DPP v Kimo Liburd [ECSC]

• Jurisdiction: Saint Kitts and Nevis
• Judge: Ramdhani J (Ag.)
• Judgment Date: 06 December 2013
• Judgment citation (vLex): [2013] ECSC J1206-2
• Docket Number: CLAIM NO.: SKBHCR 2013/0025
• Court: High Court (Saint Kitts and Nevis)
• Date: 06 December 2013

[2013] ECSC J1206-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

(CRIMINAL)

A.D. 2013

CLAIM NO.: SKBHCR 2013/0025

Between:

The Director of Public Prosecutions

and

Kimo Liburd

Sentence — Causing Death by Dangerous Driving — Applications Principles — Culpability of the Offender the Dominant Factor — Mitigating and Aggravating factors — Shifting of Blame on Others for death of child — Whether certain aggravating factors can neutralize good character — Whether appropriate sentence a custodial sentence.

Suspended Sentence — Partly suspended sentence — Not to be considered a soft alternative — Only Appropriate where appropriate sentence is a custodial sentence falling within the statutory range — Applicable where serving a small part of custodial sentence effectively deters first time offenders.

On the night of the 19^th February 2012, the defendant Kimo Liburd speeding in a dangerous manner on the Kim Collins Highway careened out of control and slammed into an oncoming vehicle causing the death of a small child sleeping in the backseat of that other vehicle. On his trial for the offence of causing death by dangerous driving, He sought to raise the defence of mechanical defect and that the death of the child was due to the parents' failure to secure their child in a car seat or seat belt. The jury rejected these propositions and convicted him. At his sentencing hearing, a plea was made on his behalf that he should be given a non-custodial sentence, or in the alternative any custodial sentence imposed should be suspended.

Held:

• 1. This was an appropriate case for a custodial sentence as this was a high-speed high-impact act of dangerous driving, where the defendant was highly culpable. Further, he lost the full benefit of the mitigating effect of his good character for his continuous shifting of the blame for the death of the child on the parents. In the circumstances the appropriate sentence is a one-year sentence of imprisonment. His licence will also be revoked for a period of five year. Should he wish to obtain a driver's licence again, he will be required to take an extended test.

Applied: R v Cooksley et al [2003] Crim. 996; Principles found at Blackstone Criminal Practice and Procedure 2008 edn. paragraph 32–9 at page 2809;Thelbert Edwards v RCriminal Appeal No. 3 of 2006 (St. Lucia) (unreported)

Considered: R v Jesse CharlesCriminal Case No. 8 of 2003 St. Lucia (unreported); Markenzee S. Hunte Criminal Case No. 18 of 2009 St. Lucia (unreported);R v Wendell VarrickCriminal Case No. 27 of 2011 British Virgin Islands (unreported);Desmond Baptiste v RCriminal Appeal No. 8 of 2003 St. Vincent and the Grenadines;Director of Public Prosecutions v Elvis RichardsonCriminal Case No. 25 of 2013

2. A partly suspended sentence is especially applicable to serious first time offenders or first time prisoners who are bound to have to serve some time in prison, but who may well be effectively deterred by eventually serving only a small part of even the minimum sentence appropriate to the offence. This is its principal role. This was a case in which a one-year custodial sentence is the sentence fixed by this court, but it is appropriate, having regard to the career prospects of the defendant, to suspend a part of the sentence.

Applied: Section 11 of the Alternative Sentencing Powers Act, Cap. 320; Dicta of Lord Lane CJ in R v Clarke [1982] 3 All ER 232 at pages at 236 .

Considered: R v Brannigan (Kevin) 2013 WL 3994991Court of Appeal (Northen Ireland);R v Blenkiron (Jason) 2012 WL 4808725Court of Appeal (Criminal Division);Director of Public Prosecutions v Elvis RichardsonCriminal Case No. 25 of 2013

Per Curiam

A Probation Officer preparing a Social Inquiry Report for sentencing purposes, has a duty to be fair not only to the defendant but also to the victim and the community. It is recommended that they not only interview persons identified by the defendants, but they also find persons within the community where that person lives, in an effort to gather independent information on the defendant. Further they must properly identify persons who they have interviewed in their report, so that the process can be fair and transparent allowing the defendant, if he wishes, to have a reasonable opportunity to challenge any information or findings they might make.

1 Ramdhani J (Ag.)— A young couple with their sleeping two year-old daughter in the back seat of their car was driving along the Kim Collins Highway at about 8:00 p.m. on the 19^th February 2012. They were on their way to church. Gospel music was on the radio, and they were discussing their child's birthday that was four days away. This peace, tranquility and the joy of young life was not to last. With hardly any warning, a furiously speeding vehicle coming in the opposite direction careened out of control leaving its lane flying into the path of their car, smashing almost head-on with their vehicle slamming it 26 feet backwards and sideways. The mother of the child, did not know what had happened, so sudden and unexpected was this collision. The father, who barely had about three seconds to see the speeding car, hardly seemed to know what had happened immediately after the disaster. Their sleeping daughter at the back, it seemed, never awoke from her sleep. She died later at the hospital as a result of the injuries suffered from the accident.

Ramdhani J (Ag.)

2 The other vehicle was PA 1436 and was being driven by the defendant, 29 year-old Kimo Liburd. His vehicle was totaled from the collision. The backdoor of his hatchback vehicle flew off on impact and ended up 42 feet away from the point of impact. He was relatively unhurt from the collision.

3 He was charged with the offence of causing death by dangerous driving and when his matter came on for trial he pleaded not guilty. He attempted to claim that it was no fault of his own, that he had simply overtaken another vehicle and while he was traveling above the speed limit, for some reason unknown to him his vehicle started to vibrate and then when he applied his brakes, the vehicle went out of control. Amazingly in his defence, he made a lot of the fact that the couple were at fault for the death of their child, as they had failed to properly secure her in the car with any car seat or seat belt. This theme continued to play out in this trial to the very end. The trial lasted for a few days and he was found guilty as charged.

Mitigation and Social Inquiry Report

4 A Social Inquiry Report was ordered which was presented to the Court on the 7^th November 2013 by Ms. Trevicia Clarke, Probation Officer. This Report shows that the defendant is the second of six children, but grew mostly with his stepfather who was a disciplinarian. In his youth the defendant moved around a bit but managed to complete not only high school passing five subjects at CXC, but also received a credit at the Clarence Fitzroy Byrant College for Mechanical Technology and Vehicle Technology.

5 He began working at a very young age whilst still attending school, and had a number of jobs including one at Covaro at Port Zante in the quarry greasing the vehicles. He was also employed with an auto rental business where he was responsible for installing sound systems in vehicles. In 2003 he started to work at the St. Kitts Marriot in Frigate Bay as a dishwasher. He was promoted a number of times and by October 2010 he was a Front Desk Manager at the Marriot; he still holds this job.

6 One of the curious things arising from the Report was that one of the persons interviewed, a Ms. Shirley Williams, stated that the defendant has a passion for cars and car racing. When questioned about this by the Court, the Probation Officer attempted to resile from the latter part of this statement. The Court considered that this was a most startling reaction. Probation Officers must take their work seriously, and not make light of anything that is told to them. They are not there to simply write down what is said to them by persons identified by defendants who are to be sentenced. When they prepare these types of reports for the Courts, they have a duty to be fair not only to the defendant but also to the victim and the community. It is recommended that they not only interview persons identified by the defendants, but they should also find persons from the community in which the defendant lives to gather independent information on the defendant. Further they must properly identify persons who they have interviewed in their report, so that the process can be fair and transparent allowing the defendant a reasonable opportunity to challenge any information or findings they might make.

7 That being said, today the defendant is presented to the court as a young man who is hard working without any previous convictions.

8 By way of mitigation a number of witnesses gave evidence on his behalf. Two of his co-workers from the Marriot, Mr. Ashmo Dorsett and Ms. Shubashnami Persaud spoke of his character. They had good things to say of him, of his hard working nature and his ability to take charge and be helpful to others. Mr. Dorsett states that the defendant has been like a teacher to him. Ms. Persaud states that he is a key person and they miss him. Ms. Sylvia Jones, a retiree who has made St. Kitts her home also spoke in good terms of him. She stated that he assisted her quite a lot in settling in St. Kitts. She also mentioned that other persons who had stayed at the Marriot had sent letters on the defendant's behalf to be considered as part of the sentencing hearing. (They were considered.)

9 The defendant through his attorney has requested that having regard to the mitigating circumstances and precedent, a non-custodial sentence should be imposed or in the alternative if one is to be imposed, the court exercises its discretion under theAlternative Sentencing Powers Act, Chapter 3:20,...