Sentencing Guidelines – Volume 1 (Section 4)
Manslaughter – stabbing of sister – diminished
Responsibility – whether non-mandatory life
Sentence appropriate – mental state appellant.
MacDermott LJ & Murray LJ [1993]
3NIJB30
Sentencing – sentence of 5 years – whether
Unduly lenient.
Manslaughter – stabbing – provocation – whether
Sentence of 10 years excessive – gravity of
Offence against mitigating factors.
Appeal against sentence – strangulation –
Provocation – discount in respect of guilty plea –
Factors in mitigation.
(24/03/95
manslaughter – organised sectarian street fight
- joint enterprise.
Appeal against conviction and sentence – gross
Negligence – shooting occurred while drunk –
Criminal evidence – exclusion of expert evidence
Of alleged mental illness – admissibility of
Expert opinion on the ultimate issue of gross
Negligence – whether “monstrously careless”
Equates to “gross negligence” – whether
Sentence manifestly excessive.
IN HER MAJETY’S COURT OF APPEAL IN NORTHERN IRELAND
________
THE QUEEN
V
IAN MARTIN DAVID LIVIE
_______
This appeal arises out of the fact that on 6th February 1989, the appellant killed his sister Tracey Ann Livie with whom he was then residing.
It was quite a horrendous killing. In his statement to the police, to whom he had gone immediately after the death of his sister, he said:
“In my anger I reached for the drawer in the kitchen. I knew that there were tools in the drawer. The only thing in the drawer was a bradawl. I hit Tracey a couple of times with it. The first time I hit her it did not stick it was aimed for the head, the second time it stuck. Tracey fell to the floor and started convulsing; I could see blood on my hands and on my chest. I switched off all the lights in the house and went up stairs; I don’t know how many times I went up and down the stairs. The first time I went up I got rid of my clothes. I kept going up and down the stairs and looking at her. I don’t know exactly when I got the skipping rope from the tool box in my bedroom, I made into a garrotte and went downstairs. I strangled her. I don’t know how long I was there. I cleaned up the kitchen with a dishcloth. I lost all track of time. I just stared at her and I was scared off. I phone the police from my uncle and auntie’s house on the other side of the road. I went back home and waited for the police. When the one police officer arrived I told him what happened.”
Later on in the course of interview he was asked what he intended to do when he lifted the bradawl he replied, “I don’t know, I just couldn’t cope and something snapped. I wish I could bring her back.” Early in his statement he had emphasised how his relationship with his sister had deteriorated and placed him under increasing stress. All that was repeated to the doctors in the various reports. We have had the benefit of having them before us.
It is also worth reminding ourselves of what Dr Press said, the State Pathologist
“Death was due to strangulation by a ligature she had also been stabbed twice by a bradawl. Once on the back of the neck and once on the right temple where weapon embedded until the commencement of the examination. The wound at the back of the neck did not involve any vital organ or blood vessel and so would not have accelerated death. However, on the head the blade of the weapon had pierced the skull and the underlying brain causing an area of laceration. Some of the lacerations seen on the brain might possibly, however, have been caused by the movement of the body after death. This injury could have caused unconsciousness and convulsion. It could also have caused death although she had received prompt medical attention she might possibly have died from injury.”
It is against that background that we turn to consider the appeal as presented on behalf of the appellant. Various grounds were formulated on various occasions. Now I think it would be fair to say that Mr Cinnamond has presented his case to the Court in an extremely clear and detailed manner.
Earlier this morning we dealt with the first matter of compliant, namely the learned trial judge’s attachment of a “proviso” to the life sentence, which is according to the Crown Book,
“An imprisonment for life to be kept under review as to the suitability for release is not to commence until he has served the equivalent of a sentence of 10 years’ imprisonment.”
Mr McMahon for the Crown frankly accepted that he knew of no authority in common law or by statute whereby a judge can qualify in any way a life sentence save under and by virtue of the provisions of section 1(2) of the Northern Ireland (Emergency Provisions) Act 1973. But this appellant was not a person convicted of murder. The learned trial judge was in error in attaching a recommendation of a proviso to the sentence of life imprisonment. In our view that proviso recommendation made without jurisdiction is a nullity, thus if the final order is that the life sentence remains appropriate it will be just and that it will be made quite clear that no “proviso” is attached.
Mr Cinnamond then turned to deal with the well known proposition that when a person pleads guilty he can get a “discount”, as it is called, for that, that this is a case where there are sad and grievous facts in the parents’ background and family history and the court ought to have regard to the seriousness of his diminished responsibility at the time he killed his sister.
Those are perfectly proper points for a court to consider in deciding what is appropriate sentence but their appropriateness lies in relation to the length of the determinate sentence and they are of little, if any, relevance if the court is satisfied that the proper sentence is one of life imprisonment.
In this particular situation where one is dealing with an appellant whose plea of guilty to manslaughter has arisen by reason of diminished responsibility, the court will be concerned as to whether or not that mental condition is an on-going one and whether or not it is one which could affect the public if the accused were at liberty. Therefore, it is important at this stage, and I am quite sure that the learned trial judge did this, to consider the circumstances in which non-mandatory life sentence may be imposed. This topic was recently before this Court in the case of Farquhar, Taggart and McDonald, which was a rape case, and the court highlighted the limited circumstances in which non – mandatory life sentence should be imposed and in that case and in the course of Mr Cinnamond’s argument, we were referred back to Hudson in 1967 where the Court of Appeal (Criminal Division) stated,
“A life sentence was justified if three conditions were satisfied. Firstly, the offence or offences are in themselves grave enough to require a very long sentence. Secondly, it appears from the nature of the offences or from the defendant’s history that he was a person of unstable character likely to commit such offences in the future. Thirdly, if further offences are committed the consequences to others may be especially injurious as in the case of sexual offences or crimes of violence.”
Realistically, Mr Cinnamond accepted that the first two criteria apply in this case, that the offence was itself one which would justify a very long determinate sentence and that future offences could well cause serious injury to other persons.
The argument has naturally centred on the question of whether or no the appellant is a person of unstable character and likely to endanger others. We were also referred to the case of Wilikinson were Lord Lane said a p.108:
“It seems to us that the sentence of life imprisonment other than for an offence where the sentence is obligatory is really appropriate and must only be passed in the most exceptional circumstances. With a few exceptions, in which this case is not one, it is reserved broadly speaking as Lord Justice Lawton pointed out for offenders who for one reason or another cannot be dealt with under the provisions of the Mental Health Act, yet who are in a mental state which makes them dangerous to the life or limb of members of the public. It is sometimes impossible to say when danger will subside therefore an indeterminate sentence is required so that the prisoners progress may be monitored by those who have him under supervision in prison and so that he will be kept in custody only for so long as public safety may be jeopardised by his being let loose at large.”
In this case there is no doubt at all, indeed it is accepted by all doctors, that a disposal under the Mental Health Order would not have been appropriate in this case. We were also referred to the case of Stewart which is more recent 1989 were the Lord Justice Watkins cited the criteria I have already referred to, and again the thrust of that judgement, the whole series of judgements, is that one must look carefully and ask two questions: is this a person who is unstable? And is he likely to commit offences which will endanger the life or limb of other persons? It is because of these two criteria that Mr Cinnamond took us through the various medical reports.
He did not seek to argue that the appellant was a person who was not unstable. I use that phrase because it is a simple non - technical phrase and is not in anyway unkind towards the appellant. It is a sad fact that he is a person who is unstable in the sense of that word used by the doctors on occasions. The question is, is he a potentially dangerous person?
If one starts with the material which was available initially before the learned trial judge we have the reports of Dr Loughry who saw him twice and the psychologist, Miss Mc Dade, who saw him on one occasion.
Dr Loughry’s conclusion was that he, the appellant, was fit to plead, that it was a case of diminished responsibility because of the reactive depression and that his mental state at the time of his (Dr Loughry) examination was now normal and that he was a person whose personality was characterised by aggression which was a factor that quite clearly loomed large in the mind of the learned trial judge. With regard to the question of aggression, there are a number of factors which highlight that fact.
Firstly, his reaction to a trivial row with his mother when he set fire to the family home. Secondly, the fact that he responded to a stressful situation which had built up between himself and his sister by killing her and killing her in an appalling and violent manner, and thirdly his willingness to respond to his own stresses by seeking to killing himself. All this confirms the suggestion first mentioned by Miss McDaid, that he is a person who has an inability to deal with stress. One must realise that it is sad, nevertheless a real fact, that much of ordinary living is or may be stressful.
So I think we can say and the factual evidence alone points in this direction, that the appellant is a person who may respond to annoyance or to anger with aggression and that he has done so in the past.
I will not go through the reports of Dr Loughry in detail, we have read them, they have been read again in a large degree by Mr Cinnamond today, emphasising many points that he feels should be drawn to our attention and we have sought to bear all those points in mind.
In point in time the next report is that of Dr Fleming a psychiatrist attached to Downshire Hospital, who saw the appellant and reported on 12th September of this year. The report had been obtained with the appeal and issues raised in the appeal being in mind. Again I do not propose to go through the material points in the report in any great detail save to read a paragraph in the penultimate page, page 9, although it has already been read, it say this:
“ However as regards his appeal against this sentence I am bound to say that I would have nothing to offer from the psychiatric point of view which would help his appeal. In fact I find him to be a most bizarre unusual character with a schizoid personality and paranoid traits and on the first occasion I examined him I had no doubt he was displaying psychotic symptoms. I formed the opinion at that time that he was an essentially mentally unstable individual and given his previous behaviour at the time of mental instability I am bound to say that he would pose a threat to the safety of others if released. Having said that I find him to be more appropriate during my second examination of August of this year and if my diagnosis of psychotic illness, albeit rather low grade, is correct then it may well be that he has a psychosis which as is often the case he has exasperations in periods of remission.”
In simple language that last part simply means that he foresees the appellant as being a person who has had his ups and downs and if he is subjected to stressful situations he may have, what I have elegantly described as a down period. It was suggested by Dr Fleming that it was Dr Brown who probably knew more about the appellant than anybody else: he having seen the appellant while in custody on various occasions having an appointment as a forensic psychiatrist who as such attends persons in custody.
Again I am not going to detail the various passages in the early part of the report but I turn to page 3 and the opinion:
“In my opinion Mr Livie suffers from severe personality disorder, shows schizoid paranoid obsessional traits. He is aloof, he has difficulty in relating to others and has difficulty acknowledging his own feelings – schizoid. He is paranoid in that he views others as a threat to himself. In his view other people seem to contain the personality characteristics that he now finds difficult to accept. Mr Livie’s obsessional characteristics include agility over control and wishes to be ….”
He concludes that he feels that the appellant suffers from a major mental illness at present. He is concerned and cannot guarantee that Mr Livie will not go on to develop an on-going psychotic illness in later years and he honestly does not think that he suffers from one at present nor was he suffering from psychosis at the time of the offence. And then he averts to an issue which had obviously been raised specifically with him: that is the question of danger and his comment is this,
“I have been asked to comment on Mr Livie’s dangerousness. It should be noted that dangerousness is difficult to predict and most professionals tend to over-predict. Furthermore dangerousness is not simply an attribute of the individual but rather it is a complex contra and inter-action between the individual those around him and his circumstances. It is clear that Mr Livie is not someone who in undiscriminating violent. In case of Tracy’s killing it appears that tension gradually built up to an intolerable level at which point there was an explosive outburst of violence. Mr Livie gave me several other examples of outbursts of lesser violence. It is also notable that he attempted to harm himself in the past by taking overdoses, cutting his wrists and attempting to hang himself. In a way he poses more of a threat to himself that to others.”
Dr Brown clearly is not as concerned about the dangers as Dr Fleming, but he does not indicate that the appellant will not be a danger if at large and one has to form a view having regard to all the factual evidence that I have outlined, the medical evidence that we have here and form a view as to whether or not this is a person who is likely to commit such offences as to be injurious to life or limb of other people if he were at large. The view of the learned trial judge was that he was such a person. We share that view. Once one comes to that conclusion then there is no doubt that the appropriate sentence must be a life sentence and it is for that reason that we feel that in approaching these difficult cases it will be rare if one first of all, as Mr Cinnamond sought to persuade us, considers questions of discount for pleading guilty, family circumstances and so on. There are cases in the past involving people who have pleaded guilty and have had as tragic background history as this appellant and the court has seen fit to say that the proper way to treat them, not only in the publics interest but in their own interests, is to impose a life sentence. The case of Allen 9 CR APP Rps sentencing at page 169 is an example of just that.
Our view is that the proper sentence for this man is one of life imprisonment and as we pointed out when reading from Lord Lane’s judgement in Wilkinson, the attraction or advantage of that sentence is that the appellant’s condition can be constantly monitored and if those with the expertise dealing with these matters comes to the conclusion that the time is right for him to be released he will be released. Accordingly, the appeal is dismissed save in so far as is necessary to make it quite clear that the sentence of life imprisonment unfettered by any proviso or recommendation. And we also direct that all the medical documents be gathered together and filed with the appellant’s papers in the prison.
IN
HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
----------
ATTORNEY GENERAL'S REFERENCE
NO.2 OF 1992
----------
HUTTON LCJ
On Wednesday, 27 March 1991, the offender, Susan
Christie, then aged 22, killed Mrs Penelope McAllister in Drumkeeragh
Forest in County Down by cutting her throat with a knife.
Since July 1990 Christie had been carrying on an
affair with Captain Duncan McAllister, an officer in the Army, who was the
husband of Mrs Penelope McAllister. At
all times during the affair Captain McAllister had made it clear to Christie
that he would not leave his wife for her.
It appears that the affair was unknown to Mrs
McAllister who was a blameless young woman aged 24 at the time of her death and
who had acted in a friendly way towards Christie.
The affair between Christie and Captain
McAllister had started when she was a private soldier in the Ulster Defence
Regiment and had met Captain McAllister at an army diving club which he
organised.
At her trial at the Crown Court in Downpatrick,
where she was charged with the murder of Mrs McAllister, Christie was
cross-examined as to why she had killed Mrs McAllister, and her answers were as
follows:
"Q836. You now accept that you killed her?
A. Yes, my lord.
Q837. Do you know why you killed her?
A. No.
Q838. Well have you thought about that?
A. I have thought about it.
Q839. Well what are your conclusions on thinking
about it, Miss Christie?
A. I would say that now I killed her for
Duncan.
Q840. You would say you killed her for Duncan.
A. I would say that, yes.
Q841. To help Duncan?
A. I am sorry?
Q842. To help Duncan.
A. No.
Q843. Well what do you mean when you say that you
killed her for Duncan?
A. I mean to get Duncan.
Q844. To get Duncan for whom?
A. For me.
Q845. For yourself?
A. Yes.
Q846. What would you regard that as?
A. I am sorry?
Q847. What do you regard that as? How do you describe that motive for
killing? What is it?
A. That I was in love with him, I would
have done anything.
Q848. Have you ever heard of jealousy?
A. Yes.
Q849. Did you kill this unfortunate woman out of
jealousy?
A. I would say that jealousy had a part in
it, yes.
Q850. Was it not that jealousy was the sole reason?
A. In my opinion, no.
Q851. Well what other reasons were there?
A. I have no other explanations but in my
opinion, no, it was not solely for jealousy."
If those were the only relevant matters in
respect of the killing of Mrs McAllister, members of the public would have expected
that Christie would have been convicted of the murder of Mrs McAllister and
sentenced to life imprisonment or, if she had not been convicted of murder but
of the lesser crime of manslaughter, that she would have been very severely
punished. But the facts which I have
briefly summarised were not the only relevant matters. A very important factor in the case was that
Christie raised a defence of diminished mental responsibility made available to
her by an Act of Parliament. This
defence was supported by the evidence of 2 psychiatrists, Dr Brown and Dr
Lyons, who were called on her behalf.
The jury, by a majority of 10 to 2, accepted this defence and found that
Christie, to combine the effect of sections 1 and 5 of the Criminal Justice Act
(Northern Ireland) 1966 -
"was suffering from an
abnormality of mind induced by disease which substantially impaired her mental
responsibility for her acts in doing the killing".
Having found that Christie was suffering from
diminished mental responsibility they found her not guilty of murder but guilty
of manslaughter, as they were obliged to do under section 5. After the jury had returned this verdict of
manslaughter the learned trial judge, Kelly LJ, sentenced Christie to 5 years'
imprisonment for manslaughter.
The jury's verdict of not guilty of murder but
guilty of manslaughter by reason of diminished mental responsibility calls for
2 comments. The first is that I think
that the degree of public concern about the sentence of 5 years imposed by the
trial judge was substantially contributed to by the failure on the part of the
public to appreciate that medical evidence had established to the satisfaction
of the jury that at the time of the killing Christie was suffering from a
mental abnormality which substantially impaired her mental responsibility for
the killing and that accordingly, by virtue of the 1966 Act of Parliament, she
was not guilty of murder but of the lesser crime of manslaughter. This failure on the part of the public to
appreciate that this defence had been established with the consequence that
Christie was guilty of the lesser offence of manslaughter, was caused by the
failure of parts of the Press and the media to make it clear in their reports
of the case that Christie had been found not guilty of murder on the ground of
diminished mental responsibility.
The second comment which it is appropriate to
make is that where a jury returns a verdict of not guilty of murder but guilty
of manslaughter on the ground of diminished mental responsibility the verdict
faces the trial judge with one of the most difficult tasks in sentencing which
a judge can face, because he has to strike a balance between recognizing on the
one hand that the accused had committed an unlawful killing and recognizing on
the other hand that the accused had carried out the killing because he or she
was suffering from an abnormality of mind induced by disease which
substantially impaired his or her responsibility for the killing. That task was made all the more difficult by
the particular circumstances of this case.
The Attorney General has now brought a reference
before this Court under section 36 of the Criminal Justice Act 1988 to review
the sentence on the ground that it was unduly lenient. Section 36 provides as follows:
"(1) If it appears to the Attorney General -
(a) that the sentencing of a person in a
proceeding in the Crown Court has been unduly lenient; and
(b) that the case is one to which this Part
of this Act applies,
he may, with the leave of the Court
of Appeal, refer the case to them for them to review the sentencing of that
person; and on such a reference the Court of Appeal may -
(i) quash any sentence passed on him in the
proceeding; and
(ii) in place of it pass such sentence as
they think appropriate for the case and as the court below had power to pass
when dealing with him".
Therefore on a reference by the Attorney General
the judges of the Court of Appeal must direct their minds to the question
whether the sentence passed was unduly lenient ......
Where a jury returns a verdict of not guilty of
murder but guilty of manslaughter on the ground of mental abnormality which
substantially impaired the accused's mental responsibility for the killing, two
duties must be discharged by the trial judge.
The first duty is that he must accept the jury's verdict and proceed to
sentence on the basis that the accused did kill the victim when his or her
mental responsibility for the killing was substantially impaired by mental
abnormality. The judge is not entitled
to impose a sentence on the basis that he disagrees with the jury's
verdict. This was made clear by the
judgment of the Court of Appeal in England in R -v- Norman [1981] 3
Cr.App.R (S) 377 where Watkins LJ stated at 379:
"We think it needs to be said,
however, that once the decision has been taken to accept a plea to manslaughter
on the ground of diminished responsibility, full effect must be given to it and
remarks made thereafter, such as, 'This is as near to murder as it is possible
to go', and the like, are inappropriate and liable to be misleading when
thought is being given to the appropriate sentence for it. The determining factor upon sentence is in
our view, in such a case as this, having regard to the circumstances in which
the victim met her death, and especially to the state of mind of the defendant
at that time, the extent to which by reason of the state of his mind his
responsibility for an unlawful killing was diminished. Unfortunately, that is not how the judge, so
we think, regarded the matter and he erred, therefore, in principle, probably
due to his unease about accepting the tendered plea. Accordingly, we must apply our minds, with proper regard to what
we believe to be the right principle, to the facts of this case and the condition
of this man when his responsibility was, as it is acknowledged, diminished, for
the dreadful deed he committed".
The second duty of the judge, whilst accepting
the verdict of the jury that the accused's mental responsibility was
substantially impaired, is to assess himself the degree of mental
responsibility retained by the accused, and the cases make it clear that this
degree of residual responsibility can be very considerable. In R -v- Chambers [1983] 5 Cr.App.R
(S) 190 Leonard J delivering the judgment of the English Court of Appeal stated
at 194:
"In cases where the evidence
indicates that the accused's responsibility for his acts was so grossly
impaired that his degree of responsibility for them was minimal, then a lenient
course will be open to the judge.
Provided there is no danger of repetition of violence, it will usually
be possible to make such an order as will give the accused his freedom,
possibly with some supervision.
There will however be cases in which
there is no proper basis for a hospital order; but in which the accused's
degree of responsibility is not minimal.
In such cases the judge should pass a determinate sentence of
imprisonment, the length of which will depend on 2 factors: his assessment of
the degree of the accused's responsibility and his view as to the period of
time, if any, for which the accused will continue to be a danger to the public.
...
In a passage, which has been the
subject of criticism by counsel, the judge said, at page 33A of the transcript:
'I have to punish you in accordance with my view of the measure of ... mental
responsibility which you retained'. At
D he added, 'I accept that your mental responsibility was impaired and I have
no doubt that a very substantial amount of mental responsibility remained with
you also'. This Court finds no basis
for criticism of those propositions.
There was further criticism of the
judge's earlier remarks at page 32G, where he said 'You deliberately did that
young woman to death and you escaped a conviction for her murder because the
doctors have taken the view that at the time you committed those acts you were
suffering from a mental illness given as 'an anxiety depressive state'. That illness was such that it substantially
impaired your mental responsibility for what you did'. It was submitted that the learned judge,
having agreed to the acceptance of the plea of guilty to manslaughter (I quote
from the grounds of appeal), 'expressly refuted the presence of diminished
responsibility'. This Court entirely
rejects that submission.
The facts of this case indicate that
the appellant bought a knife with which he stabbed his wife. He telephoned her and thus discovered that
his mother-in-law was with her. He then
arranged for the mother-in-law to be lured away from the premises so that he
could go there and carry out the violent attack which killed his wife when no
one else was present. These matters
indicate a considerable degree of preparation.
In the judgment of this Court the
learned trial judge was right to conclude that the appellant retained a very
substantial amount of responsibility for his acts. His view was not inconsistent with the medical evidence that the
appellant's responsibility was substantially impaired by the anxiety-depressive
state from which he was suffering at the time of the killing".
In R -v- Woollaston [1986] 8 Cr.App.R (S)
360 at 364 Mustill LJ (as he then was) delivering the judgment of the English
Court of Appeal stated at 364:
"What the learned judge had to
do was decide the appropriate level of culpability given the hypothesis that,
at the time of the act, the appellant was suffering from an abnormality of mind
which had impaired his responsibility for his acts, and given also the common
ground between the doctors that this particular state of abnormality no longer
existed. Where in the entire length of
possible sentences (the sentence of life imprisonment being at the far end)
should this particular sentence be pitched?"
It is also particularly apposite in the context
of the present case to have regard to the words of Watkins LJ in R -v- Davis
at 427:
"We think it right to reiterate
that, although psychiatrists genuinely and properly bring to the notice of the
court their assessment of responsibility for the killing by one person of
another, in the end it is for the court, bearing that opinion well in mind, to
make its own assessment in the light of the whole of the circumstances of the
responsibility which the person found guilty of manslaughter must bear for the
crime".
In determining the length of the sentence where
the degree of residual responsibility is considerable I consider that, in
addition to taking account of the substantial impairment of the accused's
mental responsibility at the time of the killing, the judge should also take
account of the need to reflect society's concern for the sanctity of human
life. In R -v- Woollaston
Mustill LJ stated at 364:
"The learned judged, after
listening to what had been said, emphasised that he had borne in mind the provocation
and threats which he said he accepted had brought the appellant to a state of
fear. However, he said that the
appellant's degree of responsibility could not be said to be minimal. He accepted the opinion of Dr Bluglass that
the appellant was not a future threat to the public, but then he concluded: ...
I have to bear in mind when passing sentence upon you that it must be such a
sentence as will reflect society's concern for the sanctity of human life, and
such a sentence as will indicate that, whatever the threats or whatever the
fear they induce, a killing such as this will not be tolerated.
On any view, this is a sad
case. It is a sad case for the
appellant because on any view of the appropriate level of the sentence, he
would be bound to spend a long period of time in prison. However, it is also a sad case for the
deceased, someone who is occasionally overlooked in cases of this kind. The interests of those 2 parties and the
interests of society as a whole have to be reflected in any sentence passed on
an occasion like this".
In the test stated by Lord Lane the trial judge
must apply his mind to all the relevant factors. In the present case I consider that there were two groups of
relevant factors which pointed clearly to a very considerable degree of
residual responsibility on the part of the accused which called for a severe
sentence, notwithstanding that the jury had found substantial impairment of her
mental responsibility. The first group
of factors related to the nature of the disease of the mind from which the
offender suffered. The second and more
important group of factors related to the degree of premeditation and
preparation for the killing on the part of the offender, and the steps which she
took immediately after the killing and for some days thereafter to cover up the
fact that she had killed Mrs McAllister ......
Neither the English Court of Appeal nor this
court has laid down "guidelines" for sentencing in cases of
diminished responsibility. The
sentences which have been imposed since 1981 in the reported cases of
diminished responsibility referred to in Thomas' Current Sentencing Practice
vary from 2 years to 8 years in respect of cases which vary very greatly in
their particular circumstances, but the English Court of Appeal have rejected
the argument that a sentence of 10 years was more than the accepted
maximum. In R -v- Chambers in
delivering the judgment of the English Court of Appeal, Leonard J stated at
195:
"In all the circumstances,
while entirely approving the learned trial judge's approach to the sentencing
problem, and rejecting the submission that the sentence of 10 years'
imprisonment was more than the accepted maximum in such a case, this Court has
come to the conclusion that it is possible to reduce the sentence to one of 8
years".
And in R -v- Poole and Scott [1989] 11
Cr.App.R (S) 382 Tudor Evans J in delivering the judgment of the English Court
of Appeal stated at 387:
"In the course of argument, we
were referred to authority in support of the proposition that a sentence of 7
or 8 years is the maximum sentence in cases of diminished responsibility where
a defendant is not a danger to the public.
An argument that the maximum was 7 years was advanced in Norman
[1981] 3 Cr.App.R (S) 377 but the Court expressed no view, although a sentence
of 9 years was in fact reduced to 5 years.
In Yeomans [1988] 10 Cr.App.R (S) 63, the Court again expressed
no opinion as to whether 8 years was the maximum. Some support for the arguments is derived from Ali [1988]
10 Cr.App.R (S) 59, a case to which we must refer again, where Drake J
delivering the judgment of the Court, said at p.62:
'8 years
for this manslaughter was perhaps at the top end of the range of the correct
sentencing for a case of this nature'.
But in Chambers (supra) an
argument that the accepted maximum was 10 years was rejected by the court. We consider that the observations of
Drake J in Ali were directed to the facts of that particular
case. We reject the argument that the
maximum sentence in cases of diminished responsibility is 7 or 8 years. The precise sentence will depend upon the
assessment of the accused's responsibility and the time, if any, for which he
is thought to be a danger".
In R -v- Secretary of State for the Home
Department Ex Parte Handscomb [1988] 86 Cr.App.R 59 at 76 Watkins LJ
stated:
"Determinate sentences vary in
respect of every class of crime. They
vary infinitely in respect of the crime of manslaughter. The range of sentences passed for all serious
crime is very broad. Sweeping
generalisations made about them are apt to be very misleading. However, useful impressions of what sentence
in given circumstances is likely to be thought appropriate by most judges can
be gained by studying reported cases, especially guideline cases and records of
sentences passed upon a single class of crime basis.
Records of sentences passed for
manslaughter with diminished responsibility from 1971 to 1985 reveal that no
determinate sentence in excess of 10 years' imprisonment has been imposed since
1978. Sentences in excess of 10 years
were passed in only 8 cases between 1971 and 1978. They represent 0.6 per cent, of all sentences, a total of 1,287,
passed for this class of crime during the whole period I have referred
to".
It appears, therefore, that determinate sentences
of 10 years have been imposed in diminished responsibility cases.
I consider that the way in which, prior to the
killing, Christie carried on her daily life without herself seeking, or anyone
suggesting that she should seek, psychiatric help, the planning and
premeditation shown in taking the knife to Drumkeeragh Forest, and the
determined and sustained efforts to evade detection after the killing, were
relevant factors which showed a very considerable degree of residual mental
responsibility on the part of Christie.
I further consider that the factors to which I have referred, and
particularly the efforts to evade detection, make this case a worse case in
relation to the residual mental responsibility of the offender than any of the
reported cases.
Whilst in some of the reported cases sentences of
2 years or 3 years were imposed, I consider that sentences of such length would
have been wholly inappropriate for the offence committed by Christie. Applying one's mind to all the relevant
factors and having regard to the very considerable degree of Christie's
residual mental responsibility and the justifiable concern of society that the
courts should uphold and emphasise the sanctity of human life, I am of opinion
that the range of sentences appropriate for the offence committed by Christie
was a range of between 7 to 10 years, and that a sentence below this could not
reasonably be considered appropriate.
Therefore I consider that the sentence of 5 years was unduly lenient.
Having decided that the sentence of 5 years was unduly lenient, section 36 directs this court to decide what sentence they think appropriate. Notwithstanding the previous unblemished record and character of Christie I consider that the appropriate sentence in the Crown Court would have been 10 years. However the authorities indic