Justice Alexander Henderson, whose retirement was announced in 2015, has returned to Grand Court. He is hearing arguments in cases where he was the presiding judge when a defendant was found guilty of murder.
At the time, the only sentence for murder in Cayman was life imprisonment.
Under the new Conditional Release Law, which came into effect in February, a sentence is required to a specific length of time, rather than the indeterminate “life.”
For murder, the new law states that the prisoner must serve 30 years before being eligible for conditional release. However, the law also provides that the sentencing judge may impose a lower sentence if there are exceptional extenuating circumstances; the judge may also impose a higher sentence if there are exceptional aggravating circumstances.
In either case, the judge is required to state what those exceptional circumstances are.
For prisoners sentenced to life before the law came into effect, the law requires that their case records be sent to the Grand Court for a specific sentence to be pronounced in public.
Justice Henderson first presided over a conditional release hearing on Oct. 19. The hearing was for Brian Powell, who was convicted in January 2001 for the murder of taxi driver Curtis Seymour a year earlier. The hearing was adjourned so that a mental health report could be obtained.
On Oct. 28, Justice Henderson heard briefly from counsel in the case of Trevino “TJ” Bodden. A jury in 2007 found Bodden guilty of murdering brothers Brenard Scott and Renold Pearson the previous year.
Bodden was not legally represented when his case was mentioned the previous week and on Friday Bodden was not brought from the prison. Attorney Jonathon Hughes asked for a short adjournment.
Justice Henderson took the opportunity to invite discussion of preliminary issues. He asked if the killing of two people would be an aggravating factor. Director of Public Prosecutions Cheryll Richards said yes. Bodden was given two concurrent life sentences.
The judge then asked about the meaning of “exceptional” in the context of exceptional circumstances that could raise or lower the 30-year sentence stated in the law. Ms. Richards cited an explanation by U.K. judge Lord Bingham, whose rulings are frequently referred to. He described exceptional as being out of the ordinary. He said a circumstance need not be unique or unprecedented but it is one that is not usually encountered.
Justice Henderson applied that interpretation to cases in Cayman. He said it would mean looking at “how often do we see that factor. If it’s common, it cannot be exceptional, but it doesn’t have to be very rare.”
The judge also asked about exceptional extenuating circumstances, inquiring whether the jury had been given the option of alternative verdicts for manslaughter.
Ms. Richards said the judge had directed the jury about the difference between murder and manslaughter along with the burden and standard of proof. She said he had also directed them on the element of provocation, noting there had been a fight earlier in the evening before the shootings took place. She also pointed out that Bodden was 21 at the time.
Bodden’s case is scheduled to return to court on Nov. 4.
Also on that date is the matter of Chakane Scott, who was convicted by Justice Henderson in June 2012, for the murder of Asher McGaw. Scott had elected to be tried by judge alone.
During an adjournment on Friday, Ms. Richards explained to reporters that murder convictions dealt with by Chief Justice Anthony Smellie would ordinarily have been heard first, but he is currently engaged in a five-month civil trial. Justice Henderson’s list was therefore chosen to be heard first.
No determinate sentence has yet been handed down for any prisoner sentenced to life before the Conditional Release Law came into effect.
Tamara Butler was sentenced after the law came into effect. She received 28-plus years after the judge weighed the aggravating circumstances of how her young daughter must have suffered mentally and physically as she was being stabbed 35 times; he then considered the extenuating circumstances of Butler’s paranoid personality, which he said lowered her degree of culpability. He also subtracted the number of days Butler had been in custody, coming up with the precise figure of 26 years, 191 days to be served before Butler may apply for conditional release.
Brothers Osbourne Douglas and Justin Ramoon were convicted in May of murdering Jason Powery in 2015. Justice Charles Quin heard submissions as to sentencing earlier this month, but he has not yet announced his decisions.