R v Watler (Seth O'Neil) - Sentence Judgment

¶ IN THE GRAND COURT OF THE CAYMAN ISLANDS CRIMINAL SIDE INDICTMENT NO: 0083/2017 THE QUEEN v. SETH O'NEIL WATLER Appearances: Ms. Candia James for the Crown Mr. Jonathon Hughes for the Defendant Before: Justice Marlene Carter (Actg.) Sentence Hearing: 8th December 2017 Delivery of Decision: 13th December 2017 HEADNOTE Criminal Law – Inflicting GBH – Sentence – Offence committed against a serving police officer acting in the proper execution of his duty – Starting point – Aggravating and Mitigating Factors. SENTENCE JUDGMENT

¶ [1] The Defendant has entered a plea of Guilty to the offence of Inflicting Grievous Bodily Harm contrary to s.204 of the Penal Code. The facts which form the basis of the defendant's plea to the offence are agreed as follows. THE FACTS

¶ [2] On the evening of Saturday, 14th October 2017, at about 9:30 p.m., Detective Superintendent Lansdowne was in full uniform in an unmarked police vehicle when he came across a one-vehicle collision at the Island Heritage roundabout on the Esterley Tibbetts Highway. The officer identified himself to the Defendant, who was the driver of the vehicle. The Defendant said to the officer "What's this got to do with you, red stripe?" and walked away. Superintendent Lansdowne said to the Defendant that he could smell liquor on the Defendant and explained that he would have to provide a specimen of breath as he had been driving and was involved in a collision. The Defendant told the officer to "F--- off" and continued walking away.

¶ [3] The defendant's friend, Jason Woods, intervened and threatened to shoot the officer and burn his house down. Fearing for his safety, the officer called 911 and requested assistance.

¶ [4] Other officers soon arrived on the scene. PC Harris managed to calm the situation down and began explaining the roadside breath test procedure to the Defendant. Without warning, the Defendant said: "You know what, I can't take this shit anymore," and ran towards Superintendent Lansdowne and punched him in the face. The officer fell to the ground and lost consciousness. He was bleeding from the back of his head and mouth. The defendant was immediately arrested and detained.

¶ [5] Superintendent Lansdowne was transported to the George Town Hospital where he was treated and the following injuries were recorded: bruising to both cheeks; a non-displaced rib fracture with a small area of underlying lung contusion; hyperdense area in the right parietal lobe, which was likely to be an acute bleed; a laceration to the head; and a 2 cm C-shaped laceration to the upper lip with flap hanging forward.

¶ [6] Superintendent Lansdowne was hospitalized for three days and received seven stitches to his top lip and five stitches to the rear of his head. He was also in severe pain due to his fractured rib. It is also a fact that his eyeglasses were smashed during the attack.

¶ [7] A breath test was administered to the Defendant at approximately 1:00 a.m. at the George Town Hospital and the result was negative. THE COMPLAINANT'S EVIDENCE

¶ [8] At the conclusion of the plea and mitigation, this court heard further evidence from the Complainant, Officer Lansdowne, as to his ongoing injuries from the assault by the Defendant. This was necessitated as the prognosis for the Complainant's recovery from his injuries was unclear to the Court.

¶ [9] The Complainant described, under oath, that he continued to have almost no feeling in his top lip, apart from searing pain, which he stated he experiences every half hour or so. He described further that the inside of his top lip was perpetually inflamed and that he continued to be treated with antibiotics for that injury. He stated that he was now able to sleep normally and that the injury to his rib was healing. He had, however, been unable the do any physical exercise due to the rib injury for some six weeks since the time of the incident. SUBMISSIONS

¶ [10] At the mitigation hearing, the sentencing hearing, Crown counsel referred to the UK Sentencing Council Guidelines, the Definitive Guidelines for Assault, GBH, Wounding and for Inflicting grievous bodily harm. Counsel for the prosecution and the defense agree that the court should find these guidelines helpful as there is, at present, no local tariff guidelines for offences of this type. In the UK, the maximum sentence for inflicting grievous bodily harm is five years, whereas in the Cayman Islands the maximum sentence is seven years.

¶ [11] Crown counsel submitted to this court that the Court should view this offence as a Category 2 offence on those guidelines of greater harm and lower culpability, with a starting point of one year and six months' custody for a defendant who pleads guilty and has no previous convictions. Crown counsel invited the court to find that the injury which the Complainant suffered was serious in the context of the offence. She accepted that a lack of premeditation indicated lower culpability. For these reasons, the Crown submitted that the starting point for this offence was one year and six months' custody with a custody range of one to three years.

¶ [12] Counsel for the accused disagreed with the categorization suggested by the Crown and instead, submitted that the offence should fall within Category 3 of lesser harm and lesser culpability.

¶ [13] Defense counsel referred the court to the case of *R. v. Smith*¹, which was concerned with the court's categorization of an offence of wounding with intent. In that case, the Court noted that the words "which is serious" in the context of the offence were set out in the guidelines in order to distinguish between, on the one hand, the level of violence which is inherent or on par in a standard s.18 offence and, on the other hand, that which would go beyond what may be viewed as par for the course. *ANALYSIS AND CONCLUSION*

¶ [14] Of course, the Court is mindful that it is not a s.18 offence, but actually an offence under s.204 of our Penal Code. However, it is my view that the principles are applicable. Where the injuries that have been noted are not so much directly connected with the level of violence, as the effects of the Complainant having fallen and hit his head from the single blow delivered by the Defendant, I find that it should be classified as constituting lesser harm.

¶ [15] I note as well the case of *R. v. Alexander Chesley Brown*², one of the authorities submitted by the Crown, where the Appellant had thrown a bottle and struck the complainant to the back of his head causing lacerations. The Defendant then proceeded to pick up a rock or brick and hit the complainant more than once in the face, causing multiple serious facial fractures to the upper dural nasal bone and eye socket, and then he also cut the complainant with a machete. The injuries to the complainant's face in that case necessitated 27 stitches, however, the Cayman Islands Court of Appeal (CICA) did not interfere with the trial judge’s finding that these constituted lesser harm. ¹ [2015] EWCA Crim 1482; [2016] 1 Cr. App. R. (S.) 8 ² CICA 13/2016

¶ [16] I find, therefore, that the case now before me, is a Category 3 offence of lesser harm and lesser culpability.

¶ [17] I, therefore, take as a starting point a high-level Community Service Order (CSO) with a range up to 51 weeks' custody – with a necessary uplift to reflect the difference in maximum sentences between this jurisdiction and the UK. My starting point is, therefore, 12 months’ custody, with a range of 9 months up to two years' custody.

¶ [18] Having found the category range, the Court must also be mindful to identify whether there are any other factual elements, or combination of those, which are also relevant and which could result in an upward or downward adjustment from the starting point. In this regard, there are four factors which reflect personal mitigation and can be considered to reduce the seriousness.

¶ [19] The mitigating factors are: i. The defendant has no previous convictions; ii. It is accepted that it was a single blow to the complainant; iii. The remorse shown by the Defendant; and, iv. To a lesser extent, the good character reflected in the many character references which have been presented to this court on the defendant's behalf.

¶ [20] I weigh against those factors the important counterbalance that this was an offence which had been committed against a serving police officer acting in the service of the public and in the proper execution of his duty.

¶ [21] In Duane Bodden v. R3, Rix JA observed: "Police officers in this island, as elsewhere, are entitled to go about their difficult responsibilities, for which they deserve the highest praise, and in respect of which they deserve protection from this sort of behaviour, insults and threats."

¶ [22] I note, however, that the court was, in that case, concerned with threatening violence against a police officer. Of course, in a case such the one before me, I do think that the comments are relevant, and this court cannot agree more with those comments. The Defendant's behaviour was disrespectful and unjustified and exhibited a flagrant disregard for the Complainant's authority.

¶ [23] I have already addressed the ongoing nature of the Complainant's injuries above. It does appear that, although they are serious, there is nothing to suggest that the Complainant will not make a recovery in the fullness of time.

¶ [24] This Court has always to balance the circumstances of the offender with the punishment that is to be imposed for an offence.

¶ [25] I have had sight of the very useful Social Inquiry Report (SIR) and, as well, the Victim Impact Report (VIR) which have been submitted for the court. I have also had sight of the many character references which have been proffered on behalf of the Defendant. I note that they come from a wide cross-section of the society and they all attest to the positive qualities and characteristics of the Defendant that these persons have encountered in their interactions with him — in most instances, over many years. 3 CICA 5/15

¶ [26] The Defendant is a 25-year-old man of previous good character. He entered his guilty plea at his first appearance in the Grand Court. I accept that he has shown genuine remorse with regard to this offence.

¶ [27] I find, and both the Crown and the defense accept that the custody threshold has been passed in this case. In circumstances where a member of the public shows such blatant disregard for the authority of the police a custodial sentence should be imposed.

¶ [28] However, I go onto consider whether that sentence can be suspended. In the circumstances of this case and this offender, I find that the sentence should be suspended.

¶ [29] I, therefore, take as my starting point a sentence of 15 months’ custody. The sentence will be discounted by one third to mark the early guilty plea proffered by the Defendant at his arraignment.

¶ [30] The sentence of this court is 10 months' imprisonment.

¶ [31] The sentence will be suspended for a period of two years. During this period, the defendant shall attend anger management courses as directed by the Department of Community Rehabilitation (DCR) and be required to undertake 100 hours of community service under the supervision of the DCR.

¶ [32] Mr. Seth Watler: It is to your credit that you have lived for 25 years, have never appeared before this court and have never been involved in any matter which could have caused much concern. The court does not usually see persons such as yourself appear before the courts. I say to you this: My mother would say to me that there is always one unguarded moment. This has been your unguarded moment. I hope you recognise and understand that you could have been standing before me for a much more serious offence and one in which I would have had no discretion as to what would be your sentence. Please, take the opportunity that the court has afforded you today. It has also come about as a result of what you have done so far and the persons who consider that you do deserve a chance. I take your offence as a single unguarded moment. Dated this the 13th December 2017 Mme. Justice Marlene Carter Acting Judge of the Grand Court There is no text present in the image to transcribe.