Dilroy A. Linwood Watler v HM the Queen

• Jurisdiction: Cayman Islands
• Judge: Sir Alan Moses, J.A.
• Judgment Date: 13 April 2018
• Court: Court of Appeal (Cayman Islands)
• Docket Number: CRIMINAL APPEAL 2/2017 C#06985/2014
• Date: 13 April 2018

Between:

Dilroy A. Linwood Watler

Appellant

and

Her Majesty the Queen

Respondent

Before:

The Rt. Hon Sir John Goldring, President

The Rt. Hon Sir Bernard Rix, Justice of Appeal

The Rt. Hon Sir Alan Moses, Justice of Appeal

CRIMINAL APPEAL 2/2017

IND. 112/2014

C#06985/2014

IN THE CAYMAN ISLANDS COURT OF APPEAL

Appearances:

Ms. Prathna Bodden, Samson Law / Mr. Scott Wainwright for DPP

Revised from transcript of oral judgment 8 November 2017 and Approved Released 13 April 2018

Sir Alan Moses, J.A.

1 Cases involving the death of someone as a result of a course of driving are always tragic. This case is particularly tragic. It involved the death of this appellant's brother.

2 The appellant had been with his brother at a bar until eleven o'clock on the evening of 9th August 2013. The appellant drove away from the bar with his brother and, whilst driving along Seaview Road, he reached a speed of some 91.55mph. It was a fairly straight piece of road, but the speed limit was 25mph. He failed to take a bend and crashed into a wall, resulting not only in the death of his own brother, Deuteron Linwood Watler, who was a passenger, but also in his own very severe injuries.

3 The sentencing judge, Mr Justice Quin, sentenced the appellant, on his plea of guilty, on 21st January 2017. For reasons that we shall underline later, the lapse of time between the occasion when the driving took place in August 2013 and January 2017 is significant.

4 The judge in his sentencing remarks described the driving as “terrifyingly excessive”. That was plainly correct. He took as a starting point a sentence of five years and then, having regard to the mitigation, imposed a sentence of three years and four months.

5 It is against that sentence that the appellant — for we say straightaway we give permission to appeal — appeals. It is argued that the judge took far too high a starting point and failed to give sufficient weight to the mitigation.

6 The judge looked at the guidelines for causing death by careless driving and appears to have increased the sentence to which they refer, having regard to two factors: first of all, that in the Cayman Islands the maximum is higher than in the United Kingdom; and he also regarded the offence as aggravated by the fact that the defendant had no driving license and was driving a friend's car without consent. He did take into account the tragic circumstances that this appellant, who was only 18 at the time, had killed his brother and his best friend, who was also a young man, and that therefore his mother, who was to be dependent upon this appellant in the future, had, in effect, not only lost one son by death, but another son by incarceration. Both the family and this appellant will have to live with this tragedy for the rest of their lives.

7 It is necessary for us, in considering whether the sentence was excessive, to consider the guidelines relevant to causing death by careless driving. However, before looking at those guidelines, and indeed the authorities on which both the prosecution and the defense rely in pursuing this appeal, to consider the charge.

8 The charge, as we have said, was causing death by careless driving. The speed, however, was such that it is difficult to conceive as to how the charge was not one of causing death by dangerous driving. We emphasise the fact that it was not, is something to which we must remain resolutely loyal. Neither the court at first instance, nor this court, can raise the sentence merely because the court thinks that the defendant ought to have been charged as causing death by dangerous driving. But the fact that it had not done so may have caused the judge difficulty, and certainly will always cause difficulty in cases where the appropriate charge is causing death by dangerous driving.

9 The reason why it was a plea of guilty to causing death by careless driving was explained to us during the course of this appeal. It apparently stemmed from the defense showing the prosecution a case which the defense contended was authority for the proposition that speed alone is not sufficient to amount to dangerous driving. That...