.: Ms. Annik Lawrence on 15th June, 2021 pleaded guilty to causing death by dangerous driving. At the request of Ms. Lawrence’s counsel, a Social Inquiry Report was ordered to be produced by the Probation Department on or before the 6th July, 2021 ahead of the scheduled sentencing date of 13th July, 2021. Ms. Lawrence was released on bail pending sentencing.

[2]No report was received by the 6th July, 2021 as ordered and sentencing was further adjourned to the 23rd July, 2021. The Social Inquiry Report was not produced for the adjourned sitting.

[3]At the sentencing hearing, on the 23rd July, 2021 Defence Counsel Mr. Pete Semaj McKnight mitigated on behalf of Ms. Lawrence. Ms. Lawrence also made brief remarks from the dock. A sister of the deceased was the only witness called by the Crown at sentencing.

Sentence Indication

[4]Prior to Ms. Lawrence’s arraignment, her Counsel sought and obtained a Sentence Indication on the 1st June, 2021. That decision is reproduced in full: “The Defendant, Annik Lawrence, was indicted on the 11th day of December 2020 for the offence of Causing Death By Dangerous Driving contrary to section 57(1) of the Vehicle and Road Traffic Act CAP. 460 of the Laws of Antigua and Barbuda, Revised Edition 1992. At the scheduled arraignment on the 25th of May, 2021 counsel Mr. Pete Semaj McKnight on behalf of the Defendant requested a Sentence Indication prior to his client entering a plea. “The following agreed facts were provided to the Court: ‘On the 12th July 2019, at approximately 12:00 a.m. the accused picked up her friend Cliffe Thomas in a silver Honda Fit rental motorcar bearing the license plate R4037 from Johnsons and headed to town to attend Jam Corner a pre-carnival event held at the junction of Nevis Street and Corn Alley Street. While there the accused and Cliffe Thomas met up with mutual friends Usher Frith, Edwin Jackson and the deceased Kiyodie Osborne by Flow store on Market Street. After Jam Corner ended, they decided to attend “Thirsty Thursdays” an event held at Kennedy’s Bar at The Sir Vivian Richards Stadium on Sir Sydney Walling Highway. ‘They walked to the parked rental motor vehicle on High Street in front of Little Canton and entered it with the accused in the driver’s seat, Cliffe Thomas in the front passenger seat, Edwin Jackson sitting in the back directly behind Cliffe Thomas, Usher Frith in the middle and the deceased who sat directly behind the accused. They then journeyed to the stadium traveling in a westerly to easterly direction on the Sir Sydney Walling Highway. ‘Edwin Jackson, passenger in the vehicle with the accused noted that after passing Charlies Service Station he heard tires screeching, saw two headlights when the accused struck a brown Nissan Urvan bus bearing the license plate C14001. Vinton Noel, the driver of the said Nissan Urvan bus was traveling in an easterly to westerly direction noted that upon observing the motor vehicle driven by the accused, pulled further to his left to avoid an accident when his vehicle was hit causing it to spin. ‘Ryaze DeSilva the driver of a white 2004 Honda Accord bearing the license plate A52140 was transporting his girlfriend Cathija Jeffrey and two-year-old daughter Zariyah Desilva when he observed the accused driving at a high rate of speed and on the wrong side of the road hit the Nissan Urvan bus which was directly in front of him. He further noted that the accused was coming towards him at a high rate of speed, and he attempted to pull his vehicle further to the left. Noting that it was too late, braced for the impact when the motor vehicle driven by the accused collided with his motor vehicle. ‘Edwin Jackson noted that after hitting the second vehicle that the motor vehicle in which he travelled spun around several times and struck a wall. The accused and deceased were flung from the motor vehicle. When the vehicle came to a stop Edwin observed that Usher’s feet were on the back seat and that the remainder of the body was in the trunk. Upon exiting the vehicle, he further observed Cliffe sitting on the road crying and holding her leg; the accused in the driveway of the Buntin residence and the body of the deceased lying on the ground close to the wall, near to the vehicle they travelled in. ‘The Parham police station received a report at approximately 12:30 a.m. and promptly visited the scene of the accident. The ambulance and fire police appeared on the scene thereafter. ‘When the ambulance arrived, they attended to and transported Ryaze DeSilva, Cathija Jeffrey, Zariyah Desilva, Usher Frith, Edwin Jackson, Cliffe Thomas and the accused to the Mount Saint John Medical Centre for further assessment. ‘Dr. Oritha Zachariah was called to the scene and pronounced Kiyodie Osborne dead at approximately 3:34 a.m. Permission was obtained from the coroner Mrs. Ngaio Emmanuel-Edwards to remove the body of the deceased which was subsequently taken to Straffie’s Funeral Home. ‘At the Mount Saint John Medical Centre, the following assessments were made: 1. Usher Frith was found to have a fracture of the C5 vertebrae with a mild head injury and suffered loss of consciousness. He was admitted to the surgical ward, fitted with a Philadelphia collar and discharged on the 16th July, 2019; 2. Edwin Jackson complained of pain to his lower back. His lacerations were cleaned and sutured. He was then discharged on oral antibiotics and analgesics; 3. Cliffe Thomas had difficulty recalling the events of the accident and complained of pain to her right leg, lower back and frontal headache with dizziness. She was discharged on oral antibiotics and analgesics on the 15th July, 2019; 4. Ryaze DeSilva complained of headache and discomfort to the neck. He was subsequently discharged with a head injury notice; 5. Cathija Jeffery presented with soft tissue injury to the left hand and right knee. She too was subsequently discharged and instructed to rest, ice, compress and elevate the affected the area(s); 6. Zariyah DeSilva presented with an abrasion to the left thigh and soft tissue injury of the right knee who received pain management and was discharged; and 7. The accused complained of tenderness on palpitation of neck, anterior chest wall, left knee and abrasion to the right knee. She was hospitalized for a period of five days. ‘During investigations it was discovered that the vehicle was rented from Chooks Car Rental by a Damond Roach friend and co-worker of the accused, who paid the sum of $200.00 for a period of two days. Mr. Roach then gave the vehicle to the accused for her to drive. Additionally, a search was conducted at the Antigua and Barbuda Transport Board which revealed that the accused was not a holder of a driver’s license. Rather, the accused was issued a learner’s permit on the 27th January, 2017 which expired on the 27th July, 2017. ‘On the 24th July, 2019 the certified auto technician Mr. Lancelot James examined the white Honda Accord belonging to Ryaze DeSilva in his presence and that of Cpl. Dyer-Jacobs. He observed that the right fender, front bumper, fender liner and headlight were all damaged because of the accident. Mr. James concluded that there is no evidence that the vehicle was not in proper working order which would cause it to have an accident of this kind. ‘On the 24th July, 2019 Mr. James also examined the Honda Fit rental motor vehicle in the presence of the accused and Cpl. Dyer-Jacobs. The accused noted that while driving the vehicle she observed that the steering would lock at certain speeds. The accused when asked about her driving experience stated that she has been driving for a period of two years and further indicated that she was uncertain as to how fast she was driving but was certain that she did not exceed 120km/h. ‘Mr. James observed that the front of the vehicle was extensively damaged, the right front wheel was missing and the steering linkage was still connected and functioning. The brake fluid condition showed that the brakes were not inoperable. He noted that the driver’s side seatbelt was latched behind the driver’s seat. Additionally, Mr. James observed that the speedometer was stuck at 70km/h which proved that the accused was driving above that speed. Mr. James noted that the vehicle had no issues that would have caused an accident of this kind and concluded that the strongest contributing factor was the lack of driving experience and poor judgment of the accused. ‘A postmortem examination was conducted by Dr. Petra Miller-Nanton on the 16th August, 2019 who concluded that the death was caused by multiple skull fractures and intracranial hemorrhage due to a motor vehicle accident. The deceased was 21 years old. “At this stage, a Judge is providing to the Defendant the highest sentence that could be imposed on the facts of the case. It is, first, an assessment of the aggravating and mitigating factors of the offence itself. It is an indication that is being given prior to any possible mitigation by counsel for the Defendant. “The maximum sentence imposable for this offence is five years imprisonment. “It has been said that in the Goodyear approach in contrast to the Aguillera approach, the judge in arriving at the maximum likely sentence giving the aggravating factors their greatest weight while giving the mitigating factors their least weight. “In this case, it is noted that the Defendant was not the holder of a driver’s license under the Vehicles and Road Traffic Act. The legal consequence of this deficiency of course is that the vehicle was therefore uninsured. The Defendant involved other persons in her determined plan to have access and use to the vehicle. Even though the factor of driving the vehicle at a speed and manner that was dangerous to the public forms a part of the particulars of the offence, the fact of the significant excess speed by the Defendant (which is compounded by the earlier mentioned fact that she was not a licensed driver), is a notable aggravating factor. “The mitigating factor with regard to the offence that can be factored in at this stage is that there was no intent on the Defendant’s part to cause the accident, injury or as it turned out death of the occupant of the vehicle that she was driving. The Defendant and her friends were simply on a night out for fun and revelry. “When everything is considered however, the aggravating features outweigh the mitigating features. “Ordinarily, a good starting point is midway on the scale of the statutory maximum. That would be two-and-a-half years. Given the preponderance of the aggravating features, that figure would have to be adjusted upwards, in this case, by a year, taking it to three-and-a-half years or 42 months. “A guilty plea at this stage must attract the maximum discount possible. This discount of approximately one-third amounts to almost fourteen months. Subtracting 14 from 42 leaves 28 months or two years and four months. “Without considering any mitigating factors that Defence counsel may submit for and on behalf of the Defendant, the Sentence Indication is that a guilty plea on the facts as stated at this stage will not attract a sentence beyond two years and four months. “This sentence indication remains valid for two weeks inclusive of today, that is to say: until the 15th day of June 2021.” Mitigation

[5]Mr. McKnight stated that his client was now 22 years-old [therefore she would have been aged 20 at the time of this incident in 2019]. Counsel stated that Ms. Lawrence exited the formal school system when she was in 4th Form owing to a pregnancy. However, through her industry she became a mixologist and is employed at the Royalton Hotel where she earns $350.00 a day.

[6]Counsel noted that what was to be a night of fun, frolic and festivity ended in tragedy. Mr. McKnight noted that because of the motor vehicle collision which gave rise to this matter, that Ms. Lawrence was hopsitalised for about two-weeks. He submitted that Ms. Lawrence suffered both physical and emotional pain, particularly since the deceased was a good friend of hers with whom she would go out. Ms. Lawrence, he stated, has had to seek counselling from time to time.

[7]Ms. Lawrence is the mother of a 5-year-old son and a 2-year-old daughter who are dependent on her for maternal and financial needs.

[8]Counsel noted that Ms. Lawrence spent three days in police custody at the St. John’s Police Station after she was discharged from the hospital and that she was then remanded by the Magistrate and remained at the prison for two weeks before she secured bail upon an application to the High Court.

[9]Ms. Lawrence made a very brief statement from the dock, saying: “I am apologizing to the Court for the wrong that I have done. I am asking for forgiveness from the family [of the deceased] for the pain that I have caused them.” Appropriate Sentence – Defence Counsel’s View

[10]Mr. McKnight submitted that the appropriate punishment for his client would be: i. Placed on probation; ii. Disqualification from holding a driver’s license; and iii. A fine.

[11]Mr. McKnight cited two cases in support of his submission: The Queen v Norman LaCorbiniere Saint Lucia High Court Case No: 35 of 2002 and The Director of Public Prosecutions v Elvis Richardson Saint Kitts-Nevis High Court Case No. SLUHCR 2013/30.

[12]Counsel noted that in addition to this matter, Ms. Lawrence is the Respondent in a Civil Suit brought by the family of the deceased, who are seeking compensation under the Fatal Accidents Act.

[13]Counsel also noted that with Ms. Lawrence being the head of a single parent household, placing her in custody would add to the deficit the family is already experiencing.

[14]According to Mr. McKnight, his client has had a positive change in her outlook on life. He submitted that she is no longer the rash person that she was but is now more reserved and in control of herself.

[15]Counsel noted that: “Young people don’t always get it right” and he urged that Ms. Lawrence be given the opportunity of a second chance.

Victim Impact

[16]Evidence as to the impact this matter has had on the surviving relatives of the deceased came from Ms. Rominita Greaves. She is an older sister of the deceased. Ms. Greaves stated that before she had any children of her own, the deceased was like her son. She testified that her biological son looked up to the deceased and that even though she says to her son that his uncle is not coming back, her son still keeps on asking for him. “Everyone looked up to him,” Ms. Greaves said. She stated that when she received news of her brother’s death: “It broke me. Have me in shambles.”

[17]Ms. Greaves said that she did not know the Defendant, Annik Lawrence, and said that she had never heard her brother saying anything about Ms. Lawrence.

Submitted Cases

[18]In The DPP v Elvis Richardson (mentioned earlier), Mr. Richardson was speeding in an uninsured vehicle along a street in the capital when he fatally struck an 80 year-old man who was crossing the road. The deceased man appeared to be relying on some other person’s direction to cross the road at that time. The man, who fell onto the bonnet of the car, was dragged for about 100 feet before being tossed onto the side of the road. Mr. Richardson, aged 31 years, was a professional driving instructor. He pleaded guilty to causing death by dangerous driving. He had two previous unrelated convictions and for one of them was imprisoned.

[19]In Saint Kitts and Nevis, as is the case in Antigua and Barbuda, the maximum sentence for the offence of causing death by dangerous driving is five years imprisonment. The Honourable Justice Darshan Ramdhani in Elvis Richardson said: “I am of the view that an immediate custodial sentence is appropriate in the matter…. making allowances for his guilty plea, I would order that this offender serve nine months imprisonment. I will also order that he pay a fine of $15,000.00 to be paid within six months. His driver’s license will be taken away for eighteen months and he will be required to take a new test if he so desires at the end of the eighteen months of his sentence.”

[20]Ramdhani J then went on to say: “I have considered that this is a suitable case for a suspended sentence, suspended for the period of 12 months, this being the operational period.”

[21]There are several challenges in seeking to apply Richardson to the circumstances of this case. There is no provision for suspended sentences in Antigua and Barbuda. In Richardson the Defendant was a licensed driver; here, Ms. Lawrence did not have any license to drive. In Richardson the deceased was crossing the road on the instruction of another person; in the case before us, the force of the impact threw the deceased from inside the vehicle driven by Ms. Lawrence and emptied him onto the roadside.

[22]The other case referred to by Defence Counsel in his submissions was The Queen v Norma LaCorbiniere. Mr. LaCorbinere was a driver with a Funeral Parlour. On the night of the incident he was driving a hearse and two times unsuccessfully attempted to over-take the vehicle that was ahead of him. On his third attempt to overtake, he collided head on with a pickup that was coming in the opposite direction. The driver of the pickup died. Mr. LaCorbiniere was convicted in 2003 after a jury unanimously returned a verdict of guilty of causing death by dangerous driving. This was some five years after the incident.

[23]Mr. LaCorbiniere was 34 years old. He had six minor children. He did not have any previous criminal or traffic convictions.

[24]The Honourable Mrs. Indra Hariprashad-Charles imposed the maximum fine of $8,000.00 to be paid in a week, in default 5-years imprisonment. LaCorbiniere was disqualified from driving for a period of 4 years. Hariprashad-Charles J said: “I know that being a driver, he would be without a job but he must learn a lesson and hopefully, this will deter others who are bent on disobeying traffic laws and regulations in Saint Lucia.”

[25]Earlier in the judgment, Madam Justice Hariprashad-Charles noted: “The practice of the Saint Lucia courts over the years has been not to imprison persons convicted of causing death by dangerous driving. Such a practice does not obtain in some of the other jurisdictions served by the Eastern Caribbean Supreme Court where persons convicted of this type of offence are given a custodial sentence. If I am to change such a practice, it will be setting a different precedent in Saint Lucia. The frequency of the occurrences of these offences on our roads today has caused the courts in Saint Lucia to start rethinking along the line of what transpires in other jurisdiction of the Eastern Caribbean Supreme Court and indeed the wider Caribbean.”

[26]The counsel in this matter were asked what was the trend in Antigua and Barbuda, whether it was towards a custodial sentence or otherwise: the response was somewhat muted.

Another Case

[27]The Eastern Caribbean Supreme Court in its Appellate Jurisdiction had before it the case of Thelbert Edwards v The Queen Saint Lucia High Court Criminal Appeal, No: 3 of 2006. In that case, Edwards was driving in excess of the speed limit when he collided with a vehicle driven by a 75 year-old lady. The 75 year-old lady suffered multiple injuries and died. Edwards changed his plea to guilty of causing death by dangerous driving on the second day of the trial. This was after the pathologist testified. The trial judge had imposed a sentence of five years. There was a legislative enactment prescribing a minimum sentence of five years imprisonment. On Appeal, this enactment was found to be grossly disproportionate and therefore unconstitutional. The Court of Appeal in a 2-1 majority decision substituted a fine for the term of imprisonment. The Honourable Michael Gordon, QC said: “In all of the circumstance… in the exercise of my judicial discretion, I find the appropriate sentence for this offence committed by the Appellant is that the appellant be fined the sum of $4,000.00 payable within 60 days or in default he shall spend one year in prison. Lest there be any misunderstanding, the court is not to be understood as settling the value of a human life at $4,000.00, but rather finds that this offender in the circumstances of this case should be punished this way…. The licence of the appellant having been de facto suspended for almost three years, I do not consider it appropriate to disqualify him from driving for a further period.”

[28]The Honourable Hugh Rawling JA as he was then agreed with Gordon, QC, JA, that the legislation infringed the Constitution of Saint Lucia. He said: “In my opinion, the present case is not a fit one for the imposition of a custodial sentence, particularly given the personal circumstances of Edwards, his guilty plea at the earliest opportunity, his clean record and the suggestion by the learned trial judge that there might have been contributory negligence.”

[29]The Honourable Denys Barrow, SC, JA, (as he was then) agreed that the Appeal should be allowed and that the order made by the High Court set aside. He however had a different disposition: “In the exercise of the sentencing power that this Court is called upon to exercise, I would impose a custodial sentence. Bound by section 73 (2) of the Act to impose a term of not less than 5 years, I would order that the appellant be imprisoned for a term of 5 years, account being taken of any period of confinement that he has already undergone.”

[30]It is noted that this is a case out of Saint Lucia, where, as Madam Justice Hariprashad-Charles noted, the practice was not to imprison individuals convicted of causing death by dangerous driving - something which the legislature attempted to address.

Sentencing Considerations

[31]The established principles of sentencing are retribution, deterrence, prevention and rehabilitation. Lawton LJ in R v Sergeant (1974) 60 Cr App R 74 at 77 said: “Those classical principles are summed up in four words: retribution, deterrence, prevention, rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case he is dealing.”

[32]The first two principles mentioned are more important than the other two as it relates to the facts of this case. There is need for retribution and deterrence. Sentencing therefore would reflect the need for the punishment to fit the crime and also to send a signal to deter any would be offenders.

[33]There is nothing to suggest that Ms. Lawrence has any propensity to re-offend or that there is any need for any particular reforms on her part. Prevention and rehabilitation therefore are not considered to be particularly applicable.

[34]It must be borne in mind that Ms. Lawrence is a young, first-time offender who pleaded guilty. She heads a household that includes two minors.

[35]In Desmond Baptiste v The Queen Saint Vincent and the Grenadines High Court Criminal Appeal No: 8 of 2003 the Eastern Caribbean Supreme Court of Appeal reviewed the: Relevance of age and/or prior criminal history. Sir Dennis Byron CJ (as he was then) said: “As to the fact that the offender was committing crime for the first time, it seems to us that the importance of this circumstance should be left to the discretion of the sentencer as a matter that is taken into account with all other mitigating circumstances of the offence. It must be stressed though that the more serious the offence, the less relevant will be this circumstance.”

[36]Sir Dennis then made reference to Turner v The Queen (1975) 61 Crim. App. R 67 at page 91, where Lord Lane CJ said in a case of armed robbery that “the fact that a man has not much of a criminal record, if any at all, is not a powerful factor to be taken into consideration when the court is dealing with cases of this gravity.” Sir Dennis added: “Conversely, the lack of a criminal record would be a powerful mitigating factor where the offence is of an insubstantial nature.”

[37]Sir Dennis then went on to say: “On the issue of age of the offender, a sentencer should be mindful of the general undesirability of imprisoning young first offenders. For such offenders, the Court should take into consideration the prospect of rehabilitation and accordingly give increased weight to such prospects. Where imprisonment is required, the duration of incarceration should also take such factors into account. In the same vein, in cases where the offender is a mature individual with no apparent propensity for commission of the offence, the sentencer may also take this circumstance into account in weighing the desirability and duration of a prison sentence. As with first time offenders, the more serious the offence, the less relevant will be the circumstances.”

[38]As noted earlier, Ms. Lawrence was just 20 years old at the time. The motor vehicle collision which resulted in the death of Kiyodie Osbourne was clearly an unintended consequence of Ms. Lawrence’s actions. She did not plan nor intend for her friend to die. Where the notion of planning became relevant, relates to how she acquired the use of the vehicle – the deadly vessel. Ms. Lawrence relied on a coworker/friend to rent the vehicle. Ms. Lawrence did not have a driver’s license, and multiplied that deficiency by driving the vehicle at a speed and in a manner which resulted in the loss of a life. And given the nature of the crash, which involved three vehicles and multiple persons being hospitalized, Ms. Lawrence is rather lucky that only one person died. It is the seriousness of the offence therefore that has to be kept in mind.

Application

[39]In the Maximum Sentence Indication Ms. Lawrence and her counsel were informed that: “Without considering any mitigating factors that Defence counsel may submit for and on behalf of the Defendant, the Sentence Indication is that a guilty plea on the facts as stated at this stage will not attract a sentence beyond two years and four months.”

[40]There are a number of mitigating factors which now have to be considered and applied to the original indication that was provided. Having already given Ms. Lawrence the maximum one-third discount for an early guilty plea, the remaining factors which weigh heavily in her favour are: i. The absence of any previous convictions – she is a first time offender; ii. Ms. Lawrence’s youthfulness and the need to as much as possible divert young persons from the criminal justice system. This was better expressed by Sir Dennis Byron as the general undesirability to imprison young first-time offenders; but where imprisonment is appropriate this principle must be kept in mind. iii. Ms. Lawrence has openly apologized for her offending and asked for forgiveness from the family of the deceased. A person may express and demonstrate remorse in different ways. iv. Ms. Lawrence spent time in police detention/custody and on remand at the prison before she accessed bail. These two periods, although short, must be accounted for and credit must be given for those two periods.

[41]To all this it must be borne in mind that: a) Ms. Lawrence now has a criminal record that will be attached to her forever. This is sure to have consequences for her in relation to such things as future employment and travel. b) Ms. Lawrence has to bear the emotional and psychological burden of being responsible for the death of her friend, Kiyodie Osbourne. c) Ms. Lawrence still faces legal action to compensate the Estate of Kiyodie Osbourne. d) Ms. Lawrence is the mother of a young child and a toddler. She is said to be the primary care giver of these children and however little, there is a need to take steps to break the cycle that has Ms. Lawrence in the place and position that she now finds herself.

[42]There are very limited options to incarceration available to a sentencer in Antigua and Barbuda. Placing Ms. Lawrence on probation cannot be considered an appropriate penalty. A life has been loss as a result of what Ms. Lawrence did and actions have consequences. Ms. Lawrence’s reckless and dangerous conduct on the 12th of July, 2019 must attract an appropriate term of imprisonment, even if it is one that can be described as a “short, sharp, shock.”

[43]The earlier sentence indication of 2 years and 4 months is further reduced on account of all the factors just outlined by a further 17 months.

Conclusion

[44]Ms. Lawrence is sentenced to a term of nine months’ imprisonment.

[45]She is disqualified from obtaining or holding a driver’s permit for a period of two years following her release from prison.

[46]While in prison, Ms. Lawrence must be provided with access to appropriate counseling.

[47]Ms. Lawrence must also be able to have ample access to contact and communicate with her two children.

Colin Williams

High Court Judge

By the Court

Registrar

EASTERN CARIBBEAN SUPREME COURT TERRITORY OF ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE (CRIMINAL) CASE NO. ANUHCR 2020/0094 BETWEEN: THE QUEEN and ANNIK LAWRENCE Appearances: Ms. Rashida Jonas, Counsel for the Crown Mr. Pete Semaj McKnight, Counsel for the Defendant ———————————————- 2021: June 15th, July 23rd, August 6th ———————————————- JUDGMENT ON SENTENCING Background

[1]WILLIAMS J.: Ms. Annik Lawrence on 15th June, 2021 pleaded guilty to causing death by dangerous driving. At the request of Ms. Lawrence’s counsel, a Social Inquiry Report was ordered to be produced by the Probation Department on or before the 6th July, 2021 ahead of the scheduled sentencing date of 13th July, 2021. Ms. Lawrence was released on bail pending sentencing.

[2]No report was received by the 6th July, 2021 as ordered and sentencing was further adjourned to the 23rd July, 2021. The Social Inquiry Report was not produced for the adjourned sitting.

[3]At the sentencing hearing, on the 23rd July, 2021 Defence Counsel Mr. Pete Semaj McKnight mitigated on behalf of Ms. Lawrence. Ms. Lawrence also made brief remarks from the dock. A sister of the deceased was the only witness called by the Crown at sentencing. Sentence Indication

[4]Prior to Ms. Lawrence’s arraignment, her Counsel sought and obtained a Sentence Indication on the 1st June, 2021. That decision is reproduced in full: “The Defendant, Annik Lawrence, was indicted on the 11th day of December 2020 for the offence of Causing Death By Dangerous Driving contrary to section 57(1) of the Vehicle and Road Traffic Act CAP. 460 of the Laws of Antigua and Barbuda, Revised Edition 1992. At the scheduled arraignment on the 25th of May, 2021 counsel Mr. Pete Semaj McKnight on behalf of the Defendant requested a Sentence Indication prior to his client entering a plea. “The following agreed facts were provided to the Court: ‘On the 12th July 2019, at approximately 12:00 a.m. the accused picked up her friend Cliffe Thomas in a silver Honda Fit rental motorcar bearing the license plate R4037 from Johnsons and headed to town to attend Jam Corner a pre-carnival event held at the junction of Nevis Street and Corn Alley Street. While there the accused and Cliffe Thomas met up with mutual friends Usher Frith, Edwin Jackson and the deceased Kiyodie Osborne by Flow store on Market Street. After Jam Corner ended, they decided to attend “Thirsty Thursdays” an event held at Kennedy’s Bar at The Sir Vivian Richards Stadium on Sir Sydney Walling Highway. ‘They walked to the parked rental motor vehicle on High Street in front of Little Canton and entered it with the accused in the driver’s seat, Cliffe Thomas in the front passenger seat, Edwin Jackson sitting in the back directly behind Cliffe Thomas, Usher Frith in the middle and the deceased who sat directly behind the accused. They then journeyed to the stadium traveling in a westerly to easterly direction on the Sir Sydney Walling Highway. ‘Edwin Jackson, passenger in the vehicle with the accused noted that after passing Charlies Service Station he heard tires screeching, saw two headlights when the accused struck a brown Nissan Urvan bus bearing the license plate C14001. Vinton Noel, the driver of the said Nissan Urvan bus was traveling in an easterly to westerly direction noted that upon observing the motor vehicle driven by the accused, pulled further to his left to avoid an accident when his vehicle was hit causing it to spin. ‘Ryaze DeSilva the driver of a white 2004 Honda Accord bearing the license plate A52140 was transporting his girlfriend Cathija Jeffrey and two-year-old daughter Zariyah Desilva when he observed the accused driving at a high rate of speed and on the wrong side of the road hit the Nissan Urvan bus which was directly in front of him. He further noted that the accused was coming towards him at a high rate of speed, and he attempted to pull his vehicle further to the left. Noting that it was too late, braced for the impact when the motor vehicle driven by the accused collided with his motor vehicle. ‘Edwin Jackson noted that after hitting the second vehicle that the motor vehicle in which he travelled spun around several times and struck a wall. The accused and deceased were flung from the motor vehicle. When the vehicle came to a stop Edwin observed that Usher’s feet were on the back seat and that the remainder of the body was in the trunk. Upon exiting the vehicle, he further observed Cliffe sitting on the road crying and holding her leg; the accused in the driveway of the Buntin residence and the body of the deceased lying on the ground close to the wall, near to the vehicle they travelled in. ‘The Parham police station received a report at approximately 12:30 a.m. and promptly visited the scene of the accident. The ambulance and fire police appeared on the scene thereafter. ‘When the ambulance arrived, they attended to and transported Ryaze DeSilva, Cathija Jeffrey, Zariyah Desilva, Usher Frith, Edwin Jackson, Cliffe Thomas and the accused to the Mount Saint John Medical Centre for further assessment. ‘Dr. Oritha Zachariah was called to the scene and pronounced Kiyodie Osborne dead at approximately 3:34 a.m. Permission was obtained from the coroner Mrs. Ngaio Emmanuel-Edwards to remove the body of the deceased which was subsequently taken to Straffie’s Funeral Home. ‘At the Mount Saint John Medical Centre, the following assessments were made:

[5]Mr. McKnight stated that his client was now 22 years-old [therefore she would have been aged 20 at the time of this incident in 2019]. Counsel stated that Ms. Lawrence exited the formal school system when she was in 4th Form owing to a pregnancy. However, through her industry she became a mixologist and is employed at the Royalton Hotel where she earns $350.00 a day.

[6]Counsel noted that what was to be a night of fun, frolic and festivity ended in tragedy. Mr. McKnight noted that because of the motor vehicle collision which gave rise to this matter, that Ms. Lawrence was hopsitalised for about two-weeks. He submitted that Ms. Lawrence suffered both physical and emotional pain, particularly since the deceased was a good friend of hers with whom she would go out. Ms. Lawrence, he stated, has had to seek counselling from time to time.

[7]Ms. Lawrence is the mother of a 5-year-old son and a 2-year-old daughter who are dependent on her for maternal and financial needs.

[8]Counsel noted that Ms. Lawrence spent three days in police custody at the St. John’s Police Station after she was discharged from the hospital and that she was then remanded by the Magistrate and remained at the prison for two weeks before she secured bail upon an application to the High Court.

[9]Ms. Lawrence made a very brief statement from the dock, saying: “I am apologizing to the Court for the wrong that I have done. I am asking for forgiveness from the family [of the deceased] for the pain that I have caused them.” Appropriate Sentence – Defence Counsel’s View

[10]Mr. McKnight submitted that the appropriate punishment for his client would be: i. Placed on probation; ii. Disqualification from holding a driver’s license; and iii. A fine.

[11]Mr. McKnight cited two cases in support of his submission: The Queen v Norman LaCorbiniere Saint Lucia High Court Case No: 35 of 2002 and The Director of Public Prosecutions v Elvis Richardson Saint Kitts-Nevis High Court Case No. SLUHCR 2013/30.

[12]Counsel noted that in addition to this matter, Ms. Lawrence is the Respondent in a Civil Suit brought by the family of the deceased, who are seeking compensation under the Fatal Accidents Act.

[13]Counsel also noted that with Ms. Lawrence being the head of a single parent household, placing her in custody would add to the deficit the family is already experiencing.

[14]According to Mr. McKnight, his client has had a positive change in her outlook on life. He submitted that she is no longer the rash person that she was but is now more reserved and in control of herself.

[15]Counsel noted that: “Young people don’t always get it right” and he urged that Ms. Lawrence be given the opportunity of a second chance. Victim Impact

[16]Evidence as to the impact this matter has had on the surviving relatives of the deceased came from Ms. Rominita Greaves. She is an older sister of the deceased. Ms. Greaves stated that before she had any children of her own, the deceased was like her son. She testified that her biological son looked up to the deceased and that even though she says to her son that his uncle is not coming back, her son still keeps on asking for him. “Everyone looked up to him,” Ms. Greaves said. She stated that when she received news of her brother’s death: “It broke me. Have me in shambles.”

[17]Ms. Greaves said that she did not know the Defendant, Annik Lawrence, and said that she had never heard her brother saying anything about Ms. Lawrence. Submitted Cases

[18]In The DPP v Elvis Richardson (mentioned earlier), Mr. Richardson was speeding in an uninsured vehicle along a street in the capital when he fatally struck an 80 year-old man who was crossing the road. The deceased man appeared to be relying on some other person’s direction to cross the road at that time. The man, who fell onto the bonnet of the car, was dragged for about 100 feet before being tossed onto the side of the road. Mr. Richardson, aged 31 years, was a professional driving instructor. He pleaded guilty to causing death by dangerous driving. He had two previous unrelated convictions and for one of them was imprisoned.

[19]In Saint Kitts and Nevis, as is the case in Antigua and Barbuda, the maximum sentence for the offence of causing death by dangerous driving is five years imprisonment. The Honourable Justice Darshan Ramdhani in Elvis Richardson said: “I am of the view that an immediate custodial sentence is appropriate in the matter…. making allowances for his guilty plea, I would order that this offender serve nine months imprisonment. I will also order that he pay a fine of $15,000.00 to be paid within six months. His driver’s license will be taken away for eighteen months and he will be required to take a new test if he so desires at the end of the eighteen months of his sentence.”

[20]Ramdhani J then went on to say: “I have considered that this is a suitable case for a suspended sentence, suspended for the period of 12 months, this being the operational period.”

[21]There are several challenges in seeking to apply Richardson to the circumstances of this case. There is no provision for suspended sentences in Antigua and Barbuda. In Richardson the Defendant was a licensed driver; here, Ms. Lawrence did not have any license to drive. In Richardson the deceased was crossing the road on the instruction of another person; in the case before us, the force of the impact threw the deceased from inside the vehicle driven by Ms. Lawrence and emptied him onto the roadside.

[22]The other case referred to by Defence Counsel in his submissions was The Queen v Norma LaCorbiniere. Mr. LaCorbinere was a driver with a Funeral Parlour. On the night of the incident he was driving a hearse and two times unsuccessfully attempted to over-take the vehicle that was ahead of him. On his third attempt to overtake, he collided head on with a pickup that was coming in the opposite direction. The driver of the pickup died. Mr. LaCorbiniere was convicted in 2003 after a jury unanimously returned a verdict of guilty of causing death by dangerous driving. This was some five years after the incident.

[23]Mr. LaCorbiniere was 34 years old. He had six minor children. He did not have any previous criminal or traffic convictions.

[24]The Honourable Mrs. Indra Hariprashad-Charles imposed the maximum fine of $8,000.00 to be paid in a week, in default 5-years imprisonment. LaCorbiniere was disqualified from driving for a period of 4 years. Hariprashad-Charles J said: “I know that being a driver, he would be without a job but he must learn a lesson and hopefully, this will deter others who are bent on disobeying traffic laws and regulations in Saint Lucia.”

[25]Earlier in the judgment, Madam Justice Hariprashad-Charles noted: “The practice of the Saint Lucia courts over the years has been not to imprison persons convicted of causing death by dangerous driving. Such a practice does not obtain in some of the other jurisdictions served by the Eastern Caribbean Supreme Court where persons convicted of this type of offence are given a custodial sentence. If I am to change such a practice, it will be setting a different precedent in Saint Lucia. The frequency of the occurrences of these offences on our roads today has caused the courts in Saint Lucia to start rethinking along the line of what transpires in other jurisdiction of the Eastern Caribbean Supreme Court and indeed the wider Caribbean.”

[26]The counsel in this matter were asked what was the trend in Antigua and Barbuda, whether it was towards a custodial sentence or otherwise: the response was somewhat muted. Another Case

[27]The Eastern Caribbean Supreme Court in its Appellate Jurisdiction had before it the case of Thelbert Edwards v The Queen Saint Lucia High Court Criminal Appeal, No: 3 of 2006. In that case, Edwards was driving in excess of the speed limit when he collided with a vehicle driven by a 75 year-old lady. The 75 year-old lady suffered multiple injuries and died. Edwards changed his plea to guilty of causing death by dangerous driving on the second day of the trial. This was after the pathologist testified. The trial judge had imposed a sentence of five years. There was a legislative enactment prescribing a minimum sentence of five years imprisonment. On Appeal, this enactment was found to be grossly disproportionate and therefore unconstitutional. The Court of Appeal in a 2-1 majority decision substituted a fine for the term of imprisonment. The Honourable Michael Gordon, QC said: “In all of the circumstance… in the exercise of my judicial discretion, I find the appropriate sentence for this offence committed by the Appellant is that the appellant be fined the sum of $4,000.00 payable within 60 days or in default he shall spend one year in prison. Lest there be any misunderstanding, the court is not to be understood as settling the value of a human life at $4,000.00, but rather finds that this offender in the circumstances of this case should be punished this way…. The licence of the appellant having been de facto suspended for almost three years, I do not consider it appropriate to disqualify him from driving for a further period.”

[28]The Honourable Hugh Rawling JA as he was then agreed with Gordon, QC, JA, that the legislation infringed the Constitution of Saint Lucia. He said: “In my opinion, the present case is not a fit one for the imposition of a custodial sentence, particularly given the personal circumstances of Edwards, his guilty plea at the earliest opportunity, his clean record and the suggestion by the learned trial judge that there might have been contributory negligence.”

[29]The Honourable Denys Barrow, SC, JA, (as he was then) agreed that the Appeal should be allowed and that the order made by the High Court set aside. He however had a different disposition: “In the exercise of the sentencing power that this Court is called upon to exercise, I would impose a custodial sentence. Bound by section 73 (2) of the Act to impose a term of not less than 5 years, I would order that the appellant be imprisoned for a term of 5 years, account being taken of any period of confinement that he has already undergone.”

[30]It is noted that this is a case out of Saint Lucia, where, as Madam Justice Hariprashad-Charles noted, the practice was not to imprison individuals convicted of causing death by dangerous driving – something which the legislature attempted to address. Sentencing Considerations

[31]The established principles of sentencing are retribution, deterrence, prevention and rehabilitation. Lawton LJ in R v Sergeant (1974) 60 Cr App R 74 at 77 said: “Those classical principles are summed up in four words: retribution, deterrence, prevention, rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case he is dealing.”

[32]The first two principles mentioned are more important than the other two as it relates to the facts of this case. There is need for retribution and deterrence. Sentencing therefore would reflect the need for the punishment to fit the crime and also to send a signal to deter any would be offenders.

[33]There is nothing to suggest that Ms. Lawrence has any propensity to re-offend or that there is any need for any particular reforms on her part. Prevention and rehabilitation therefore are not considered to be particularly applicable.

[34]It must be borne in mind that Ms. Lawrence is a young, first-time offender who pleaded guilty. She heads a household that includes two minors.

[35]In Desmond Baptiste v The Queen Saint Vincent and the Grenadines High Court Criminal Appeal No: 8 of 2003 the Eastern Caribbean Supreme Court of Appeal reviewed the: Relevance of age and/or prior criminal history. Sir Dennis Byron CJ (as he was then) said: “As to the fact that the offender was committing crime for the first time, it seems to us that the importance of this circumstance should be left to the discretion of the sentencer as a matter that is taken into account with all other mitigating circumstances of the offence. It must be stressed though that the more serious the offence, the less relevant will be this circumstance.”

[36]Sir Dennis then made reference to Turner v The Queen (1975) 61 Crim. App. R 67 at page 91, where Lord Lane CJ said in a case of armed robbery that “the fact that a man has not much of a criminal record, if any at all, is not a powerful factor to be taken into consideration when the court is dealing with cases of this gravity.” Sir Dennis added: “Conversely, the lack of a criminal record would be a powerful mitigating factor where the offence is of an insubstantial nature.”

[37]Sir Dennis then went on to say: “On the issue of age of the offender, a sentencer should be mindful of the general undesirability of imprisoning young first offenders. For such offenders, the Court should take into consideration the prospect of rehabilitation and accordingly give increased weight to such prospects. Where imprisonment is required, the duration of incarceration should also take such factors into account. In the same vein, in cases where the offender is a mature individual with no apparent propensity for commission of the offence, the sentencer may also take this circumstance into account in weighing the desirability and duration of a prison sentence. As with first time offenders, the more serious the offence, the less relevant will be the circumstances.”

[38]As noted earlier, Ms. Lawrence was just 20 years old at the time. The motor vehicle collision which resulted in the death of Kiyodie Osbourne was clearly an unintended consequence of Ms. Lawrence’s actions. She did not plan nor intend for her friend to die. Where the notion of planning became relevant, relates to how she acquired the use of the vehicle – the deadly vessel. Ms. Lawrence relied on a coworker/friend to rent the vehicle. Ms. Lawrence did not have a driver’s license, and multiplied that deficiency by driving the vehicle at a speed and in a manner which resulted in the loss of a life. And given the nature of the crash, which involved three vehicles and multiple persons being hospitalized, Ms. Lawrence is rather lucky that only one person died. It is the seriousness of the offence therefore that has to be kept in mind. Application

[39]In the Maximum Sentence Indication Ms. Lawrence and her counsel were informed that: “Without considering any mitigating factors that Defence counsel may submit for and on behalf of the Defendant, the Sentence Indication is that a guilty plea on the facts as stated at this stage will not attract a sentence beyond two years and four months.”

[40]There are a number of mitigating factors which now have to be considered and applied to the original indication that was provided. Having already given Ms. Lawrence the maximum one-third discount for an early guilty plea, the remaining factors which weigh heavily in her favour are: i. The absence of any previous convictions – she is a first time offender; ii. Ms. Lawrence’s youthfulness and the need to as much as possible divert young persons from the criminal justice system. This was better expressed by Sir Dennis Byron as the general undesirability to imprison young first-time offenders; but where imprisonment is appropriate this principle must be kept in mind. iii. Ms. Lawrence has openly apologized for her offending and asked for forgiveness from the family of the deceased. A person may express and demonstrate remorse in different ways. iv. Ms. Lawrence spent time in police detention/custody and on remand at the prison before she accessed bail. These two periods, although short, must be accounted for and credit must be given for those two periods.

[41]To all this it must be borne in mind that: a) Ms. Lawrence now has a criminal record that will be attached to her forever. This is sure to have consequences for her in relation to such things as future employment and travel. b) Ms. Lawrence has to bear the emotional and psychological burden of being responsible for the death of her friend, Kiyodie Osbourne. c) Ms. Lawrence still faces legal action to compensate the Estate of Kiyodie Osbourne. d) Ms. Lawrence is the mother of a young child and a toddler. She is said to be the primary care giver of these children and however little, there is a need to take steps to break the cycle that has Ms. Lawrence in the place and position that she now finds herself.

[42]There are very limited options to incarceration available to a sentencer in Antigua and Barbuda. Placing Ms. Lawrence on probation cannot be considered an appropriate penalty. A life has been loss as a result of what Ms. Lawrence did and actions have consequences. Ms. Lawrence’s reckless and dangerous conduct on the 12th of July, 2019 must attract an appropriate term of imprisonment, even if it is one that can be described as a “short, sharp, shock.”

[43]The earlier sentence indication of 2 years and 4 months is further reduced on account of all the factors just outlined by a further 17 months. Conclusion

[44]Ms. Lawrence is sentenced to a term of nine months’ imprisonment.

[45]She is disqualified from obtaining or holding a driver’s permit for a period of two years following her release from prison.

[46]While in prison, Ms. Lawrence must be provided with access to appropriate counseling.

[47]Ms. Lawrence must also be able to have ample access to contact and communicate with her two children. Colin Williams High Court Judge By the Court < p style=”text-align: right;”> Registrar

1.Usher Frith was found to have a fracture of the C5 vertebrae with a mild head injury and suffered loss of consciousness. He was admitted to the surgical ward, fitted with a Philadelphia collar and discharged on the 16th July, 2019;

2.Edwin Jackson complained of pain to his lower back. His lacerations were cleaned and sutured. He was then discharged on oral antibiotics and analgesics;

3.Cliffe Thomas had difficulty recalling the events of the accident and complained of pain to her right leg, lower back and frontal headache with dizziness. She was discharged on oral antibiotics and analgesics on the 15th July, 2019;

4.Ryaze DeSilva complained of headache and discomfort to the neck. He was subsequently discharged with a head injury notice;

5.Cathija Jeffery presented with soft tissue injury to the left hand and right knee. She too was subsequently discharged and instructed to rest, ice, compress and elevate the affected the area(s);

6.Zariyah DeSilva presented with an abrasion to the left thigh and soft tissue injury of the right knee who received pain management and was discharged; and

7.The accused complained of tenderness on palpitation of neck, anterior chest wall, left knee and abrasion to the right knee. She was hospitalized for a period of five days. ‘During investigations it was discovered that the vehicle was rented from Chooks Car Rental by a Damond Roach friend and co-worker of the accused, who paid the sum of $200.00 for a period of two days. Mr. Roach then gave the vehicle to the accused for her to drive. Additionally, a search was conducted at the Antigua and Barbuda Transport Board which revealed that the accused was not a holder of a driver’s license. Rather, the accused was issued a learner’s permit on the 27th January, 2017 which expired on the 27th July, 2017. ‘On the 24th July, 2019 the certified auto technician Mr. Lancelot James examined the white Honda Accord belonging to Ryaze DeSilva in his presence and that of Cpl. Dyer-Jacobs. He observed that the right fender, front bumper, fender liner and headlight were all damaged because of the accident. Mr. James concluded that there is no evidence that the vehicle was not in proper working order which would cause it to have an accident of this kind. ‘On the 24th July, 2019 Mr. James also examined the Honda Fit rental motor vehicle in the presence of the accused and Cpl. Dyer-Jacobs. The accused noted that while driving the vehicle she observed that the steering would lock at certain speeds. The accused when asked about her driving experience stated that she has been driving for a period of two years and further indicated that she was uncertain as to how fast she was driving but was certain that she did not exceed 120km/h. ‘Mr. James observed that the front of the vehicle was extensively damaged, the right front wheel was missing and the steering linkage was still connected and functioning. The brake fluid condition showed that the brakes were not inoperable. He noted that the driver’s side seatbelt was latched behind the driver’s seat. Additionally, Mr. James observed that the speedometer was stuck at 70km/h which proved that the accused was driving above that speed. Mr. James noted that the vehicle had no issues that would have caused an accident of this kind and concluded that the strongest contributing factor was the lack of driving experience and poor judgment of the accused. ‘A postmortem examination was conducted by Dr. Petra Miller-Nanton on the 16th August, 2019 who concluded that the death was caused by multiple skull fractures and intracranial hemorrhage due to a motor vehicle accident. The deceased was 21 years old. “At this stage, a Judge is providing to the Defendant the highest sentence that could be imposed on the facts of the case. It is, first, an assessment of the aggravating and mitigating factors of the offence itself. It is an indication that is being given prior to any possible mitigation by counsel for the Defendant. “The maximum sentence imposable for this offence is five years imprisonment. “It has been said that in the Goodyear approach in contrast to the Aguillera approach, the judge in arriving at the maximum likely sentence giving the aggravating factors their greatest weight while giving the mitigating factors their least weight. “In this case, it is noted that the Defendant was not the holder of a driver’s license under the Vehicles and Road Traffic Act. The legal consequence of this deficiency of course is that the vehicle was therefore uninsured. The Defendant involved other persons in her determined plan to have access and use to the vehicle. Even though the factor of driving the vehicle at a speed and manner that was dangerous to the public forms a part of the particulars of the offence, the fact of the significant excess speed by the Defendant (which is compounded by the earlier mentioned fact that she was not a licensed driver), is a notable aggravating factor. “The mitigating factor with regard to the offence that can be factored in at this stage is that there was no intent on the Defendant’s part to cause the accident, injury or as it turned out death of the occupant of the vehicle that she was driving. The Defendant and her friends were simply on a night out for fun and revelry. “When everything is considered however, the aggravating features outweigh the mitigating features. “Ordinarily, a good starting point is midway on the scale of the statutory maximum. That would be two-and-a-half years. Given the preponderance of the aggravating features, that figure would have to be adjusted upwards, in this case, by a year, taking it to three-and-a-half years or 42 months. “A guilty plea at this stage must attract the maximum discount possible. This discount of approximately one-third amounts to almost fourteen months. Subtracting 14 from 42 leaves 28 months or two years and four months. “Without considering any mitigating factors that Defence counsel may submit for and on behalf of the Defendant, the Sentence Indication is that a guilty plea on the facts as stated at this stage will not attract a sentence beyond two years and four months. “This sentence indication remains valid for two weeks inclusive of today, that is to say: until the 15th day of June 2021.” Mitigation