The King v Sean Michael McDonald
| Jurisdiction | Cayman Islands |
| Judge | Justice Cheryll Richards |
| Judgment Date | 18 January 2023 |
| Docket Number | IND. NO: 106 of 2019 |
| Court | Grand Court (Cayman Islands) |
The Hon. Justice Cheryll Richards KC
IND. NO: 106 of 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — Section 180 of the Penal Code (2019 Revision), Manslaughter, Section 210 of the Penal Code, (2019 Revision), Endangering Human Life or Safety, Cayman Islands Sentencing Guidelines.
Mr. Richard Matthews KC and Mr. Greg Walcolm for the Prosecution
Mr. Benjamin Tonner KC and Mr. Oliver Grimwood for the Defence
The defendant Sean Michael McDonald is before the Court for sentencing in respect of three offences following his convictions after a Judge alone trial. Counts One and Two of the Amended Indictment charge him with two offences of Manslaughter contrary to s.180 of the Penal Code (2019 Revision).
The particulars of Count One are that he on the 11 th day of August 2019 in Grand Cayman, Cayman Islands, caused the death of another person, namely John Turner, by culpable negligence in the discharge of the duty to pilot the marine vessel Pepper Jelly with reasonable care to avoid endangering the life of other persons, in particular by navigating Pepper Jelly at dangerous and excessive speed when approaching the shore and the entrance to a channel during the hours after sunset.
The particulars of Count Two are that he on the said date and place, caused the death of another person, namely Emmanuel Brown, by culpable negligence in the discharge of the duty to pilot the marine vessel Pepper Jelly with reasonable care to avoid endangering the life of other persons, in particular by navigating Pepper Jelly at dangerous and excessive speed when approaching the shore and the entrance to a channel during the hours after sunset.
Count Three charges him with the offence of Endangering Human Life or Safety through Reckless and Negligent Acts contrary to s.210 of the Penal Code (2019 Revision). The particulars are that he on the 11 th day of August 2019 in Grand Cayman, Cayman Islands, navigated the marine vessel Pepper Jelly in a manner so rash or negligent as to endanger human life, including that of Shamilia Wright, in particular by navigating Pepper Jelly at dangerous and excessive speed when approaching the shore and the entrance to a channel during the hours after sunset.
The facts are set out in detail in the verdict judgment. In summary, in the night of Sunday, 11 th August 2019, the defendant was the captain of the boat, Pepper Jelly. Two passengers were on board. The boat was returning home from a day at Rum Point. On the last leg of its journey, it was travelling from the dock at Camana Bay across the North Sound to Harbour House Marina. Emmanuel Brown was the captain of a Godfrey Hurricane boat. Two passengers were on board, John Turner and Shamilia Wright. This boat was travelling from Star Fish Point across the North Sound. Both boats collided.
The expert evidence at trial established that shortly before the collision, the Pepper Jelly did not maintain its speed. It accelerated from 35 miles per hour to 42 miles per hour. As it neared the point of the collision about 8/10 ths of a mile the speed was between 46 and 52 miles per hour. It travelled at 73 feet in a second. The collision occurred one minute later. The impact was such that the Pepper Jelly passed over the hull of the Godfrey Hurricane, contacting with and causing the deaths of Emmanuel Brown and John Turner and serious injuries to Shamilia Wright.
In his interview with the Police, the defendant said that he was travelling at planing speed and that it is scary to go faster than 42 miles per hour.
The Court concluded that the defendant navigated the Pepper Jelly at a dangerous and excessive speed when approaching the shore at the particular time in all the circumstances that existed at that time and that he failed to keep a proper look out.
The maximum penalty for Manslaughter is life imprisonment. The maximum penalty for the offence of Endangering Human Life or Safety through Reckless and Negligent Acts is 4 years imprisonment 1.
The Department of Community Rehabilitation (“DCR”) has provided victim impact reports (VIRs) in respect of two of the victims. The report from the family of John Turner is dated 28 th October 2022. The victim John Turner was seventy years old. He was retired and resided in the Cayman Islands for a part of each year. His daughter Sonia Ferrari and her family were visiting with him at the time of the incident. The visit was in part to celebrate the birthday of his grandson. Ms. Ferrari describes the evening of the incident when they returned home to find that her father was missing and unaccounted for. She describes the import of the news that
he was one of the victims of the boat collision and what she says was the nightmare of disbelief and grief which followed. In the aftermath, her son, the grandson of Mr. Turner who was very close to him, began having difficulties in school and had to work with a mentor. In summary, the family, extended family and friends have all been devastated by the loss of Mr. Turner. This continues to be felt to this dayA report from one side of the family of the victim Emmanuel Brown is dated 28 th October 2022. Mr. Brown was forty-nine years old with two younger children. Out of concern for the children, their mother has requested that this report not be referenced in open Court. Counsel and the defendant have had sight of this report and the Court has also read this report in its entirety.
Shamilia Wright has provided a witness statement dated the 22 nd August 2022. Ms. Wright was the partner of Mr. Brown. Mr. Brown is described as a hardworking, sociable and energetic person who had a constant smile. They had been together for some four years and had planned to get married in the future. Ms. Wright remembers waking up from a coma after the incident and the grief she felt upon hearing the news of the deaths. She describes being in physical pain from the injuries which she suffered to her neck, back and head. This went on for months as she underwent rehabilitation and physiotherapy in order to learn how to walk, talk and do basic things for herself again. She continues to suffer emotional pain at the loss and physical pain daily. She gets tired easily and is required by her doctor to avoid stress. Mr. Brown's death has also impacted her young son who was close to him.
There is a VIR dated 10 th November 2022 from Emmanuel Ricoh Brown, the twenty-nine-year-old son of Mr. Brown. The Probation Officer states that it is evident that the impact upon this victim has been far reaching and enduring and involves permanent and severe psychological scars and ongoing suffering. Mr. Ricoh Brown has provided his own statement which records an aftermath filled with anger, despair and continuing indescribable pain at the loss of his father who was his best friend.
Dorothy Jackson is the mother of Mr. Brown. A VIR dated 4 th November 2022 indicates that she too has suffered severe psychological harm at the loss of her son and has lost her primary financial support and caregiver in her older years.
The DCR has provided a Social Inquiry Report (“SIR”) dated 10 th November 2022 in respect of the defendant. This provides detailed information as to his personal circumstances and background. The Court has read this report in its entirety and takes into account everything said therein in favour of the defendant.
In summary, he is thirty-nine years old and is married. He is a boat captain of some experience. He reports having a generally happy childhood and that he was educated to university level overseas. Following university, he worked there for about six years before returning home to the Cayman Islands. On his return he was employed as a boat captain for a tour company before starting his own marine tour business. He ceased this operation as a result of this case and has lost income because of his unemployment in the aftermath of the incident.
The defendant outlined the impact which the incident has had on his life. While his mother has continued to support him, his relationships with his only sibling and his wife have deteriorated. Many of his friends have deserted him. He says that since the incident he has developed anxiety and depression and has been self-medicating with alcohol as well as receiving counselling. There has been a diagnosis of post-traumatic stress disorder.
His antecedent history was reviewed by the Probation Officer. He has traffic convictions in 2018 for failing to provide a specimen of breath for which he was disqualified from driving and fined. In 2020 he was sentenced to further disqualification from driving and a community service order for additional driving offences.
Under community functioning, the Officer reports that one person in the community describes him as a friendly and practical individual. Another person who has known him for thirty years describes him as ambitious and talented.
Under the heading Attitude Towards the Offence, the Officer concludes that while the defendant has expressed remorse about what occurred and is deeply distressed at being involved in such a tragic incident, much of his anguish appears to be due to the impact on his own life.
The defendant was assessed using the Level of Service/Case Management Inventory Instrument (LS/CMI). His overall risk of re-offending was assessed as medium. Of the eight criminogenic factors, he had none in the very high category. He had one factor in the High Category, leisure/recreation due to his present unemployed status. Under pro-criminal attitude/orientation, he is in the medium category. The Officer references inter alia his convictions for traffic offences, his disregard for navigational rules and his...
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