BRITSH VIRGIN ISLANDS
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CASE NO. 17 OF 2009
Mr. Terrence F. Williams, Director of Public Prosecutions. With him Mrs. Grace Henry-Mc. Kenzie
and Ms. Sarah Benjamin. Crown Counsel for the Crown
Mr. Hayden St. Clair Douglas and Mr. Patrick Thompson for the Defendant
2009: November 04
2009: November 10
JUDGMENT ON SENTENCING
(Criminal Law – murder -mandatory life imprisonment -sections 150 and 23 of the Criminal Code,
1997· the Parole Act – section 9(2) • determination of minimum term in relation to mandatory life
sentence – choice of three starting points: “whole life”, 30 years or 15 years· • seriousness of the
offence – aggravating and mitigating factors • the character and record of the defendant
announcement of minimum term in open court)
 HARIPRASHAD·CHARLES J: Following a three-week trial, on 27th October 2009, the
defendant, David Swain, aged 53 was convicted by a unanimous jury of the murder of his wife
Shelley Arden Tyre (lithe deceased”) contrary to section 148 of the Criminal Code19971
 The law regarding the sentencing of persons convicted of murder has undergone some
significant changes over the last few months with the enactment of the Parole Act, 20092
I (Act No. 1 of 1997) of the Laws of the Virgin Islands
2 (No.7 of2009) ofthe Laws ofthe Virgin Islands
Act”). Prior to the coming into force of the Act on 20th May 20093
, every person convicted of
murder was automatically visited with the penalty of life imprisonment
. No consideration
whatsoever was given to any mitigating factors that the convicted person desired or was able
to put forward. In fact, the trial judge was powerless to alter that sentence and was duty-bound
to hand down the mandatory sentence of life imprisonment in every case where there was a
conviction of murder.
 Although the Act does not affect the fact that the mandatory sentence for murder remains life
imprisonment, it does however, transfer the role of the Executive in determining the minimum
term to the trial judge. As a result, ajudge upon sentencing a person to imprisonment for life is
now required to state whether such person may be eligible to be considered for parole and if
such person is found to be so eligible, to state a minimum period of imprisonment that such
person shall serve before being considered for parole for the first time5
 Another provision of great significance in the Act (not yet in force) is that although the offender
may be released on licence, and the minimum period affects the date on which this may
happen, the offender remains at risk of being returned to prison for the rest of his Iife6
 Pursuant to section 9(2) of the Act, a sentencing hearing was held on 4th November 2009 to
determine Mr. Swain’s eligibility for parole and if he is so eligible, to state a minimum period of
imprisonment that he should serve before being considered for parole.
 The facts of the case as outlined by the Crown and which the Jury accepted are as follows: on
a serene day in March 1999, Mr. Swain, the deceased, their friends Christian and Bemice
Thwaites and the Thwaites’ son Matthew, then 9 years old, were enjoying their last day of
sailing aboard the vessel, Caribbean Soul in the British Virgin Islands (“the BVI”). Shortly after
12.30 p.m., Mr. Swain and the deceased dived to the Twin Wrecks which is comprised of the
3 The Governor has proclaimed that sections 1,2,4(5),9,23,29 and 30 of the Parole Act, 2009 shall come into
force on 20
4 See sections 150 and 23 of the Criminal Code 1997 (Act No. 1 of 1997) ofthe Laws of the Virgin Islands.
5 See section 9(2) ofthe Parole Act, 2009.
6 See sections 14(b) and 15.
wrecks of the tugboats the “Mary L” and the “Pat” off Cooper Island, an underwater attraction in
the BVI. They left the Thwaites on board the vessel. There were no other divers in the vicinity
at the time.
 About 35 minutes after, Mr. Swain returned to the Caribbean Soul alone. Mr. Thwaites then
entered the water. At the stern of the wreck he found the deceased’s fin embedded by its blade
into the sand with its heel portion up and the heel strap irregularly stretched below the sole.
Such finding was unusual. As he came around the stern, he saw the deceased lying on her
back with her face upwards. Her regulator was out of her mouth and she was not wearing her
diving mask. She was free from any entanglement.
 With all due expedition, Mr. Thwaites brought the deceased to the surface and called for help.
He then commenced cardiopulmonary resuscitation (“CPR”). Mr. Swain came by dinghy to
where Mr. Thwaites surfaced and together they placed the deceased aboard the dinghy. Mr.
Swain performed CPR on the deceased for a short time and thereafter instructed that CPR be
discontinued because she was dead. This decision is against diving protocol which is to
attempt resuscitation until the rescuers had no more energy left or someone of higher
qualifications takes over. Mr. Swain testified that he had training as an Emergency Medical
Technician (“EMT”), and taught this very protocol being adive instructor himself.
 Upon their return to Caribbean Soul, Mr. Swain prevented Mr. Thwaites from sending out a
Mayday as he did not want everyone coming around. Thereafter, Mr. Swain contacted the
Virgin Islands Search and Rescue (“VISAR”). Mr. Keith Royal responded and on arrival saw
the deceased lying on her back. He too offered to do CPR. Mr. Swain refused the offer saying
that he was a paramedic, he had seen dead bodies before and there was no need for CPR.
Mr. Royal then transported the deceased to Peebles Hospital where she was pronounced
 On the day following the incident, Mr. Phillip Browne, Vice President of the BVI Dive
Operations Association and a certified scuba diver, who also has training in the repair and
inspection of scuba gear, dived the site of the Twin Wrecks in order to retrieve a camera lost
by Mr. Thwaites during the rescue of the deceased. There he located the deceased’s fin, mask
and snorkel. He noted the condition of the mask and that the snorkel’s mouthpiece was
detached and missing. The deceased’s slate was never recovered.
 Mr. Browne and Mr. Thwaites secured the deceased’s equipment at Mr. Browne’s business
place in keeping with first level PADI (Professional Association of Diving Instructors)
instructions that if there is an accident of any kind, the equipment is to be isolated and kept
until the proper authorities can take possession of it. They examined the deceased’s
equipment the same day of the incident and found that it was in good working order. They
checked the air pressure in the tank, that the regulators were breathable and that the buoyancy
compensator would inflate and deflate appropriately. They also found that the air was of good
quality and operated ‘from all sources.
 There is evidence that the deceased was in good health at the time of her death and was a
highly experienced and qualified diver. Indeed, she had logged in 354 dives. There was no
evidence that the deceased had any medical condition which attributed to her drowning and
the diving conditions at the time of the incident held no hazards. There was evidence that Mr.
Swain would have been in the immediate vicinity of the deceased at the time she no longer
breathe air from her tank.
 Mr. Swain also displayed strange behavior after his wife’s death. Two days after her death, Mr.
Swain went to Mr. Browne’s business place and told Mr. Browne to get rid of the deceased’s
equipment. After the autopsy was conducted, Mr. Swain went back to Mr. Browne’s shop and
once again told him to dispose of the dive gear.
 The deceased’s murder was driven by two motives, financial gain and a desire to fully explore
a love affair he had begun before his wife’s death and which resumed about two to three
weeks after her death.
Plea in mitigation
 Learned Counsel for Mr. Swain, Mr. Douglas implored the court to exercise leniency and
compassion on Mr. Swain, who will turn 54 later this month. He urged to take into
consideration, the numerous character witnesses who have since come forward to attest to Mr.
Swain’s kindness, integrity and generosity. Of particular importance are the emails from his two
children who described their father as acaring, loving and generous man. Suffice it to say, they
were both present throughout the trial and lent support to their father. In the aggregate, there
are 45 emails from friends, family members and acquaintances pouring out their support and
beseeching me to exercise leniency and to afford Mr. Swain an early parole. The general
sentiment of his cohorts is that Mr. Swain is innocent and that he could never have committed
such awicked act.
Family impact assessment
 Shortly after the verdict was delivered, Mr. Richard Tyre, aged 84, craved the court’s
indulgence to speak on the effect of the offence on his family. As a matter of fact, he and his
aging wife were also present throughout the trial. An emotional Mr. Tyre said that Shelly was
their eldest child and the day she died, their lives came to an end. He spoke of his daughter’s
love for the environment and for the children she taught at Thayer Academy, the school at
which Shelly was the head-teacher. He also said that his family welcomed Mr. Swain into their
home as their son-in-law and at last, the jury has spoken.
The legislative framework
(a) The Criminal Code. 1997
 Section 150 of the Criminal Code states:
“Any person who is convicted of murder is liable to imprisonment for life.”
 Section 23 provides that “a person liable to imprisonment for life or any other period may be
sentenced to a shorter term, except in the case of a sentence passed in pursuance of section
(b) The Parole Act, 2009
 Section 9 (2) of the Act states as follows:
“A judge upon sentencing a person to imprisonment for life, shall state whether such
person may be eligible to be considered for parole and, if a person is found to be so
eligible, state a minimum period of imprisonment that such person shall serve before being
considered for parole for the first time”.
Mandatory Life Sentences [U.K.]
 Section 269 of the Criminal Justice Act, 2003 (“CJA, 2003”) provides for the determination of
minimum term in relation to mandatory life sentence.
(1) “This section applies where after the commencement of this section a court passes a life
sentence in circumstances where the sentence is fixed by law.
(3) The part of his sentence is to be such as the court considers appropriate taking into
(a) The seriousness of the offence, or of the combination of the offence and anyone or
more offences associated with it, and
(4) If the offender was 21 or over when he committed the offence and the court is of the
opinion that, because of the seriousness of the offence, or of the combination of the
offence and one or more offences associated with it, no order should be made under
subsection (2), the court must order that the early release provisions are not to apply to the
 Schedule 21 of the CJA, 2003 provides for appropriate starting points depending on the gravity
of the offence.
4 (1) If
(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,
(b) the offender was aged 21 or over when he committed the offence,
the appropriate starting point is awhole life order.[emphasis added]
(2) Cases that would normally fall within sub-paragraph (1 )(a) include
(a) the murder of two or more persons, where each murder involves any of
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or
(c) a murder done for the purpose of advancing a political. religious or
ideological cause, or
(d) amurder by an offender previously convicted of murder.
 5(1) If
(a) the case does not fall within paragraph 4(1) 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, in determining the minimum term, is 30
(2) Cases that (if not falling within paragraph 4( 1)) would normally fall within sub
paragraph (1)(a) include
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of afirearm or explosive.
(c) a murder done for gain (such as a murder done in the course or
furtherance of robbery or burglary, done for payment or done in the
expectation of gain as a result of the death).
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(0 the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual
(h) a murder falling within paragraph 4(2) committed by an offender who was
aged under 21 when he committed the offence.
Aggravating and mitigating factors
 Paragraphs 8-11 of the Schedule read aggravating and mitigating factors. Paragraph 8 states
that having chosen a starting point, the court should take into account any aggravating or
mitigating factors, to the extent that it has not allowed for them in its choice of the starting
 Section 10 lists the aggravating factors that may be relevant to the offence of murder to
(a) “a significant degree of planning or premeditation,
(b) the fact that the victim was particularly vulnerable because of age or disability,
(c) mental or physical suffering inflicted on the victim before death,
(d) the abuse of a position of trust,
(e) the use of duress or threats against another person to facilitate the commission of the
(f) the fact that the victim was providing a public service or performing apublic duty, and
(g) concealment, destruction or dismemberment of the body.
 Mitigating factors that may be relevant for the offence of murder include
(a) an intention to cause serious bodily harm rather than to kill,
(b) lack of premeditation,
(c) the fact that the offender suffered from any mental disorder or mental disability which
(although not falling within section 2(1) of the Homicide Act 1957) lowered his degree
(d) the fact that the offender was provoked (for example, by prolonged stress) in away not
amounting to adefence of provocation,
(e) the fact that the offender acted to any extent in self defence,
(f) a belief by the offender that the murder was an act of mercy, and
(g) the age of the offender.”
UK Case Law
 The Consolidated Criminal Practice Direction (Amendment No.8) (Mandatory Life Sentences)7
sets out the procedure that the court should follow in setting the minimum terms in murder
cases. In setting the minimum term the court must set the term it considers appropriate taking
into account the seriousness of the offence. In considering the seriousness of the offence the
court must have regard to the general principles set out in Sch. 21 of the CJA, 2003. In very
serious cases where there are a number of aggravating factors as set out in section 10 of
Sch.21, aminimum term of 30 years is appropriate.
 In R v Sullivan; R v Gibbs; R v Elener; R v ElenerB, the Court of Appeal heard four conjoined
appeals which raised questions as to the correct approach to be adopted by sentencing courts
when applying the provisions of the CJA, 2003 in order to set a minimum tariff period. The
recommended tariff for very serious murders was 30 years and 14 years for average murders.
[28J In R v Tailor9, the defendant’s appeal against a specified minimum term of 27 years for the
murder of his wife was reduced to 25 years less time spent in custody on remand. The court
held that in setting a minimum term pursuant to para 5(2)(c) of Sch. 21 to the CJA 2003, a
case in which a husband murdered his wife with the expectation of gain, in domestic
circumstances, was distinguishable from acase in which a professional criminal killed for gain.
Further, cases which involved mixed motives would not normally attract a minimum term which
did not mitigate from 30 years,
 In R v Johnstone10
, the defendant murdered his wife for financial gain and then burnt her
body in the back garden, The killing had been entirely unprovoked and the defendant’s motive
and his appalling behaviour after the killing had been significant factors, The court held that a
minimum term of 17 years less time spent in custody on remand was not manifestly excessive,
7  1 Cr, App, R. 8
8  EWCA 1762;  1 Cr, App, R, (S) 67,
9  EWCA Crim, 1564
10 [2007) EWCA Crim, 2661.
9 BVI Case law
 In Rv Aaron George11
, the Defendant pleaded guilty to the murder of Vincent Connolly, The
defendant gave a statement to the police implicating the person he alleged contracted him to
kill the victim12
, The victim was found outside !”lis home dead with five gunshot wounds, The
Defendant was sentenced to life imprisonment with a possibility of parole after serving 22
years. Time spent on remand was taken into account
 In R v. Milton, Campbell and O’Connor13
, the defendants Andrew Milton and Dennis
Campbell were convicted of murder and conspiracy to murder. The defendants went to the
victim’s home armed with agun, The plan was to kill the defendant, Milton’s sister but that plan
did not materialize. The deceased, the roommate of Milton’s sister was strangled rendering her
unconscious or dead before she was thrown over the balcony. Both defendants were
sentenced to life imprisonment with a possibility of parole after 35 years.
 In a nutshell, the facts of the instant case are that this was a murder which was premeditated
and carefully planned. It came on the last day of their vacation. It was done for financial gain
and a desire for Mr. Swain to fully pursue a love affair which he had begun prior to the wife’s
 Sch. 21 of the CJA, 2003 provides for appropriate starting points depending on the
seriousness of the murder. The instant case is not so serious as to require a “whole life order”
but the seriousness of the murder is particularly high as it was a murder done for gain. In my
considered opinion, the appropriate starting point is 30 years: see para. 5(2) of Sch. 21 of the
II BVl Criminal Case No. 21 of2008. Oral judgment delivered on 23’d June 2009.
12 It is to be noted that at the subsequent trial of the person whom he alleged contracted him to kill, the defendant,
the key witness for the prosecution said that he lied to the police as to that person’s involvement because he
wanted to get a lesser sentence and to appease his friends.
13 BVI Criminal Case No. 18 of2007 [unreported] oral judgment delivered on 6
October 2009 to be reduced into
 The second step after choosing the starting point is to take account of any aggravating or
mitigating factors which would justify a departure from the starting point. Taking into account
the aggravating and mitigating features the court may add to or subtract from the starting point
to arrive at the appropriate punitive period. In the instant case, the Crown has helpfully
identified the aggravating features as (i) some degree of premeditation; (ii) killing for financial
gain and (iii) the abuse of a position of trust. The sole mitigating factor identified by the Crown
is that Mr. Swain has no previous criminal convictions.
 It is important to state that the killing for financial gain cannot be regarded as an aggravating
factor as it was already considered in order to determine the appropriate starting point.
 Besides Mr. Swain’s unblemished record, I have also taken into consideration his exceptional
conduct whilst at Her Majesty’s Prisons during his two years of incarceration there on remand
awaiting this trial. I do not believe that there will be any departure from that exceptional
 I also have regard to the purposes of sentencing. It is widely recognized that the four
classical principles of sentencing are retribution, deterrence, prevention and rehabilitation.
 It is my view that since this murder was carefully planned and premeditated, it calls for a stiff
punishment proportionate to that which was imposed by the English Court in Tailor [supra], a
case which bears close affinity to the instant case.
 Taking all matters into consideration, I hereby sentence you, DAVID SWAIN to life
imprisonment with parole eligibility of 25 years less time spent on remand__. _——–..,
Indra Hariprashad-C ar s
High Court dge