R v Spence (Rupert Junior) - Sentence Judgment

¶ _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 1 of 22 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL SIDE 2 3 INDICTMENT NO: 73+74/2020 4 5 6 THE QUEEN 7 8 v. 9 10 RUPERT JUNIOR SPENCE 11 12 Appearances: Mrs. Candia James-Malcolm, DPP (Actg.), for 13 the Prosecution 14 Mr. Jonathon Hughes of Samson Law for the 15 Defendant 16 Before: Justice Cheryll Richards Q.C. 17 Submissions on Sentencing: 3rd August 2021 18 19 Sentence Judgment: 17th August 2021 20 21 22 HEADNOTE 23 Criminal Law – Arson – Section 267 of the Penal Code 24 – Offences contrary to s. 89(1) of the Traffic Act, Totality Principle 25 26 27 28 SENTENCE JUDGMENT 29 30 31 32 33 34 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 2 of 22

¶ [1] The Defendant is before the Court for sentencing in respect of a number of offences. 1 2

¶ [2] On the 23rd March 2021 he was convicted of three offences after trial, two of Arson and 3 the third for Driving whilst Disqualified. 4 5

¶ [3] He also falls to be sentenced for four offences of Driving whilst Disqualified in respect 6 of which he entered pleas of guilty on the 15th March 2021. 7 8

¶ [4] Count 1 of the Indictment charges him with the offence of Arson contrary to s.267 (1) 9 of the Penal Code (2019 Revision). The particulars are that he, on the 13th day of August 10 2020, at Walkers Road, George Town, Grand Cayman without lawful excuse destroyed 11 or damaged by fire a Honda Civic motor car belonging to Lamor Chambers intending to 12 destroy or damage such property, or being reckless as to whether such property would 13 be destroyed or damaged. 14 15

¶ [5] The maximum sentence for this offence where the damage does not exceed $3,000.00 is 16 a fine of five thousand dollars and imprisonment for five years. 17 18

¶ [6] Count 2 of the Indictment charges him with the offence of Arson contrary to s.267 (2) 19 of the Penal Code (2019 Revision). 20 21

¶ [7] The particulars are that he on the 26th day of October at Windjammer Plaza, Walkers 22 Road, George Town, Grand Cayman without lawful excuse, damaged by fire the office 23 premises belonging to the Royal Cayman Islands Police Service (RCIPS), intending to 24 damage the said property or being reckless as to whether property would be destroyed 25 or damaged, and being reckless as to whether the life of another would thereby be 26 endangered. 27 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 3 of 22

¶ [8] The maximum sentence under s.267 (2) of the Penal Code is life imprisonment. 1 2

¶ [9] Count three charges him with Driving Whilst Disqualified on the 13th day of August 3 2020, the said date and time as the first count. 4 5

¶ [10] The other four counts to which he pleaded guilty are for driving whilst disqualified on 6 the 18th August 2020, 20th August 2020, 26th October 2020 and 27th October 2020. 7 8

¶ [11] For all the driving offences the particulars state that he had been disqualified from 9 driving until the 9th July 2021. The offences are all contrary to s. 89(1) of the Traffic Act 10 (2011 Revision) which provides a maximum sentence of 12 months’ imprisonment and 11 a period of disqualification of 24 months or such longer period as the Court may order. 12 That section states: 13 “A person who drives or attempts to drive or obtains or attempts to obtain a licence 14 while under a period of disqualification commits an offence and is liable on 15 summary conviction to a fine of two thousand dollars or to imprisonment for a term 16 of one year, and — 17 a. shall be disqualified from holding or obtaining a driver’s licence for a 18 period of twenty-four months or such longer period as the court may order, 19 the period to run from the date of conviction or the expiration of any 20 sentence of imprisonment, as the court may order; and 21 b. the particulars of the offence shall be endorsed on his driving record.” 22 23 24

¶ [12] By s. 161 of the Criminal Procedure Code, offences under s.89 of the Traffic Act may 25 be added to an indictment in certain circumstances. 26 27 28 29 30 31 32 33 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 4 of 22 THE FACTS 1 2

¶ [13] The brief facts in respect of the first offence are that sometime before the date in 3 question, the Complainant Lamor Chambers parked his Honda Civic motor vehicle in 4 an open lot of land across from the Rubis gas station on Walkers Road. He had bought 5 the car which was in a derelict condition for $100.00 intending to scrap it for parts. 6 7

¶ [14] CCTV footage showed that on the night in question the Defendant was a customer at the 8 said gas station. He drove from that gas station in a motor vehicle and across to the open 9 lot. The vehicle stopped. The area in the open lot was not as well lit as the gas station 10 compound. A figure appeared to exit the vehicle and to go across to where the 11 Complainant’s vehicle was parked. The figure returned from where it had come and 12 within moments thereafter the Complainant’s vehicle was engulfed in flames. 13 14

¶ [15] After the fire services responded to the scene and extinguished the blaze, the fire was 15 determined by a fire service inspector to be an incendiary fire, being one that was 16 deliberately ignited. However the nature of the material used to start the fire could not 17 be identified. 18 19

¶ [16] The second incident relates to fire being set to the offices of the Police on the 2nd floor 20 of the Windjammer Plaza on the said road. Those offices housed the Professional 21 Standards Unit, the Criminal Records Office and the Firearms Licensing Unit. The 22 Police would frequently have Officers working after hours and the Plaza itself is in close 23 proximity to residential homes and other buildings. 24 25 26 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 5 of 22

¶ [17] The evidence was circumstantial as to opportunity and conduct. The Plaza is in walking 1 distance of the Defendant’s home. He was seen shortly after the fire began, to be on foot 2 and in a state of undress and sweating. Thereafter he was seen on CCTV footage to drive 3 to the said Rubis gas station, from which location he made gestures which were 4 suggestive of triumph as a fire service unit drove to and from the scene of the fire. A fire 5 inspector gave evidence that the fire was an arson and had been deliberately set using an 6 accelerant. The accelerant had been tossed over several areas and furniture in the 7 premises and a gas container had been discarded inside. 8 9

¶ [18] The handle of the gas container when swabbed and examined, had a multiple source 10 DNA profile of an inseparable mixture of at least two contributors. It was estimated to 11 be 120 trillion times more likely to observe this DNA profile if the Defendant and Sarah 12 Hough are the contributors. Sarah Hough is the Scenes of Crime Officer who collected 13 the container from the scene of the fire. 14 15

¶ [19] The agreed value of the damage caused to the Police offices is $158,389.00. 16 17 18 ANTECEDENT HISTORY 19 20

¶ [20] The Defendant has an antecedent history of 65 previous conviction dating back to 20021. 21 Fifty of these are spent. There are multiple convictions for offences of Assault Causing 22 Actual Bodily Harm and Assault, Possession of an Offensive Weapon and a Firearm. 23 More recently he has a conviction for Making Threat to Kill for which he was sentenced 24 to a term of 12 months’ imprisonment on the 10th July 2019. He was also sentenced on 25 1 CRO No. 7560 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 6 of 22 that day for offences of Criminal Trespass and multiple offences of Causing Fear and 1 Causing Harassment. For one of the offences of Harassment he was sentenced to a 2 consecutive term of 3 months’ imprisonment. For the offence of Damage to Property, 3 no separate penalty was imposed. 4 5

¶ [21] The Prosecution has indicated that the evidence with respect to the offence of Making 6 Threat to Kill2 includes the following in the witness statement of the female 7 Complainant. She stated that the Defendant said to her: 8 9 a. “I will fucking shoot you.” 10 11 b. “I will kill you and go back to jail for something this time.” 12 13 c. “I (sic) you can't sleep in your house tonight because I going burn your house 14 down.” 15 16 d. “I going throw some gas on you and gas you.” 17 18 19 TRAFFIC CONVICTIONS 20 21

¶ [22] The Defendant has an antecedent history of 20 previous traffic convictions. These 22 include three convictions for Driving Without being Qualified. On the 7th October 2019, 23 there was a conviction for driving without being licensed and others for driving without 24 insurance, dangerous driving and expired vehicle licenses. On that date, he was 25 disqualified from driving for three years, one year for driving without insurance and two 26 years’ consecutive for dangerous driving. 27 2 Charge 1800 of 2018 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 7 of 22 PSYCHOLOGICAL REPORT 1 2

¶ [23] Dr. Clement von Kirchenheim is a clinical Psychologist at the Health Services Authority 3 (HSA). He has provided a Psychological Report dated 20th May 2021. He states that he 4 has been assessing the Defendant since 2001. The testing results on this occasion show 5 that the Defendant has mixed verbal and visual impairments. Verbal skills such as 6 vocabulary are in the below average range. Some of his scores were lower than when 7 previously tested but the doctor expresses caution as to drawing any conclusions from 8 this as on this occasion he appeared to be more distracted during the administration of 9 these tests. Overall the results - both as to scores and interpretative text - are said to be 10 questionable due to the possibility of the Defendant having responded randomly. The 11 Doctor states: 12 13 “This patient's response style may indicate a tendency to magnify illness, an 14 inclination to complain, or feelings of extreme vulnerability associated with a 15 current episode of acute turmoil. The patient's scale scores may be somewhat 16 exaggerated, and the interpretations should be read with this in mind.” 17 18

¶ [24] In terms of diagnosis, the Doctor’s view is that he appears to have a number of 19 personality disorders to include, Narcissistic Personality Disorder, Antisocial 20 Personality Disorder, and Borderline Personality Disorder, with Paranoid Personality 21 Style. 22 23

¶ [25] The Defendant is described as an irritable and conflicted man who is able to function 24 adequately within the normal range of daily living functions but is likely to have “periods 25 of marked emotional, cognitive or behavioral dysfunction”. He may have suicidal 26 thoughts and feelings of hopelessness. His profile suggests an inflated sense of self- 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 8 of 22 worth, a defensive disposition and he may exhibit a readiness to attack those he distrusts. 1 The doctor also states that: 2 “Actions that raise questions of his personal integrity, such as cleverly 3 circumventing social conventions, may be present and indicate a rather pervasively- 4 deficient social conscience. 5 Fearing dependency, this man resists external influence and carefully protects his 6 right to self-determination and autonomy. Failures and social irresponsibility may 7 often be justified with expansive fantasies and prevarications.” 8 9

¶ [26] He appeared to the doctor to be experiencing a persistent depressive disorder as well as 10 a severe delusional disorder characterized by such symptoms as transient ideas of 11 reference, irrational jealousy, and feelings of grandiosity. 12 13

¶ [27] The doctor also states that: 14 15 “Given his dispositional background, he may exhibit periods of aggressive behavior 16 and uncontrollable rages. Even when these are moderated successfully by 17 medication, an undertone of surliness and bitterness is likely to remain, which 18 inclines him to be easily inflamed and unpredictable in response to what he 19 perceives as the provocations of others.” 20 21

¶ [28] The conclusion is that his higher learning executive functions and processing speeds are 22 all impaired, particularly with respect to verbal and numerical tasks which is suggestive 23 of general mild cognitive impairment. 24 25 PSYCHIATRY REPORTS 26 27

¶ [29] Dr. Arline McGill of the HSA has provided two reports on the Defendant. In the first 28 dated 23rd July 2018, she notes that the Defendant has a background of childhood trauma. 29 He was abused by his mother in his early years. Due to his behavior at school he was 30 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 9 of 22 referred to the psychiatric services. Following aggression towards authority figures, he 1 was referred for assessment by the psychologist and placed in a therapeutic facility. 2 There he was diagnosed with major depression attention deficit hyperactivity disorder 3 and intermittent explosive disorder. He has a history of suicide attempts and self- 4 medicates with alcohol and substances. On mental status examination, he was alert and 5 fully oriented in time, place and person. He had mild deficits in attention and mental 6 processes. He was found fit to plead with careful explanation of his options. 7 8

¶ [30] An updated report dated 6th July 2021 was also provided. His childhood diagnoses were 9 listed as major depression and oppositional defiant disorder with intermittent explosive 10 disorder in childhood, conduct disorder, impulse control disorder and anxiety disorder. 11 His intellectual functioning was diagnosed as borderline and emerging antisocial traits 12 were detected. 13 14

¶ [31] On mental status examination, the doctor said that he was alert and oriented with good 15 short-term memory and good attention and concentration. She gives her opinion that he 16 has attention deficit hyperactivity disorder along with generalized anxiety disorder. He 17 also has a bipolar type presentation which may be due to a brain injury. 18 19 20 SOCIAL INQUIRY REPORT 21 22

¶ [32] The Department of Community Rehabilitation (DCR) has provided a Social Inquiry 23 Report (SIR) on the Defendant which is dated the 14th May 2021. The Defendant is 35 24 years old. The Report notes that his criminal history began at the age of ten years and 25 continued into adulthood. He was sent to a juvenile facility abroad and has had various 26 probation orders and terms of imprisonment imposed. 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 10 of 22

¶ [33] In relation to antisocial patterns, it is stated that he had severe problems adjusting in his 1 childhood and, in addition to demonstrating a pattern of generalized trouble, was 2 diagnosed with severe mental illness. He is noncompliant with medication which has 3 negatively impacted his thinking. 4 5

¶ [34] The SIR also states that historically, he has had a poor response to supervision and 6 rehabilitation but following his release from custody in May 2020 he has subjected 7 himself to voluntary supervision. He was assessed as at very high risk of re-offending 8 with seven of the eight assessment factors in the very high or high category. He is said 9 to take minimum responsibility for committing traffic-related charges and that his pro- 10 criminal thinking would have to be addressed in order to reduce his risk of re-offending. 11 12

¶ [35] He is said to be frequently unemployed and has not been part of any organised activities 13 before or during his incarceration. A number of specific risk /need factors are identified. 14 15 SENTENCING GUIDELINES 16 17

¶ [36] The Cayman Islands Sentencing Guidelines provides general guidance as to the aims 18 of sentencing, assessing the seriousness of an offence, the custody threshold and the 19 principle of proportionality. The Court reminds itself of this guidance, including that in 20 sentencing an offender, the Court has to balance a number of competing interests and 21 objectives and to tailor the punishment to the individual circumstances of the offender, 22 while ensuring that it is in line with the seriousness of the offence. 23 24 25 26 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 11 of 22

¶ [37] The Court should consider which of the aims which govern the sentencing process will 1 be best served by the sentence to be passed. The aims which are set out in the Alternative 2 Sentencing Act 2008 include deterrence, punishment, rehabilitation and restitution. The 3 Guidelines also provide that a custodial sentence should not be passed unless the offence 4 is so serious that no other sentence can be justified for the offence. Custody should be 5 reserved for the most serious offences. Even where the custody threshold is passed, 6 custody can still be avoided in light of personal mitigation or if there is suitable 7 community intervention which would meet the aims of punishment and rehabilitation. 8 9

¶ [38] In the absence of offence-specific guidelines for the Cayman Islands with respect to the 10 offence of Arson and the driving offences, reference is made to the United Kingdom 11 Sentencing Council Definitive Guidelines. 12 13

¶ [39] With respect to the offence of Arson (criminal damage by fire) those Guidelines provide 14 for the category of the offence to be determined by assessing the levels of Culpability 15 and Harm. 16 17

¶ [40] In category C – lesser Culpability – the following four factors are listed: 18 i. Little or no planning; offence committed on impulse; 19 ii. Recklessness as to whether some damage to property was caused; 20 iii. Offender’s responsibility substantially reduced by mental disorder or learning 21 disability; 22 iv. Involved through coercion, intimidation or exploitation. 23 24 25 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 12 of 22

¶ [41] Category 3 Harm lists two factors - no or minimal physical and/or psychological harm 1 caused, and low value of damage caused. 2 3

¶ [42] With respect to Count 1, the Prosecution submits that this offence is one of lesser 4 Culpability and category 3 Harm. This is in light of the fact that from the CCTV footage 5 the offence appears to have been committed on impulse with little or no planning. 6 Additionally there was no physical or psychological harm caused to any person and the 7 value of the damage was low. 8 9

¶ [43] The Defence do not take issue with this categorization. The Court accepts that this is 10 appropriate to the circumstances of this case. 11 12

¶ [44] The starting point for a category 3 offence is a low level community order with a 13 sentence range from discharge to a high level community order. 14 15

¶ [45] The aggravating factors identified by the Prosecution are the Defendant’s criminal 16 record and that the offence was committed near a public amenity, in this case, the gas 17 station. 18 19

¶ [46] In respect of the offence in Count 2, the Guidelines provide that Culpability A is for 20 offences involving intent and Culpability B is for recklessness. The single factor listed 21 under the latter heading is that the Offender was reckless as to whether life was 22 endangered. 23 24

¶ [47] Under the levels of Harm, category 1 has the following factors: 25 26 27 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 13 of 22 i. Very serious physical and/or psychological harm caused. 1 ii. High risk of very serious physical and/or psychological harm caused. 2 iii. Serious consequential economic and or social impact of the offence caused. 3 iv. Very high value of damage caused. 4 5

¶ [48] The Prosecution submits that this offence falls into Culpability B, recklessness, and 6 category 1 Harm. The Harm categorization is on the basis that there was a risk that Police 7 Officers would have been in the building and that, given the close proximity of the Plaza 8 to private homes, the Rubis gas station, and other businesses such as Home Gas and 9 Burger King, there was a serious risk of injury to life and property. There is also the fact 10 that the agreed value of the damage is very high. As at the date of trial the property was 11 still unoccupied following the fire. 12 13

¶ [49] The starting point for an offence falling into this category of Harm and Culpability is 6 14 years’ custody with a range of sentencing of 4 years’ to 10 years’ custody. 15 16

¶ [50] The Court accepts that the submitted categorisation is appropriate to the circumstances 17 of this case. 18 19

¶ [51] The Prosecution submits that the aggravating factors are: 20  The antecedent history; 21  Use of an accelerant; 22  Fire set in or near a public amenity; 23  Significant impact on emergency services or resources; 24  Proximity in time to the earlier arson committed in August indicating an 25 escalation in conduct. 26 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 14 of 22

¶ [52] The Defence submits in response is that the Court should be careful not to double count 1 as the factor of fire set in or near to a public amenity is said to overlap with significant 2 impact on the emergency services or resources – this, because the public amenity is a 3 resource of the emergency services. 4 5 THE DRIVING OFFENCES 6 7

¶ [53] The offence of driving whilst disqualified in the United Kingdom is only triable 8 summarily and carries a maximum penalty of 6 months imprisonment or an unlimited 9 fine. The sentence of imprisonment is twice as high in the Cayman Islands, being 12 10 months imprisonment. 11 12

¶ [54] There is some guidance from the United Kingdom Sentencing Council Guidelines in 13 respect of the levels of Culpability and Harm. Among the factors indicating higher 14 culpability are driving shortly after disqualification was imposed and the harm is greater 15 if a significant distance is driven by the offender. The highest periods of disqualification 16 are in respect of Category 1 offences, being offences of higher Culpability and greater 17 Harm. 18 19 SUBMISSIONS IN MITIGATION 20 21

¶ [55] In mitigation Defence Counsel submitted that the Reports taken all together present a 22 detailed picture of the Defendant as an individual and as someone whose responsibility 23 is substantially reduced by virtue of a number of matters. 24 25

¶ [56] It is also submitted that that while the Reports do not speak to the extent to which his 26 psychiatric issues would predispose him to this kind of offending, it is clear that he is 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 15 of 22 dealing with multiple challenging mental issues, all of which may affect his behaviour. 1 It was submitted further that while these psychiatric issues may not be reflected in an 2 assessment as to Culpability in step 1 of the Guidelines, the Court should give detailed 3 consideration to these issues when considering the mitigation of the overall sentences. 4 5

¶ [57] In particular, Counsel highlighted various aspects of the Report of Dr. Von Kirchenheim 6 which described the Defendant as a person: 7 “Whose verbal abstraction, problem-solving, sequencing skills are still significantly 8 below average; 9 10 Classified as having Narcissistic Personality Disorder, Antisocial Personality 11 Disorder, and Borderline Personality Disorder, with Paranoid Personality Style; 12 13 Whose profile indicates a lack of internal cohesion wherein basic intentions and 14 interaction with others tend toward ill-defined motivation; 15 16 Who exhibits a pattern of dysphoric symptomatology indicative of a major 17 depressive disorder; 18 19 Who feels trapped and powerless to control his raging inner tensions; 20 21 Who appears to be experiencing a severe delusional disorder; 22 23 And for whom: 24 “there is clear evidence that higher learning, executive functions and 25 processing speeds, are all impaired …[suggesting]….generalised mild 26 cognitive impairment’ and ‘significant personality traits that are unlikely to 27 change.””3 28 29 3 Paragraph 4 of Defence submissions _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 16 of 22

¶ [58] Counsel also submitted that it is important that the Court considers the antecedent record 1 in the round. Some charges did not result in convictions. Counsel said that the Defendant 2 had remained in custody for some 8 months previously in respect of an unrelated matter 3 and on the morning of his trial no evidence was offered against him. He is 4 understandably frustrated and, in a sense, considers that the system has something 5 against him. He had to endure months in custody for nothing. While there is a criminal 6 record, there is also the other side of the system which has affected him. Counsel noted 7 that the professionals have observed that when he takes his medication he is better able 8 to function. 9 10

¶ [59] In respect of the traffic offences, Counsel submitted that these are significantly less 11 serious. They were committed at a similar time. A separate and distinct penalty is not 12 necessary. 13 SENTENCE 14 15

¶ [60] The Court has first considered whether the Defendant’s culpability is reduced because 16 of his mental health issues and asked the relevant questions in accordance with the 17 United Kingdom Sentencing Council Guidelines for Sentencing Offenders with mental 18 disorders. While ADHD and other personality disorders are listed in Annex A thereto, 19 there is no evidence of a sufficient connection between the disorders and the offending 20 behaviour in this case. There is no evidence that at the time of the offending, the disorder 21 impaired his ability to make rational choices, understand the nature and consequence of 22 his actions or cause him to behave in a disinhibited way. The conclusion is that his 23 culpability is not reduced by reason of these disorders. 24 25 26 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 17 of 22 COUNT 2 1 2

¶ [61] Taking, count 2, the most serious offence of Arson first. The submissions of the 3 Prosecution, with the concurrence of the Defence, are accepted that this matter properly 4 falls in category 1 B. 5 6

¶ [62] From a starting point of 6 years, the Court takes into account firstly three aggravating 7 factors. There is the Defendant’s significant antecedent history which, while not 8 including offences of Arson, includes, in particular, offences of threats by fire and 9 damage to property. Secondly an accelerant was used, and thirdly there was significant 10 impact on the emergency services. 11 12

¶ [63] Consideration has been given to the submissions of Defence Counsel as to double 13 counting, however, in this case, there is a difference between a fire set in or near public 14 amenities such as a gas station and the emergency services or resources which respond 15 on a mobile basis to a scene. In this case there were multiple fire units called out - more 16 than four according to the evidence. Police teams also responded on an emergency basis 17 all in an effort not only to extinguish the fire but to ensure that it did not spread to 18 surrounding homes and businesses. In the Court’s view there is thus a fourth aggravating 19 factor of fire set in or near a public amenity, though of lesser weight than the other three. 20 21

¶ [64] When all these factors are taken into account they serve to increase the sentence to one 22 of 8 and ½ years’ imprisonment. 23 24 25 26 27 28 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 18 of 22

¶ [65] In mitigation, the Court takes into account all that has been said about the Defendant, 1 his difficult childhood, his attempts at gainful employment, the fact that on his last 2 release from Prison he subjected himself to voluntary supervision. In particular the Court 3 takes into account his mental conditions and learning difficulties over the years. All these 4 matters serve to reduce the sentence by a substantial degree to one of 6 ½ years’ 5 imprisonment. 6 7 COUNT 1 8 9

¶ [66] In respect of the lesser offence charged as count 1 of the Indictment, it is considered that 10 a community level order would be inappropriate given his antecedent history and his 11 failure to comply with supervision orders. It is considered that a short sentence to run 12 concurrently with the sentence on count 2 would meet the justice of the case. 13 14

¶ [67] From a starting of two months’ imprisonment, considering the two aggravating factors 15 identified above the sentence would be increased to three months. Allowing for a 16 reduction in light of all the mitigating factors, the sentence would be one month 17 imprisonment to be served concurrently. 18 19 TRAFFIC OFFENCES 20 21

¶ [68] With respect to the traffic offences, in the United Kingdom the starting point for a 22 category 1 offence is 12 weeks custody. In light of the higher maximum in the Cayman 23 Islands, a starting point of 18 weeks or 4.5 months is adopted. 24 25 26 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 19 of 22

¶ [69] For Count 3, from that starting point, there is the aggravating factor of the multiplicity 1 of traffic offences which demonstrate a continuing disregard for the orders of the Court. 2 The sentence is therefore increased to one of 7 months imprisonment. The mitigating 3 factors serve to reduce this sentence to one of 4.5 months imprisonment. As the offence 4 arises out of the same set of circumstances as Count 1 on the Indictment, the sentence is 5 to run concurrently. 6 7

¶ [70] In respect of his guilty pleas to four offences, the sentence of 4.5 months or 18 weeks in 8 each case is reduced by 1 /3 which is reflective of his guilty pleas to those offences for 9 a sentence of three months’ imprisonment. 10 11 CONCURRENT/CONSECUTIVE SENTENCES 12 13

¶ [71] Paragraph 6 of the Cayman Islands Sentencing Guidelines with respect to concurrent 14 and consecutive sentences provides as follows: 15 “6.1 Concurrent Sentences 16

¶ [1] It is wrong in principle to impose sentences to run consecutively 17 where those offences, though distinct in law, arose out of a single 18 act so that the overall criminality for the offender can be 19 represented by concurrent sentences. 20

¶ [2] Concurrent sentences will ordinarily be appropriate where: 21 a. Offences arise out of a related incident or facts 22 b. There is a series of offences of the same or similar kind 23 especially when committed against the same victim 24 c. Where concurrent sentence are passed, the sentence should 25 reflect the overall criminality involved. The sentence should 26 be appropriately aggravated by the presence of the 27 associated offences and thus the court may increase 28 sentence for the principal offence to reflect the gravity of 29 conduct: 30 31 6.2 Consecutive Sentences 32

¶ [3] Consecutive sentences will ordinarily be appropriate where: 33 a. Offences arise out of unrelated facts or incidents 34 b. Offences are of the same of similar kind but where the 35 overall criminality will not sufficiently be reflected by 36 concurrent sentences for example: 37 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 20 of 22 i. Where offences are committed against different 1 victims 2 ii. Where sexual offences or domestic violence are 3 committed against the same individual 4 iii. Where the offender commits the same or similar 5 offence after being arrested for the original 6 offence” 7 8 9

¶ [72] In this case, both the Defence and the Prosecution are in agreement that concurrent 10 sentences would be appropriate given that all the offences are a series of offences of 11 similar character which are proximate in time. 12 13

¶ [73] The Court is mindful of the principle of totality and concludes that the sentences are all 14 to run concurrently. 15 16

¶ [74] Standing back and considering the entirety of the case. In respect of count 1, the blaze, 17 started while in an open lot, was so incendiary that it scorched the surrounding plant life. 18 19

¶ [75] Count 2 was an offence of the most serious kind. It was clearly an escalation in 20 behaviour. The potential for harm to life and property cannot be overstated. But for the 21 quick and decisive action of the Fire Services, the first was on the scene in less than four 22 minutes, the scene on Walkers Road could have been one of severe destruction and loss 23 of life. 24 25

¶ [76] The impact on the Police Services which has been unable to operate out of that location 26 to date, with damage to files, furniture and property as shown in the photographs 27 tendered during the trial, was clearly significant. 28 29 30 31 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 21 of 22

¶ [77] Counts 3 to 7 indicate a repeated and continued disregard for the orders of the Court with 1 respect to the Defendant’s driving. 2 3

¶ [78] The Defendant is at very high risk of re-offending. Despite his challenges, he clearly has 4 the ability to appreciate the nature and consequences of his actions. 5 6

¶ [79] The primary aims of sentencing in this case must be deterrence and punishment. It is 7 hoped that he will also have the opportunity while in custody to receive psychiatric 8 counselling and to participate in rehabilitation programmes. Having considered all the 9 circumstances, the Court considers that the proposed sentence is proportionate to the 10 gravity of the offending and meets the justice of the case. 11 12

¶ [80] The sentences are therefore as follows: 13 14 (a) Count 2: 6 ½ years’ imprisonment 15 16 (b) Count 1: 1 month imprisonment concurrent 17 18 (c) Count 3: 4.5 months’ imprisonment concurrent 19 20 (d) Count 4: 3 months’ imprisonment concurrent 21 22 (e) Count 5: 3 months’ imprisonment concurrent 23 24 (f) Count 6: 3 months’ imprisonment concurrent 25 26 (g) Count 7: 3 months’ imprisonment concurrent 27 _____________________________________________________________________________________________________________ Sentence Judgment. R v Spence (Rupert Junior): Ind. 73+74/2020; Coram: Richards J. Q.C. Date: 17th August 2021. Page 22 of 22

¶ [81] Time served is to be deducted. 1 2

¶ [82] Additionally the Defendant is disqualified from driving for a period of five years 3 following his release from Prison. 4 5 Dated this 17th August 2021 6 7 Honourable Justice Cheryll Richards Q.C. 8 Judge of the Grand Court 9 10