The Queen v David Swain [Eastern Caribbean Supreme Court]

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J
• Judgment Date: 10 November 2009
• Docket Number: CASE NO. 17 OF 2009
• Court: High Court (British Virgin Islands)
• Date: 10 November 2009

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CRIMINAL)

CASE NO. 17 OF 2009

BETWEEN

The Queen

and

David Swain

Appearances:

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

(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)

JUDGMENT ON SENTENCING

Introduction

HARIPRASHAD-CHARLES J

1 Following a three-week trial, on 27 ^th October 2009, the defendant, David Swain, aged 53 was convicted by a unanimous jury of the murder of his wife Shelley Arden Tyre (‘the deceased’) contrary to section 148 of the Criminal Code 1997 1.

2 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, 2009 2 (‘the

Act’). Prior to the coming into force of the Act on 20 ^th May 2009 3, every person convicted of murder was automatically visited with the penalty of life imprisonment 4. 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.

3 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, a judge 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 time 5.

4 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 life 6.

5 Pursuant to section 9(2) of the Act, a sentencing hearing was held on 4 ^th 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

6 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 Bernice 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

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.

7 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.

8 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 a dive instructor himself.

9 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 dead.

10 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.

11 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.

12 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.

13 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.

14 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

15 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 a caring, 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 a wicked act.

Family impact assessment

16 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

17 Section 150 of the Criminal Code states:

‘Any person who is convicted of murder is liable to imprisonment for life.’

18 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 150’.

(b) The Parole Act, 2009

19 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.]

20 Section 269 of the Criminal Justice Act, 2003 (‘ CJA, 2003’)...