Chapple J
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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IN THE GRAND COURT OF THE CAYMAN ISLANDS
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CRIMINAL SIDE
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IND NO: 0025/2020
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REGINA
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v.
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JAY TYSON TYSON CHANTILOPE
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Appearances:
Mr. Greg Walcolm for the Crown
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Mr. Oliver Grimwood of Samson Law for
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the Defendant
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Before:
Justice Roger Chapple (Actg.)
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Heard:
20th May 2021
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Judgment delivered:
22nd June 2021
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HEADNOTE
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Criminal Law – Rape – s.127 of the Penal Code - Guilty Pleas
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SENTENCE JUDGMENT
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Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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1.
Section 12 of the Youth Justice Act (2019 Revision) states:
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“12. (1)
In relation to any proceedings in any court, such court may
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direct [and this court so directs] that-
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(a)
no published report of or comment on the proceedings
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shall reveal the name, address or school, or include any
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particulars calculated to lead to the identification, of
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any young person concerned in the proceedings, either
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as being the person by, against or in respect of whom
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the proceedings are taken, or as being a witness in the
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proceedings; and
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(b)
no picture shall be published as being or including a
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picture of any young person so concerned in the
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proceedings.
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(2)
Whoever publishes any matter in contravention of subsection
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(1) is guilty of an offence and liable on summary conviction, in
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respect of each such offence, to a fine of five thousand dollars
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or to imprisonment for six months.
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For the avoidance of doubt: An order pursuant to s.12(1)(a) and (b) above is herein
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made – with the consequences set out in s.12(2) to follow should there be a breach
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of this Order.
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2.
Section 31 of the Criminal Procedure Code (CPC) (2019 Revision) deals with the
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“Anonymity of complainants in rape etc. cases and states:
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“31. (1)
After a person is accused of a rape [etc.] offence, no matter
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likely to lead members of the public to identify a woman as the
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woman against whom the offence is alleged to have been
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committed shall be published in a written publication available
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to the public or be broadcast, except as authorised by a
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direction of the court.”
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For the avoidance of doubt: I herein make an order in the terms of the wording of
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s.31(1) of the CPC as above.
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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3.
The defendant has pleaded guilty to, and now falls to be sentenced for, two offences
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of rape. The offences took place on 27th March 2020. The victim (hereafter referred
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to as Ms D), was then 19 years of age; the defendant was 24 years of age. They were
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known to each but as nothing more than acquaintances.
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4.
Needless to say, all offences of rape are serious. There are features present in this
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case that are very troubling and features which make these offences particularly
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serious.
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5.
At about 8 or 9 o’clock in the evening on 27th March, Ms D was walking home alone.
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It seems clear that the defendant was lying in wait for her. They had met earlier in a
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bar. He ran towards her, grabbed her by the throat and pushed her towards the beach
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adjacent to the road. He forced her to the ground and threatened her – that she would
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be harmed if she resisted him. She submitted through fear. As to what happened
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thereafter, I can do no better than to quote from the comprehensive Basis of Plea
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(BOP) signed by the defendant, dated 4th August:
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“The defendant then proceeded to perform oral sex on the complainant whilst
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she was lying on the ground on her back. He then went on to have sexual
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intercourse with her against her will, both in her vagina and her anus. He also
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inserted his finger into her anus during the ordeal. After the ordeal, the
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complainant was able to run away from him and ran straight to a close by home
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where she immediately told the residents that the defendant had raped her.”
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6.
I make it clear that I approach the sentencing exercise I have to perform accepting
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all that is said in that Basis of Plea.
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Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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7.
The defendant was arrested later the same night and interviewed by the police the
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following day. In the course of that interview the defendant accepted that intercourse
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had taken place but asserted that this was consensual, adding that he and the victim
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were in a relationship.
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The starting point in this sentencing exercise is the recently issued (April 2020)
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Cayman Islands Sentencing Guidelines for Sexual Offences. Prosecution and
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defence are agreed that this is a Category 2B offence, within the meaning of those
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guidelines.
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9.
I have considered at length a Victim Impact Report (VIR), dated 23rd October 2020,
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prepared by Ms Morrison of the Department of Community Rehabilitation (DCR),
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from which it is clear that these offences, unsurprisingly, have had a profound effect
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upon Ms D. I do not need to repeat here the contents of that report.
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10.
Ms D has waited a long time to see the end of this case. She has attended most of
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the many hearings in this case by zoom with Ms Morrison. I hope that the conclusion
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of this case will assist her in reaching some closure of this traumatic episode in her
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life. Whilst I have no expert evidence on the point, it is clear and it is not disputed
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that she has suffered psychological harm. The violence and threatened violence were
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beyond that which is inherent in an offence of rape. The victim thought she was
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going to be killed. This places these offences in Category 2.
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There are additional aggravating features:
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a.
The defendant subjected Ms D to both vaginal and anal rape;
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b.
He did not wear a condom;
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c.
He ejaculated in her anus.
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Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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12.
Both rapes were part of the same attack, therefore concurrent sentences are
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appropriate. But the fact that there was both vaginal and anal penetration is a
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substantial aggravating feature.
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13.
At the time of these offences, the defendant had no convictions recorded against him,
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but it further aggravates these offences that they were committed whilst he was on
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bail for a number of offences, including:
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a.
An allegation of indecent assault – albeit that eventually the prosecution offered
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no evidence in that case; and
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b.
Offences of behaving in a manner likely to cause harassment alarm or distress
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towards a 15-year-old girl. The defendant pleaded guilty to these offences on
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22nd February 2021.
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The Cayman Islands Sentencing Guidelines suggest, for a Category 2B offence, a
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starting point of 15 years’ imprisonment, with a sentencing range of 10–19 years’
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imprisonment.
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15.
It is clear that the defendant suffers from mental health problems. Reference is made
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to this in the comprehensive Social Inquiry Report (SIR) dated 20th October 2020
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prepared by Ms Sonica Chin Nelson. I also have a psychiatric report from Dr.
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McGill dated 23rd November 2020 and a short psychological assessment dated 27th
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April 2021 from Dr von Kirchenheim. Dr McGill concludes in her paragraph headed
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“Impression” that the defendant:
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“… is a young man who is suffering from a poly substance dependence
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and may be suffering from a pervasive developmental disorder and
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traumatic brain injury. He will need a psychological evaluation and
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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MRI to confirm the extent of his disorder….The history … suggests that
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he was under the influence of drugs at the time of the incident based on
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the frequency and compulsiveness of his drug use. Bizarre experiences
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and behaviour can be present in LSD use and can be a long-term
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consequence after desisting use of the drug. Mr Chantilope’s social
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skills may be in question as well and so his ability to judge the impact
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of his behaviour on someone else may be impaired especially under the
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influence of a drug. This would imply the possibility of similar behaviour
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in the future under the influence of substances.”
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Mr Grimwood told me that no MRI scan had yet been carried out.
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Dr. von Kirchenheim concluded that the defendant:
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“… shows significant neuropsychological impairment, affecting his behaviour.
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Unless he continues to comply with treatment and seeks additional support, he
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is at relatively high risk for recidivism.”
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Dr. von Kirchenheim had earlier noted that:
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“His cognitive ability when it comes to abstraction, planning, impulse control,
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and other higher cognitive or executive functions, is severely below
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expectations.”
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Mr Grimwood confirmed that the defendant continues to take his anti-psychotic
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medication but is otherwise not receiving any treatment. According to the SIR, the
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defendant has spent periods in the Mental Health Unit (MHU) and about six months
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in a treatment facility in Jamaica, but on his return again started to abuse alcohol and
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illicit drugs. He also started committing offences.
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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On 21st December 2017, he took a hatchet to his mother’s car, having become angry
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because she would not take him to buy some cigarettes. His mother called the police.
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On 29th January 2018 he took a motor vehicle without consent. He drove it at high
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speed, lost control of it and collided with a palm tree. As a result of the collision, he
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was propelled through the driver’s window, sustaining fractures to his leg and
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shoulder.
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On 26th June 2018, he again took a motor vehicle without consent.
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22.
The offences I have already mentioned of causing harassment, alarm or distress to a
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15-year old girl took place between April and September 2017. The defendant has
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pleaded guilty to all these offences in the Summary Court.
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I mention them at this stage since they go to paint a picture of the defendant’s
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behaviour in the relatively recent past.
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The files have been passed to me by the Summary Court since it makes obvious
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sense that all outstanding matters against this defendant be dealt with together. As
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held by Dobbs, J in R v Perez-Ruiz and others1, a justice of the Grand Court is vested
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with and can exercise the powers of a Magistrate.
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From the information available to me it is impossible to say with any certainty
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whether - and if so, to what extent - the defendant’s culpability for these offences
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was reduced by reason of his mental health problems, although it seems to me likely
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that those problems, in all likelihood exacerbated by drink and/or illicit drugs,
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contributed to his actions.
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1 29th March 2019, particularly paragraph 5 of her judgment
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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26.
Dr von Kirchenheim’s observations bear repeating:
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“His cognitive ability when it comes to abstraction, planning, impulse control,
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and other higher cognitive or executive functions, is severely below
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expectations.”
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That said, it is clear from the reports that the risk of the defendant committing further
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serious offences is presently high. According to the SIR, the combined risk of sexual
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and violent offending is “very high”. Ms Nelson makes this observation:
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“Though not justifying his actions, it would appear that Mr Chantilope’s mental
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instability, in addition to his alcohol dependence and substance misuse might
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have resulted in the current offences. The gravity of the offences he committed
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is very serious, which would warrant incarceration. In addition there are serious
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concerns regarding public safety if he was granted a community-based sentence
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to return to Cayman Brac.”
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I am satisfied that as matters stand at the moment, the defendant presents a high risk
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of committing serious offences if he were to be at liberty to do so. He presents a high
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risk of harm to the public.
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The defendant initially pleaded not guilty to these offences and the case was fixed
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for trial. After the jury was empanelled, on 27th July 2020, as a result of something
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said by the defendant, proceedings were adjourned. Thereafter, on 4th August he
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changed his pleas to ‘guilty’ on counts 1 and 2. Those pleas were accepted by the
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Crown – with Counts 3 and 4 to lie on file at sentencing. Subsequently, the defendant
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indicated that he wanted to vacate his guilty pleas. Legal representation was changed
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for that application to be pursued. Following further instructions, Mr Grimwood told
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the court that the application to vacate pleas was not to be pursued.
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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30.
Had all other things been equal, the defendant would have all but exhausted any
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credit for pleading guilty. However, Mr Walcolm suggests that in the particular
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circumstances of this case, a reduction in sentence of 25% would be appropriate,
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recognising that Mr Chantilope’s mental condition, and, therefore, his questionable
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ability fully to process the proceedings, may well have accounted for these
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vacillations. That is what I propose to do. His guilty pleas have saved Ms D from
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having to relive her ordeal by giving evidence before a jury. I also bear in mind the
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expressions of remorse Mr Chantilope conveyed to me this afternoon through Mr
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Grimwood. I do take his pleas of guilty as an expression of the contrition he now
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feels for his behaviour.
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The aggravating features I have mentioned above, and particularly the fact that here
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there was both vaginal and anal penetration, justify an appreciable increase in the
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15-year starting point sentence suggested by the sentencing guidelines.
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The defendant’s mental health, and the likely reduced culpability on that account,
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justify a reduction from that increased starting point.
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In the end, I conclude that the correct starting point is a sentence of 15 years’
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imprisonment.
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I then reduce that sentence by 25% to reflect the defendant’s guilty pleas, resulting
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in a sentence of 11 years’ and 3 months’ imprisonment. That is the sentence upon
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both count 1 and count 2. Those sentences will run concurrently.
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35.
I order that counts 3 and 4 of this indictment will lie on the file - marked not to be
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proceeded with without the leave of this court or the Court of Appeal.
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Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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36.
I now address the various outstanding cases in the Summary Court, exercising my
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powers as a Magistrate of that Court. Whilst not diminishing the gravity of these
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offences, on the grounds of totality, the sentences I impose will not increase the time
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the defendant will spend in custody. The sentences are as follows:
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BC00005/2018
Using an ICT network to abuse,
annoyed, threatened or harass
Using abusive or insulting words or
dishonest or disorderly behaviour
3 months’ imprisonment
3 months’ imprisonment
BT00011/2018
Taking and driving a conveyance
without the consent of the owner
Careless driving
Driving without being licensed
Driving without insurance
2 months’ imprisonment
1 month imprisonment
1 month imprisonment
1 month imprisonment,
disqualified from driving
for 12 months
BC00022/2018
Causing fear or provocation of
violence
3 months’ imprisonment
BT00076/2018
Taking and driving a conveyance
without the consent of the owner
Driving without being licensed
Driving without insurance
2 months’ imprisonment
1 month imprisonment
1 month imprisonment
1 month imprisonment,
disqualified from driving
for 12 months
BC00022/2020
Breach of curfew
1
month
imprisonment
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37.
All sentences of imprisonment will run concurrently with each other, and
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concurrently with the sentences imposed in respect of counts 1 and 2.
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38.
The periods of disqualification from driving (24 months in total) are mandatory and
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will take effect from today. Whilst I understand I have power to order
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disqualification to begin on the defendant’s release from prison, that release will not
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happen until either he has served the full sentence or the Conditional Release Board
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are satisfied that it is safe for him to be released. At that stage, he must begin to
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adjust to life in the community. Lengthy orders of disqualification from driving are
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unlikely to assist in that process.
Sentence Judgment: R v. Chantilope (Jay Tyson) Ind. 0025/2020 Coram: Chapple J. (Actg.). Date: 22nd
June 2021
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39.
I order that all time the defendant has spent in custody thus far shall count towards
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the serving of these sentences.
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Sexual Harm Prevention Order (SHPO)
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40.
Mr. Chantilope: In addition, I make a Sexual Harm Prevention Order, pursuant to
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s.45A of the Penal Code, as I am satisfied that such an order is necessary to protect
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the public from sexual harm from you. The terms of that order are as discussed and
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agreed at the last hearing. A copy will be provided to you. The order will be for a
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period of 7 years, as from the date of your release from prison. If you were to fail to
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comply with any of the terms of that order, you could be brought back to this court
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and dealt with – the powers of the court if a breach were proved include a further
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term of imprisonment.
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41.
I express the firm hope that the defendant’s mental health problems will be
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comprehensively addressed as soon as possible whilst he is serving the sentence of
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the court. It is to be hoped that with treatment, the risk that the defendant currently
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poses to the public will be reduced.
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Dated this the 22nd day of June 2021
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Justice Roger Chapple
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Acting Judge of the Grand Court
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