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 indicate that the
Court of Appeal can take into account the strain and burden which the second
hearing, constituted by the Attorney General's Reference, imposes on the
offender. Therefore I would quash the
sentence of 5 years' imprisonment and in place of it pass a sentence of 9
years' imprisonment.
MacDERMOTT LJ
Early on the afternoon of Wednesday 27 March 1991
2 young women were walking in Drumkeeragh Forest outside Ballynahinch in County
Down. They were Penny McAllister aged
24 and Susan Christie aged 22. In a
dark place in the forest Christie killed Mrs McAllister by cutting her
throat with a sharpened boning knife.
The attack must have been from behind and without warning, planned and
premeditated in that Christie had obtained the knife and brought it with her on
the walk. Beyond question it was a
lethal weapon and the killing was rightly described by the learned trial judge,
Kelly LJ, in his charge to the jury as "vicious and gruesome".
The killing was immediately discovered because
Christie herself described how they had been attacked by a man and the body was
discovered and eventually the knife was also discovered some 250 yards
away. Christie maintained her story of what
happened for several days until the investigating police obtained an admission
from Captain Duncan McAllister, the victim's husband, that he had been having a
sexual relationship with Christie.
Supported by forensic evidence the police became satisfied that Christie
was the killer and that her story, elaborate in many details, of a male
attacker was a lying fabrication.
Thus Christie was charged with the murder of
Penny McAllister. It must have seemed
to the police and the public, who had been fully informed by the press and
media, to be a straightforward case of 'murder most foul'.
Early in June 1992 Christie appeared at the Crown
Court in Downpatrick. On arraignment
she pleaded not guilty to murder but guilty to manslaughter by reason of
diminished responsibility. The Crown
refused to accept this plea and the trial proceeded with the only issues being
whether or not Christie was suffering (a) from mental abnormality and (b)
substantially impaired responsibility.
Such issues are to be decided by the Jury on all
the evidence. As Lord Keith of Kinkel
said in Walton -v- R [1978] AC 788 at 793:
"These cases make clear that
upon an issue of diminished responsibility the jury are entitled and indeed
bound to consider not only the medical evidence but the evidence upon the whole
facts and circumstances of the case.
These include the nature of the killing, the conduct of the accused
before, at the time of and after it and any history of mental
abnormality".
More recently Watkins LJ put it thus in R -v-
Sanders [1991] 93 CAR 245 at 249:
"From these cases, in our
opinion, 2 clear principles emerge where the issue is diminished
responsibility. The first is that if
there are no other circumstances to consider, unequivocal, uncontradicted
medical evidence favourable to a defendant should be accepted by a jury and
they should be so directed. The second
is that where there are other circumstances to be considered the medical
evidence, though it be unequivocal and uncontradicted, must be assessed in the
light of the other circumstances".
After hearing all the evidence including that of
Christie and 3 consultant psychiatrists - Dr Brown and Dr Lyons called by the
defence and Dr Norris called by the Crown - the jury by a majority of 10 to 2
returned a verdict of "not guilty of murder but guilty to
manslaughter". Kelly LJ then
imposed a sentence of 5 years' imprisonment.
The trial had occupied 11 working days.
On 8 July 1992 the Attorney General sought leave
to apply to the Court of Appeal pursuant to section 36 of the Criminal Justice
Act 1988 claiming that the sentence of 5 years was unduly lenient. Leave was granted on 8 September and the
reference came before this court on Monday 12 October 1992.
Section 36(1) reads:
"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".
For the Attorney General Mr Brian Kerr QC
submitted that the accepted and correct approach to a consideration of this
section is to be found in the judgment of Lord Lane CJ in Attorney General's
Reference [No.4 of 1989] [1990] 1 WLR 41 at 45. I agree and in the several references heard by this court we have
emphasised and sought to apply this statement as the correct legal approach: it
reads:
"3. The correct approach to section 36
The first thing to be observed is
that it is implicit in the section that this court may only increase sentences
which it concludes were unduly lenient.
It cannot, we are confident, have been the intention of Parliament to
subject defendants to the risk of having their sentences increased - with all
the anxiety that this naturally gives rise to - merely because in the opinion
of this court the sentence was less than this court would have imposed. A sentence is unduly lenient, we would hold,
where it falls outside the range of sentences which the judge, applying his
mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be
had to reported cases, and in particular to the guidance given by this court
from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art
rather then a science that the trial judge is particularly well placed to
assess the weight to be given to various competing considerations; and that
leniency is not in itself a vice. That
mercy should season justice is a proposition as soundly basis in law as it is
in literature.
The second thing to be observed
about the section is that, even where it considers that the sentence was unduly
lenient, this court has a discretion as to whether to exercise its powers. Without attempting an exhaustive definition
of the circumstances in which this court might refuse to increase an unduly
lenient sentence, we mention one obvious instance; where in the light of events
since the trial it appears either that the sentence can be justified or that to
increase it would be unfair to the offender or detrimental to others for whose
well-being the court ought to be concerned.
Finally, we point to the fact that,
where this court grants leave for a reference, its powers are not confined to
increasing the sentence".
In Attorney General's Reference [No.13 of 1990]
[1990] 12 CAR (S) 578 Lord Lane cited part of this passage and an earlier one
in Attorney General's Reference [No.5 of 1989] [1989] 11 CAR (S) 489 at 491
describing them as "the tests, the benchmarks, to use the current jargon,
by which the court has to regulate its views". That earlier passage reads:
"In our view there was an error
of principle in this case. In our view
this was not a case which could properly be met by a fine, and the only proper
sentence in these circumstances was one of immediate custody. We think that public confidence in the
judicial system would be damaged if this sentence remained as it was passed. As to the final submission, namely that the
Court should grant leave in exceptional cases and not in borderline cases, we
do not regard this as a borderline case".
These tests also underline another important
principle: namely that applications of this nature are not determined by the
members of the appellate court concluding that they would individually or
collectively have imposed a significantly longer sentence. The appellate court has to consider the
sentence imposed by the trial judge and ask if it was clearly inappropriate in
relation to the circumstances of the case having regard to the range of
sentences imposed in other cases of a similar nature: unless it was it cannot
be described as unduly lenient.
Lord Lane made this point in Attorney General's
Reference [Nos.19 and 20 of 1990] 12 CAR (S) 490 at 493 saying:
"But the fact remains that if
members of this Court had been trying this case and had been charged with the
job initially of sentencing them in the Crown Court, we should almost certainly
have passed a longer sentence.
That does not mean that the
sentences were unduly lenient. After a
considerable amount of hesitation and doubt, we have come to the conclusion
that in the particular and somewhat extraordinary circumstances which surround
this case, this case does not fall outside the range of sentences which the
judge, applying his mind to the relevant factors, could reasonably have
considered appropriate. Consequently,
although we gave leave for this application to be made, and it was an
application properly made, we do not allow the appeal and consequently the
sentences will remain as the learned judge imposed them".
Before turning to apply those principles to the
facts of the present case I pause to remind myself of a number of elementary
but important matters:
1. To use some words of Lord Hailsham of
St Marylebone "Sentencing is the most difficult as well as the most
responsible task which any court of criminal jurisdiction has to perform".
2. The offence of manslaughter confronts
judges with the most difficult sentencing problems. In R -v- Walker [1992] 13 CAR (S) 474 at 476: Lord Lane
said:
"It
is a truism to say that of all crimes in the calendar, the crime of
manslaughter faces the sentencing judge with the greatest problem, because
manslaughter ranges in its gravity from the borders of murder right down to
those of accidental death. It is never
easy to strike exactly the right point at which to pitch the sentence. This case is a very good example. This experienced judge came to the
conclusion that 6 years was the proper sentence".
3. In diminished responsibility cases the
judge has a particularly difficult task.
It was described thus in R -v- Chiu-Au-Yeung [1989] 11 CAR (S)
504 by Lord Lane:
"The
problem which faces a judge in these circumstances is one of the most difficult
which occurs in the always difficult problem of sentencing. There are two problems to which he has to
address his mind: first of all, to what extent was the appellant's
responsibility diminished? Secondly, to
what extent does the public require protection from this man, as against the
day when he is released from prison?
Each of those questions presents grave problems for the sentencing
judge. He must do the best he can on
the evidence before him. The decision
will inevitably be to some extent an informed guess in both respects, because
these matters are not susceptible to arithmetical calculation for obvious
reasons".
In this case there is no evidence that Christie
is or will in the future be a danger to members of the public. The judge's task was therefore to determine
the appropriate level of her responsibility having regard to the fact that
Christie was at the time, which included not only the time of the actual
killing but the period of preparation (whatever it may have been) and cover-up,
suffering from mental abnormality and a substantial impairment of
responsibility. In argument that was
conveniently referred to as her "residual responsibility" but
residual responsibility as a concept is not something which can be calculated
scientifically or measured by percentages or fractions. It has to be assessed sensibly and
realistically in the light of all the evidence remembering what mental
abnormality means and that the impaired responsibility must have been
substantial.
In many cases of this nature a manslaughter plea
is accepted by the Crown because the doctors are in agreement and the
surrounding facts all indicate that that is the appropriate plea. Some cases obviously point to a hospital
order and others because of the obvious minimal residual responsibility of the
accused to a non-custodial sentence.
But many, perhaps the bulk of, diminished responsibility cases require a
determinative sentence. Where he has
not heard and observed the accused and the doctors as they give evidence the
judge has to rely on the cold print of depositions and reports. In my experience this is certainly a
daunting task. Where however a case is
fought out - especially where it is closely contested and everything challenged
and analysed the trial judge is in a much more advantageous position: he is
fully able to get the true 'feel' of all aspects the case (including the
offender's residual responsibility) especially if he is experienced - as Kelly
LJ undoubtedly is. Nevertheless the
sentencing task remains extremely difficult and I am certain that in this case
as he awaited the return of the jury, and indeed earlier, Kelly LJ will have
pondered deeply to discern the appropriate custodial sentence if manslaughter
were the verdict because, as is recognized and accepted by Mr Peter Smith QC,
who appeared for the offender, the case required a substantial sentence of
immediate custody. To use the words of
Lord Taylor of Gosforth CJ in Attorney General's Reference [No.8 of 1992]
(unreported judgment delivered on 11 June 1992):
"That is because the sentence
should reflect the gravity of the offence, the need for the offender to expiate
his crime, the need to impose punishment on people who commit offences of this
sort, and in particular the need to deter others from the dangerous but all too
prevalent, practice of carrying knives by reminding them of the dangers of
doing so and the consequences to them of using a knife".
Before proceeding further I would comment that
there is little learning as to what exactly is embraced by expressions or
concepts such as "mental abnormality", "substantial
impairment" or "residual responsibility". This, of course, is understandable because
redefinition can itself lead to confusion.
We are here in an area involving the human mind and cases where the
facts will almost invariably differ.
The effect of those facts on the offender's mind and behaviour must be
considered entirely personally and not according to some generalised formulation. That said I have found it helpful to remind
myself of what Lord Parker CJ said in R -v- Byrne [1960] 2 QB 396 at
403:
"Abnormality of mind, which has
to be contrasted with the time-honoured expression in the M'Naughten Rules
'defect of reason', means a state of mind so different from that of ordinary
human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover
the mind's activities in all its aspects, not only the perception of physical
acts and matters, and the ability to form a rational judgment as to whether an
act is right or wrong, but also the ability to exercise willpower to control
physical acts in accordance with that rational judgment. The expression 'mental responsibility for
his acts' points to a consideration of the extent to which the accused's mind
is answerable for his physical acts which must include a consideration of the
extent of his ability to exercise willpower to control his physical acts".
Against these rather generalised observations I
ask myself again: what did Kelly LJ have to do when passing sentence in this
difficult case? To say it is a
difficult case is in fact an over-simplification. To assess residual responsibility is always difficult but to do
so dispassionately and objectively is especially difficult when the cold
blooded awfulness of the killing of an attractive woman by a jealous woman
overshadows the case.
I answer in the words of Mustill LJ (as he then
was) in R -v- Woollaston [1986] 8 CAR (S) 360, 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?"
In discharging that duty he had to fix a sentence
which reflected the interests of the offender, of the deceased and of society
as a whole. It is quite clear from his
remarks when passing sentence that the learned trial judge was fully aware of
the existence of these three parties and bore them in mind. Exercising his experience, judgment and that
fundamental duty "to do justly" Lord Justice Kelly passed a sentence
of 5 years' imprisonment. For the
Attorney General Mr Kerr claims that that sentence was "unduly
lenient" and should have been one of "at least 10 years". I do not agree.
At the heart of Mr Kerr's submission was the
proposition that the level of Christie's residual responsibility or culpability
was extremely high, higher he would argue than that of the numerous accused in
the reported cases which he cited to us.
In his closely woven argument he referred us to many portions of the
transcript dealing with the evidence of Christie and the doctors. Listening to his argument in relation to the
acts of preparation, the violence of the killing, the innocence of the deceased
and the detailed and admittedly lying attempt to cover-up her awful act, I
wondered how this jury failed to convict Christie of murder. But that is what this jury did do after
listening to the entirety of the evidence and so all those facts so carefully
assembled by Mr Kerr were capable of satisfying the jury that rather than being
guilty of murder Christie was a person who when she did those acts was
suffering from both an abnormality of mind and a substantially impaired sense
of responsibility. When it came to Mr
Smith's turn to analyse the evidence he did so with equal skill and I can
understand how the jury reached the verdict which it did. Nothing daunted Mr Kerr however argues that
Christie's culpability or residual responsibility must have been very high -
indeed so high as to deserve, indeed require, a sentence of at least 10 years'
imprisonment. Clearly all the aspects
of the evidence can be looked at in varying lights - as strongly against
Christie or much less so. Mr Smith's
cogent arguments emphasised time and again how one can look at the same
portions of transcript relied upon by Mr Kerr and reach different impressions
or conclusions. I mention but 2
matters. Firstly premeditation as such
does not of itself indicate a level of the offender's responsibility because in
this type of killing it is accepted that the offender intended to kill. To use the words of Lord Goddard in Matheson
42 CAR 145:
"Here it is said there was
evidence of premeditation and undoubtedly there was, but an abnormal mind is as
capable of forming an intention and desire to kill as one that is normal; it is
just what an abnormal mind might do. A
desire to kill is quite common in cases of insanity".
Secondly, the lying cover-up: this was detailed
and sustained, but it must be remembered that the doctors accept that Christie
has been suffering from amnesia in relation to the events surrounding the
killing. Amnesia is the mind blocking
out some incident so that it is forgotten.
Against that background is a lying cover-up necessarily indicative of a
high level of culpability, as Mr Kerr would claim, or is it the natural
response of a person who realises the awfulness of what she had done and, irrationally,
hopes that by lying she will avoid detection?
Mr Kerr might be right but without having heard all the evidence as it
emerged at the trial I would not say that his view was necessarily that which
the trial judge should have reached.
Kelly LJ did hear all the evidence. He accepted that there was a significant
level of responsibility. He imposed a
custodial sentence. In so doing he was
right in principle - his sentence cannot be condemned as wrong in principle in
that he failed to impose a custodial sentence.
For my part I who have only heard Counsel and read the transcript would
not discard the conclusion of an experienced judge who heard all the evidence
unfold. I would not accept that the
cold transcript shows that Christie was twice as culpable as the judge
considered to be the case and that this Court is obliged to double her
sentence. As I said at the outset of
this judgment, sentencing in manslaughter cases is notoriously difficult
especially in diminished responsibility cases.
Judges readily accept that they are not infallible and it is right that
sentences should be open to review if manifestly excessive or unduly
lenient. But in this type of case where
he has imposed the right type of sentence - a custodial sentence - an appellate
court should trust the trial judge and should not interfere unless the sentence
is clearly shown to be unduly lenient and so wrong in principle.
I turn therefore to consider this phrase
"unduly lenient". I start by
observing that Parliament has not given the appellate Court power to substitute
its own view of the appropriate sentence.
It has introduced the concept of the "unduly lenient" sentence
and it is important to remember that Lord Lane emphasised 2 points which flow
from the word "unduly".
Firstly, a sentence is not unduly lenient simply
because the sentence is less than the appellate court would have imposed. Secondly, undue leniency is not an undefined
and meaningless concept - a sentence is unduly lenient where it falls outside
the range of sentences which the judge applying his mind to all the relevant
factors could reasonably consider appropriate.
What then is the appropriate range of sentences
in diminished responsibility cases?
Unlike cases such as rape, other sexual offences, armed robberies or
some assaults (such as "glassing") where the basic facts are similar,
where one is not dealing with mental abnormality, and where there are often
positive guideline decisions it is possible to define a range of sentence for a
type of offence (sometimes termed the "tariff") with reasonable
precision. But manslaughter cases do
present, quite peculiarly individual sentencing problems. That said in provocation cases a
"tariff" of between 3 and 7 years seems to be accepted (R -v-
Peddie 12 CAR (S) 176 at 179). In
diminished responsibility cases I know of no such generalised statement but a
consistent range of sentences does emerge from a consideration of decided cases
and has guided sentencers in recent years.
What a sentencing judge will
inevitably do is assess all that he has heard objectively and reach a tentative
view which he will then cross-check by reference to some standard work such as
Current Sentencing Practice, and the reported cases of diminished
responsibility to which his researches have led him. His final sentence will be that which he considers just in all
the circumstances and in keeping with the established pattern of sentences in
this type of case.
In his application for review the Attorney
General referred us to 15 diminished responsibility cases within the decade
1979 to 1989. Counsel helpfully made
their points by referring to most of them and I have read them all and
others. They show that sentences varying
between 2 and 8 years' imprisonment have been passed: some being sentences
affirmed on appeal, others being cases where a heavier sentence was reduced on
appeal. I do not propose to seek to
analyse those cases as that would not, I believe, be a profitable task. I share the view of Lord Lane in R -v-
Chiu-Au-Yeung [1989] 11 CAR (S) 504 at 505 when he said:
"We do not altogether find it
helpful to refer to other cases in this area, because the range of
circumstances, both mental circumstances and physical circumstances, giving
rise to the offence are so widely distributed".
There is however in the judgment of Watkins LJ in
R -v- Secretary of State for Home Department, Ex Parte Handscomb 86 CAR
59 an interesting paragraph of statistical information. It reads (p.76):
"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".
I am satisfied that today a judge faced with
sentencing in a diminished responsibility case would conclude that if a
custodial sentence were necessary the range would cover a period of 2 to 8
years with 2 and 3 years being reserved for a few exceptional cases. Just where within that bracket the ultimate
sentence would be is very much for the sentencer who has heard the case and is
well able to evaluate mitigating factors.
As Mr Smith reminded us there were real mitigating factors in this case
- namely, the youth of Christie, her general inexperience of life, her previous
exemplary character, her service to the country as a member of the UDR over a
number of years, her lost career, her genuine remorse, her plea of guilty and
the fact that despite her making it at the outset the refusal of the Crown to
accept it meant that she had to relive this awful event and have her thoughts
and actions minutely examined and criticised.
A component in any consideration of whether a
sentence, as also with damages, is too much or too little will always include
one's own tentative view of what is appropriate. My own view was that about 7 years was right because there was
premeditation, it was an awful killing and there was a cover-up but I accept
that the mitigating factors could if I had been trying the case have led to a
lesser figure. That said I accept that
my view does not determine that the judge's sentence was lenient let alone
unduly lenient. I have no doubt that
having regard to the existing and known range of cases, the
"benchmarks", he could quite justly have decided that 5 years was a
proper sentence. That being so it is
not for this Court to interfere.
Mr Kerr however seeks to escape from the fact
that the sentence does fall within the range of sentences revealed by the
authorities to which he referred us by claiming that this case is "unique
and exceptional". In answer I
would say firstly that every diminished responsibility case is
"unique". Secondly, if he is
claiming that this case is worse than any reported case I would say that I do
not know. I do know what 10 days of
evidence revealed about this case. The
facts in all the reported cases are compressed into several pages of reports:
one cannot get the full flavour of such cases simply by reading the
reports. I do not know about the facts
of the many cases of diminished responsibility which were neither appealed nor
reported. As the judge said at the
outset of his charge this was a "vicious and gruesome killing" which
could be said about most of the reported cases but to suggest that it is worse
than any other case is to make an assumption that I am not prepared to make
especially when such an argument only serves to conceal the real issue in the
case. That issue is not whether this
was a worse killing than other killings but an assessment of the level of
residual responsibility of this accused.
In claiming that the true sentence was at least
one of 10 years, Mr Kerr is in effect re-writing Lord Lane's approach. He is arguing that even if a sentence falls
within an established range of sentences for this type of offence the sentence
can be declared unduly lenient if the Attorney General can persuade the Court
that the sentence should lie outside the existing range. I cannot accept that proposition. The procedure devised by the 1988 Act,
explained and applied in many cases since 1988, does not allow the Court a free
hand in reviewing sentences and this is so for the reasons outlined by Lord
Lane and applied ever since. To embark
on such a course would be unfair to offenders and introduce a novel and in my
judgment quite undesirable uncertainty into the sentencing process.
Since coming to a conclusion about the proper
outcome of this reference my attention has been drawn to a decision in the
Supreme Court for the Northern Territory of Australia - R -v-
Jabaltjari [1990] SC (NT) 1. In
that jurisdiction the Crown may appeal on the basis that a sentence is
"manifestly inadequate". I
would conclude this judgment by adopting a passage in the judgment of Asche CJ
which is in my opinion equally applicable to a proper exercise of this Court's
powers under the 1988 Act. At pages 16
and 17 he said:
"In fixing maximum rather than
minimum penalties for various offences the legislature properly recognizes the
vast range of criminality involved, extending from the most extenuating
circumstances to the most callous and reprehensible actions; and leaves it to
the courts to find the punishment to fit the crime. It is not for appeal courts, therefore, to indulge in
self-denying ordinances which overly inhibit the broad discretion given by the
legislature. That is not to say that
appeal courts will not adjust sentences which are out of phase with sentences
normally given in similar circumstances.
That is to prevent injustice either to the accused or the community
caused by a misapplication of the discretion invested in an individual judge or
magistrate".
I am aware that I have the misfortune to be of a
different mind from my brethren. For my
part however I am quite unable to say that the views of the learned and
experienced trial judge were so far a deviation from an appropriate sentence
that an error in his sentencing discretion has occurred. I am satisfied that the sentence imposed by
the learned trial judge cannot be impugned as unduly lenient - he properly
imposed a lengthy custodial sentence and that sentence was within that
established range of appropriate sentences for cases of diminished
responsibility by which this Court has to regulate its views. He may have been lenient: he may have been
merciful: but of themselves neither leniency nor mercy is a fault.
Accordingly I would refuse the Attorney General
the order which he seeks.
MURRAY LJ
In his judgment the Lord Chief Justice has dealt
fully with the facts of this case and with the circumstances in which the
sentence of 5 years' imprisonment imposed by the learned trial judge, Kelly LJ,
on the defendant, Susan Christie, falls to be reviewed by this Court.
It seems to me that the questions to be
considered by the trial judge after a verdict of manslaughter by reason of
diminished responsibility are now well established by judicial decision however
difficult may be the judge's task in answering them. We are dealing with a case in which the defendant Susan Christie
undoubtedly killed young Mrs Penny McAllister when - as the two women were out
together for a walk - the defendant attacked Mrs McAllister from behind
with a sharpened boning knife and cut her throat. Although this was what the learned trial judge described as a
"cruel and vicious killing that has revolted and bewildered the
community" Christie succeeded in satisfying a majority of the jurors, on
the balance of probabilities, that when she did the ghastly deed she was -
"suffering from mental
abnormality induced by disease which substantially impaired her mental
responsibility for her acts ... in doing the killing" (see the Criminal Justice
Act (Northern Ireland) 1966 ss. 1 and 5).
Dr Brown, one of the two consultant psychiatrists
called by the defence, named the disease which at the time afflicted Christie
as a "major depressive episode" while the other consultant, Dr Alec
Lyons, called it an "acute reaction to stress".
As I read the decided cases the questions which
the trial judge must ask himself are these:-
(1) Is the defendant's abnormality of mind continuing and is it of such
a kind that a hospital order is the appropriate way of dealing with the
case. (Under such an order the
defendant may, for example, be detained in secure accommodation in a
psychiatric institution without limit of time). (2) If a hospital order is not appropriate, will the defendant
constitute a danger to the public for an unpredictable time? If so, a sentence of life imprisonment will
in all probability be the appropriate sentence. (3) If the case falls neither in category (1) nor category (2)
above, was the defendant's responsibility for his acts at the relevant time so
grossly impaired that his responsibility for them was minimal? If so, and if there is no danger of a
repetition of violence, it is probable that a suitable order will allow the
defendant his freedom with, possibly, some supervision. (4) If the case does not fall within any of
the above categories was the responsibility of the defendant for his acts at
the relevant time more than minimal? If
so, the judge should pass a determinate sentence of imprisonment. In this case the learned trial judge, Kelly
LJ, (as I have said) passed such a sentence on the defendant viz. 5 years'
imprisonment, and neither Counsel for the Attorney General nor for the defence
sought in this Court to argue that that course was not the appropriate one. The only question before us is whether the
sentence was, as the Attorney General's Counsel argued "unduly
lenient" within the meaning of that expression as used in s.36(1) of the
Criminal Justice Act, 1988. If it is,
then we are empowered by Parliament (but not bound) to quash it and in its
place to pass such sentence as we consider appropriate - being a sentence which
the trial judge had power to pass. I
note that the Shorter Oxford Dictionary defines "unduly" as follows:
"Without due cause or
justification: unrightfully, undeservedly".
I have said above that the questions which the
trial judge must consider in this type of case are well established by judicial
decision. Another matter which (it
seems to me) is also so established is that where the appropriate sentence is a
determinate term of imprisonment, the judge's main task is to consider the
extent of the defendant's residual responsibility for his or her crime ie
"residual" after there has been taken into account the jury's finding
that the defendant's responsibility for that crime was substantially impaired
by mental abnormality. Of necessity the
judge has to make his own assessment of the extent of that residual
responsibility and, in the nature of things, he cannot know in any precise or
mathematical way what extent of impairment the jury found to be present and
regarded as "substantial".
The trial judge must however (as I see it) assume that the impairment
found by the jury was not, on the one hand, trivial or minimal or, on the
other, total; he must assume it was something in between: see R -v- Lloyd
[1967] 1 QB 175.
In reviewing the 5 year sentence under review I
refer first of all to the guidance given by the English Court of Appeal in
Attorney General's Reference [No.2 of 1989] which has been approved and adopted
by this Court. The most relevant
passage in the judgment by Lord Lane CJ seems to me to be this:
"A sentence was unduly lenient,
their Lordships would hold, when it fell outside the range of sentencing which
the judge applying his mind to all the relevant factors, could reasonably
consider appropriate. In this
connection, regard had of course to be had to reported cases and in particular
to the guidance given by the Court of Appeal from time to time in the so-called
'guideline' cases".
For the defendant in the present case Mr Smith QC
argued, inter alia, that in diminished responsibility cases the decided cases
indicate a range of sentences from 2 to 8 years, and since the trial judge in
this case imposed a sentence of 5 years it could not be said that that sentence
fell outside the appropriate range. In
my view this argument contains two fallacies viz. (i) that there is the 2 to 8
year range to which Mr Smith referred and (ii) that the lowest and highest
recorded sentences provide an acceptable range for testing the sentence in
question by the use of Lord Lane's test.
It is true that the actual decisions in the United Kingdom within recent
years do happen to fall within the period of 2 to 8 years but this is a very
different situation from one in which the Court of Appeal has, for example,
laid down "guidelines" or a tariff in relation to the particular
offence with which the trial judge is dealing.
In my view it is not correct to say that for diminished responsibility
manslaughter there is an accepted range of 2 to 8 years. In the first place, manslaughter
"ranges in its gravity from the borders of murder right down to those of
accidental death" - see R -v- Walker [1992] 13 CAR (S) 474 at 476 -
and, accordingly, the possible sentence for any particular manslaughter varies
from a life sentence at one extreme to a non-custodial sentence at the
other. Secondly, even in the limited
sphere of diminished responsibility manslaughter the English Court of Appeal in
R -v- Woolleston [1986] 8 CAR (S) 360 at 364, contemplated that a life
sentence might be the appropriate sentence.
Again, I note that in R -v- Chambers [1983] 5 CAR (S) 190 at
p.195 the English Court of Appeal expressly rejected the submission that a
sentence of 10 years' imprisonment was more than the "accepted
maximum" in a case of diminished responsibility. Finally, I note from the statistics produced in the judgment of
Watkins LJ in R -v- Secretary of State for the Home Department, Ex Parte.
Handscomb 86 CAR S9 (cited by MacDermott LJ in his dissenting judgment in
this case) sentences in excess of 10 years were imposed in 8 pre-1979 cases,
though such cases were a small proportion of the total number of relevant
cases. It therefore seems to me to be
correct to say that at the present time a sentence for the offence can
certainly run from 2 to 10 years.
However, such a wide range does not seem to me to be a useful or
workable guide for a trial judge in deciding upon the appropriate sentence in a
particular case. My view is that there
could reasonably be said to be two possible ranges, viz. a lower range of up to
5 years and a higher range of 6 to 10 years.
Of course whatever the test proposed or applied one must always go back
to the crucial statutory words and ask the question -
"Is the sentence of 5 years
unduly lenient?"
ie without due cause, or undeservedly lenient.
At this point I turn to some words used by Lord
Lane in another diminished responsibility case, viz. R -v- Chiu-Au-Yeung
[1989] 11 CAR (S) 502 at 504:
"The problem which faces a
judge in these circumstances is one of the most difficult which occurs in the
always difficult problem of sentencing.
There are two problems to which he has to address his mind: first of all
to what extent was the appellant's responsibility diminished? Secondly, to what extent does the public
require protection from this man, as against the day when he is released from
prison?"
In this case it is not suggested that the
defendant is now or will in the future be a danger to the public. Accordingly one then asks oneself the
question -
"Is 5 years an unduly lenient
sentence regard being had to Christie's residual responsibility for her act in
killing Mrs McAllister?"
It seems to me that the question must be
approached upon the basis that Christie knew the nature of the act which she
did when she killed Mrs McAllister and also knew that that act was morally
wrong. I can see nothing in the
evidence of Dr Brown or Dr Lyons to suggest the contrary of either of these
important propositions and, moreover, her actions in attempting to cover-up her
crime point unmistakably to those propositions of fact being correct. I accept that because of the disease which
caused her abnormality of mind her willpower to control her actions was
impaired to what, I must assume, was a substantial extent.
In my judgment the following pointers are
important in assessing her residual responsibility for her crime:-
(a) the extent of her preparation for and
premeditation of the crime, including the acquisition and sharpening of the
knife: most certainly this was no killing in a sudden explosion of
uncontrollable feeling or emotion;
(b) the elaborate cover-up of her crime,
including the knife wounds inflicted upon herself immediately after the cutting
of her victim's throat and her lying story to the police about the non-existent
attacker (whose face she would "never forget") - no question here of
a rush of anguish or remorse following the terrible deed and an immediate
confession;
(c) the obvious and (in her eyes) the great
advantage to herself flowing from the crime, viz. The removal of her rival from
Captain McAllister's affections - and moreover a rival who while alive meant
the end of her own hopes;
(d) the complete absence from her history of
any mental illness of any kind, and her level of intelligence which was such as
to make her a possible candidate for commissioned rank;
(e) her clear admission that jealousy of Mrs
McAllister's superior position in McAllister's affections played a part in her
decision to kill Mrs McAllister.
I have great difficulty in accepting the defence
submission, based upon some parts of a psychiatrist's evidence, that the scheme
to remove Mrs McAllister was irrational in that it was doomed to failure, or,
to put it another way, that the hope on her part of getting McAllister for
herself if Mrs McAllister were killed was never a realistic one. I cannot agree. As we know from the consultants' evidence, she was intensely
infatuated with McAllister and was admittedly jealous of his wife whom he had
firmly declared he would never leave. I
do not at all exclude as a reasonable possibility that that young woman in that
situation had a real hope that in some way and at some time her
desperate plan to kill Mrs McAllister would gain for her her heart's
desire. At such a time would the skills
of the forensic scientist and the attendant risks of her being found out have
played much part in her thinking? In my
judgment they would not.
To my mind the killing of young Mrs McAllister by
Susan Christie was an indescribably wicked and evil deed prompted not by any
grievance, real or imaginary, which she felt against her victim, nor by any
hatred towards or even dislike of her victim but by the jealousy which she
allowed to find entrance to her heart and mind.
In the result I assess as really considerable her
residual responsibility for her appalling crime, a crime which cut down in its
prime a young, happy and vigorous life, caused deep and lasting pain to those
who have been bereaved and (I believe) shocked to the core the whole
community. In this situation the
mitigating factors put forward on her behalf, including her age (23) and her
clear record, cannot have any appreciable effect. It is my judgment, therefore, that Susan Christie must be severely
punished and I turn now to that punishment ......
I agree with Mr Kerr's submission that the facts
in the present case are worse than any of those outlined above. To my mind the appropriate range of sentence
is what I have referred to as the higher range viz. 6-10 years. It follows that, in my judgment, the
sentence of 5 years imposed by the learned trial judge fell outside the range
which could reasonably have been considered appropriate and was unduly lenient. Moreover, in my judgment it is a case in
which this Court should quash the unduly lenient sentence and in its place
impose the sentence which it considers appropriate. My view is that that sentence is one of 10 years' imprisonment
but since the defendant has had to face the ordeal of a second set of
proceedings I would follow the merciful practice now often adopted of taking
that fact into account and making some reduction for it. In the result I would substitute a sentence
of 9 years' imprisonment.
IN
HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
THE QUEEN
-v-
MICHAEL MALACHY MURRAY
HUTTON LCJ
This is an application for leave to appeal
against sentence by Michael Malachy Murray.
In November 1992 he was tried at Omagh Crown
Court before a jury on the charge of murdering Raymond Andrew Pollock on 1
January 1992. The jury found him not
guilty of murder but guilty of manslaughter.
It is clear that the jury acquitted him of the charge of murder but
found him guilty of manslaughter on the basis that he had killed Raymond Andrew
Pollock under provocation. The learned
trial judge, McCollum J sentenced to 10 years' imprisonment for the offence of
manslaughter, and it is in respect of that sentence that he now seeks leave to
appeal.
The background facts to the killing were as
follows. The deceased, Raymond Andrew
Pollock, was a man aged 28 years who lived with his parents in Edenreagh Road,
Killen, Castlederg in County Tyrone.
The deceased had had a steady girlfriend named Siobhan Lynch who lived
with her 3 children in a house at 40 Crilly Park, Killeter, Castlederg. Miss Lynch shared that house with her sister
Collette Breen who had 3 children, and who lived in that house with her
boyfriend Thomas Caldwell.
The deceased had had a steady relationship with
Siobhan Lynch for a considerable number of years and he visited her in the
house, 40 Crilly Park, 2 or 3 times a week and on occasions stayed overnight
with her in that house.
On the morning of 1 January 1992, about 3.00 am,
the deceased arrived at the house 40 Crilly Park, after he had been drinking in
a number of public houses and the report of autopsy on the deceased states that
at the time of his death, which occurred not long after 3.00 am, the
concentration of alcohol in his blood was 258 mg per 100 ml, which indicated
that he was heavily intoxicated.
When he arrived at 40 Crilly Park the deceased
banged on the front door of the house to get in. At this time the applicant Murray, together with his son, aged 15
years, was passing in the street outside and words were exchanged between the
deceased and the applicant. There was a
substantial body of evidence to the effect that the exchange of words was
started by the applicant who said words to the effect "What the fuck are
you banging about" and "could you not bang a bit easier". There was evidence that from a Crown witness
that the deceased responded to this by saying to the applicant "What are
you chatting about?". Whatever
were the precise words said between the applicant and the deceased, and whoever
started the exchange, it is clear that angry words were exchanged between them
and after the exchange of words the deceased walked towards the applicant and
took off his sweatshirt. It seems clear
that he took off his sweatshirt as an indication that he was prepared to have a
fight with the applicant. However it
appears to be clear that no fight took place at that stage. Miss Lynch asked the deceased to come
into the house which he did, putting on his sweatshirt again, and the applicant
moved away.
At this time a Mr Joseph McGoldrick was sitting
in the applicant's house at 30 Crilly Park, and the evidence of Mr McGoldrick
was that the applicant came into the house in a terrible rage. He went over to the television in the corner
of the sitting room and took out a dagger (and we interpose the comment that
this dagger was in fact an old bayonet) from behind the television set and
rushed out of the room again waving the dagger about and shouting "Pollock
will die tonight".
It appears to be clear that armed with the dagger
the applicant went back to the house at 40 Crilly Park where he began to bang
at the back door shouting "come out you Orange bastard. Come out". Thereupon the deceased went out through the back door, and it
appears to be clear that the deceased was prepared to accept the applicant's
challenge and went out to fight with him.
The deceased was a muscular man who was 6 feet tall aged 28, where the
applicant was then aged 38, he was not as tall or as muscular as the deceased
and he suffered from considerable ill-health.
Therefore it is apparent that the 2 men were not well matched, and that
the deceased was younger, bigger and stronger than the applicant. As soon as the deceased went out through the
back door he and the applicant began to fight.
At the start the fight consisted of them punching and wrestling. It appears that at the start they were on
their feet but after a short time they were fighting on the ground, and it
appears that the fighting went on for a period of minutes.
It is clear that in the course of the fight the
applicant used the bayonet which he had brought from his home to stab the
deceased in the neck. The blade of the
bayonet had passed downwards through the left sternomastoid muscle of the neck
severing the left external jugular vein, and the blade had then passed into the
upper part of the chest and through the top of the right lung with the tip of
the blade just penetrating the muscles between the third and fourth right
ribs. The length of the track of the
wound within the body was approximately 24 cm.
Bleeding from this wound would have caused the rapid, but not immediate
death of the deceased. In addition the
deceased had suffered a second stab wound on the left side of the lower
abdomen, the blade having passed upwards, slightly backwards and to the right
into the abdominal cavity. Whilst the
abdominal injuries caused by this wound were serious they would not necessarily
impose an immediate threat to the life of the deceased. In addition the deceased had a number of
minor stab wounds, none of which had penetrated the body cavities or damaged
any vital structures, on the front of the chest, on the left flank, on the left
side of the lower back, and on the front of the left shoulder, on the front of
the neck, on the front of the abdomen, on the right upper arm and forearm and
on the inner side of the left thigh.
The applicant himself had 2 wounds, which
appeared to have been caused by the blade of a knife or dagger, on his legs.
After he had inflicted the fatal stab wound of
the deceased it appears that the applicant then banged on both the back door
and then the front door of 40 Crilly Park and shouted for Thomas Caldwell to
come out, but he did not do so and remained inside the house. The applicant then went away and was
apprehended a short time later by the police.
The basis upon which the issue of provocation was
raised at the trial on behalf of the applicant, it being clear that the jury accepted
that the Crown had not disproved the issue of provocation once it had been
raised, was that in the first exchange of words between the deceased and the
applicant when the applicant was knocking at the front door of 40 Crilly Park,
the deceased shouted at the applicant calling him names, and one of the things
he shouted at him "What are you doing over here you crippled B
you". The applicant had suffered
from severe sciatica which made him lame, and the case was made on behalf of
the applicant that the taunt that he was a cripple provoked him, particularly
as the taunt was shouted at him when his son was present. This contention that the applicant was
provoked and that he was still acting under the stress of the provocation when
he stabbed the deceased with the bayonet, having returned to his home to obtain
the bayonet, was clearly accepted by the jury, and the trial judge and this
court must accept and respect that finding.
In sentencing the applicant the learned trial
judge said:
"Michael Malachy Murray, the
jury have found you not guilty of murder but guilty of manslaughter and it is
quite clear from their verdict that they have done that on the grounds of
provocation. Nonetheless while I
entirely respect their verdict I have got to say that I regard it as a bad case
of its kind because it was not a case of someone who immediately and
instinctively reacted to whatever was said or done at No.40 but there is an
element of organisation in the fact that you went away and got a weapon in your
own house, this ugly bayonet, which you were apparently keeping in your house
for some unknown reason. You got that
and you went back. You got the deceased
man out of his house and so far as the evidence goes there is no suggestion at
all that you gave him any fore knowledge that you were armed in the way that
you were. You lured him from his house
or rather the house that he was in. He
did not know that you were armed and there was no preparation at all for what
was ahead of him. You struck this blow
with a degree of determination even although it may not have taken much force
but it certainly required the knife to be guided and guide in such a way that
you intended to take his life.
Accordingly, as I say, I regard this
as a serious offence. There are no doubt
cases of provocation in which a much lesser sentence would be appropriate but
in my view this is a case which calls for a severe sentence and in view of what
you did and the way that you went about it I regard the appropriate sentence to
impose on you is one of 10 years' imprisonment".
For the reasons which he stated in passing
sentence, we consider that the learned trial judge was fully entitled to take
the view that this was a bad case of its kind which called for a severe
sentence, and this court is in full agreement with that view expressed by the
judge.
A considerable number of grounds were set out in
the notice of appeal, and we have taken them all into account. The main grounds advanced by Mr John
McCrudden on behalf of the applicant were the following.
Counsel submitted that the sentence of 10 years
was excessive in the light of the authorities. Mr McCrudden referred us to a
number of decisions. These included the following: In R -v- Edmunds
[1983] Crim LR 406 the accused, being provoked, took a knife from one of his
companions and stabbed the deceased in the abdomen. He was sentenced to 9 years' imprisonment which the English Court
of Appeal reduced to 7 years. In R
-v- Jama [1968] Crim LR 397 the accused knocked down the deceased with his
fists and then hit him with an iron implement which he used in the course of
his work, and the deceased died. He was
found guilty of manslaughter and the jury indicated that they considered there
was provocation and no intent to cause grievous bodily harm. The accused was sentenced to 10 years'
imprisonment, which the English Court of Appeal reduced to 3 years, having
regard to the view of the matter apparently expressed by the jury. In R -v- Whitmore [1989]
11 Cr.App.R (S) 288 the deceased, after a trivial argument, picked up a
kitchen knife which he was using to cut bread at the time, and stabbed the
deceased in the back of the armpit which severed the deceased's main artery and
caused his death. The applicant was
sentenced to 7 years' imprisonment and this sentence was upheld by the English
Court of Appeal. Delivering the
judgment of the court Auld J stated:
"In our view, this case falls
at the upper end of the scale for offences of this type. Such provocation, in the non-legal sense of
that term, as there was, was minimal.
The appellant's ready use of a kitchen knife over a trivial argument,
with the fatal consequences that it has, must be treated with severity. Such knifing incidents are all too
common. Those who take deadly weapons
in their hands to use them on others, whatever their intent, must appreciate
the serious risks that they take with other peoples lives, and that they will
be severely punished by the court.
The sentence of 7 years'
imprisonment was neither wrong in principle nor manifestly excessive. The appeal is dismissed".
We consider that the present case, for the
reasons stated by the learned trial judge, was a much more serious case than
the cases which were cited by Mr McCrudden.
In R -v- Jama the brief report states:
"10 years is a sentence
appropriate to a bad case, one which is nearly murder".
In R -v- Shaw [1984] 6 Cr.App.R (S) [1984]
108 at 109 Griffiths LJ (as he then was) stated:
"The only ground upon which
this appeal is urged before this Court is that 7 years should be considered to
be the maximum sentence that a court should pass for manslaughter on the ground
of provocation, no matter how tenuous the judge may have to regard the
provocation. It is right that there
have been cases in which the Court has reduced the sentence for manslaughter on
the ground of provocation from 10 to 7 years, but no authority has been cited
to this Court to show that sentencing policy has so hardened that 7 years
should in all cases be considered to be the maximum sentence that the court
should impose for a killing which has been reduced to manslaughter on the
ground of provocation. The
circumstances of cases vary infinitely, and the person best suited to weigh up
the appropriate punishment is the High Court Judge who presides over the trial
and hears how the matter develops".
and Watkins LJ in a later case, R -v- Hussey
[1989] 11 Cr.App.R (S) 460, confirms this:
He says at p.462:
"Cases of manslaughter vary
infinitely. Therefore, so does the
punishment for it. In Naylor [1987]
9 Cr.App.R (S) 302, in giving the judgment of the Court I stated, at p.305:
'In cases
of provocation, such as reduce murder to manslaughter, sentences in the region
of 7 years, plus or minus 2 or 3 years, are usual. There are rare sentences reported, however, in excess of
that'."
As we have stated we consider that this was a bad
case and we are in respectful agreement with Griffiths LJ that sentencing
policy has not so hardened that 7 years should in all cases be considered to be
the maximum sentence for a killing which has been reduced to manslaughter on
the ground of provocation. As Griffiths
LJ stated, the High Court Judge who presided over the trial and who heard how
the matter developed is the person best suited to weigh up the appropriate punishment,
and we consider that McCollum J, having heard all the evidence, was entitled to
conclude that the case was a bad one which called for a severe sentence of 10
years' imprisonment.
Mr McCrudden further submitted that the learned
trial judge, in imposing a sentence of 10 years' imprisonment, had failed to
take account adequately of the degree and nature of the provocation to which
the appellant had been subjected. Mr
McCrudden submitted that it was extreme provocation for the applicant to be
insulted and humiliated in front of his son, aged 15, by being called "a
crippled B". We can see no basis
for the submission that the trial judge did not take into account the nature of
the provocation. The words and actions
which can constitute provocation can vary very greatly, and we do not accept
the submission that the words used and the occasion on which they were used
were such that they constituted an extreme form of provocation which should
operate to reduce the sentence passed on the applicant having regard to his
conduct after the insult.
Evidence was given by the applicant's general
practitioner as to the state of his mental and physical health. The applicant had suffered from attacks of
acute depression since 1978 and had been given courses of electric shock
treatment. The applicant had had severe
right sided sciatica and had also suffered from bouts of severe abdominal
pain. His general practitioner said
that the applicant was very bad at coping with pain and stated that he had a
psychosomatic illness together with the bouts of depression from which he had
suffered. The general picture presented
was of a man with a very inadequate personality who also abused alcohol on
occasions, and it is clear that on the night of the killing the applicant had
had a good deal to drink.
Mr McCrudden submitted that these were mitigating
factors which the judge had failed to take into account, and that if the judge
had taken them into account he would have imposed a sentence of less than 10
years.
It is relevant to remark that the actions of the
deceased on the night of the killing were not those of a man with an inadequate
personality or who suffered from mental of physical weakness. Rather they were highly violent and
threatening actions when the applicant armed himself with a bayonet and then,
without revealing that he had the bayonet, challenged the deceased to come out
and fight him.
We consider that this was a case of such gravity
that the trial judge was fully entitled not to reduce the sentence because of
the physical and mental illness suffered by the applicant in the years prior to
the killing. We would apply to this
case the words of Scarman LJ (as he then was) in R -v- Inwood [1974] 60
Cr.App.R 70:
"But in the balance that the
Court has to make between the mitigating factors and society's interest in
marking its disapproval for this type of conduct, we come to the irresistible
though unpalatable conclusion, that we must not yield to the mitigating
factors. The sentence was correct in
principle when measured against the gravity of the offences".
Mr McCrudden further submitted that the sentence
of 10 years' imprisonment failed to reflect the possibility that the deceased
might have used the bayonet in self-defence.
We consider that this submission is without any substance. The learned trial judge rightly withdrew the
defence of self-defence from the jury.
Having regard to the actions of the deceased in return to his home to
obtain the bayonet and then returning to 40 Crilly Road to tempt the deceased
out to fight him, there is no basis for any suggestion of self-defence.
Accordingly we dismiss the application for leave
to appeal.
IN
HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
THE QUEEN
-v-
GEOFFREY CURRIE
CAMPBELL J
At the Crown Court sitting at Craigavon on 4 June
1993 Geoffrey Currie having pleaded not guilty to the murder of Wendy Guy on 20
January 1993 changed his plea to admit his guilt of her manslaughter and he was
sentenced to 6 years' imprisonment.
He now appeals against this sentence on the
grounds that it is manifestly excessive and wrong in principle because:
(i) The trial judge failed to accord to
Currie proper and reasonable discount in respect of his plea of guilty to
manslaughter.
(ii) The trial judge failed to attach any or
sufficient weight to the exceptional points which arose in mitigation including
in particular the evidence of the mother of Wendy Guy.
Wendy Guy who was 20 at the time of her death
lived at 101 Greenhill Park, Lurgan and Geoffrey Currie who was 29, had been
living with her there for two years.
Wendy Guy had a 2½ year old daughter, Ashlene, who was the child of a
previous relationship and she too lived at 101 Greenhill Park.
In the middle of January 1993 Samuel Currie, an
older brother of Geoffrey Currie whom he looked upon as a father, began a
relationship with Wendy Guy and a few days prior to the 20 January 1993, the
date of the offence, Geoffrey Currie asked his brother if there was anything
going on between them. His brother
replied "nothing yet" and later he suggested that the 3 of them
should discuss the matter on the following day.
On Sunday 17 January 1993, Wendy Guy told
Geoffrey to be out of the house by the following day however he asked his
brother Samuel to intervene on his behalf on the day following and as a result
she relented and permitted him to remain until the weekend.
During the early evening of Tuesday 19 January
1993 Currie and Wendy Guy were getting on well and she cooked him an evening
meal for the first time in 5 days.
Later that evening Samuel Currie and his sister Ann arrived to visit
them and they were accompanied by a friend Jim Bell. Wendy sat beside Samuel on the sofa and flirted with him and this
led to an argument between Wendy and Geoffrey Currie after the visitors had
left and before going to bed.
At 8.00 am on the following morning, Wednesday 20
January, Wendy Guy asked Geoffrey Currie to go downstairs and bring her up a
glass of juice. Currie said in an
interview with the police that as he poured the juice for her in the kitchen he
opened a drawer and pulled out a knife which he had gone to get and as he did
so he noticed a letter in the drawer.
He told the police that he had gone to get the knife to go up and
intimidate her. When he saw the letter
he recognized the handwriting as being that of his brother Samuel and in this
letter, which he read, Samuel expressed his love for Wendy and her child. Currie said that he put the letter back in
the drawer, grabbed the knife and having hidden it down the back of his
underpants he ran upstairs. On reaching
the bedroom he handed the juice to Wendy and as she drank it he pulled out the
knife "to scare her". He said
that he thrust it towards her and that the handle flew off and he went on to
describe how he stuck the knife into her neck.
Currie said that when the knife fell Wendy called him a "no good
bastard" and told him to leave the house by 2.00 pm. He replied that she could move Sam in and
she responded by saying "me and Sam had wonderful sex on Sunday" and
on hearing this Currie claimed that he went a total blank, but it is clear that
he strangled her with his hands.
The police officers who were interviewing him
asked him how she died and he told them that he had choked her as she lay on
the floor. He described having trailed
her off the bed and, after they had scuffled and skirmished about, sitting on
top of her and catching her by the throat.
He then demonstrated to the officers how he had choked her with his
thumbs on the centre of her throat and his fingers around the side of her
head. He told them that when he
realised that she was dead he hugged her and kissed her and told her that he
loved her.
At his trial he told the jury that it was on his
way to the kitchen that he decided to get a knife and that he did not remember
the act of strangling her and that he could remember only his hands coming away
from her neck.
About 9.00 am after he had hugged and kissed her
Currie washed and then picked up Ashlene who had been asleep in her bed in the
house. He took her to the playgroup
which she attended and at which his sister Ann assisted. He asked Ann to take Ashlene back to her
house when the playgroup ended and he said that Wendy would come and collect
her daughter there.
On leaving the playgroup Currie went to the home
of Mrs Guy, the mother of Wendy.
Although she was not at home he removed Tylex tablets from a coffee
table and Paracetamol tablets from the kitchen.
From there he went to an off-licence in Lurgan
where he bought 4 tins of beer, some Coke and a quarter bottle of Vodka and
took them back to 101 Greenfield Park.
He said that on his return to the house he looked at Wendy's body and
lifted it and cuddled her and then went downstairs and took the 10 Paracetamol
tablets and left the house and returned to the playgroup where he saw his
sister Ann. She said that he was crying
when he reached her and that he told her that he had taken a couple of pints
with a mate in the Institute in Lurgan and asked her to read the letter from
Samuel to Wendy that he had found earlier in the kitchen drawer. He banged his fist on a chair and told his
sister that he could not take any more.
She attempted to calm him and he left her to go and ask Wendy's mother
to see if she would put him up. Before
leaving he told his sister that Wendy was at home and that she would call at
his sister's house before going out with Samuel.
Currie did not go to Mrs Guy's house but returned
once again to the house in Greenfield Park where he wrote a note to Mrs Guy,
which he brought to a shop where he bought an envelope and then he posted it to
her. In this note which was accompanied
by photographs and was delivered to Mrs Guy on the following day he wrote:
"I loved her and could not
leave her. My brother Sammy caused
everything. If he had stayed away
everything was OK. I found hi (sic)
letter he sent to her on Tuesday 19 January and I left it to the finder of
us. I left it with Ann. Signed Geoffrey Currie 10.45 am Wednesday 20
January 1993. PS I killed her at
8.45 am and I still love her".
After he had posted the envelope containing the
note and the photographs he returned once more to Greenfield Park where he sat
on the bed in the room where Wendy was lying for a couple of hours or so and he
said that during this time he took 100 to 150 tablets. It is not in dispute that Currie did take an
overdose of paracetamol and that he did make a fairly determined attempt to
take his own life. After the couple of
hours he spent in the house he then left it for the final time and he met his
sister Ann and his brother Samuel as he walked towards his sister's house. He gave them the key of 101 Greenfield Park
and they went to the house and raised the alarm. Meanwhile Geoffrey Currie had telephoned the police from a call
box and told them "I have murdered my girlfriend and if you don't get
someone up quick there will be another murder".
The report of the autopsy shows that Wendy Guy
died from manual strangulation and that a projection on her hyoid bone in the
upper part of the front of her neck had been fractured. Her injuries indicated the forcible grip of
a hand or hands. There was an abrasion
across the front of her neck associated with a superficial incision less than
¼" long at its front end. This
could possibly have been caused by the blade of a knife having been lightly
applied to the neck but the wound caused was quite trivial. Bruising was found to the top and front of
her right shoulder and faint bruising was seen on the front of her lower
abdomen and abrasions to both elbows.
During the plea in mitigation Wendy's mother, Mrs
Guy gave evidence. She said that she
was sure that the appellant loved Wendy and the child and on being asked about
her understanding of his feelings she responded by saying that she believed
that he was heartbroken and that she wished him well.
In sentencing Currie, the learned trial judge
accepted that Currie had been deeply attached to Wendy Guy and that he had been
devastated by the prospect of losing her to his brother and that on the evening
before her death she had provoked Currie by her behaviour towards his
brother. He referred to his being
further provoked by things that she had said to him on the morning of her death
and by the discovery of the letter that his brother Samuel had written to
her. The learned trial judge referred
to the evidence of Mrs Guy which had impressed him, to Currie's less than happy
background and to the fact that he looked upon his brother Samuel as a father
figure. He mentioned also Currie's good
work record and that he had a clear criminal record.
The judge spoke of the lack of detail in Currie's
account of the killing in the witness box, and compared this with the detailed
account that the appellant had given to the police and concluded that he had
been less than forthright in court. He
stated that this should not and did not influence the court to a heavier
penalty but that it illustrated that it would be unwise for the court to deal
with him on the basis that not only did he not intend to harm Wendy Guy but
that he was unaware of doing so - a view which this court considers was
entirely justified.
In his submissions on behalf of the appellant, Mr
Eugene Grant advanced 2 main points.
The first was that the level of provocation to which the appellant was
subjected by the deceased was high whilst the level of the appellant's
deliberation to kill her was low. The
second point was that the learned trial judge should have made a substantial
reduction in the sentence because of the exceptional evidence of the victim's
mother who stated that she was satisfied that the appellant had a genuine love
for Wendy and for the child and had genuine remorse for what he had done. Mr Grant made the further point that the
goodness and forgiveness which Mrs Guy had shown towards the appellant could be
regarded as being representative of the attitude of the concerned public, and
because of her exceptional attitude the judge would have been right to reduce
the sentence below that which would normally be imposed for such a crime.
We do not accept those submissions. Whilst the appellant was seriously provoked,
his reaction was extremely violent and was not immediate, because before
strangling Wendy Guy in the bedroom he took a knife from the kitchen which he
thrust towards her and which inflicted the superficial wound on her neck. Therefore this was not a case where the
violence used towards the victim followed instantaneously after the
provocation.
We further consider that the very forgiving
attitude shown by Mrs Guy cannot operate to reduce the sentence below that
which the learned trial judge imposed.
The appellant killed a young woman, and for that the public interest
requires that he be punished, notwithstanding the forgiveness of the mother of
the victim. As Lord Lane CJ stated in R
-v- Taylor [1987] 9 Cr.App.R (S) 175 at 176:
"There are two objects in view
which the sentencer must have in mind: first of all the necessity to ensure
that the criminal expiates his offence.
For that of course a term of imprisonment is almost always
necessary. Secondly, although to some
extent where there is provocation it may seem illogical, it has got to be a
lesson to other people that if possible they should keep their tempers and not
be provoked in such circumstances.
Bearing those 2 matters in mind, the judge then has to determine what
the least period is which will reflect those 2 matters".
Mr Grant referred to the statement of the learned
trial judge in sentencing that:
"The authorities suggest 3 to 7
years for cases involving manslaughter as a result of provocation".
Mr Grant submitted that in the light of the
matters which he had put forward and having regard to the range stated by the
judge, the sentence of 6 years' imprisonment was too high. Courts often impose sentences between 3 to 7
years for manslaughter as a result of provocation, but 7 years is not the
maximum of the range. In R -v-
Michael Malachy Murray [1993] (unreported) this Court in upholding a
sentence of 10 years' imprisonment for manslaughter under provocation, in its
judgment at page 7 referred to R -v- Shaw [1984] 6 Cr.App.R (S) [1984],
108 at 109 where Griffiths LJ (as he then was) stated:
"The only ground upon which
this appeal is urged before this Court is that 7 years should be considered to
be the maximum sentence that a court should pass for manslaughter on the ground
of provocation, no matter how tenuous the judge may have to regard the
provocation. It is right that there
have been cases in which the Court has reduced the sentence for manslaughter on
the ground of provocation from 10 to 7 years, but no authority has been cited
to this Court to show that sentencing policy has so hardened that 7 years
should in all cases be considered to be the maximum sentence that the court
should impose for a killing which has been reduced to manslaughter on the
ground of provocation. The
circumstances of cases vary infinitely, and the person best suited to weigh up the
appropriate punishment is the High Court Judge who presides over the trial and
hears how the matter develops".
and to the later case of R -v- Hussey
[1989] 11 Cr.App.R (S) 460 where Watkin LJ said at page 462:
"Cases of manslaughter vary
infinitely. Therefore, so does the
punishment for it. In Naylor
[1987] 9 Cr.App.R (S) 302, in giving the judgment of the Court I stated, at
p.305:
'In cases
of provocation, such as reduce murder to manslaughter, sentences in the region
of 7 years, plus or minus 2 or 3 years, are usual. There are rare sentences reported, however, in excess of
that'."
and this court continued in Murray:
"As we have stated we consider
that this was a bad case and we are in respectful agreement with Griffiths LJ
that sentencing policy has not so hardened that 7 years should in all cases be
considered to be the maximum sentence for a killing which has been reduced to
manslaughter on the ground of provocation.
As Griffiths LJ stated, the High Court Judge who presided over the trial
and who heard how the matter developed is the person best suited to weigh up
the appropriate punishment, and we consider that McCollum J, having heard all
the evidence, was entitled to conclude that the case was a bad one which called
for a severe sentence of 10 years' imprisonment".
We consider that a sentence of 6 years'
imprisonment for the strangulation of this young woman, albeit done under
provocation, is neither wrong in principle nor manifestly excessive. It is a proper punishment for the taking of
a young life and should operate as a deterrent to other persons. The appeal is accordingly dismissed.
THE QUEEN
-v-
GLEN KANE
and
RAYMOND HAGAN
MacDERMOTT LJ
The 2 appellants along with 2 others (Robert
Andrews and William John Martin) were charged with the murder of Kieran Patrick
Abram on 5 July 1992. On the fourth day
of their trial before McCollum J at Belfast Crown Court - 7 December 1993 - the
4 accused were re-arraigned and each pleaded guilty to the manslaughter of
Abram. With the approval of the learned
trial judge these pleas were accepted by the Crown. They each also pleaded guilty to a charge of riot on Count 2. Each of the appellants received a sentence
of 9 years' imprisonment on the first count (the manslaughter charge) and a
concurrent 2 year sentence in respect of the riot charge. Andrews was sentenced to 7 years on Count 1
and Martin to 4 years' detention suspended for 3 years.
The background circumstances to this incident on
5 July 1992 can be stated fairly shortly.
North Howard Street runs from the Falls Road towards the Shankill
Road. About midway along it is an army
location with a sangar overlooking a chicane type wall and metal plates to
impede or stop the flow of traffic. It
had been the site of rioting in the past as sectarian and often hostile crowds
approached each other from opposite ends of the street. In the weeks before the "12th
July" there is annually much excitement in and around bonfires in the area
and unfortunately this can and sometimes does spill over into violence between
Protestant and Catholic groups.
5 July was one of those nights. Two crowds gathered. Insults were exchanged - missiles flew. The practice was for an RUC unit to be
present in the army barracks and it would sally forth and catch rioters if the
situation required such action. The layout
of the street and the various obstructions on it is such that members of the
Protestant crown could creep up along the sangar side and approach the Catholic
crown unnoticed. About 3.00 am a youth
so engaged told Guardsman Greig that they were going to "do" a
Catholic that night. A small group -
about 3 in number - worked its way towards the Catholics followed by a larger
Protestant rush. The Catholics retired
but one was caught and struck to the ground where he was kicked not only by
them but by some of the larger group.
This second "wave" included the appellant Kane and he was
seized by Constable Shields and subsequently arrested. Constable Shields had also caught another of
those kicking the fallen man (who turned out to be Abram) but he broke
loose. Constable Shields shouted for
someone else to seize him. Constable
Larmour heard the shout and seized a youth running past him. This was the appellant Hagan. For Hagan Mr Eugene Grant argued that we
could not be satisfied that Hagan was in fact the man who had been seized by
Constable Shields as with Hagan they kicked Abram. He emphasised that the description given by Constable Shields of a
youth in a dark bomber jacket did not match Constable Larmour's description of
a light blue bomber jacket. At night in
a mêlee situation such variations in colour description can easily occur. Hagan's description of his role when
interviewed by the police did not embrace a role similar to that of Kane but of
course such remarks are self-serving.
There is no doubt that the witnesses were trying
to describe as best they could a very confused situation and as is so often the
case it is difficult to define with certainty the roles of the various
participants. It might have been easier
to attempt this difficult task if the case had been fought out. What is undisputed however is that each appellant,
as well as Andrews and Martin, pleaded guilty to manslaughter. This could only have been acceptable on the
basis that jointly with others they participated in an unlawful attack on Abram
but themselves did not have the necessary intent to sustain a charge of murder.
The learned trial judge dealt with this confused
factual situation in this way:
"While the police waited inside
at the ready a confrontation occurred and it appears that the group already
referred to pounced upon the unfortunate young man who became the deceased and
subjected him to a merciless beating.
Heavy sticks and boots were used and also pieces of wood which had nails
driven into them with the heads of the nails still projecting. I have no doubt that the deceased was struck
a number of blows by these weapons and that they caused a number of very
serious lacerations of his scalp and face.
I have no doubt either that the
crime of murder was committed on that evening on the part of a number of
persons including anyone who was engaged in the savage beating of the deceased
who at the time of engaging in that beating had the intent to inflict or to aid
and abet in the infliction of really serious injury to the deceased or to cause
his death. However - and it is
unfortunate from the point of view of doing justice - it is not possible in the
confused situation which greeted the police officers to bring home the crime of
murder to any individual.
Those before the court played a part
in the riot and the first 4 played some part in the attack on Mr Abram. However in all the circumstances of the case
it has not been shown by the evidence - and I do not think that it would have
been possible had the case proceeded - to establish beyond a reasonable doubt
that any of them was part of the attacking crowd and at the same time it can be
shown that they joined in the attack, but it cannot be shown that they really
displayed the intent to kill or to cause grievous bodily harm or to aid and
abet someone else in so doing".
Reading the papers in the light of these
observations by the judge who saw as well as heard those witnesses who were
called it seems to us that there were 3 groups involved with differing degrees
of culpability.
1. The original 3 who struck Abram
down. The learned trial judge would
have, rightly, convicted them of murder but he was not satisfied that these
accused were in that group.
2. Those who attacked the defenceless
Abram as he lay on the ground. Kane was
in this group, Andrews the learned trial judge notes as having been involved in
kicking the deceased at a time when others were attacking him with sticks.
3. Others who participated more
peripherally in the unlawful joint enterprise.
The learned trial judge treated Hagan and Kane
alike in that each received a sentence of 9 years' imprisonment. He emphasised that though Kane was the
oldest of those before him (Kane was 26 and Hagan 21) he would deal with them
in the same manner due to Kane's immaturity of which there was evidence. Andrews' sentence was one of 7 years and the
learned trial judge distinguished him from Hagan and Kane as being younger,
18½. The learned trial judge did not
seek to analyse the precise role of each individual as he sentenced him which
is perfectly understandable as it is difficult to do so with precision and also
when persons engage upon an unlawful joint enterprise the particular role of
each is of comparatively little significance when sentencing.
We suspect that the facts have probably been
analysed more fully in this court than in the course of counsel's submissions
prior to sentencing. To that extent we
are in a slightly better position than the learned trial judge. We have carefully considered Mr Grant's
submission that we cannot be sure that Hagan was a culpable as Kane. It may be that Hagan was the man who escaped
from the grasp of Constable Shields but we feel that there is a possibility
that they may not be so and so feel that a small distinction should be drawn
between Kane and Hagan.
That brings us to the real issue in this
appeal. Is a sentence of 9 years
manifestly excessive in the case of Kane?
Mr Philip Mooney QC (who appeared with Miss Orr) submitted that it was
and he referred us to various authorities in Current Sentencing Practice under the
heading "Manslaughter
arising out of fights" pages 20401 and following. It is well known that determining the
appropriate sentence in a manslaughter case is one of the most difficult tasks
faced by a sentencer. As Lord Lane CJ
said in R -v- Walker [1991] 13 CAR (S) 474:
"It is a truism to say that of
all crimes in the calendar, the crime of manslaughter faces the sentencing
judge with the greatest problem, because manslaughter ranges in its gravity
from the borders of murder right down to those of accidental death. It is never easy to strike exactly the right
point at which to pitch the sentence.
This case is a very good example".
The learned trial judge has great experience and
after 3 days of evidence must have had a good flavour of the viciousness of
this attack which led to the merciless killing of young Abram by blows and
kicks.
The language of Lord Lane in R -v- Eaton
[1989] 11 CAR (S) 474 seems to reflect the behaviour of these 2 groups on this
particular night:
"The present offence is
unhappily an example of the comparatively recent manifestation of brute
violence starting off with excessive drinking by young men in their late teens
or their early twenties, and developing into a group attack, each member of the
group stimulating the others to violence, a sort of 'wolf pack' syndrome, the
violence to be wrecked upon another group, because of some supposed
slight".
The evil which the Chief Justice was there
describing is, of course, compounded when it is sectarian in nature and a part
of the ongoing and persistent sectarian violence which has bedeviled life in
Northern Ireland for many years.
How should such lawless behaviour be viewed by a
sentencer? It must, especially where
someone has been killed, attract a lengthy prison sentence to mark not only the
abhorrence of civilised people but the determination of the courts to seek to
deter the repetition of such behaviour.
We would adopt the words of Watkins LJ in R -v- Silver and Gosling
[1982] 4 CAR (S) 48:
"We are conscious of the effect
that heavy terms of imprisonment have upon young men such as these
appellants. It is almost catastrophic
at their time of life. However, we have
others to think of. We have to
consider, too, the prevalence of this kind of violence which inevitably carries
with it the risk of serious injury, if not death. Nowadays, at football grounds, in clubs, in pubs and on the
street, no sooner do young men start to fight and one of them goes to the
floor, than one or more of the others put in the boot. When that happens and the offenders are
apprehended it is incumbent upon courts to inflict serious punishment to mark
the seriousness of such conduct. Any
sentence passed must have inbuilt a measure of deterrence".
We have already commented upon the unacceptable
sectarian nature of this incident and the appalling manner in which Abram was
killed. This was not just a
"level" fight which had an unfortunate result - there was an
organised plan to "cut out" a member of the opposing faction and
attack him in a merciless fashion. The
plan was carried out in a ruthless manner.
Those involved merit no sympathy.
We do not consider that 9 years was an excessive sentence. Kane's appeal against sentence is
dismissed. We would add that the fact
that Martin was dealt with in a mercifully lenient fashion does not assist the
others in any way.
Andrews has not appealed. The learned trial judge was entitled to have
regard to his age though age of itself is by no means a reliable yardstick by
which to measure culpability.
We return to Hagan. After considerable reflection, we consider that it is proper to
reduce his sentence to one of 7 years and to that extent his appeal is allowed.
By way of conclusion we would wish to state that
a sentence of 9 years is not to be considered the maximum appropriate for this
type of manslaughter. If sectarian
rioting should return to the streets in the future and in its course a death or
deaths occur, then it must be anticipated that sentences for manslaughter (if
that be the appropriate offence) may be well in excess of 10 years. The public is entitled to expect that the
courts will seek to deter such behaviour by lengthy custodial sentences.
IN
HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
THE QUEEN
-v-
THOMAS JOHN BALMER
CARSWELL LJ (giving the judgment of the Court)
In this appeal brought by leave of the single
judge the appellant appeals against his conviction on 20 February 1995 at
Ballymena Crown Court following a trial before His Honour Judge Hart QC and a
jury on one count of manslaughter. He
also appeals against the sentence of 3 years' imprisonment imposed upon him by
the learned trial judge on 6 March 1995.
The charge against the appellant arose out of an
incident which occurred on 29 March 1994, when Siobhan Dickson was struck in
the head and neck by one shot discharged from a firearm then being held by the
appellant. The shooting occurred about
4.00 am, after an evening and night during which the appellant, the deceased
and others had been drinking at a public house in Ballymena, then spent some
time at the appellant's house at Crosskeys, talking, drinking and listening to
music. By that time all the persons
concerned appeared to have drunk a good deal, and the quality of their
recollection was rather poor.
The weapon in question was a legally held 9mm
automatic pistol, which the appellant had the previous morning placed in the
drawer of a table in the living room of his house. He had a licence to keep this weapon because he worked for a
construction company which carried out work at security bases throughout the
Province and was at personal risk at work and at home from terrorist
attack. He had fired some practice
shots with the gun the previous morning, then placed it in the drawer,
containing a loaded magazine, with a round in the breech, with the mechanism
fully cocked and the safety catch off.
When putting the weapon there he took none of the steps ordinarily
regarded as advisable to make it safe.
He had not removed the magazine; he had not worked the mechanism so as
to eject the round from the breech and ensure that the weapon was not cocked;
he had not even put the safety catch on.
Nor did he take any of these steps when he removed the weapon from the
drawer. In the condition in which the
gun was when he took it from the drawer it required only a fairly light
pressure on the trigger for it to discharge a round. He acknowledge in the course of cross-examination that when the gun
was in that condition he would have to exercise extreme care if it was not to
go off. The appellant said in evidence
that he had decided to go to bed, and that before doing so he took the gun from
the drawer to take with him to his bedroom rather than leave it in the drawer
overnight, where other people in the house might interfere with it. He agreed that when he took it from the
drawer he must have placed his finger on the trigger and exerted some pressure,
at a time when it was pointing towards the deceased, for there was no other way
in which the shooting could have occurred.
During his cross-examination Mr Weir for the
Crown put these points to the appellant, then asked him (page 64 of the
transcript):
"Q549. Tell me this, Mr Balmer, do you not accept that
it was monstrously careless to leave a weapon in that state and even put it
into the drawer?"
The appellant replied:
"A. Yes, it is, but there would
be nobody who would be near it".
Mr Weir went on to ask if it would be grossly
negligent, but at that point defence counsel objected to the line of
questioning. The judge discouraged
counsel from questioning the appellant in a form of words phrased in terms of
gross negligence, but at page 66 one finds that counsel again asked the
appellant if handling the weapon when he had been drinking was not in itself
monstrously careless, with which the appellant agreed. He used the phrase again at page 74 when
asking the appellant about putting his hand into the drawer to handle a lethal
weapon, and the appellant's counsel objected to the use of the phrase. The judge ruled that in avoiding the use of
the words "grossly negligent" and in using the words
"monstrously careless" Crown counsel was pursuing a proper line of
questioning, and at page 78 counsel put it to the appellant that he killed the
deceased through his "very great carelessness", to which the latter
again agreed.
The notice of application for leave to appeal
submitted on behalf of the appellant contained a multiplicity of grounds of
appeal, but at the hearing before us Mr McCrudden QC on his behalf confined
himself to three:
(a) The phrase "monstrously
careless" was no more than a synonym for gross negligence, and in putting
it to the appellant counsel was asking him to express an opinion on the
ultimate issue for the decision of the jury.
This was unfair, and in permitting it the judge erred in law and this
gave rise to an irregularity.
(b) The judge should have permitted the
defence to call Dr R J Davidson to prove that he was suffering from
post-traumatic stress disorder and fading recollection.
(c) The judge misdirected the jury when he
drew a distinction between a minor degree of carelessness on the one hand and
gross negligence on the other, and should have allowed or invited them to
consider a range of careless behaviour in between these extremes which might
fall short of gross negligence.
We shall consider these grounds in reverse order.
We do not consider that there is any substance in
the last ground. The judge correctly
directed the jury that the requisite degree of negligence for a finding of
guilty under this category of manslaughter was gross negligence, conduct
amounting to a crime deserving of punishment, and quite properly contrasted it
with a minor degree of carelessness for which the appellant should not be held
criminally liable. Mr McCrudden
submitted that an implication arose from his charge that if the appellant's
conduct went beyond a minor degree of carelessness it would constitute gross
negligence. We do not accept that, nor
do we think that the judge was bound to expatiate on all the possible
gradations of negligent behaviour, so long as he accurately explained the
criterion which the jury was to apply.
He gave the jury a sufficient explanation of the standard which they
should apply, and his charge did not in our judgment contain any misdirection.
...
Mr McCrudden submitted that the sentence of 3
years' imprisonment was on the facts of the case manifestly excessive. There is a dearth of decisions directly in
point on sentence in cases of manslaughter resulting from gross
negligence. On one side of the line is
the case of R -v Lappin (1993, Omagh Crown Court), in which the late
Higgins J imposed a sentence of 4 years' detention in the Young Offenders'
Centre on a plea of manslaughter in a case where the defendant discharged a
shotgun negligently and fatally injured a friend. The defendant lodged an appeal in respect of the sentence, but
abandoned it before the hearing. We
have perused the statements of evidence in that case, which was a serious one and
very clearly distinguishable from the soldiers' cases to which we shall refer
in a moment. The defendant, a youth of
17 years, had himself loaded the gun and taken part in an extended session of
horseplay involving the gun, which was obviously extremely dangerous. In the course of this the gun went off while
the victim was holding it and the defendant was grappling with him. The defendant accepted that he must have had
his finger on the trigger. He then
attempted to conceal his part in the affair and dispose of the gun. We do not have any details of the extent to
which the soldiers' cases were brought to the judge's attention, but he had
himself imposed the sentence in one of them, so he certainly would have known
at least of that case.
On the other side of the line is a series of
cases in which serving soldiers pleaded guilty to manslaughter where the deaths
were caused by negligent discharge of firearms. In several of these the discharge occurred in a sangar and was
brought about by the defendant's failure to clear his weapon properly or follow
standard procedure for handling firearms.
The trial judges sentenced the defendants to terms of imprisonment
varying from 12 to 18 months, but suspended the sentence in each case.
In one case, that of Michael Anthony Kane
(1995, Belfast Crown Court) the defendant, a soldier serving in the Royal Irish
Regiment, shot his girlfriend at their home with a negligent discharge from his
personal protection weapon, a Walther pistol.
He made the case that he had removed the magazine from the pistol when
he returned home after being out drinking, but forgot that he had left a round
in the breech, and when he foolishly pointed it at his girlfriend and pulled
the trigger it went off and shot her.
MacDermott LJ imposed a sentence of 3 years, suspended for 3 years.
One English authority was cited to us, R -v-
Wesson [1989] 11 Cr.App.R (S) 161, where the appellant waved his shotgun
about and pointed it while cleaning it, saying that it was unloaded, and shot
his son. He was charged with murder,
but found guilty of manslaughter, and sentence to 7 years' imprisonment. The Court of Appeal reduced it to 2
years. Staughton LJ said that the public
would rightly demand a significant sentence of imprisonment, but that 7 years was
too long.
We have taken all these cases into account. We do not regard any class of defendant,
soldier or civilian, as being in a special category, and the law must maintain
evenhandedness towards all. We regard
all the cases cited to us as depending on their own facts, and the sentence in
each reflects the view taken by the individual judge of the culpability of the
defendant in the circumstances in which the death occurred. On the facts of the present case we are of
opinion that the acts of the appellant were inexcusably dangerous. In our judgment a custodial sentence was
required and a suspended sentence would not suffice to mark the seriousness of
the appellants acts and omissions. We
consider that the judge was right in his approach, but taking into account the
greater range of information about other cases which we have had made available
to us we think that an appropriate sentence would be one of 18 months. We shall allow the appeal against sentence, which
will be varied accordingly.