Director of Public Prosecutions v Lawrence Herbert

• Jurisdiction: Caribbean States
• Court: Eastern Caribbean Supreme Court
• Judge: Thompson J JR
• Judgment Date: 08 March 2024
• Judgment citation (vLex): [2024] ECSC J0308-1
• Docket Number: NEVHCR2023/0009

Between:

Director of Public Prosecutions

and

Lawrence Herbert

NEVHCR2023/0009

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Appearances:

Mr. Teshaun Vasquez and Ms. Megan Nisbett for the Director of Public Prosecutions

Ms. Sandra Hector for the Defendant

SENTENCING

Thompson J JR

1 On November 3 ^rd, 2023, the DPP filed an indictment alleging that the Defendant had attempted to murder Jerusha Shiwamber. An alternative count in that indictment alleged that the Defendant had wounded the same Jerusha Shiwamber with intent. In other words, the prosecution alleged that there was one incident of domestic violence where the Defendant had either tried to kill Ms. Shiwamber or had caused her serious harm and wounded her. It was thus open to the jurors to convict the Defendant of one or the other but not both offences.

2 On December 11, 2023, the Defendant sought a sentence indication from this court. Crucially, the indication was sought only in relation to the count of wounding. The unspoken thought was that if the court's indication was acceptable to the Defendant on the wounding charge, the Defendant would have accepted it and the prosecution would have thus withdrawn the count of attempted murder and the Defendant would have been sentenced for wounding Ms. Shiwamber.

3 The maximum penalty for attempted murder is 25 years imprisonment. The maximum penalty for wounding with intent is 20 years. Even without this statutory anomaly 1, attempted murder is usually treated as a more serious offence than wounding with intent so that any penalty imposed for

wounding is likely to be less than imposed for attempted murder, even where they share the same maximum penalties

4 At the sentence indication hearing for the wounding count, this court indicated that if Mr. Herbert had pled guilty, any sentence imposed on him would not exceed 8 years. The indication process thus sets a ceiling but not a floor for the sentence that a court may ultimately land on and thus encourages defendants and their counsel to consider their options. The indication was open for acceptance and the Defendant was given until December 14, 2023 to indicate whether he would accept it. For reasons known only to the Defendant and his lawyer, this court's indication was rejected and the matter thus proceeded to trial with the attempted murder charge as the primary count and the wounding charge in the alternative.

5 At trial, the Defendant gave evidence in his defence. It was his evidence that he was under attack by Ms. Shiwamber and her teenaged son and that he pulled a knife and waved it around. According to him, the knife connected with Jerusha but he couldn't remember how many times it connected or where it connected.

6 This evidence was to be contrasted with the prosecution's case that the Defendant was the aggressor and had attacked Ms. Shiwamber with a knife and managed to inflict 13 wounds on her body. Dr. Rawlins testified that all of those wounds required stitches so that while he did not count how many stitches were required per wound, assuming that at least 3 stitches per wound were required, Ms. Shiwamber needed at least 39 stitches, if not more. There was no dispute that Ms. Shiwamber was hospitalized for 3 days after the incident.

7 Mr. Herbert's case at trial, such as it was, was rejected by the unanimous verdict of the jurors. The evidence at trial demonstrated that Ms. Shiwamber's teenaged son sustained no cuts in this incident. All of the Defendant's attempts to wave around the knife connected with the body of Ms. Shiwamber. Dr. Rawlins's evidence at trial was that Ms. Shiwamber's injuries were not individually serious, in terms of their depth or extent but that the cumulative effect of the 13 wounds means that she was in a serious condition in view of the multiplicity of wounds.

8 The Defendant's case at trial was that Ms. Shiwamber's teenaged son, had emerged with a cutlass while he (the Defendant) and his mother were arguing and struck him repeatedly with a cutlass. It was the Defendant's evidence that Ms. Shiwamber had struck him repeatedly with a mirror in his head. Ms. Shiwamber accepted that she had struck the Defendant in the head with mirror but that was only to stop him from choking her, after which he pulled out his knife and stabbed her. The mirror appeared to be a small one and broke early in the fracas.

9 The DPP's case was that the Defendant came home and an argument ensued between himself and Ms. Shiwamber because according to him, he came home and realized that while food had been cooked earlier that day, none had been left for him. The plates were thus clean and it appeared that Angie (Ms. Shiwamber's friend), Ms. Shiwamber, her son and her young daughter had all eaten. According to Ms. Shiwamber, the Defendant told her that he had come ready for her, had nothing to live for and was going to make a lot of people cry for her and began choking her. She then struck him with a mirror while he was choking her and he then pulled a knife and stabbed her repeatedly. During the stabbing, her son heard the commotion, grabbed a cutlass and either threatened to hit or did hit the Defendant in order to stop him from continuing to attack his mother. The medical evidence called at trial confirmed that the Defendant had a swelling to his head and small abrasions to his hands.

10 The jurors by their unanimous verdict are taken to have rejected the Defendant's case of an assault by Ms. Shiwamber and her son. Self defence, such as it was, was thus rejected and the defendant was found guilty of attempted murder at the conclusion of his trial on January 26, 2024.

11 There are not yet any Eastern Caribbean Supreme Court (“ECSC”) guidelines for attempted murder. Counsel were agreed that the UK Guideline for attempted murder provides useful guidance to this court on how the sentence to be served by the Defendant should be constructed. This court reminds itself that the UK maximum penalty for attempted murder is life imprisonment while the maximum in the Federation is 25 years imprisonment so that the UK Guideline must be adapted with this difference being borne in mind. For this reason, this court, with the concurrence of counsel used the ECSC Violence Offences Guideline in order to determine the relevant starting point.

12 Ms. Nisbett for the DPP argued that the Defendant's offending fell squarely within Category 2 – High, Level A, on the Violence Guideline which meant that after consulting the relevant grid the starting point for the Defendant's offending was 15 years imprisonment with a range of 11 ¹/₄ years imprisonment to 18 ³/₄ years imprisonment. Ms. Hector for the Defendant agreed that while the Defendant's use of a weapon justified a Level A placement on the grid, it was her submission that the impact of her client's offending on the victims fell into the lesser category and thus required and 11 ¹/₄ starting point.

13 It was Ms. Hector's submission that the medical report tendered at sentencing in relation to Ms. Shiwamber did not disclose any long-term impact since that report indicated that Ms. Shiwamber's prognosis was good in relation to the injury to her left ring finger. Ms. Hector's submission pointedly ignored the fact that this medical report was directed to the left ring finger injury only and paid scant regard to the victim impact statements from Ms. Shiwamber, her teenaged son and 7 year old daughter who all had ringside seats when the Defendant inflicted these injuries. Furthermore, Ms. Hector boldly submitted that this court should only consider what Ms. Shiwamber's 7 year old daughter said to the social workers in their social inquiry report and disregard what Ms. Shiwamber had to say about the impact of the offence on her daughter.

14 In this court's view, this was a startingly proposition, particularly since no justifiable reason was advanced for ignoring what a mother had observed about her own child in relation to the impact of the Defendant's offending on her own child. Even without the victim impact statements from Ms. Shiwamber's children, Ms. Shiwamber's victim impact statement established the nature of the physical and psychological impact of the Defendant's offending upon her.

15 Therefore, this court had little difficulty in roundly rejecting Ms. Hector's submissions on this issue and fully took into account what was attributed to Ms. Shiwamber's children. In Ms. Shiwamber's view, her daughter was ‘like a police officer’ and refused to leave her side and gets nightmares every time she sees the Defendant. Her son was angry all the time and refused to go to counseling or talk to anyone about how he feels about what the Defendant did to his mother. A finding of lesser culpability or harm on the part of the Defendant would in those circumstances have been absurd.

16 All the same, adjusting for the difference in maximum penalty between the United Kingdom and ECSC jurisdiction means that a sentencing range of 10 to 17 years with a starting point of 12 years imprisonment was warranted.

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