Sentence reduced in post-Ivan attack

Dave Kennedy Whittaker, sentenced in 2006 to 25 years imprisonment, had that term reduced to 20 years after the Court of Appeal quashed one of his convictions.

Whittaker, 45, had been found guilty of six offences relating to a night-time break-in and attack on a woman who was alone in an area without electricity after Hurricane Ivan (Caymanian Compass, 20 July, 14 August 2006).

The convictions were for aggravated burglary, robbery and abduction, all of which carry a maximum penalty of life imprisonment; and three counts of indecent assault, each punishable by up to 10 years.

The Court of Appeal agreed that the ingredients of aggravated burglary had not been proved: entering a building as a trespasser with intent to commit an offence and at the same time having a weapon.

In this case, the court said, there was no evidence Whittaker had the knife at the time he entered the house.

Solicitor General Cheryll Richards, who had not conducted the prosecution at trial, submitted at the appeal stage that it was a reasonable inference that the intruder had the knife when he entered and the assault was planned and well executed. She said it was unlikely he would have left it to chance and expected to find a knife in the house.

‘This proposition may very well be true but descends into the realms of speculation rather than inference,’ the court said.

No attempt had been made during trial to ascertain whether the victim could say whether the knife was not one that belonged to the house. This may have been because she was staying there temporarily after the storm that caused so much devastation in September 2004.

There was also no evidence of what happened to the knife after the woman’s ordeal, the appeal court pointed out.

Evidence was that the woman had been asleep, but awoke to find a man sitting on her bed with a thin curved knife with a black handle. He placed the knife against her eyes.

He then used the knife to cut up a sheet and use strips to tie her hands behind her back. After searching the room and taking various items, he forced her to perform oral sex. He then took her to two other locations where indecent assaults were performed before he returned her to the house.

In quashing the conviction for aggravated burglary, the court substituted a conviction for simple burglary. The maximum sentence for that offence is 14 years and the court imposed 12.

The judges then considered the concurrent sentences of 25 years for robbery and abduction.

They cited the number of aggravating features: the victim having her hands tied; being gagged with a sock; threats to kill, rape and have two of his friends come over.

They also noted that Whittaker had previous convictions for rape, robbery and assault causing actual bodily harm, all arising out of an incident in 1996. He received 11 years.

After trial for the 2004 incident, the prosecutor asked the judge to sentence Whittaker to life imprisonment because it was his second set of convictions for serious offences.

The judge did not do so; citing authorities that suggested life imprisonment should be reserved for offenders whose psychiatric condition was such that they could not respond to a deterrent sentence by ceasing anti-social behaviour.

Instead, the judge sentenced Whittaker on the basis that what was required was a long term of imprisonment by way of deterrent.

The Court of Appeal said the victim in this case had been particularly vulnerable, being in the house alone. ‘The appellant clearly exploited the unfortunate conditions, which existed in the aftermath of Hurricane Ivan, and the devastation it caused.’

Having regard to all the circumstances and Whittaker’s previous record, the court said it was appropriate to impose sentences at the upper end of the scale.

However, as the sentencing judge did not consider Whittaker so dangerous that he needed to be imprisoned as long as possible, the appeal court concluded that 25 years as a deterrent sentence was manifestly excessive and ought to be reduced to 20 years.

Earlier, the court noted that Whittaker had presented his own appeal. ‘He did so skilfully and articulately. He was, plainly, a man of considerable intelligence and had a detailed knowledge of the evidence,’ the court said in its written judgment.

One of his arguments against conviction was based on his contention that DNA evidence had been planted by police, who had his DNA in their possession from the 1996 case. He also argued that the victim’s identification of him was unreliable.

The Court of Appeal said the trial judge was entitled to reach the conclusions she did, based on the evidence.

Whittaker also argued that he had been denied the assistance of a Queen’s Counsel for his trial.

The Court of Appeal cited the Legal Aid Law, which sets out what entitles a defendant to free or subsidised legal aid.

‘The law does not provide for the assignment of a Queen’s Counsel as of right. What is required is the assignment of counsel if the litigant does not have the means to instruct counsel.

‘Whether a Queen’s Counsel should be assigned is a question for the court before which he is appearing and would, in the opinion of this Court, depend on the nature and seriousness of the offences or offences and the complexity of the case.’

The appeal was heard by Sir John Chadwick, president; Justice Elliott Mottley and Justice Gerald Vos in August. Attorney Phillip McGhee attended at the court’s request to ensure that every point was argued that could properly be put on Whittaker’s behalf. The written judgment was delivered in December.

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