Carter J
IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 32 OF 2017 REGINA v. RUEBEN HESMER HYDES Appearances: Mr. Scott Wainwright for the Crown Mr. Nicholas Dixey for the Defendant Before: Hon. Justice Marlene I. Carter Actg. Sentence Hearing: 29th June 2018 HEADNOTE Criminal Law – Possession of an Unlicensed Firearm and ammunition – Sentence – Exceptional Circumstances argued SENTENCE JUDGMENT
The Defendant was convicted after trial of the offences of: a. Possession of an Unlicensed Firearm, contrary to s.15(1) and s.15(5) of the Firearms Law (2008 Revision); and b. Possession of an Unlicensed Firearm (Ammunition), contrary to s.15(1) and 15(5) of the Firearms Law (2008 Revision).
Section 39 of the Firearms Law ("the Law"), 2008 is applicable to this case given the nature of the firearm in the Defendant’s possession. Accordingly, a minimum sentence of 10 years’ imprisonment must be imposed, unless the court can identify “exceptional circumstances” for not doing so.
Section 39 of the Law states: "39. (1) This section applies where: (a) an individual is convicted following a trial or a plea of guilty, by a court of summary jurisdiction or the Grand Court, of an offence under section 3(3), 15(5) or 18(6); (b) the offence was committed on or after 15th November, 2005; and (c) the offence is in respect of a machine gun, sub-machine gun, rifle, shot gun, pistol, or any lethal barreled weapon from which any shot, bullet or other missile can be discharged. (2) Notwithstanding sections 6(2) and 8 of the Criminal Procedure Code (2006 Revision), the court of summary jurisdiction or the Grand Court before which the individual pleads guilty or is convicted, shall: (a) in a case where the individual pleads guilty, impose a sentence of imprisonment for a term of at least seven years (with or without a fine); or (b) in any other case, impose a sentence of imprisonment for a term of at least ten years (with or without a fine), unless the relevant court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so; and such exceptional circumstances shall be stated by the relevant court."
When considering whether a finding of exceptional circumstances can be made, as part of the sentencing exercise, the Court has regard to the well-known guidelines in R v Avis¹, and will consider: a. the type of firearm involved; b. the use, if any, that was made of the firearm; c. the intention with which the Defendant possessed the firearm; and d. the Defendant’s criminal record.
Additionally, in R. v Zakir Rehman and Gary Dominic Wood² Lord Woolf, C.J. stated at para 11: "... [I]t is not appropriate to look at each circumstance separately and then to conclude that it did not amount to an "exceptional circumstance". A holistic approach was needed. There would be cases where there was one single striking feature, which related either to the offence or the offender, which caused that case to fall within the requirement of "exceptional circumstances". There could be other cases where no single factor by itself would amount to an exceptional circumstance, but the collective impact of all of the relevant circumstances truly made the case exceptional" ¹ [1998] Cr App R 420. See also R v Welcome [2017 (1) CILR Note 1]) ² [2006] 1 Cr. App. R. (S.) 77 CROWN’S SUBMISSIONS
In the instant case the Crown invited the Court’s attention to the authority of Parsons v. Attorney General.3
In Parsons, the Appellant suffered from ADHD4 and a depression and adjustment disorder. A psychiatrist was of the view that: "Incarceration will increase significantly the risk of further depression, damaged self-efficacy and would destroy any hope of rehabilitation of a young man who has shown himself to be inherently hard working, reliable and trustworthy and who at this time in his life could benefit from appropriate intervention not only for cannabis dependence and his adult ADHD but for his depression and social anxiety."
On appeal against the Magistrate’s decision that “exceptional circumstances” had not been made out on the facts of the case, the learned Chief Justice stated in Parsons as follows: "Nor, in my view, does the subjectively harsh effect that imprisonment will likely have upon this appellant as described by Prof. Shaw, present exceptional circumstances. Each offender will be implicated in a subjective and unique way by a sentence of imprisonment. The appellant’s condition is not such as to make him ‘unfit to serve a [7] year sentence’ (per Lord Woolf C.J. in Rehman (3) ([2006] 1 Cr. App. R. (S.) 77, at para.15). The concern is that due to his proneness to ADHD, paranoia and depression ‘incarceration will increase significantly the risk of further depression, damaged self-efficacy and would destroy any hope of rehabilitation...’ That kind of prognosis is, in my view, insufficient to found a conclusion now that the appellant is unfit to serve a term of imprisonment." 3 [2012 (1) CILR 388]. 4 Attention Deficit Hyperactivity Disorder
The Crown submits that the Appellant in Parsons found himself in a very similar position to that of this Defendant as far as his psychiatric and/or psychological position is concerned. The Crown’s submission was this Court should find that there is nothing in the factual background to the case, in terms of which the firearm came to be in the Defendant’s possession, which could give rise to exceptional circumstances. DEFENCE SUBMISSIONS
Counsel for the Defendant submitted that, as it relates to the factors in R v Avis5, the defence accepts that the firearm in the case at bar was a dangerous weapon. However, counsel for the Defendant asked the court to find: a. with regard to (b)6: that no use was made of the firearm; and b. with regard-to (c)7: that there is no evidence of any criminal intent as to the use of the firearm.8 c. Finally, as to (d)9: that there are no recent relevant previous convictions.
For the Defendant, it was further submitted that the psychiatric and psychological reports in this case, together with the addendums as read alongside the Social Inquiry Report (SIR), lead to the irresistible conclusion that a lengthy custodial sentence will weigh far more heavily on the Defendant than his fellow prisoners, and that, therefore, the imposition of a sentence of 10 years’ imprisonment, in such circumstances, would be arbitrary and disproportionate. 5 supra 6 The use, if any, made of the firearm 7 The intention with which the Defendant possessed the firearm 8 A Court must not speculate in respect of this factor - see Manahan v R (CICA 19 of 2007) at paragraph 12. 9 The Defendant’s criminal record
Counsel argued that, while the dicta of the learned Chief Justice in Parsons is of some assistance, that case is not authority for the position that exceptional circumstances only exist if the offender is found to be “unfit to serve”, but rather that, in the absence of such a diagnosis, the decision as to whether there are exceptional circumstances remains squarely within the discretion of the sentencing judge, and will not be readily interfered with by an appellate court.
It was further submitted that the reports of the expert witnesses who gave evidence (in the case now before the Court) on behalf of the defence as to the reliability of the confession interview at trial reveal a psychological and psychiatric profile significantly more pronounced than that of the Defendant in Parsons.
Counsel for the Defendant invited the court to take care not to attribute responsibility to this Defendant for his aggressive responses and reaction to his circumstances, which are clearly linked to his psychiatric and psychological profile. Counsel also asked this court to consider that the absence of a guilty plea or evidence of remorse in the face of the findings that the court made may be unsurprising and should not carry the same culpability as would be attached to such an attitude in an offender without a major psychiatric disorder.
Counsel also referred to the conditions at HMP Northward: that the prison is chronically overcrowded and, he submitted, wholly ill-equipped to properly attend to the special needs of an inmate with the profile of this Defendant. AUTHORITIES
Apart from the cases referred to above, the Court’s attention was also drawn to Chavarria-Atily v. R.10 where the appellant was charged with the importation and possession of an unlicenced firearm – an air rifle purchased in the United States and imported into the Cayman Islands. The Grand Court exempted the appellant from the minimum sentence of seven years prescribed by s. 38A of the Firearms Law (2006 Revision), on the ground that there were ‘exceptional circumstances’. The Court indicated that these circumstances included that the appellant was a man of good character, that he had taken steps to register the firearm, that he had only been shooting at vermin, that it was only an air weapon, that he was unlikely to commit the crime again and that the conviction had ruined his intended career. Taking into account these exceptional circumstances, the court passed a ‘global’ term of imprisonment of two years, in respect of both offences together.
On appeal the Court of Appeal held that: “(1) The sentence of two years would be set aside and a sentence of 12 months on each count, to run concurrently, would be substituted. It was the opinion of the sentencing court that was critical in determining what constituted the ‘exceptional circumstances’ that would exempt an individual from the statutory minimum sentence by virtue of s.38A and the appeal court would not readily interfere with the court’s decision at first instance unless it was clearly wrong. In this case, there was no challenge to the lower court’s decision that the circumstances of the offence and the offender, including his previous record and his plans for future studies, merited an exception from the minimum sentence. However, the circumstances, in particular the nature of the firearm, his antecedents and his guilty plea meant the two-year sentence was excessive.” 10 [2009 CILR 118]
Forte, Ag. P., stated, regarding s.38(A) of the Firearms Law (2006 Revision) (now s.29 of the Firearms Law (2008 Revision): (12) We would say, however, that the section makes it clear that it is the opinion of the court that is critical as to what constitutes exceptional circumstances. Consequently, unless the judge is clearly wrong in identifying exceptional circumstances when they do not exist, or clearly wrong in not identifying exceptional circumstances when they do exist, this court will not readily interfere (see the judgment of Lord Woolf, C.J. in R v. Rehman (Zakir)). In this case, we see no reason to interfere with the learned judge’s finding in that regard. We do, however, find, given the circumstances of the offence – not the least of which is the nature of the firearm, the appellant’s antecedents, and his plea of guilty – that the sentence of two years imposed by learned judge is manifestly excessive."
In the case of Bodden Cordero v. R\(^{11}\), the appellant appealed against his sentence before the Magistrates Court for the offence of possession of cocaine and possession of ecstasy tablets for the purposes of trafficking. The learned magistrate had said in the course of her reasons that: "In the course of the plea in mitigation, a medical report was handed up to the Court but his medical condition was not a factor in his offending, nor did it provide the impetus to it, so it is not a factor I take into account in sentence."
Henderson J. said this about the report: "Dr. Fulton’s report contains a full consideration of what would appear to have been a very thorough examination of this defendant. The defendant’s condition is the result of serious injuries he suffered in a motor vehicle accident in 2001. The Learned Magistrate was wrong to exclude this report from her consideration of the appropriate sentence."
While the Learned Judge accepted that the appellant’s medical condition was not a direct cause of his decision to involve himself in the drug trade, he went on to state that: \(^{11}\) (SCA 11 of 2014) Sentence Judgment. R v. Hydes (Rueben Hesmer) Ind. 32 of 2017; (Coram: Carter J. (Actg.). Date: 29/08/2018 “....it has obvious relevance to the task of arriving at a fit sentence. A person suffering from the degree of cognitive impairment described by Dr. Fulton can be expected to experience additional discomfort and difficulty in prison beyond that which is attributable to the mere circumstances of the incarceration itself. Any mental disorder or disability from which a defendant suffers should be taken into account, provided the sentencing magistrate is satisfied that the evidence has a reasonable degree of reliability. When the evidence is found in the report of a qualified psychologist or psychiatrist it would be wholly exceptional to disregard it.”
The appellant was found to have ‘deficits which were of a severe and persisting nature with significant psychological impact leading to clinically elevated social, occupational and interpersonal limitations on his overall functioning.’ Dr. Lockhart who also examined the appellant stated: “It is this writer’s opinion with a reasonable degree of medical certainty, after a comprehensive psychiatric examination that the psychological impact of the accident continues to have a pervasive impact on Mr. Bodden’s life. In many respects the systems of pain, memory and mood are now chronically established with personality features of pessimism, self-doubt and hopelessness.”
The Court found, having taken the Doctors’ diagnoses into account, that the sentence of eight years imposed by the Magistrate should be reduced to reflect the particular circumstances of the defendant and the probability that his term of incarceration has and will weigh more heavily upon him than upon is fellow prisoners.
In the case of Parsons v. Attorney General12, it was held that: "(1) The court would not depart from the Summary Court’s conclusion that there were no 'exceptional circumstances' for the purpose of s.39(2). The court would consider the collective impact of all the circumstances, both of the offence and the offender; it would not, however, readily depart from the sentencing judge's assessment unless it was clearly wrong. In the present case, none of the mitigating facts that (i) the shotgun had been acquired; (ii) imprisonment would likely have a detrimental impact on the accused' mental health (although he was not 'unfit to serve'); and (iii) the accused had a previously good character constituted 'exceptional circumstances'. The accused kept the shotgun, aware that taking possession was unlawful, loaded it, test-fired it and intend to use it to defend himself – which was precisely the kind of vigilante attitude that the statute aimed to deter. Further, by keeping the shotgun in his home, he made it accessible to a thief in the event of a further burglary (paras. 15-16; paras. 21-24)."
After referring to the dicta of Lord Woolf, C.J. in R. v. Rehman13 already referred to above at paragraph 5 of this judgment, the Learned Chief Justice went on to state: "14 The tension within all of the foregoing dicta, between the imperative of deterrence and the concern with the rehabilitation of the offender is a stark example of the challenges presented by the exercise of sentencing. Despite that tension, however, the purpose and intent of the statute must be correctly discerned and applied. As was also said in Rehman (ibid., at para 4). ... The statute, as explained by the case law, requires, nonetheless, the consideration of whether exceptional circumstances are presented so as to justify the amelioration of the minimum mandatory imprisonment. The exercise is no mere formality. A genuine consideration must be given to all the circumstances in a holistic way so as to ensure that the provisions of the statute are not merely arbitrarily imposed. ... 12 [2012 (1) CILR 388] 13 [2006] 1 Cr. App. R. (S.) 77 at para 11. Sentence Judgment. R v. Hydes (Rueben Hesmer) Ind. 32 of 2017; (Coram: Carter J. (Actg.). Date: 29/08/2018 24 In my view, all the circumstances of the offence and of the offender considered, the appellant is entitled to the reduction allowed by the statute from the sentence imposed of 9 years’ to 7 years’ imprisonment, but his case does not present exceptional circumstances of the kind required to avoid the imposition of that statutory minimum of 7 years. Concerns about the exceptional impact that prolonged incarceration might have upon the appellant are for the prison authorities – no doubt with the benefit of independent psychiatric advice – to address and, if appropriate, to advise His Excellency the Governor in exercise of the prerogative of mercy under ss. 39 and 40 of the Constitution. In that context, Prof. Shaw’s assessment should be most relevant.” THE MEDICAL REPORTS
The psychiatric report prepared by Dr. Arlene McGill, dated the 8th of September 2017, identified that the Defendant’s early medical history indicated a child who experienced physical abuse and neglect. His screening form suggested prominent features of ADHD, Dyslexia, Major Depressive symptoms with prominent anxiety and mild free-floating suicidal ideation. The psychiatrist’s conclusion upon examination was that the Defendant “demonstrated signs of a mild to moderate depressive disorder with moderate anxiety disorder with panic.”
In her updated psychiatry report dated 8th May, 2018, Dr. McGill opined: “He admitted to feeling frustrated and angry with his indictment recently and admitted to feelings of frustration almost every day. His affect was flat but his mood was angry. He admitted to free floating thoughts of being better off dead and occasional thoughts of hurting others due to his current indictment which, he felt, was not justified. His thought processes were linear, but superficial and concrete in reasoning with tendency towards impulsiveness possibly due to his emotional state. He demonstrated no perceptual disturbance.” It was Dr. McGill’s impression, as at that date: “Based on Mr. Hydes past diagnoses, which are chronic problems which are unlikely to improve in the short term, it is my professional opinion that there is the possibility of worsening cognition and emotional stability related to incarceration. The extent of this cannot be predicted, but his background of trauma will make him more vulnerable to stress and worsening depression. These may lead to excessive acting out, whether towards self-harm or aggressive behaviors.”
Dr. Clement Von Kirchenheim submitted a psychological report to this court dated 12th December, 2017. He indicated therein that: “The testing reveals that Mr. Hydes is illiterate. He had trouble reading or writing three letter words. His literacy skills therefore, are at a ‘pre-school’ level. However, his score on a non-verbal test of cognitive ability places him in the ‘Low Average’ range. This suggests that he was either not given opportunities nor, motivated and encouraged in regards to academic achievement, or more likely, that he suffers from significant learning disabilities.” … “The personality testing suggests that he tends to be amiable and dependent, yet often anxious and depressed, this person is inclined to lean on others for support.” Under stress, he may claim that even the simplest of responsibilities are too demanding. This patient's response style may indicate a broad tendency to magnify the level of experienced illness or a characterological inclination to complain or to be self-pitying. On the other hand, the response style may convey feelings of extreme vulnerability that are associated with a current episode of acute turmoil. The results of this assessment suggest that at least a moderate degree of pathology characterizes the overall personality organization of this man. His profile indicates an over-controlled internal cohesion wherein basic intentions and interaction with others are framed within a constricted and defended mindset. A pronounced distrust typifies his behaviors and relationships, creating cognitive-affective immobilization and a distorted sense that others and their circumstances are, for the most part, malevolent in nature. The inner template on which he relies for understanding and interpreting reality is likely to be compromised, and his sense of psychic coherence is often precarious. He often projects his own negative self-reflections onto others and has a tendency to create self-defeating vicious circles and inflexible interpersonal exchanges. Although he is typically able to function adequately, periods of marked emotional, cognitive, or behavioral dysfunction are likely."
The results of this assessment suggest that at least a moderate degree of pathology characterizes the overall personality organisation of this man.
Dr. Clement Von Kirchenheim, in psychological report of the 12th December, 2017 opined: "Also noteworthy is his blindness to his own unattractive defects, combined with a tendency to disown these undesirable traits and motives by expunging and attributing them to others. He is accomplished at spotting others' most trifling deficiencies. Both directly and indirectly, he points out and exaggerates these defects in the people he has learned to despise. His envy and hostility rarely subside. He is touchy and irritable, ready to humiliate and deprecate anyone whose merits he questions and whose attitudes and demeanor evoke his ire or contempt. By a simple reversal, he may not only absolve himself of fault but find a justified outlet for his resentment and anger. ... It is very likely that this man is suffering from a prominent generalized anxiety disorder. Widely generalized symptoms--including behavioral edginess, apprehensiveness over trivial matters, pervasive social disquiet, and worrisome self-doubts--are consistent with his overall personality makeup. In addition to his more general anxious state, specific symptoms may include fatigue, insomnia, headaches, an inability to concentrate, and feelings of sexual inadequacy. Especially sensitive to public reproach, yet lacking the confidence to respond with equanimity, he may be experiencing more discomfort than usual. This is particularly true if he expressed his resentment against someone with whom he would rather have maintained a safe distance. ... Deeply ingrained and pervasive patterns of maladaptive functioning underlie clinical syndromal pictures. The following personality prototypes correspond to the most probable DSM-5 diagnoses that characterize this patient. Personality configuration composed of the following: - 301.6 (F60.7) Dependent Personality Disorder - 301.0 (F60.0) Paranoid Personality Disorder - with Schizoid Personality Type - and Avoidant Personality Type."
Dr. Von Kirchenheim, saw the Defendant again on the 8th May 2018 and concluded in an Addendum to his psychological report of the 12th December, 201714 that: "In summary, there are no significant changes and I am unable to comment on the long-term effects of consequences, of his continued incarceration." 14 Dated the 8th May 2018 SOCIAL INQUIRY REPORT (SIR)
A Social Inquiry Report was filed on the 22nd June 2018 for this Court. The Social Worker noted that the Defendant continued to deny that the firearm belonged to him. The Social Worker also noted that he seemed to “minimize” and justify his engagement in these offences and that he blamed his “mental disability” and being bullied over the years for the offences he committed. He was found to be at Very High Risk in relation to re-offending given his criminal history, pro-criminal attitude and orientation, anti-social pattern, companions, family and marital history as well as his education and employment. COURT’S CONCLUSIONS
I have carefully considered the authorities and submissions advanced by counsel for the Crown and for the Defendant, as well as the various reports submitted for the Court’s consideration which have been very helpful.
I bear in mind the instructive legislative context in which the defence submissions must be viewed. “While the primary thrust of the statute is deterrence, the legislature is understood to be in earnest to avoid arbitrary and thus unduly harsh or disproportionate punishment, including as that might turn out to be the case having regard to the subjective circumstances, not only of the offence, but of the offender as well”.15 15 Parsons at paragraph 16
This Court has not been invited to consider that one particular circumstance should cause the Court to find that there are exceptional circumstances and this Court has considered all relevant circumstances laid before it. I accept the defence submissions advanced at paragraph 10 above. However, it does appear that Counsel for the Defendant placed special emphasis upon the details in the medical reports (psychiatric and psychological reports) as well as the SIR, which referenced these reports, in inviting the court to find that there are exceptional circumstances in this case which would cause the imposition of a sentence of 10 years’ imprisonment to be arbitrary and disproportionate.
This Court is very well acquainted with the circumstances of the offence and of the offender in this case, having sat as the presiding judge at trial and especially because of submissions advanced during the course of the trial wherein both Doctors McGill and Von Kirchenheim gave live evidence before the court of the Defendant’s mental condition.
I do take the defendant’s mental disorders and/or disabilities as detailed by the doctors into account in consideration of this application.
I have no reason to doubt Dr. McGill when she related that as far as this Defendant is concerned that his “chronic problems” “are unlikely to improve in the short term” and that: “there is the possibility of worsening cognition and emotional stability related to incarceration.” The fact that a lengthy custodial sentence may weigh more heavily on this defendant than on his fellow prisoners is relevant. However, the possibility of worsening cognition and emotional stability related to incarceration, in and of itself, is not a factor that is peculiar to this Defendant.
Dr. McGill was unable to predict the extent of this worsening condition. However, she was clear that "his background of trauma will make him more vulnerable to stress and worsening depression." Whilst keeping in mind that this court’s assessment must be of all the circumstances particular to this case, this court does note that the findings of Dr. McGill are not as conclusive as those that the court in Parsons or in Cordero had to consider on similar applications where the impact of incarceration on the defendants’ mental condition were also relevant considerations.
Whilst I am not convinced that a Court must find a Defendant unfit to serve before being able to accord him a reduction in the minimum mandatory term of imprisonment, there must be found, in the circumstances of the offence and of the offender, such matters that would cause a court to find that these, taken as a whole, amount to exceptional circumstances. I do not find these in this case – neither as it relates to a particular factor nor as to all of the factors relevant to this offence or the offender considered in the round.
This Court finds that the Defendant’s case does not present exceptional circumstances. Section 39 of the Firearms Law, 2008 Revision is applicable given the nature of the firearm in the Defendant’s possession. Accordingly, a sentence of 10 years’ imprisonment must be imposed for Count 1.
For Count 2, having found that the ammunition was within the firearm, accordingly, I impose as sentence of five (5) years’ imprisonment - to run concurrent to Count 1.
On the total sentence of 10 years’ imprisonment, the time that the Defendant has spent in custody prior to sentence will be deducted from this sentence.
The Indictment also includes a Schedule of offences sent up to the Grand Court contrary to s.88A(1) of the Criminal Procedure Code (2014) Revision. The Court has been advised that the first of these offences was withdrawn and that the Crown will not proceed with the remaining two counts at this time. Accordingly, these counts will be ordered to lie on file. Dated this the 29th day of August 2018 Hon. Justice Marlene I. Carter (Actg.) Acting Judge of the Grand Court