This is to clarify, on behalf of Chief Justice, concerns raised by Mr. Roger M. Davis in a letter to the editor of the Caymanian Compass, published 23 April, 2008.
The letter queried what ‘action was taken against (the) Judge’ in a matter in which a 19-year-old young man was given a suspended sentence by the Grand Court after pleading guilty to causing death by dangerous driving.
The Court of Appeal vacated the Grand Court ruling and imposed a sentence of 12 months’ imprisonment but upheld the five-year disqualification from driving.
The writer of the letter was concerned that the judge in the case should be penalised for oversight of a point of law disallowing a suspended sentence. The writer also alleged that no reasons were given for the judgment.
First, the allegation that no reasons were given is inaccurate as the judge in the case fully aired her reasons in open court at sentencing.
Second, I must immediately dispel any notion that the Grand Court Judge may have deliberately ignored or brushed aside the applicable legislation.
When the case was heard in Grand Court both counsel for the defence and the prosecution were, the Appeal Court was advised, unaware that the Court had no power to suspend a sentence for the offence of ‘causing death by dangerous driving’ (section 22(5)(b) of the Penal Code). The judge, being herself unaware of the provision, did not therefore have the benefit of advice that might usually be expected in the challenging circumstances of a case such as this.
Obviously, had the judge been aware of the constraint imposed in the law, a suspended sentence could and would not have been imposed.
The judge in this case properly based judgment on the points of law presented at the time of the hearing and on facts of the case. As stated in the ‘Reasons for Sentence,’ detailed in open court, the judge also considered precedents in the UK in which judges presiding over such cases have been ‘advised that incarceration is not the punishment (that should be meted out) unless it is a particularly aggravated offence.’ Again, had the Court been informed on the constraints in the law, that precedent would obviously have not been deemed applicable.
So to make it abundantly clear, the Judiciary respects the law’s pre-eminence.
The judge in this case took pains to recognise the critical importance of due consideration to public interests: ‘I am more acutely aware that when I sit in judgment, I am subject to judgment by the community in the Cayman Islands. For that reasons and others, I want the Caymanian people to know in full the reasons for sentencing this particular individual as I am about to,’ the judge said.
Public interest considerations extend to redress with respect to the victim’s family. It is clear from the Reasons for Sentence that this was carefully considered, with the judge noting her recognition of, and respect for, the ‘…tremendous grief the victim’s parents must feel…’ with the loss of their 18-year-old son, the victim in the case.
Throughout this sentencing narrative the judge reiterated her keen sensitivity to the matter of public interests: ‘But we are in Cayman and this mayhem on the road has to stop. If this young man was older I would have no difficulty in the type of sentence that should be given.’
Mitigating factors included the defendant’s age, character references from all-Caymanian, law-abiding citizens and his clean record. The judge reflected as well on the punishment of ‘His own misery in having to live with (the knowledge of the accident and death of his friend) for the rest of his life….’
The judge went on to say, nevertheless, that the young man ‘must be punished. The difficulty is the exercise of my discretion in the appropriate manner, balancing the scales evenly between punishment and compensation for the victim’s family in that punishment. Balance is essential and I should balance the various considerations with care.’
In striking this balance, the judge came to the conclusion ‘…that a custodial sentence in this case would destroy another life.
As this case shows, judges must routinely grapple with the painful human realities that come before Cayman’s courts. They must and do strive continually to balance public interests, which are not infrequently in conflict, while dealing compassionately and optimistically with the frailties of our human condition.
Inevitably, not everyone will agree and some may be dissatisfied. But judges cannot pander to popularity and must take longer-term and more far-reaching positions than most in exercising their judgment.
Nonetheless, public interest and peculiarities of cases take a backseat to specific dictates of the law and judges must take the legislative high road at all times, placing the law above all. The members of the Judiciary in the Cayman Islands are dedicated and committed to this professional mandate prescribing their role.
I am aware that I have been perhaps rather more detailed than usual in response to the letter in question. The Chief Justice’s aim in having the circumstances of this case detailed is that the public should gain a deeper sense of the Judges’ commitment to the law as well as a fuller appreciation of their difficult and onerous responsibility.
I take this opportunity to thank, on behalf of the Chief Justice, this public-spirited gentleman for the opportunity he has afforded to underscore the Judiciary’s commitment to the law as a primary responsibility, and to engage readers in consideration of the factors involved in the vital business of dispensing justice.
E. Patricia Ebanks
Senior Judicial Public Information Advisor