IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CASE ANUHCR 2018/0062 & 2020/0009
Ms Rilys Adams for the Crown.
Mr Justin Simon QC for the defendant.
2020: MARCH 5
for double murder and attempted murder,
and earlier in 2015,
for attempted murder and causing grievous bodily harm with intent
1 Morley J: Calvin James, aka ‘Burger’, now 57 (dob 10.11.62), falls to be sentenced for a total of five offences over two separate indictments to which he pleaded guilty at the first practicable opportunity on respectively 12.07.19 and 21.02.20: on 28.05.15 he caused grievous bodily harm with intent to his sister Ineta Liburd by using a taser and beating her in his bedroom with a length of 2×4 wood, and then some time later in the morning he attempted to murder his niece Amanda James, Ineta’s daughter, with a cutlass in her bedroom next door; and on 05.10.18, while on bail for the earlier events, James attempted to murder his nephew Lawrence James, Ineta’s son, who was entering James’ home, then murdered his niece Tahisha Thomas, Ineta’s daughter, in her bedroom next door, and then murdered Lawrence’s fiancé Sanchesca Charles in Ineta’s yard, by shooting the three each to the head.
2 On 21.02.20 the Crown indicated it would not seek the death penalty as James had pleaded guilty and in light of the restrictions created on passing the death penalty by the case in the Privy Council of Trimingham v Regina 2009 UKPC 25.
3 The case was opened on 05.03.20, with sentence to be passed today, 12.03.20, remarks being written, to be distributed after.
4 The issue on sentence is whether to pass a whole life term without expectation of release or a determinate sentence requiring two-thirds served before automatic remission.
5 James had lived in Donovans alongside his sister Ineta (dob 13.04.65), each in modest wooden buildings separated by about 5ft, on land it seems originally owned by his grandmother who had largely raised him. He had expected to inherit the land, but she died intestate, so that the land fell to be shared by surviving relatives, including with Ineta, which it appears caused him great resentment leading to unpleasantness between James and Ineta over many years, including disputes over money and some reports to police of violence.
6 Probation officer Irvine Henry, in his 11-page pre-sentence report dated 24.10.19, has described James locally as a flamboyant, comical, ‘glitzy’ character, likened to the famous actor Eddie Murphy, driving a distinctive pink car, well dressed, and held in high regard for his attention to his seven children by two partners, and for looking after the children of others in his village. Though the tension with his family members has been known, the community has not thought him violent. He has one previous conviction in 1974 for larceny, being bound over, which I ignore, so that I consider him to be of essentially good character.
7 On the one hand it seems James is well liked locally; on the other, he has harboured a brooding deep dislike of his nearby sister’s family which in three years has led to two murders and two attempts. In this context as part of assessing the appropriate sentence I must weigh whether James is ‘dangerous’, as outlined in the statement of sentencing principles in para 13 of Practice Direction 8A of 2019, in the sense that he will likely present an ongoing and undimming significant risk of further serious harm to others.
28 May 2015
8 Concerning the first event on 28.05.2015, being indictment 2018/0062, Simone Goring has been the longtime partner of James, then 53, from 1995 by whom she has five children, in 2015 aged 18, 17, 11, 9 and 8. Though she has described him as a good father, and not violent, her statement of 28.05.15 discloses there was an altercation on 25.05.15 about which she made a report to St John’s police station, and another on 27.05.15 with a further report to Grays Farm police station. Then on 28.05.15, around 09.30, he attacked her with a claw hammer about her upper body, observed by Amanda from 20ft in Ineta’s home next door, causing bruising to Simone’s right upper arm and left hand. Simone asked Amanda to call police, who reported to Ineta what she had seen, police arriving shortly after.
9 At about 10.45, James came into Ineta’s home asking for help, and she told him he must expect to be arrested for beating Simone. James said Simone had stolen $20000ec from him and he wanted Ineta to safeguard a remaining $40000ec, inviting her to enter his home to secure the cash. She entered toward his bedroom and noticed he had a taser gun, which he then placed on her neck, which shocked her, so she fell to the floor, immobile and defenceless, when he then repeatedly beat her head and upper body with a 2×4 piece of wood, causing a 2cm laceration to her forehead, severe pain, and swelling to her shoulder, arms, and back, leading to extreme anxiety and hallucinating, requiring sedation at hospital where she remained for three days.
10 James called for Amanda, who then saw her mother covered in blood making her way back to her home, and so she called police and made a report when they arrived. After Ineta had left in an ambulance, some time having now passed since the assault on her, Amanda’s son aged 4 said James was still around, and Amanda found him in her bedroom, armed with a cutlass. He immediately began to chop at her head, which she tried to protect with her arms, causing a 6cm laceration to her forehead, a 4cm laceration to her neck at which he aimed when she gathered her son and turned her back, almost severed her left hand where there was a 6cm wound from the hand to the forearm, and inflicted a 7cm laceration from her right wrist to forearm. She escaped by hiding under the bed with her son. When trying to murder Amanda, James was saying he wanted her sister to return home so he could chop her too. Such was the strength of these aimed blows to her head, blocked by her arms, that they caused open fractures to both forearms. Amanda, then aged 28 (dob 14.05.88), has lost some sensation in her hands, was routinely at the hospital for two months, and has required extensive physiotherapy.
11 On arrest, James denied memory of his actions, and pointed out weapons he used, namely the hammer, and the cutlass.
12 It should be noted that on indictment 2018/0062, which contained five counts, was a count, count 5, for firing a flare gun at the face of PC Jess Bristol on 19.02.15, which will lie on the file, ignored for the purpose of this sentence, as will counts 2 and 4, which had been lesser alternatives to the attempted murder of Amanda and causing grievous bodily harm with intent on Ineta.
13 After charge, James spent some time in custody, but was eventually bailed, indictment 2018/0062 was signed on 06.09.18, filed on 11.09.18, and he was due at the High Court for a first appearance on 06.10.18.
5 October 2018
14 However, concerning what later became indictment 2020/0009, before attending the High Court on 06.10.18 James, then 55, went to his home to secure it, the morning before, being 05.10.18. It had been a condition of his bail he must not live there, and so he had been absent from it for a time.
15 When James went to his home he was armed with a loaded silver-black 0.38 Smith & Wesson revolver no. SR#CFE7031. He had stolen it from his friend, with whom he would play dominoes, named Vernon Joseph, then aged 73, who has held a firearms licence since 1970. Vernon had left it lying around on his sofa, and James had visited at about 17.30 on 04.10.18, which was when he took it. As an aside, it beggars belief a firearm would be left lying around so, in a home often visited by many others, raising the query whether its owner should ever have had a licence, more so given he had lost a firearm some years before at a beach: in these circumstances, I direct that the firearms licence of Vernon Joseph is reassessed by police with a view to it being permanently revoked.
16 It is clear from the timing of stealing the firearm, in combination with James then going to his home because he was required in court the next day on charges caused by Ineta’s family, that plainly he had in mind its possible use at his premises. To this extent, I find as a fact he had it to use if reason arose, however slight, and in this sense the killings which followed were already in contemplation several hours in advance.
17 Lawrence rose at 06.30 and going out to wash noticed the door open to James’ home with a shadow pacing within. He went to investigate and on putting his head around the door, was shot in the face, through his cheek, aged 23 (dob 14.09.85). Lawrence ran to hide, and James exited his home and entered Ineta’s home, into her bedroom, where with no argument he shot Tahisha downwards through her left upper forehead, suggesting she had been cowering while he was above her; she was later found unresponsive and breathing, but died in hospital, aged 21 (dob 27.10.96). He then went outside, seeing Sanchesca, to whom Lawrence called out to run. In her hurry, she slipped in the yard and James stood over her putting the gun to her head. She pleaded to live, saying she was no part of the argument, he paused, turned to leave, changed his mind, and shot her clean through her head from behind her ear. He got in a truck and drove away, while Sanchesca aged 22 (dob 19.07.96) died at the scene in the arms of Lawrence.
18 James hid on Antigua until 13.01.19 at 00.30 when he was apprehended near Hermitage Hotel, still armed, with one round. On 13.01.19 in a brief statement under caution he said Lawrence had entered his property to wash so he shot him, then shot Tahisha, and would have shot Ineta if she had been present, and then had shot Lawrence’s fiancé. Asked further questions in police interview on 13.01.19 on why did he shoot the three, he said:
Why did you shoot Tahisha Thomas?
Because me angry because them advantage me family she and she mum and she brother and them you know bear fact that them want fu tek way me property and so all this you know just drive me crazy.
Why did you shoot Lawrence James?
He enter to my property to have a shower, he a the first person that get shot, cause the magistrate say do not enter my property so if the magistrate say them nar fu enter me place them nar fu go dey.
Why did you shoot Sanchesca Charles?
Because she a the same one that join with them and throw all the tings by me place and them eat them Kentucky and throw a me yard you know them say the same tick that knock the wild hit the tame but no tame dey all a them a de same.
19 It is plain from the fact all three shots were to the head that he intended to kill. From the moment Lawrence put his head into James’ home, it is also plain that the head shots were aimed and premeditated from that point on. Moreover, he entered Ineta’s home, into her bedroom, fully intending to kill her, though she was out, and finding Tahisha, killed her in part in Ineta’s place. Further, he reflected on whether to kill Sanchesca, and then did so. The killings were not in hot blood, they were in cold blood, weighed and pursued, being armed in anticipation of having any excuse to kill, he did not lose his temper or self-control, and he had the presence of mind to drive away after and hide for two months. The nature of the murders of the two defenceless and blameless women was an execution in their own home. In my judgement, these shootings were motivated by spite to Ineta, calculated to cause as much emotional harm to her as he could, by intending to kill her children, being her daughter, her son, and her intended daughter in law.
20 Moreover, during the sentencing hearing on 05.03.20, James asked to address the court, notwithstanding the measured eloquence of defence counsel Justin Simon QC. In what followed from the dock for five minutes, in a disturbing display ego, James complained of how his sister Ineta was determined to cheat him of his land and the temerity of Lawrence to want to shower in his property; yet there was not a word of apology or sliver of remorse for shooting Tahisha and Sanchesca each through the head.
21 In addition, there was evidence on 05.03.20 from family members on the impact of James’ acts.
a. Lawrence James spoke of the loss of his beloved Sanchesca and broke down when recalling how she died in his arms. He was visibly still in profound shock at events, having had no counselling, and was struggling to articulate his feelings, saying he hoped James ‘rots in jail’.
b. Margaret Smith was Tahisha’s paternal grandmother, who had raised her from the age of 7, living often in New York, who had seen Tahisha in the hospital as doctors struggled in vain to save her. She loved Tahisha very much, who she said was a ‘sweet personality’, and no sentence would be satisfaction for her loss.
c. Evelyn Jeffrey was Sanchesca’s aunt, who she described as a smart girl, they had been close, and she had seen her body lying at the scene. She said of James: ‘this guy is just wicked, he should be hanged or shot’.
d. Ineta Liburd sent a voice note to court, of 16 minutes, and not knowing how to start, in obvious aural distress explained how James had ruined her life, he had taken her daughter, who was blameless, who ‘had not done him nothing’, she felt she had no life anymore, and she was simply living for her other children.
e. Aretha Jeffrey phoned in to court from Barbuda, being Sanchesca’s mother, describing her as ‘peaceful, harmless, friendly, helping, and caring’, her first born, of four, whose father had died at sea. She had flown in a hurry from Barbuda on hearing news, being sent from the hospital to the scene where she saw her daughter’s body lying on the ground. She remarked on the sensation she feels empty even after eating, still, and cannot understand why he pulled the trigger, it being so painful to consider as Sanchesca had nothing to do with his dispute.
Constructing the sentence
22 The maximum sentence for murder in this case is life without expectation of release, for attempted murder simpliciter or by shooting is 35 years, and for causing grievous bodily harm with intent is 15 years.
23 Given the number of offences, and being two sets, each offence requiring a separate sentence, this exercise is not uncomplicated.
24 Moreover, the automatic passing of a life sentence for murder as occurs in the UK, with a minimum term to be served before eligibility for parole, has much to commend it, when considered alongside the complications which can arise as here where calculating sentence differently. This is particularly so where having to assess consecutive sentences for lesser offences, which might otherwise simply be concurrent overall to a life sentence for murder.
25 In my judgment, while the offences on 28.05.15 were vicious and appalling, the offences of 05.10.18 were of a different order, being calculated and as such were coldly deeply evil.
26 Bearing in mind James was fully an adult aged 55 at the time, reflecting on sentencing principles from the well-known decision of Byron CJ (as he then was) in Desmond Baptiste v Regina 2004, appeal 8 of 2003 from St Vincent, requiring at para 21 attention to ‘retribution, deterrence, prevention and rehabilitation’, the repulsive wickedness of the killings persuades the court there is no prospect for rehabilitation. Accordingly, the sentence will reflect the other headings, being deterrence to others, prevention of further offending by James, and retribution for his acts.
27 As to aggravating features not separately emphasised so far, in sum they can be identified as follows:
a. Concerning events on 28.05.15,
i. Ineta was lured by trickery into James home thinking she would help him, being without warning then set upon with a taser and wood, showing the lure was premeditation;
ii. Amanda was attacked in her own bedroom, showing home invasion;
iii. She was attacked with a different weapon, a cutlass, brought from his home to hers, showing premeditation;
iv. Amanda’s son aged 4 was present;
v. Amanda was no part of the land dispute between James and Ineta;
vi. The motive for the attack on both appears to have been anger at having been reported to police, first for attacking Simone, and then again for attacking Ineta; and
vii. The attack on Amanda was later than the attack on Ineta, after Ineta had been taken to hospital, so that the two assaults are not part of one attack.
b. Concerning events on 05.10.18,
i. The attack was while on bail;
ii. It was motivated by the fact of pending court proceedings arising from 28.05.15;
iii. The reason for shooting Lawrence was vanishingly trivial;
iv. There was no arguable reason to execute Tahisha;
v. There was no reason at all to execute Sanchesca; and
vi. The killings involved home invasion.
28 In mitigation, Counsel Simon righty pointed to the following features:
a. James’ early plea of guilty;
b. His matter-of-fact admissions to police;
c. His absence of previous convictions; and
d. The high regard of the community for him, suggesting his offending was out of character, which was supplemented by Counsel Simon explaining James had worked for his office as a messenger and security officer, for a time living in the basement, and had been found most reliable and agreeable.
29 Though the court inquired of Counsel Simon whether he might want a psychiatric assessment, none was requested because from counsel’s interaction with James it was not thought necessary.
30 What was not mitigation was the fact of the property dispute, it was merely background, though it animated James, because no matter how upset James was with Ineta, the dispute cannot reduce his culpability for the two premeditated attacks on 28.05.15, and the executions on 05.10.18, as no family upset over land inheritance could ever begin to justify such behaviour.
31 To help with how to approach the case, Counsel Simon offered two documents: the sentencing judgment of Taylor-Alexander J inRegina v Neil Wilson 2017 SLUCRD 2016/0373 and the ECSC draft sentencing guideline for murder circulated since 21.02.20 for public response until 20.03.20.
32 In the Wilson case, the deceased was found stealing cannabis from the defendant, hog-tied and buried alive, causing a brutal death by suffocation with his eyes popping out from the pressure. There was an early plea of guilty and the sentence was 25 years. The case is distinguished because there was only one murder and no earlier serious offending. Moreover, it is a decision before the draft guideline, in which it might now attract a whole life term as under para 5 the manner of killing arguably involved torture.
33 Though not yet in force, the draft guideline has an elegant simplicity and so I will follow its rubric, noting it may yet be adjusted before coming into force likely later this year. Analysis suggests sentences which emerge from its application do indeed fall within local expectation. The structure of the guideline in part follows from the UK the structure of schedule 21 Criminal Justice Act 2003 there used for assessing the minimum term to be served for murder. Throughout the ECSC and wider in the Caribbean there are many sentences which might be studied, which vary from case to case, and as no two cases are the same to my mind it may be better to follow the rubric than to try to distil the correct sentence from myriad different cases with myriad different facts with myriad different outcomes.
34 The draft guideline suggests a whole life sentence is appropriate in the following circumstances:
Whole life sentence
a. the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is exceptionally high, and
b. the offender was aged 18 or over when he committed the offence,
the appropriate starting point is a whole life sentence.
5 Cases that would normally fall within paragraph 4 include:
a. the murder of two or more persons;
b. the murder is associated with a series of serious criminal acts; [or]
c. a substantial degree of premeditation or planning;…
35 It is clear here there is the murder of ‘two or more persons’ which ‘is associated with a series of criminal acts’, being the events of 2015, while the stealing of the firearm hours before, with later aimed headshots on entering the deceaseds’ premises, shows ‘a substantial degree of premeditation’ accompanied at the time of pulling the trigger. As such the offences on 05.10.18 do fall within para 5 under three disjunctive headings, not just one. Turning to para 4, it is plain ‘the seriousness of the offence (or the combination of the offence and one or more offences associated with it)’ is indeed ‘exceptionally high’, given the murders were executions at home of blameless innocents in the context of the ‘associated’ offending on 28.05.15. As such, I am fully satisfied under the draft guideline the murders on 05.10.18 qualify for a whole life sentence.
36 The question arises whether the pleas of guilty to both murders on 21.02.20 take the case out of the whole life category. On the one hand, it might be argued the pleas take it out of the death sentence category, under paras 2 and 3 of the draft guideline, so that the correct sentence is whole life; on the other hand, the death sentence not being sought, and nowadays unlikely, it might be fairer to consider the pleas need to be weighed against the more realistic starting point, being whole life, with a view to whether the pleas discount the sentence to something determinate. This is no merely academic point, as it might be said there is no incentive to plead guilty if a whole life term might follow anyway, leading to needless criminal trials in the most serious cases at much cost and emotion.
37 Reflecting on the effect of the plea, the draft guideline is again of help, where at paras 6 and 7 it says:
a. the case does not fall within paragraph 4 but the court considers that the seriousness of the offence (or the combination of the offence and one or more offences associated with it) is particularly high, and
b. the offender was aged 18 or over when he committed the offence,
the appropriate starting point is a determinate sentence of 40 years.
7 Cases that (if not falling within paragraph 4) would normally fall within paragraph 6 include:
a. where the offender has pleaded guilty and would otherwise face a whole life term [with footnote, which reads, ‘In such a circumstance, there would be no further discount on account of the guilty plea.’];…
38 In these circumstances, the draft guideline for murder sentencing appears specifically to expect that the guilty plea will take the sentence out of the whole life category into the determinate category, but there will be no discount for plea.
39 The next stage is therefore to calculate the five determinate sentences in this case to examine their consequence.
40 To calculate a determinate sentence, for each offence, I turn to the six steps of sentencing laid out in Practice Direction 8B of 2019.
41 Step 1 of sentencing analysis requires an assessment of the starting point for the offences.
a. Researching UK sentencing guidelines and adjusting them for local public expectation, concerning events on 28.05.15 for causing grievous bodily harm to Ineta I assess the starting point to be 7 years, and for attempting to murder Amanda to be 18 years, but consecutively, as the two assaults were not part of one attack but separate, broken by time.
b. Concerning events on 05.10.18, for attempting to murder Lawrence, I assess the starting point, as a second attempted murder, this time with a shot to the face, to be 25 years, but again consecutively, as this was on bail and separate offending.
c. So far, before considering the murders, the starting point for the two attempted murders and wounding with intent is 50 years, but this will attract a plea discount.
d. Reflecting on para 6 of the draft guideline, the starting point as a determinate sentence for the murder of Tahisha would be 40 years, but in my judgment this should be consecutive to the attempt on Lawrence, as it was distinct, separated by location and motive, namely James at his own home shot Lawrence for it seemed wanting a shower but Tahisha in her own bedroom in place of Ineta, in spite, and for her being family.
e. Then considering Sanchesca, for whom under para 6, if a lone murder, the starting point would again be 40 years, she was not even family, wholly uninvolved, and he placed the gun at her head, reflected carefully, made to leave, changed his mind, and only then executed her, in unarguable cold blood, as a wholly gratuitous additional offence, meriting in my judgment again a consecutive sentence.
f. In combination the determinate sentence for the two murders would be 80 years, but consecutive to the 50 years, totalling 130 years.
42 Step 2 of sentencing analysis requires an assessment of the defendant. As he is of good character, liked in the community, about whom Counsel Simon has spoken well, there can be a discount as follows:
a. Of 1 year for the offence on Ineta, reducing it to 6 years;
b. Of 1.5 years for the offence on Amanda, reducing it to 16.5 years;
c. Of 2.5 years, for the offence on Lawrence, reducing it to 22.5 years;
d. Of 5 years, each for the murders of Tahisha and Sanchesca, reducing each to 35 years;
e. In total, James now faces 70 years for the murders and 45 years for the non-fatal offences, consecutively, being 115 years.
43 Step 3 of sentencing analysis requires discount of one-third for the early plea, but this applies only to the non-fatal offences, so that the 45 years can be reduced to 30 years, being 4, 11 and 15 years respectively. This 30 years must be added to the unreduced 70 years, making a total of 100 years.
44 Step 4 of sentencing analysis requires an assessment for totality and dangerousness. As to dangerousness, I do find him to be so, permanently, but the sentence is already 100 years so I do not adjust it upwards. As to totality, the figure of 100 years is at the limit of a human life span and requires reduction, in fairness, by 10 years, to 90 years, meaning for totality I will reduce the sentence per murder by 5 years, to 30 years each.
45 Step 5 of sentencing analysis requires that time on remand is ordered to count toward the sentence, and it can be observed that of a 90 year sentence James can be expected to serve two-thirds before release under automatic remission, meaning 60 years.
46 Step 6 of sentencing analysis requires ancillary orders, which I make as follows: insofar as I can order it, his house and interest in the land at Donovans is to be transferred to Ineta Liburd in part as compensation (though no amount of land or money can ever meaningfully compensate for James’ actions), and arising as his land ownership was the reason for the offending meaning it was integral to the commission of these offences and as such can be confiscated; and the firearm is ordered destroyed.
47 James is 57 and faces a minimum of 60 years in jail. Having done the calculation, carefully, as a determinate sentence it can be observed his sentence adds up de facto to a whole life term. A determinate sentence of ’90 years’ may without more appear high, but there are three offence groupings to consider: the non-fatal offences have attracted 30 years, the first murder 30 years, and then the second 30 years. If there had only been the murders to consider, the sentence would have been 60 years.
48 From this analysis, it can be seen a defendant should not think a determinate sentence where, as here, though perhaps rare, there has been so much serious offending and on more than one occasion, will always mean an expectation of release one day.
49 In this sense in this case, for the foregoing reasoning, it follows there is good reason to step outside the draft guideline and pass a whole life sentence on each murder, with the 30 years for the non-fatal offences being concurrent, which I do.
50 Insofar as eligibility for parole might ever arise, this court expects any future parole board will fully take account of how the calculated determinate sentence had expected James would serve 60 years before remission.
51 Having adjusted for totality, noting calculation of a determinate sentence led de facto to a whole life term, the sentences are specifically:
a. For causing grievous bodily harm with intent to Ineta on 28.05.15, 4 years, (Count 3, indictment 2018/0062);
b. For attempting to murder Amanda on 28.05.15, 11 years consecutively, (Count 1, indictment 2018/0062); and
c. For attempting to murder Lawrence on 05.10.18, 15 years consecutively, (lone count, non-murder indictment 2020/0009); so that
d. This means the non-fatal offences attract in combination 30 years; to run concurrently with
e. For murdering Tahisha on 05.10.18, a whole life sentence, (count 1, murder indictment 2020/009);
f. For murdering Sanchesca on 05.10.18, a whole life sentence concurrently, (count 2, murder indictment 2020/009); so that
g. In sum, the total sentence is a whole life sentence without expectation of release.
52 Calvin James, please stand up. What you did on 28.05.15 was vicious. What you then did on 05.10.18 was cold blooded and pure evil. Each of the five offences was separated by time and reason. You are dangerous and always will be. I see no prospect in your case for rehabilitation. I sentence you to a whole life term, without expectation of release. For the reasons I have explained, for using the taser and beating your sister Ineta with the 2×4 in your bedroom, for savagely chopping your niece Amanda so breaking her arms with a cutlass in her bedroom, and for shooting your nephew Lawrence in the face at your front door, the sentences are in combination 30 years, to run concurrently with a whole life term for the murder of your niece Tahisha in her bedroom, and a concurrent whole life term for the murder in Ineta’s yard of Sanchesca, your utterly uninvolved prospective niece-in-law. In so far as it ever arises, time on remand will count. The gun will be destroyed, and your land and house will be confiscated to be transferred to Ineta. You may go with the gaoler.
The Hon. Mr. Justice Iain Morley QC
High Court Judge
p align=”right”>12 March 2020