Convicted murderer Brian Borden and rapist Jeffrey Barnes appeared before the Court of Appeal on Thursday morning to appeal for lighter sentences.
Lawyers representing the two men argued for reduced sentences before a three-judge appeals court panel.
Borden is serving 34 years for a 2011 gang-related murder in West Bay. Barnes was convicted of rape in 2013 for a third time and is serving a 35‑year sentence.
The appeals were the result of re-sentencings that took place beginning in 2016. Those re-sentencings were necessary because the 2009 Constitution eliminated life sentences. Both Borden and Barnes were initially given life terms.
The two men are part of a five-prisoner group who are all appealing the length of the sentences they received in the wake of the change in the law. Arguments on the cases of the other three are due to be heard Friday.
Attorney Guy Dilliway-Parry told the justices that the additional four years Borden was given on top of the 30‑year mandatory sentence for the murder of Robert Bush were unwarranted. His argument was primarily based on the idea that murder is already a serious crime. The added years his client received for the aspects of the crime that were “exceptional in nature”, did not rise to that level, he said.
While Dilliway-Parry touched on several factors that Judge Alex Henderson had noted in adding the additional time – use of a firearm, previous convictions and his gang affiliation – he spent most of his time trying to convince the judges that whatever premeditation and planning Borden may have committed, it was not exceptional.
Witnesses testified that Borden had threatened to kill Bush on multiple occasions and there was evidence he had stalked Bush. Borden and an accomplice were both wearing masks and carrying guns when they shot Bush as he sat in a car.
President of the Court of Appeal Sir John Goldring laid out the planning at one point.
“He said in prison he intended to kill Mr. Bush,” Goldring said. “He boasted he was the leader of the Birch Tree Hill Gang and said he wanted to kill Mr. Bush. He asked where Mr. Bush was sleeping. He went to the house and asked if Mr. Bush and been there. Would the judge be entitled to conclude there was a significant degree of premeditation?”
Dilliway-Parry said Borden’s threats might be seen as the “bluster and bravado” of a gang member or someone who was trying to impress his girlfriend, who was one of the witnesses who testified about his threats. She was also reportedly involved with Bush, which led Dilliway-Parry to suggest at one point that the murder Borden committed was on par with that of one committed during a domestic dispute.
“Are you seriously suggesting that a shooting in a gangland context is not more serious than a murder in the context of a domestic situation?” Goldring asked.
Dilliway-Parry admitted they were comparing “degrees of awfulness” but that his client’s sentence was greater than other comparable cases of murder.
“The court will want to ensure consistency,” he said.
Goldring suggested Borden’s sentence was less than it might be, and noted new sentencing rules that were implemented earlier this year, which do allow for a whole-life term.
“Under the guidelines of 2019,” he said, Borden’s sentence “would have been life”.
The argument by attorney Nicholas Dixey, representing Barnes, turned on the idea that while minimum rape sentences in the Cayman Islands are more than twice that of the UK, that ratio should not necessarily be carried through for more lengthy sentences.
“Because we’ve doubled the starting point, we’ve doubled the ending point,” Dixey said. An increase in sentence for his client was appropriate, he said, adding, “what we mustn’t do is apply a rote approach. You end up with a draconian sentence, as in this case”.
Justice Sir Jack Beatson asked Dixon, “If you don’t take a mathematical approach, then what do you do?” He later referred to a set of guidelines which stated that an expected increase of “some 60%” in rape sentences compared to those in the UK, which could result in “a sentence of 15 years or more”.
Andrew Radcliffe, arguing for the Crown, said Barnes’s sentence was just.
“Whereas it may not be there is to be a strict doubling, this very substantial uplift in the Cayman Islands is intended to take place,” Radcliffe said.
More stringent guidelines were put into place due to the prevalence of rape in the Cayman Islands, he said, and were meant “to meet the needs of the local society”.
Decisions on the appeals are expected in the coming months.