R v Fabian George Wallace - Sentence Judgment

¶ 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 1 of 9 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 3 INDICTMENT NOs: 21 & 22 OF 2022 4 5 6 7 8 REX 9 10 V. 11 12 FABIAN GEORGE WALLACE 13 14 15 Appearances: Mr. Scott Wainwright of the Office of the Director of 16 Public Prosecutions for the Prosecution 17 18 Mr. Jonathon Hughes of Samson Law for the Defence 19 Before: The Hon. Justice Cheryll Richards KC 20 Submissions Heard: 24th March 2023 21 22 Sentence Judgment: 3rd April 2023 23 24 25 HEADNOTE 26 27 Criminal Law-Unlawful Wounding, 28 Principles on Sentencing, Cayman Islands Sentencing Guidelines, 29 whether injury serious in the context of the offence. 30 31 32 33 34 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 2 of 9 SENTENCE JUDGMENT 1 2

¶ [1] The defendant is before the Court for sentencing following his guilty plea to one count 3 of Wounding contrary to s.204 of the Penal Code (2022 Revision). 4 5

¶ [2] The particulars are that he on the 26th day of March 2022 in the vicinity of Ella Ray 6 Gardens, George Town, Grand Cayman, Cayman Islands unlawfully and maliciously 7 wounded Sherman Paul Myles. 8 9

¶ [3] The maximum penalty for the offence is a sentence of 7 years imprisonment. 10 11

¶ [4] The defendant was initially charged with the offence of Wounding with Intent as well as 12 three offences of Carrying Offensive Weapons contrary to s.80 of the Penal Code and 13 one offence of Possession of a Prohibited Weapon, namely a gravity knife contrary to 14 s.79 of the Penal Code. His first appearance before the Grand Court was on the 1st April 15

¶ [2022] There was one adjournment before arraignment to allow for the finalisation of legal 16 aid arrangements. 17 18

¶ [5] On the 29th April 2022, the defendant entered a plea of guilty to the lesser offence for 19 which he falls to be sentenced. The plea as offered was accepted by the prosecution on 20 the basis that the defendant was on his own premises at the time that the weapons were 21 in his possession. As to the factual circumstances the plea was entered on the full facts. 22 On that date in addition to Social Inquiry and Victim Impact Reports, (“SIR” and “VIR”) 23 Psychiatric and Psychological reports were ordered. 24 25

¶ [6] Following the receipt of the SIR dated 3rd March 2023, an issue arose as to whether the 26 plea was to be maintained in light of the defendant’s account to the Probation Officer in 27 the course of preparation of that report. The defendant said to the Officer that he had been 28 acting in self-defence. At the start of this hearing, defence Counsel advised that he had 29 spoken further with the defendant and explained to him the defence of self-defence. 30 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 3 of 9 Counsel said that the defendant’s position is that he started acting in self defence but 1 accepts that his actions were excessive and went too far. Counsel stated that he does not 2 seek a Newton hearing on this issue. 3 4

¶ [7] The prosecution has provided a summary of facts which is not disputed. The victim is 5 the brother of the defendant. The brothers live in separate sides of a dwelling house. On 6 the day in question, Sunday 26th March 2022 at about 5:45pm there was an argument 7 between them. The defendant armed himself with a machete. He swung the machete at 8 the victim who fell to the ground. The defendant stood over the victim and chopped him 9 on the right side of his face, from his ear down to his cheek, close to his mouth. This was 10 witnessed by other people, who saw the victim lying on the ground. Police and the 11 ambulance service attended the scene and the victim was taken to hospital for treatment. 12 The victim sustained a wound five inches in length from his left ear to the left corner of 13 his mouth which was repaired by a number of sutures. From the medical evidence, there 14 is likely to be permanent scarring. The police apprehended and arrested the defendant 15 who was at that time armed with a machete and two knives. 16 17 ANTECEDENT HISTORY 18 19

¶ [8] The defendant has an antecedent history of eight previous convictions. These include 20 four convictions for offences of a similar nature. The victim in each case was his brother. 21 On the 21st December 2011, the defendant was convicted of Unlawful Wounding and 22 sentenced by the Grand Court to two years imprisonment, one year of which was 23 suspended with conditions. On the 14th June 2016, he was convicted of Wounding and 24 sentenced by the Grand Court to twelve months imprisonment. On the 13th June 2017, he 25 was convicted of two offences of Common Assault and Causing Fear or Provocation of 26 Violence and sentenced by the Summary Court to three months imprisonment suspended 27 for two years. Additionally in 2008 he was convicted of the offence of Carrying an 28 Offensive Weapon for which offence he was fined. 29 30 31 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 4 of 9 VICTIM IMPACT REPORT 1 2

¶ [9] The Department of Community Rehabilitation (DCR) has provided a VIR dated 7th 3 October 2022. The VIR provides some background as to the history between the two 4 brothers. They initially had a close relationship. The victim moved away from the home 5 for about four years and started his own family. When he returned to the family residence, 6 he found that the relationship between himself and the defendant was strained. The victim 7 recounts a history of assaults at the hand of the defendant which is corroborated by the 8 antecedent record of the defendant. The victim says that the defendant drinks excessively 9 and is frequently aggressive toward him and other occupants of the home. 10 11

¶ [10] In detailing the impact of the offence on him, the victim states that he was in severe pain 12 after receiving the injury. He could not bend down to put on his shoes until the blood 13 vessels to the left side of his face healed. He received stitches to the inside of his face in 14 order to prevent scarring but there is still a scar to his face and ear. He was on extended 15 sick leave for about four weeks because of dizziness and feelings of imbalance. He says 16 that this is the third time that the defendant has seriously injured him to the point where 17 he could have lost his life. He says that this is the third time that he is asking for justice. 18 19

¶ [11] The Probation Officer states that due to the repeated nature of these assaults the 20 psychological impact to the victim is significant. This is in addition to the physical impact 21 upon him. 22 23

¶ [12] The Officer recommends a protection order which excludes the defendant from the 24 premises and prohibits him from making contact with the victim. 25 26

¶ [13] Defence Counsel objected to the making of a protection order on the basis that given the 27 physical circumstances of the household, the legal requirements may not be satisfied. 28 29 30 31 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 5 of 9 PSYCHIATRIC AND PSYCHOLOGICAL REPORTS 1 2

¶ [14] The Court is in receipt of reports from the Health Services Authority. These are from Dr. 3 Arline McGill dated 7th November 2022 and Dr. Paulette Gayle dated 16th December 4

¶ [2022] The Court has read these reports in their entirety and takes into account everything 5 said therein in favour of the defendant. 6 7

¶ [15] Dr. McGill reports that the defendant has a background of alcohol and cannabis misuse 8 and multiple head injuries. He has mild symptoms of obsessive compulsive trait. 9 Following a mental status examination with no evidence of abnormalities, the conclusion 10 is that from the history provided and his examination, the defendant does not have a 11 major psychiatric disorder or bizarre or suicidal behaviour. 12 13

¶ [16] Dr. Gayle conducted a psychological assessment of the defendant. While his overall 14 scores indicated no evidence of neurocognitive impairment, they may indicate some 15 cognitive deficits. There is a discrepancy with his scores which suggests that more 16 detailed testing may be required. He is said to have difficulties with self-evaluation and 17 evaluating his role in challenging situations. Where there is prolonged distress, he has 18 difficulty with setting realistic limits and accountability. Given the results of the 19 examination, the diagnosis is an unspecified personality disorder with a narcissistic 20 personality type and histrionic and compulsive personality styles. Dr. Gayle has provided 21 eight recommendations for therapeutic treatment for the defendant. These include family 22 intervention and retesting in twelve months. 23 24 SOCIAL INQUIRY REPORT 25 26

¶ [17] The DCR has provided a SIR dated 3rd March 2023. The Court has read this report in its 27 entirety and takes into account everything said therein in favour of the defendant. 28 29 30 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 6 of 9

¶ [18] The defendant is thirty-eight years old. He reports a normal childhood with no issues 1 except for what he says was bullying from the victim in this case which has continued 2 through to adulthood. He has had and continues to have good relations with his other 3 three siblings. The defendant did not complete high school because of his behaviour. He 4 attended college for two semesters and thereafter has been gainfully employed in the 5 construction industry. 6 7

¶ [19] Under the heading, Community/Institutional Functioning, the Probation Officer records 8 that the defendant is described by his father as a well-mannered and respectful individual. 9 People who know him speak highly of him and say that he is not a troublemaker. The 10 only problem which he is said to have is with his drinking. Whenever he drinks 11 excessively, he becomes aggressive. Alcohol is believed to be a key factor in each of the 12 incidents of his previous offending. 13 14

¶ [20] The defendant gave an account to the Officer that one of the persons visiting with his 15 brother that afternoon had threatened him with a knife. He chased this person from the 16 yard. He said that afterwards the victim made oral threats to him. He thought that the 17 victim may have been going to get a weapon from the inside of his truck. He said that he 18 chased the victim around the truck with two machetes. When the victim fell, he slapped 19 the victim with the machete. He said that he was defending himself. 20 21

¶ [21] The defendant was assessed using the LS/CMI Risk Assessment tool. His overall risk of 22 re-offending was assessed as Very High with seven of the eight criminogenic factors in 23 the High category. 24 25

¶ [22] Under the heading, Pro-Criminal Attitude and Orientation, the Officer records that the 26 defendant stated that he felt justified in his actions. The Officer’s view is that this 27 indicates that he has not accepted responsibility for his actions. He did express that he is 28 remorseful for what happened. Under the heading, Anti-social Pattern, the Officer states 29 that the defendant has had early, and diverse anti-social behaviour problems as indicated 30 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 7 of 9 by the difficulties with his behaviour at school. Additionally, he has breached a 1 community order in the past and presents himself with a criminal attitude. 2 3

¶ [23] He is described by the Officer as in effect lacking true remorse for his actions. It is 4 recommended that he follows through with the treatment plan outlined by Dr. Gayle. 5 6 CAYMAN ISLANDS SENTENCING GUIDELINES 7 8

¶ [24] Both Counsel for the prosecution and Counsel for the defence accept that under the 9 relevant Cayman Islands Sentencing Guidelines, this is a Category 2 offence, being one 10 of Higher Culpability and Lesser Harm. It is an offence of Higher Culpability because of 11 the use of a weapon. Counsel for the prosecution submits that it is an offence of Lesser 12 Harm because it cannot be said that the wound caused to the victim is serious in the 13 context of the offence. 14 15

¶ [25] The Court accepts the submissions of both Counsel as to the categorisation of this offence 16 and applies a starting point of three (3) years custody with a range of sentence of two (2) 17 to four (4) years custody. 18 19

¶ [26] As to aggravating factors, Counsel for the prosecution submits that while this occurred 20 at the home of the victim, both parties are resident there. 21 22

¶ [27] In mitigation Counsel for the defence referred to the reports of the doctors, the 23 defendant’s cognitive issues and the fact that he has had multiple head injuries in the 24 past. 25 26

¶ [28] Counsel said that that there is a strained relationship between the brothers and that the 27 defendant has experienced sustained bullying at the hands of the victim. The defendant’s 28 difficulties with alcohol and ganja abuse were also highlighted by Counsel. 29 30 31 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 8 of 9 THE SENTENCE 1 2

¶ [29] In the Court’s view, taking note of the nature of the offending and of the impact upon the 3 victim, both psychological and physical, this offending is of a serious nature which firmly 4 passes the custody threshold. 5 6

¶ [30] From the starting point recommended by the Guidelines of three years (36 months), there 7 is the significant aggravating factor of his previous convictions for similar offences 8 against the very same victim. It is significant because of the repeated nature of the 9 offending. This is the fourth such offence. 10 11

¶ [31] These serve to increase the sentence by eighteen (18) months from the starting point for 12 a sentence of fifty-four (54) months. 13 14

¶ [32] In mitigation, the Court takes into account everything that has been said or written in 15 favour of the defendant. There is some remorse although as described by the Probation 16 Officer it appears to be limited. The defendant has a personality disorder and cognitive 17 deficits which may affect how he deals with personal situations. He reports a history of 18 bullying by the victim and there is a strained relationship between them. He is described 19 as having good personal qualities by persons who know him. All his personal 20 circumstances taken into account serve to reduce the sentence by six (6) months to one 21 of forty-eight (48) months. He is given the full discount of one third for his guilty plea 22 for a sentence of thirty-two (32) months or two (2) years and eight (8) months. 23 24

¶ [33] Standing back and looking at the sentence, the Court considers that this is proportionate 25 to the offending. The victim was chopped to his face while unarmed and on the ground. 26 He received a serious injury which has left a permanent scar. There is a level of 27 psychological harm. The defendant has a personal history which places him at very high 28 risk of re-offending. This Court has to consider that this is the fourth offence against the 29 same victim. The defendant seems to have learnt nothing from the previous sentences 30 imposed upon him and the efforts to rehabilitate him by way of a partially suspended 31 230403 R v. Fabian George Wallace – Ind. 21 & 22 of 2022 (CRJ) – Coram: Richards J, KC – Sentence Judgment Page 9 of 9 sentence. He is thirty-eight years old and must learn peaceful ways of responding to 1 difficult situations. He cannot continue to use weapons against his brother and must take 2 advantage of the rehabilitation and therapy which is offered to him. Dr. Gayle reports 3 that he is likely to do so under pressure of vocational or legal difficulties. 4 5

¶ [34] The sentence is thirty-two (32) months imprisonment or two years and eight months. 6 Time served is to be taken into account. While in custody he is to receive rehabilitative 7 treatment as recommended by Dr. Gayle. 8 9 Dated this 3rd day of April 2023 10 11 The Hon. Justice Cheryll Richards KC 12 Judge of the Grand Court 13