Eduardo Swaby Gutierrez, who had pleaded not guilty by reason of self defense, was found guilty on Thursday of causing grievous bodily harm to a man by punching him and breaking his jaw.
Justice Michael Wood, who heard the matter without a jury at the defendant’s request, sentenced him to two years’ imprisonment and ordered him to pay his victim $5,000 in compensation.
The victim had told the court of four surgeries he had undergone so far, including a procedure by which doctors took a piece of bone from his hip to use to repair his jaw. Justice Wood noted that more than a year after the injury, the victim still had some difficulty speaking.
The judge said the compensation could be paid from assets of Gutierrez that are currently the subject of confiscation hearings – approximately $60,000 in two bank accounts and a relatively high-value vehicle. The hearings are the result of the defendant’s guilty plea in September 2016 to possession of 269.9 pounds of ganja with intent to supply. He was sentenced to two years imprisonment.
The two years for this new conviction are consecutive to the ganja sentence, for a total of four years. The judge said he was also making a recommendation for deportation after the sentences are served. Gutierrez, 33, is a Cuban national.
The incident leading to the grievous bodily harm charge occurred in the early part of 2016. There was also a more serious charge of causing grievous bodily harm with intent, but the judge found him not guilty of intent.
One allegation was that Gutierrez had used a “knuckle duster” when he punched his victim, but there was no evidence of one. Justice Wood said, “I do find it extraordinary that bearing in mind the police knew that [the victim] had a broken jaw, they didn’t conduct a search of the defendant’s property that night.”
Gutierrez’s house was searched three months later, when he was arrested: “Unsurprisingly, nothing was found, certainly not a knuckle duster,” the judge commented.
The dispute between the two men began after the victim’s teenage son went to the shop owned by Gutierrez to get five dollars’ credit on his phone. He mistakenly gave the attendant the wrong phone number. The victim then entered the store with his son and the boy’s brother and tried to get the credit reversed, which is something that can be done, the judge noted.
The judge said he had found the teenage son to be not only an impressive witness, but also an impartial one. He did not take his father’s side. He had tried to defuse the situation, saying it was his fault and they should forget about it. He did so to stop the argument that had developed.
The teen had told the court he saw Gutierrez pull out a knife and then his father pulled out a pocket knife. His father then said, “Hold on, hold on – we don’t need to fight.” The boy said his father turned to him and his brother and told them to walk home. As his father turned, Gutierrez jumped with his fists in the air and hit his father in the jaw. He did not see if Gutierrez had anything in his hand when he delivered the punch.
Justice Wood said he was satisfied that the punch occurred the way the boy said – as the victim was turning away from Gutierrez. “That is not self-defense. That is being offensive.”