A man who admitted choking his wife to the point that she lost consciousness was sentenced last week to six months imprisonment.
Mr. Justice Alexander Henderson emphasised that the sentence was significantly lower than it would have been except for all the positive factors that had been submitted on behalf of the defendant, Maynard Whilby.
Defence Attorney David McGrath had urged the court to say that a term of imprisonment was not necessary. A pre-sentence report had suggested a non-custodial sentence.
But the judge pointed out that domestic violence is an endemic problem in the Cayman Islands.
Where domestic violence is concerned, the goals of sentencing must be interpreted and applied in such a way as to provide a substantial measure of protection to the women of this jurisdiction. ‘They are entitled to it,’ he said.
Women are also entitled to expect that the court will impose a sentence that takes into account not only the personal circumstances of the offender but also the need to deter other like-minded persons who might be dissuaded from engaging in such violence.
The judge explained that he was referring to the need for general deterrence. He was not suggesting that every incident of domestic violence should end in custody – many can be dealt with properly through a probation order and anger management counselling.
On the other hand, it would be idle to suggest that any case of domestic violence, no matter how serious, should end in a non-custodial sentence if the defendant is a first offender and the victim does not die as a result of the attack, Mr. Justice Henderson continued
In this case, he had listened to Mr. McGrath’s well-argued and detailed presentation. Despite the defendant’s guilty plea, his expression of remorse, his previous good character and letters of reference, the judge said he found himself unable to agree that Whilby should not be incarcerated.
His attack on his wife involved a substantial degree of violence and an endangerment of her life. ‘What justification can there be from a broad public perspective in imposing a non-custodial sentence?’ he asked.
If general deterrence is to be given any weight at all as a goal of sentencing, it must come into play in this case, he said.
In summing up the facts of the case, the judge noted that the charge resulted from an incident in May 2005 at the couple’s home.
The defendant, now 30, and his wife had since separated and divorce proceedings were before another court.
Mr. Justice Henderson commented that Mr. and Mrs. Whilby’s recollections of the incident differed. Neither his nor hers was tested by cross-examination under oath.
But it was clear an argument developed and it was clear there had been previous strife. The cause appeared to be Mrs. Whilby’s feeling she should leave the marriage.
The argument took place in the bathroom and, as Mrs. Whilby turned to take a towel to dry herself, the defendant grabbed her by the throat and choked her. This cut off her ability to breathe and she lost consciousness. When she recovered, she was in a car along South Sound Road.
From this, the judge inferred that she had been unconscious for a significant period of time and must have been taken from the house by the defendant while she was unconscious.
When she recovered in the car, he said he would take care of her. His attorney had explained that this meant Whilby would take her to the hospital. But Mrs. Whilby interpreted it as a threat that he might possibly kill her.
She began to cry. He repeatedly asked if she loved him and would give him another chance. She said yes and he took her to hospital.
Her injuries included bruises to her neck, blood clotting on her tonsils and burst blood vessels in her eyes.
Confronted by police, Whilby denied assaulting her and claimed there had been an accident.
He was subsequently charged with causing grievous bodily harm, but pleaded guilty to assault causing actual bodily harm.
The case had come to court earlier in July, but after hearing that the defendant disagreed with the Crown’s summary of facts, the judge adjourned it because he wanted to know the basis on which the plea had been entered and accepted.
He also wanted to hear further discussion about possible recommendation for Whilby’s deportation, as he is not Caymanian.
Whilby’s main disagreement with the Crown’s summary was the assertion that after he choked his wife he tried to force a rag into her mouth and down her throat.
There was some discussion as to whether the forcing of the rag into her mouth was what caused her to lose unconsciousness. The judge questioned whether there should be a special hearing on this issue.
In the end, he decided that the most serious injury was the loss of consciousness. The means by which it was caused was perhaps not as important. The most significant aspect of the case was the result, he indicated.