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Cite as: [2000] EWCA Crim 26

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FELL, R v. [2000] EWCA Crim 26 (27th March, 2000)

Case No: 99/06509/W4
IN THE COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Monday 27th March 2000

B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE HIDDEN
and
MR JUSTICE ASTILL
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	REGINA
	- and -
	TARA MAY FELL

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Ms Vera Baird (Appeared on behalf of the Appellant)
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Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE ASTILL:
1. On Monday 6th March we allowed this appeal quashing the sentence of 4 years detention in a Y.O.I. and substituting for it a Probation Order for 2 years.
2. We now give our Reasons.
3. The Appellant was originally charged with murder but pleaded guilty to Manslaughter on the 6th September 1999 in the Crown Court at Truro before HHJ Forrester. The Case was then adjourned and on 1st October 1999 before the same judge sitting at the Central Criminal Court she was sentenced to 4 years detention in a Y.O.I.
4. The victim was Jason Henderson who had been the Appellant's boyfriend. They met when she was 14 years and when he was 19 years and a sexual relationship began immediately. When she was 16 they began to live together. He had previous convictions for offences of dishonesty and he recruited her to take part in his criminal activities. He was already the father of a child by another relationship. On one occasion he left her and she took an overdose in an apparent suicide attempt. She stopped going to school, went briefly into care and then back to her parents. She was expelled from school and moved back in with Henderson. She had a miscarriage, took a further overdose and he began to be violent towards her, on her description which we are disposed to accept, 2 - 3 times per week. She had no means of support and was entirely dependent upon him and carried out domestic duties in an isolated home where they lived. He was a regular cannabis user and as her depression deepened she began to take cannabis also.
5. In early 1997 Henderson was sent to prison. Despite his promises to change his ways, 2 weeks after his release he began to beat her again. He frequently locked her in the home whilst he was away carrying out his various activities. During this time she was the subject of a 12 months Probation Order imposed after her conviction for handling a cheque-book stolen by him. She did not respond well to that Order. After his release and as a result of his frequent beatings she was seen to be injured on a number of occasions. She sought psychiatric help and twice came to the attention of the Police after she had been injured by him. She would respond to his violence by attacking him and those who lived nearby frequently heard shouting and screaming and crying.
6. On 17 March 1998 she telephoned the Police in a very distressed condition saying that she had been involved in a fight with Henderson and that she was frightened that he would follow her and attack her. She was later found sitting on the pavement complaining of being hit by him. She had swollen lips and areas of reddened skin.
7. On 3 April 1998 she made the decision to end the relationship and Henderson told her that she could take a few possessions with her. There was an argument during which the Applicant punched Henderson. He responded by grabbing her by the throat and she punched him again and followed him into a bedroom where he locked her in. A visitor to the house let her out and she picked up a knife and waved it at Henderson telling him to get out.
8. Thereafter the description of events is dependent upon her account only. It was that Henderson picked up a knife and then put it down and went to attack her. She picked up a knife and there was a struggle as Henderson grappled with her during which the knife went into his back causing the fatal wound.
9. There is independent confirmation of her immediate distress because she was heard shouting for help and a passer-by entered the flat and found Henderson lying there. She demonstrated extreme distress. When the Police arrived she was found to be distraught and shaking curled in the foetal position. She was arrested and examined by a doctor who noted bruising to her upper arms, breasts, neck, back and legs. She was interviewed that evening and the following day and during those interviews she sobbed uncontrollably.
10. The Appellant was examined by Dr. Reeves a Consultant Forensic Psychiatrist for the Defence. He noted that she was receiving anti-depressant medication. He took a history from her and said this about her relationship with Henderson.
"He ordered her about and she seemed to have been more or less his slave".
11. He noted from her medical records that her General Practitioner thought she was depressed in July 1997 and still depressed in December 1997. The General Practitioner gave her further anti-depressants in March of 1998. He considered that she had "situational anxiety, stress and depression". Dr. Reeves concluded that on consideration of her medical records and his own findings the Appellant had an abnormality of mind that would have substantially impaired her responsibility. He did not consider that she was either a present or future danger to partners or anyone else. He found a number of features of Battered Womens' Syndrome; chronic depressive illness; a feeling of hopelessness and helplessness and despair; inability to act effectively; inability to see any escape from the situation or any future; self blame for the violence inflicted upon her by her male partner; a failure to see that what was happening was abnormal because she was isolated from reality; shame and a poor sense of worth and submission as a form of self protection. Having considered these elements Dr. Reeves concluded that the Appellant fell into the category of "a battered wife". Dr. James, the Prosecution Psychiatrist, found that she suffered from at least a moderate degree of clinical depression which amounted to an abnormality of mind. He also found features of Battered Womens' Syndrome.
12. After the Appellant pleaded guilty to manslaughter by reason of diminished responsibility the Case was adjourned for further reports to be prepared. Dr. Reeves found her no longer clinically depressed and had no doubt that she would co-operate with a Probation Order. Dr. James did not see her again but assessed future risk as much reduced by the period of time that had gone by.
13. There was a Pre-Sentence Report prepared by a Probation Officer who had seen the Appellant many times since the death of Henderson. He noted that she had been, as he put it "traumatised with desperate grief and misery" after the death and he too noted that the Medical and Psychiatric Records showed immaturity, emotional disturbance, attempts at suicide, eating disorders, alcohol and drug use and possible miscarriages all arising within what he called a "volatile and dysfunctional relationship" with the deceased who had great influence upon her. However by the time of the Report the Probation Officer assessed her as having matured and developed better emotional and cognitive control mechanisms. She presented only a moderate risk which could be controlled by attendance at an Aggression Management Course. After an initial period of 3 weeks in custody in April 1998 the Appellant had been granted bail and had been on bail for 17 months. During that period she had obtained work as a trainee manageress and had become engaged to a new partner. She was reconciled to her family and there were excellent character references. It was the view of the Probation Officer that a custodial sentence was likely to destroy the very positive steps towards rehabilitation which had been achieved by the Appellant. Her emotional state was still fragile and her progress towards a normal life would be fractured by a period in custody. She was, in the opinion of the Probation Officer, entirely suitable for any Community Disposal.
14. We have read the letters in support written by others which were referred to by the Probation Officer. It is clear that in her new life she flourished. She was described variously as "genuine"; "good natured"; "honest and hard working and sensitive and caring"; "trustworthy, reliable and honest". Those letters speak very well of her and the progress that she has made towards leading a stable life. Miss Baird referred us to R v Chambers [1983] 5 Cr.App.(S) 190; R v Gardner [1994] 15 Cr.App.(S) 364. and R v Higgins [1996] 1 Cr.App.(S) 271. in support of her submission that a non-custodial sentence was appropriate.
15. In R v Chambers Leonard J giving the judgment of the Court said:-
"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 or repetition of violence, it will usually be possible to make such an Order as will give the accused his freedom, possibly with some supervision".
16. Dr. Reeves considered that the responsibility here was minimal. In R v Gardner the Doctor reported that the Appellant was subject to "unremitting physical and verbal attacks" which led to "a cumulative state of exhaustion, hopelessness, helplessness and depression, these features being characteristic of what has been described as Battered Women's Syndrome". And then "as the violence progressed she lost all effective coping strategies or the will to resist and became increasingly depressed and passive". The Court considered that that was one of the exceptional cases when a non-custodial sentence for manslaughter would be appropriate. As in this case the Appellant in Gardner had demonstrated since the offence an increasing maturity and responsibility leading to the view that she was unlikely to re-offend.
17. In R v Higgins the Court emphasised the need to have regard to the feelings of the family of the deceased. (We have consciously done so in the present case.) The Court also noted R v Gardner and came to the conclusion that the exceptional circumstances allowed the Court to substitute a Probation Order for 2 years in place of the sentence of imprisonment that had originally been passed. The short facts there were that the Appellant had been subjected to prolonged and persistent verbal and physical abuse by her alcoholic husband which had resulted in reactive depression and an abnormality of mind which substantially impaired her mental responsibility for her act.
18. As we have indicated we too have had regard to the fact that a life was taken. The family of the deceased are entitled to know that we have given full consideration to that. The question for us is whether there are in the present case those exceptional circumstances which might allow us to take the unusual course of passing a sentence other than custody. Although some of the descriptions of the treatment to which this Appellant was subject come from her, there is sufficient independent evidence, both factual and medical, for us to come to the conclusion that from a young age this vulnerable Appellant was subject to persistent and prolonged violence from a man older in years who was dominating, domineering and demanding. The Medical Records show that she suffered clinical depression over a long period of time and other evidence demonstrates that the only period of stability that she enjoyed was when the deceased was serving a term of imprisonment. When he was discharged her suffering at his hands resumed. The Medical Reports from both Prosecution and Defence doctors show that she demonstrated many of the features of Battered Womens' Syndrome. It was in those circumstances that the stabbing which caused his death occurred.
Having given the matter very careful consideration and understanding the difficult task faced by sentencing Judges in cases of this type we have come to the conclusion that there are circumstances here which enable us to take the wholly exceptional course of passing a Community Sentence. It is clear that the Appellant, who is now 20 years, has, since she was at least 14, lived a life which has damaged her personality. Her association with Henderson was a major cause. Since her arrest she has made remarkable progress. That has been brought about by her own efforts and the change in her life-style. A custodial sentence would be likely, in our judgment, to damage and may bring to an end that rehabilitation. She has served the equivalent of about a 12 month sentence and this is the appropriate time for her to be given an opportunity to continue the progress that she has made since this tragic event. It is for these reasons and in those circumstances that we quashed the sentence of 4 years and substituted for it the Probation Order of 2 years.
MISS BAIRD: My Lord, may I remind you that at the end of the hearing on 6th March when I represented Miss Fell, your Lordships ordered that legal aid should be extended to those who instructed me since the change of advisers. That order has not found its way either into the judgment or into the court's order and I wonder if I could ask you to reiterate that?
LORD JUSTICE HENRY: Yes. That is what we then ordered.
MISS BAIRD: Thank you, my Lords.