The Queen v Anastasia Watson
| Jurisdiction | Cayman Islands |
| Judge | Philip St. John-Stevens |
| Judgment Date | 23 February 2018 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | INDICTMENT NO: 0048/2016 |
| Date | 23 February 2018 |
Justice Philip St. John-Stevens (Actg.)
INDICTMENT NO: 0048/2016
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CRIMINAL SIDE
Criminal Law — Death by careless driving — The Traffic Law Section 79 — Aggravating factor — Excessive speed — Mitigating factor — Deceased a close friend — Sentencing Guidelines (the Cayman Islands and the United Kingdom) — Starting point — Different maximums in the Cayman Islands and the United Kingdom — Sentencing Authorities.
Mr. Scott Wainwright for the Crown
Ms. Amelia Fosuhene of BRADY for the Defendant
The Defendant, Anastasia Watson, pleaded guilty to an offence of causing death by careless driving, contrary to s.79 of the Traffic Law (2011 Revision).
This plea was entered on the 21 st August 2017, the day upon which the Prosecution added a count of careless driving to an indictment which had averred only death by dangerous driving.
I have read with care the Prosecution Note for Sentence (dated 18 th January 2018) and the accompanying materials and authorities, the Defence submissions, (undated), and the accompanying materials and authorities.
On the 15 th April 2015, shortly before 12.30 a.m. the defendant was driving a BMW in an easterly direction along Rum Point Drive in the direction of Frank Sound Road. In the front passenger seat of the vehicle was her friend, Kimberley Bush.
At the point of a left-hand bend in the road the Defendant lost control of the vehicle. The vehicle left the road and stuck a road sign, then a concrete wall and pillar. The tragic consequence of this was that Kimberley Bush died almost immediately upon impact.
When the police arrived, the Defendant was seated on the ground, Kimberley Bush was still in the front passenger seat.
The reason for the loss of control of the vehicle was the speed of the vehicle when it attempted to negotiate the bed. At that point the road was flat, and when travelling west to east the visibility good.
The speed limit on that road was 50 mph. The calculated speed of the vehicle at the point of impact was 80.24 mph. The maximum speed at which the curve could be safely negotiated (the Critical Curve Speed) is 69.56 mph. No other contributory factors, either with the vehicle or the road, have been identified. The crash investigator opined from the striated tyre marks deposited on the road that the driver lost control, the vehicle yawed, and the defendant then overcorrected and vehicle slewed sideways to impact.
In mitigation the defence counsel suggested that the defendant was only driving “just over the speed limit” but it was that the defendant had blacked out and it was this that accounted for the loss of control of the vehicle.
The Court indicated to the defence that it rejected that bald assertion of the blackout, unsupported by any evidence. The Court gave the defence the opportunity to call any evidence it wished. The defence declined, and accepted that the Court would sentence on the uncontroverted basis set out by the Prosecution.
The maximum sentence for causing death by careless driving is 7 years' imprisonment or a fine of up to CIS 10,000, or both. Automatic disqualification of at least three years from the expiration of the prison sentence and the endorsement of the particulars of the offence on the defendant's driving record also follow.
May I first consider and identify this Court's principled approach to sentence. Guidance in relation to this is embodied in the Cayman Islands Sentencing Guidelines. They provide a framework for the proper exercise of judicial discretion promoting consistency of approach and the identification of factors which materially impact upon the assessment of the seriousness of an offence.
Paragraph 2 of the Cayman Islands Sentencing Guidelines provides that, in considering the seriousness of any offence, the court will consider the offender's culpability in committing the offence and any harm which the offence caused, was intended to cause or might foreseeably have caused.
I have also considered and applied the guidelines to assess the category of culpability and harm in this case.
I remind myself that, to quote the guidelines:
“The culpability of the offender in the particular circumstances of an individual case should be the initial factor in determining the seriousness of an offence”.
I have had particular regard in this case to para.3.4 and the Guidance on the Custody Threshold.
The Cayman Islands Sentencing Guidelines do not provide specific guidelines in relation to the offence before the court.
There are such Sentencing Guidelines in England and Wales. The applicability of the Sentencing Guidelines in England and Wales are governed by statute. They are not law in themselves, and therefore are not directly applicable in the Cayman Islands. However their assistance and application in this jurisdiction are provided for in the Cayman Islands Sentencing Guidelines, which state:
“Those [SG — UK] guidelines have been regularly referred to and adopted by the courts into the laws of the Cayman Islands, with appropriate adjustments”
The Court has regard to the fact that the equivalent offence in the UK carries a lower maximum of 5 years' imprisonment.
I turn to the UK Sentencing Guidelines.
In assessing seriousness, the Guidelines 1 set out the Determinants of Seriousness and common examples. One appositive to the case is:
“Inappropriate Speed of Vehicle:
(a) Greatly excessive speed; racing competitive driving against another vehicle;
(b) Driving above the speed limit;
(c) Driving at a speed that is inappropriate for the prevailing road or weather conditions;
(d) Driving…:”
There no other example of determinate of serious relevant to this case.
The three levels of seriousness are defined by the degree of carelessness involved in the standard of driving. The most serious level for this offence is where the offender's driving fell not that far short of dangerous. The least serious group of offences relates to those cases where the level of culpability is low — for example in a case involving an offender who misjudges the speed of another vehicle, or turns without seeing an oncoming vehicle because of restricted visibility. Other cases will fall into the intermediate level.
The starting point for the most serious offence of causing death by careless driving is lower than that for the least serious offence of causing death by dangerous driving in recognition of the different standards of driving behaviour. However the top of the sentencing range for the most serious example causing death by careless driving is 3 years imprisonment — the same as the starting point for least serious offence of causing death by dangerous driving.
At page 15 paragraph 8 the guidelines state:
“Where the level of carelessness is low and there are no aggravating factors, even the fact that death was caused is not sufficient to justify a prison sentence”.
In considering whether this offence falls within the highest category, that is where the offender's driving fell not that far short of dangerous, I have had regard to the Offence Guidelines for causing death by dangerous driving 2.
The least serious for dangerous driving is categorised as Level 3:
“This is driving that created a significant risk of danger and is likely to be characterised by: “Driving above the speed limit/at a speed that is inappropriate for the prevailing conditions OR…….”
Annex A of the Guidelines provides statutory definitions and examples:
“Annex A: DANGEROUS AND CARELESS DRIVING
Dangerous Driving
A person is to be regarded as driving dangerously if the standard of driving falls far below what would be expected of a competent and careful driver and it would be obvious to a competent and careful driver that driving in that way would be dangerous.
Examples of the types of dangerous driving behaviour likely to result in this offence being charged include:
• Aggressive driving (such as sudden lane changes or cutting into a line of vehicles) or Racing or competitive driving or Speed that is highly inappropriate for the prevailing road or traffic conditions
• Disregard of traffic lights and other road signs which, on an objective analysis, would appear to be deliberate
• Driving a vehicle knowing it has a dangerous defect or with a load which presents a danger to other road users
• Using a hand-held mobile phone or other hand-held electronic equipment when the driver was avoidably and dangerously distracted by that use
• Driving when too tired to stay awake or where the driver is suffering from impaired ability such as having an arm or leg in plaster, or...
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