Neutral Citation No. [2012] NICA 32	

	Ref:     	MOR8581	
			
Judgment: approved by the Court for handing down	Delivered:	13/09/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

________

R

-v-

KIERAN JOSEPH KAVANAGH

DIRECTOR OF PUBLIC PROSECUTION’S REFERENCE
(NUMBER 2 of 2011)

________

Before: Morgan LCJ, Coghlin LJ and Stephens J

________

MORGAN LCJ 

[1]	This is a reference by the DPP under section 36 of the Criminal Justice Act 1988 as amended by Section 41 of the Justice (Northern Ireland) Act 2002 in respect of a custody probation order of 3 years 6 months imposed by the Recorder, His Honour Judge Burgess, on 16 September 2011 for an offence of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861.

Background

[2] 	The offence occurred in the early hours of Sunday 13 April 2008. The offender was born on 12 November 1988 and was aged 19 at the time. At about 2 am on that date the injured party who was aged 23 but has since tragically died in circumstances unconnected with this offence was in the premises of a Chinese takeaway on the Glen Road with a friend. A number of persons who appeared to have drink taken came into the premises shouting. Because he did not want to appear to be looking at these persons, the injured party asked his friend for his phone. He was looking at the phone when one of these persons, the offender, slapped it out of his hands. There was some exchange of words and then the injured party was punched by the offender. There was a scuffle between them and matters subsided. The background to this attack was a family feud which has been ongoing in the Ballymurphy area of Belfast and led to numerous attacks on people and property in that location. The offender viewed the injured party as being on “the other side”.

[3] 	A short time later the injured party was struck about the head and body several times by different people, including the offender. He could feel someone holding onto him, as if trying to get him to the ground. Someone, he thought, had the hold of his ear. He described then hearing his ear “ripping” and feeling sudden pain. Blood was dripping from the ear. This attack was carried out by the offender. The injured party jumped in behind the counter in the premises and was able to see part of his ear on the floor of the shop. One of the persons picked it up and set it on the counter. The injured party described being terrified and worried that they would attack him again. As a result of the assault the injured party lost part of his right ear and sustained a black eye and bruising to the left ear and side of face. He felt embarrassed and paranoid about people looking at him because of the deformity.

[4] 	The offender was arrested on 23 April 2008 and interviewed. He was aware that police had CCTV footage and refused to make any comment until he had seen the footage. Having seen the footage he admitted to striking the injured party but claimed it was to get back at the injured party because he claimed the injured party had hit him the previous week. He denied biting off part of the injured party’s ear, stating that the CCTV footage did not show him doing so. He admitted that the ear was passed about to various people in the premises. The offender also admitted seeing the injured party in the takeaway premises, going in to have a fight with him because of previous events between them and being the one who slapped the phone from the injured party’s hands. He claimed that he did not want others to become involved and that he wanted the fight to be between just the two of them. He also claimed that he was drunk having been drinking from about 7pm on the Saturday and that when drunk he is unable to control himself.

[5] 	The DVD of the CCTV footage which was played to the offender in interview showed the following at the material time. 

•	12 mins 22 seconds – the offender slapped the phone from the injured party’s hands

•	13 mins 08 seconds – the offender punched the injured party; they squared up to each other and a scuffle began

•	13 mins 30 seconds – the scuffle ended

•	13 mins 47 seconds – the offender took off his shirt and is seen offering to fight the injured party

•	15 mins 20 seconds – the offender put on his shirt

•	15 mins 30 seconds – an associate of the offender struck the injured party

•	15 mins 40 seconds – the offender joined in, throwing punches at the injured party

•	At 15 mins 55 seconds – the offender grabbed the injured party in a headlock with the offender’s head and that of the injured party close together; he and the injured party disappear partially below the level of the counter. 

•	16 mins – the offender’s and injured party’s heads come into view again; as the offender moved away from the injured party, it is clear that the injured party has sustained an injury to his right ear.

[6] 	The offender was charged on foot of an indictment as follows: 

Count 1 – Affray, contrary to common law
Count 2 – Wounding with intent

He was arraigned at Belfast Crown Court before Her Honour Judge Loughran on 2 June 2009 and pleaded not guilty. Two stand-by dates for the trial in September and October 2009 were vacated because the trial was not reached and on 23 March 2010, the morning that the trial was due to proceed before the Recorder of Belfast, the offender was re-arraigned and pleaded guilty to Count 2 on the indictment. Count 1 was left on the books of the Court with the usual order.

[7] 	A plea and sentence hearing was fixed for 18 May 2010. On that date the offender failed to appear and a bench warrant was issued for his arrest. He was arrested on 20 April 2011. Following a plea and sentence hearing on 16 September 2011 the offender was sentenced by the Recorder to a custody probation order of 3 years 6 months, comprising 2 years detention followed by 18 months probation.

Personal Circumstances

[8] 	The offender lived with his mother and sister. While at primary school he was prescribed Ritalin for symptoms indicative of ADHD. During his teenage years he was investigated for epilepsy although the diagnosis was qualified. He started abusing alcohol during his early teenage years and when 14 was admitted to hospital because of acute alcohol intoxication. He subsequently abused cannabis, ecstasy and cocaine. His involvement in this offence was clearly related to the feud in which he himself claimed to have been a victim on an earlier occasion. He had a criminal record for driving offences, burglary and theft and was on probation at the time of this offence. While on bail he committed another offence of assault occasioning actual bodily harm in August 2009 as a result of which he spent approximately 6 months in the YOC from September 2009 until February 2010. He did not attend for sentence in May 2010 apparently because he could not face returning to detention. He lived rough for approximately one year before he was detained. During that time he attended at the Mater Hospital complaining of low-level auditory hallucinations and reported that a diagnosis of schizophrenia had been made at that time.

[9] 	Article 22 of the Criminal Justice (Northern Ireland) Order 1996 requires a court before it passes a custodial sentence to obtain and consider a medical report where it appears that a person may suffer from a mental disorder unless the court considers it unnecessary to do so. No such report was available to us when this appeal came on for hearing and in those circumstances we adjourned the case to enable us to obtain a psychiatric report. This provision, which is repeated in the Criminal Justice (Northern Ireland) Order 2008, is a necessary protection for those who may be suffering from mental disorder and also ensures that the court is alert to what is needed to ensure public protection. We emphasise the important function of this statutory provision informing the sentencing process not only in relation to custodial decisions but also enabling probation conditions to be structured to the particular circumstances of the offender, for instance a condition that he submits to treatment.  Furthermore we consider that as part of the sentencing exercise a direction to send the medical report to the prison service and/or the probation service depending on the sentence imposed to assist with appropriate treatment may be appropriate.  In this case the psychiatric report on the offender concluded that there was no evidence of formal mental illness but there were symptoms of a drug induced psychosis with prominent symptoms of mood instability, transient auditory hallucinations and increased preoccupations on themes of a paranoid, persecutory and conspiratorial nature.

[10] 	Despite his previous convictions the pre-sentence  report suggested that there were now some protective factors based on his family support, a long-term relationship, his responsibility linked to his being a father and reduced alcohol and drug use. He expressed remorse for his involvement in the offence and was motivated to address these problems and make positive changes to his lifestyle. He was assessed as posing a medium risk of reoffending but not a risk of serious harm.

Consideration

[11] 	The prosecution identified a number of relevant aggravating features. The first was that the offender had been the person who initiated the fight. While this was undoubtedly correct it may be said to be part and parcel of this serious offence and one has to be careful not to double count. We also accept that there is nothing to suggest that the offender set out in any planned or premeditated way to look for a victim to attack but once he had identified the injured party he persisted in the attack upon him. 

[12] 	Secondly, this was an attack which was launched in a public place where other members of the public were present. The fact that members of the public may have been put in fear as a result of this type of open violence is always a serious aggravating factor and all the more so in this case where the background is that of a family feud. The feud has a number of aggravating consequences.  First whilst the encounter with the injured party was by chance the feud led to the offender having an intention to attack when the opportunity presented itself.  The second is that the existence of the feud affects the public with incidents such as this.  The third is that each incident has a tendency to perpetuate the feud.

[13] 	Thirdly, the offender was with a group so that the injured party felt vulnerable. Permanent deformity was caused to the injured party. The offender used his teeth as a weapon.  He also had a criminal record and this offence occurred while he was on probation.

[14] 	It was accepted that there were relevant mitigating features. He made limited admissions at interview and entered a plea of guilty although this was at  a late stage in the face of overwhelming CCTV evidence. There was some evidence of remorse in the pre-sentence report. We also recognise that at the time of these offences the offender was a 19-year-old man who had succumbed to serious addiction issues caused by alcohol and drugs. There is no doubt that his consumption of alcohol was a major factor in his involvement in this offence. That, of course, cannot be a mitigating factor but the courts do recognise that where there is some prospect of maturity enabling a younger offender to cope with these difficulties some allowance should be made for that in the sentencing process.

[15] 	This court has given guidance on a number of occasions in recent years on the appropriate level of sentencing for those charged with causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. These offences were typically committed when the perpetrator was under the influence of drink or drugs or both. In R v McArdle [2008] NICA 29 the offender went to the house of a mutual friend late on a Friday night. When the friend was not at home he became agitated and struck the victim in the face with a knife which he had secreted. This was a case in which the court concluded that it was a matter of good fortune that the victim had not sustained a fatal injury and a range of 7 to 15 years imprisonment on a contest was considered appropriate. In DPP’s Reference (Nos 2 and 3 of 2010) [2010] NICA 36 the court concluded that the same range was generally appropriate where the offence under section 18 was committed by attacking a victim who was lying on the ground with a shod foot with intent to cause grievous bodily harm. 

[16] 	We accept that some distinction can be drawn between those cases and this case because the injuries inflicted on this victim did not include the possibility of a fatal wound. Nevertheless, in light of the aggravating features involved in this case we consider that a sentence of in or about seven years was appropriate before taking into account mitigation. Giving appropriate discount for the mitigation set out at paragraph 12 above we consider that the appropriate determinate sentence in this case was in or about five years. It follows that the determinate sentence of three years and six months imposed by the learned Recorder was exceptionally lenient and in our view can properly be described as unduly lenient.

[17] 	The question remains as to whether or not we should interfere with the sentence. We must take into account the double jeopardy principle which means that at most the offender would serve a small number of extra months in custody. If the offender’s trial had progressed in 2009 as planned he would have served any sentence imposed at the same time as the sentence imposed upon him in September 2009 but because of the delay he was faced with having to return to prison after a relatively short period of freedom to serve this sentence. In those circumstances we do not consider that this is a case in which we should interfere with the sentence imposed by the Recorder.