Marlene Smith doesn’t know if she’ll ever be able to sleep at night without fear.
Late last year, her ex-boyfriend Henricho Swaby was sentenced to 20 years in prison after pleading guilty to assault causing grievous bodily harm and kidnapping.
Police said Swaby snatched Ms Smith’s daughter on 1 June, 2007 and used the 12-year-old girl as bait to lure her mother to the Compass Centre parking lot in George Town. He pleaded guilty to assaulting the child as well.
It was in the parking lot that investigators said Swaby hacked off Ms Smith’s right hand with a machete and cut her throat. She has since regained some use of her surgically reattached hand.
Life will never be the same for Marlene Smith.
“I have to depend on others for help daily,” Ms Smith wrote in a statement given to the Caymanian Compass. “I will never be able to use my right hand again like I used to. Everyday I wake up to live with my scars.”
But when the Compass spoke with Ms Smith in late April, she was hardly feeling sorry for herself. She was angry.
On 16 April this newspaper reported that Henricho Swaby had his 20-year sentence reduced to 15 years by the three judge panel of the Cayman Islands Court of Appeal. It’s possible, under Cayman’s parole rules that he could serve less than nine years of that reduced sentence.
The Compass report was the first time Ms Smith had heard of Swaby’s appeal. She provided a victim impact statement to the court for his original sentencing in December which detailed the effect Swaby’s crimes had on her family, but that statement was apparently not presented at the Court of Appeal.
Court President, Justice Edward Zacca, said he understood why the Grand Court judge had given a 20 year sentence and had recommended Swaby’s deportation to Jamaica after he’s served his sentence. However, the panel agreed that precedents set by previous cases indicated a 20 year sentence for causing grievous bodily harm was higher than normal.
At the time Swaby was sentenced, an attempted murder charge was left on file with the court in connection with his attack on Ms Smith. Crown counsel accepted his plea to causing grievous bodily harm partly because it carries the same maximum sentence as attempted murder: life.
Swaby’s attorney Ailsa Williamson argued during the appeals court hearing that his 20-year sentence, particularly considering his guilty plea, was harsh and excessive.
“Upon opening the Compass on 16 April 2008 I was — shocked to learn that Swaby’s sentence was reduced by five years, I got an instant chill and headache,” Ms Smith said. “Fear went through me like someone had thrown ice cold water all over my body.”
Ms Smith said she was not kept informed as the case made its way through the courts. She said she was asked to submit a victim impact statement “two or three days” before Swaby was sentenced. She said she was not told about the appeals court hearing at all, and said the Royal Cayman Islands Police Inspector who was overseeing the investigation was also unaware of it.
‘I am extremely sorry that Marlene was not notified, she’s been through the most traumatic time imaginable and this must have like a bolt out of the blue,’ Chief Inspector Peter Kennett said. ‘I still maintain that Marlene is one of the bravest people I have ever met.’
Her daughter, now 13, was angry about the appeals court decision. Ms Smith said it was very difficult trying to explain the situation to her eight-year-old son.
“He doesn’t deal too well with listening to (details about his father’s case),” she said. “It’s very hard for him to process.”
It’s not so easy for Ms Smith to process either.
“Who do I go to to have my sentenced reduced?” she asked. “(A 20-year sentence) is harsh and excessive. What happened to my daughter and I, is it not excessive?”
Ms Smith said she intended to seek legal advice about her rights as a victim of crime and has decided to submit an application to have the Court of Appeal decision overturned. She did not specify to whom that appeal will be made.
She said she believed it was an important case for other victims of domestic abuse.
“Women look at me and say ‘I’m scared to leave my boyfriend’ and they’re coming to me and crying,” Ms Smith said. “I kind of want to do this on their behalf. We don’t accept domestic violence. We expect you to pay for what you’ve done.”
Ms Smith said she also wished to thank her friends and the community at large for their support during the past year.
Chris Pope, a manager at Dart Realty (Cayman) Ltd., is a long-time associate of Ms Smith’s and came to support her during the Compass interview. He said he felt there wasn’t enough emphasis placed on the victim in Ms Smith’s case.
“The rights of the criminal are considered first,” Mr. Pope said. “It always should be the victim first.”
Ms Williamson said during the Court of Appeal hearing that a person who pleads guilty typically gets the time on their sentence reduced by a third. She argued that a sentence of 20 years for Swaby meant his sentence for causing grievous bodily harm and kidnapping started out at 30 years. (See Compass 16 April; “Severed hand sentence reduced”)
She cited various cases in which sentences involving domestic violence both here and in the UK ranged from 11 to 14 years.
Justice Zacca, in his statements before the court said he understood the concerns of the trial judge and that mitigating factors such as a guilty plea and Swaby’s previous clean record were far outweighed by the crimes committed on 1 June, 2007.
Mr. Zacca also said that there were a number of crimes relating to domestic violence in Cayman and agreed that the court needed to send a message. In the end, the court determined that a 15-year sentence fit the circumstances of the case.
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