Anguilla’s High Court Judge, Justice Shawn Innocent, has delivered his Judgment and Sentencing regarding what he described as “a most brutal murder” in Anguilla. The judgment was delivered on October 2 at the conclusion of the trials of Diayan Austin and Clive Hodge for the 2014 shooting murder of Kenya Mitchum.
Following is an extract from Justice Innocent’s Judgment:
Sentencing Remarks
[103] This is perhaps one of the most difficult duties that I have ever been called upon to perform. The circumstances of this case, the difficult task is that of sentencing. What makes the task infinitely more difficult is that a life was lost. In fact, a life was taken away. A life that was not given by the persons who stole it away. More so, this was a case where the life was taken meticulously, with extreme prejudice and extreme marksmanship. What is even more troubling, there was a child involved. He was holding his child. That child must be a very special child and must have had the most powerful guardian angel in the world.
[104] The evidence was that there was shrapnel all over the house. The shrapnel injured the victim. It defied logic that this child did not die, and none of the perpetrators bore that in mind when they carried out their premeditated and vicious plan.
[105] When people go out to commit these acts, think of all the trouble that it creates. The victim impact statement was read out in court and it was heart wrenching to say the least. Every action, everything that we do in this world has a concomitant effect, everything. We come into this world but we are not given the right to change destiny or to change the course of human life – no, that is not our place, that is not our purpose.
[106] Mr. Hodge, Mr. Austin, the train of events that you have set in motion will carry on from henceforth.
[107] Then, now you create trouble for the courts. Mr. Astaphan has to prosecute you; defence counsel has to come; the state has to bear the costs; you have to empanel jurors. Nobody’s life is going to be the same again. Why? For ego? When are we going to learn to just walk away? Have you two gentlemen sat down and thought about the consequences of your actions? Have you had the time for quiet reflection and meditation? You cannot take back what you did. The point is that all of us were born and we were given the power of discernment, we were given a lot of powers as human beings. But the most important power is choice, choice. You could have chosen not to do what you did, but you went ahead and did it anyway. You left Blowing Point or wherever it is that you left; you went to South Hill; you laid wait in the bushes armed with powerful weapons; you held up this woman, she plead with you for her life; that did not stop you. At that point nothing triggered your mind to say look, you know something, this does not make good sense. The man is standing outside the apartment cradling his toddler in his arms and you fire at him anyway. He tried to save his child’s life, that is what was uppermost in his mind because that was his humanity; that was his humanity. You lacked humanity. He put the child down, you went into the house after he was shot and you executed him and left the child lying in his spinal fluid. That was the evidence. How can you erase that? How do you sleep at nights? And Mr. Hodge, what has been put before the court suggest that it was all gang related from St. Kitts and you came here to take out a whole man. That is the inference that I am speaking about. Now, to add to the aggravation the evidence suggest that you are quite skillful with a weapon. You knew where every vital organ was located.
[108] Only someone who is trained, knows how to shoot that way. You held the gun to his mouth. You severed his spinal cord. The evidence is that this is where the gunshot residue was located which meant that you held the gun to his mouth as the final act of degradation, as the final act of hate, rage, uncontrolled passion. His child was in the room. You were here, you heard the victim impact statement. You heard the effects that this child is suffering from presently, up to a day like today she is scarred for life. You cannot erase that. Even if the court were to tell you to spend the rest of your natural life in jail, it cannot erase the harm that you have done.
[109] Today, is the first time that I have departed from the technical nature in which courts typically hand down sentences. We are more human than that. We are not going to serve justice with formulas; it will be creating a very bad jurisprudence. Sentencing must reflect the abhorrence that society has for these kinds of despicable acts.
[110] Today you have said to me that you have not seen your son. What message have you sent to your son? What message have you conveyed to him, that it is manly to pick up a weapon and kill a man? What makes us men is our ability to feel, to be sensitive, to understand other people, to be forgiving, to contemplate, to reflect, to introspect, before we act. Not picking up guns to kill people.
[111] Mr. Mitchum was recovering from surgery. You were at the trial, you heard what the Pathologist said. His liver was damaged. He had a laparotomy. He had a very large surgical scar which suggest that some surgeon had to open him up and perform a serious surgery on him, so that at the time that you struck him down he was already half a man. And, of course, we can draw the inference that it all stems from St. Kitts; and he comes to Anguilla with a rather large surgical scar, which says that there was some serious surgical intervention to save his life. So, in your case, Mr. Hodge, the court is mindful of the fact that the maximum penalty prescribed by law for the offence of murder is life imprisonment. The Parliament of the United Kingdom in its infinite wisdom outlawed the death penalty. You should be grateful for that.
[112] However, the court has a discretion to impose any lesser penalty than that prescribed by law. Accordingly, I will start with a benchmark of 30 years’ imprisonment, then I am required to weigh the aggravating and mitigating factors in deciding whether to adjust the benchmark upward or downward.
[113] In this case, there are absolutely no mitigating factors. I am not going to consider your guilty plea as a mitigating factor. However, it will be that you will achieve some credit for it by way of deduction from the notional sentence that the court will pass.
[114] Now, unfortunately there are no aggravating and mitigating factors for me to weigh. I cannot exhaust the list of aggravating factors present in this case. Therefore, I will scale the benchmark of 30 years upwards to 42 years. You will therefore be entitled to a deduction in terms of your guilty plea which was not at the earliest opportunity. I recognize upon your indictment you were unrepresented by counsel and may not necessarily have been properly instructed in terms of your plea. Nonetheless, it was late in the proceedings. It was at a time when the prosecution was about to close its case, therefore, I will deduct one (1) year imprisonment from the notional term of 42 years.
[115] Mr. Fraser in his submissions has asked the court to take into account the delay in this matter which obviously was through no fault of yours. I have thought long and hard about this in terms of what discount you ought to get in relation to the delay in the matter. I would give you a discount of one (1) year imprisonment from the notional term of 42 years.
[116] Therefore, your sentence – stand up Mr. Hodge. You are sentenced to 40 years’ imprisonment and not to be released before 25 years. You will be credited for all time spent on remand. Your sentence will run from today’s date.
[117] Mr. Austin, stand up, please. Apparently you are a follower, and the old adage is show me your friends and I will tell you who you are. Do you understand me?
[118] And you fear for your life? So you recognize and accept how precious life is. But according to you, you followed a man, you accepted and was willing to take the blame. According to your own words, you said to the police “they’re both mine”. You cooperated eventually. We’ll give you credit for that. The indication is that you show some positive steps towards rehabilitating yourself. But curiously enough, while you were free and at large why didn’t you take the advantage of the opportunity to better yourself? I just can’t understand why it is that when you all get to prison that’s when you all want to be educated and do various things. Slavery is over. Why do young black men insist on running afoul of the legal system? When you get incarcerated that’s when you realise that life is actually meaningful, that now I must educate myself and empower myself behind bars? But why did it have to take you being locked up, to realise that you need to do that in the first place? What have you gained? You have lost your freedom and gained absolutely nothing.
[119] So I have considered the presentence report which has said some positive things about you. Your lawyer has asked the court to take into account the fact that you cooperated with the police authorities. The court is also mindful of the circumstances that lead to your early guilty plea for which you will be entitled to a discount of one-third (1/3) from the notional sentence that the court will impose.
You made a valiant attempt nonetheless in supporting the prosecution’s case which the court will consider as an act of remorse. Therefore, I will adopt a benchmark of 15 years’ imprisonment. I have weighed the aggravating and mitigating factors. I am not going to belabor the aggravating factors again; it is just too gut-wrenching for me. And I do not want the general public to have to revisit the savage brutality of the acts that occurred at South Hill on that day. I think this is perhaps one of the most infamous murders that I have ever had to deal with. And quite honestly the trial took a toll on all of us. It took a toll on Mr. Astaphan, it took a toll on your own lawyer, it took a toll on the court. And not just that, it has scarred the conscience of Anguilla. In such a beautiful and pristine country, you have sought to obscure all the beauty of nature and soak it in blood.
[120] I find the aggravating and mitigating factors in your case evenly balanced so I will not scale the benchmark upwards. So therefore, you are entitled to a one-third discount from the 15-year sentence, so that takes it to 10 years. I have taken into account that you have been on remand for 4 years and six months. This period of 4 years and 6 months on remand will be deducted from the notional sentence of 15 years. You get the same discount as Mr. Hodge, in respect of delay which is 1 year from the 10 years which would make it 9, and you will also be entitled to a further discount of one year on account of your cooperation with the police authorities. Therefore, your sentence is 8 years’ imprisonment less the deduction for time spent on remand which will commence from today. Do you understand?
Shawn Innocent
High Court Judge
By the Court
Registrar
