Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2009/C57.html
Cite as: [2009] IECCA 57, [2009] 2 ILRM 225, [2010] 1 IR 129

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Judgment Title: DPP -v- Leigh Crowe

Neutral Citation: [2009] IECCA 57

Court of Criminal Appeal Record Number: 213/07

Date of Delivery: 27 May 2009

Court: Court of Criminal Appeal

Composition of Court: Kearns J., deValera J., McCarthy J.

Judgment by: Kearns J.

Status of Judgment: Approved


Judgments by	Result
Kearns J.	Other (see notes)

Notes on Memo: Quash Sentence; Impose Sentence in lieu

COURT OF CRIMINAL APPEAL

Kearns J.
de Valera J.
McCarthy J.

[C.C.A. No. 213 of 2007]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

LEIGH CROWE

APPLICANT

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 27th day of May, 2009

On 8th October, 2007 at the Central Criminal Court the applicant pleaded not guilty to the murder of Owen Cahill on the 2nd April, 2006 at Poulboy, Clonmel, Co. Tipperary, but guilty of manslaughter on the grounds of diminished responsibility which said plea was accepted by the Director of Public Prosecutions. On the same occasion the applicant pleaded guilty to the attempted murder of one Mark Doolan on the same date and location and to assault causing harm to one Sharon Rossiter contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997, also at Poulboy, Clonmel, on the same date in April, 2006.

The court had before it medical reports from Doctor Paul O’Connell, a Consultant Forensic Psychiatrist at the Central Mental Hospital, and from Doctor Nataraj Gojanur, visiting Psychiatrist to Limerick Prison. The court also heard character evidence in relation to the applicant from Mr. Tom O’Mahony, Manager of the local GAA Football Club, Mr. Edward Dooley, Building Contractor, who had employed the applicant between 2004 and 2006. The court also had before it a victim impact statement from Catherine Cahill, the mother of the deceased Owen Cahill.

Following a plea in mitigation, the trial judge (Carney J.) imposed a sentence of imprisonment for life in respect of the manslaughter count. He further imposed sentences of fifteen years imprisonment in respect of the attempted murder and five years imprisonment in respect of the assault, all sentences to run concurrently and to date from the 3rd April, 2006.

This appeal is one against the severity of the sentence imposed in respect of the counts of manslaughter and attempted murder.

BACKGROUND
Evidence as to the background circumstances of the offence was given by Detective Sergeant O’Riordan. He outlined that on Sunday, 2nd April, 2006 a party was taking place at the dwelling house premises of Mr. Cliff Hennessy at Poulboy in Clonmel. The applicant became aware that Owen Cahill, Mark Doolan and Sharon Rossiter were attending the party in question and travelled by car in the small hours of the morning to the location of the party, armed with two shotguns, one a sawn-off shotgun and the other a pump action shotgun. Both David Ryan and the accused arrived at Mr. Hennessy’s house wearing balaclavas and each armed with a shotgun. Having entered the house, the two men targeted Owen Cahill and Mark Doolan. Owen Cahill was shot at point blank range in the face by David Ryan and death was instantaneous. The applicant shot Mark Doolan who managed to distract the applicant momentarily, as a result of which he was shot in the upper right arm, suffering serious injuries. It appears that Sharon Rossiter was struck by the butt end of one of the weapons carried by the applicant and David Ryan. Both gunmen then fled the scene leaving behind one of the shotguns. The applicant was arrested shortly afterwards in Clonmel and brought to Clonmel Garda Station. He was later charged with the murder of Owen Cahill, the attempted murder of Mark Doolan and also of the charge of assault causing harm to Sharon Rossiter.

In the course of interview, the applicant eventually admitted his part in the offences. During the course of interview he requested that the tapes be turned off, following which he demanded to know of the gardai what evidence they had against him. On being informed that the gardai were in possession of a statement from a witness who was in the house when the shooting took place and who identified him as one of the participants in the shootings. Having initially protested that he was wearing a balaclava and gloves and was thus unrecognisable, he then admitted that David Ryan had shot Owen Cahill and that he had gone into the kitchen where he shot Mark Doolan.

The deceased Owen Cahill was twenty-five years of age. The applicant was born in July, 1974 and was thus thirty-one years of age at the time of the incident. He remained in custody from 3rd April, 2006 and did not apply for bail. Following a direction from the District Court, a psychiatric report on the applicant was prepared by Doctor Gojanur. At a later point in time the defence procured a report from Doctor Paul O’Connell, Consultant Forensic Psychiatrist, which is dated 16th September, 2007.

The Central Criminal Court also heard evidence from Detective Sergeant O’Riordan that the applicant was shot in the back in December, 2004 and believed that Owen Cahill, the deceased, was one of the people who had shot him. There was also evidence in that the gardai had warned the applicant on occasions that his life was in danger and that an attempt was going to be made to kill him.

Evidence was also given that in the aftermath of the incident the applicant got rid of the gun which he had been carrying and burned the clothes which he had been wearing. Evidence was also given that the applicant had significant problems with both alcohol and drugs and had twenty-three previous convictions, including multiple convictions for assault between 1995 and 2002.

THE PSYCHIATRIC EVIDENCE
In his written report dated 6th June, 2006, Doctor Nataraj Gojunar stated that he had interviewed the applicant on four occasions in Limerick Prison. He reported how some two months prior to committing the offences which were before the court he started drinking regularly and heavily and started becoming paranoid. In particular, he believed that Owen Cahill was following him and plotting to kill him. His feelings of paranoia became worse whenever he took more alcohol. Doctor Gojunar reported that, following the incident, the applicant felt very remorseful for his action and blamed alcohol and drug excess for his impulsive action. He reported that the applicant was born in July, 1974 and that his parents were separated. The applicant lived with his girlfriend and two children. As a child, he suffered from hyperactivity and attention deficit disorder. He abandoned school at the age of sixteen and went to England where he lived for ten months. Following his return to Ireland, he had been regularly in trouble with the law. He started drinking at the age of sixteen and soon became heavily dependent on alcohol, drinking twelve/fourteen pints of beer and a bottle of vodka every day. The applicant also abused cocaine, speed, acid, and other stimulants and experienced blackouts from time to time. He had been admitted to the psychiatric unit in Clonmel on two occasions having taken drug overdoses.

In Doctor Gojunar’s view, the applicant was fit to plead, attend court and stand trial. He had a history of alcohol and drug abuse and some paranoid ideation. In Doctor Gojunar’s view, the applicant had failed to benefit from multiple prison sentences and posed an ongoing risk to others. His future progress would depend on his abstinence from alcohol and other illicit drugs.

In a lengthy twenty-seven page report, Doctor Paul O’Connell suggested that the applicant “could have been suffering a post traumatic stress disorder at the material time” arising from his near death experience of having been shot. He conceded, however, that such a diagnosis had not been made prior to his assessment which was based on three interviews with the applicant in September, 2007.

Doctor O’Connell noted that the applicant had abstained from alcohol and drug use following the episode in which he had been shot. He had also considered leaving the area where he lived. However, on being informed by the gardai of a new plot to assassinate him, he reverted to harmful use of intoxicants and reliance upon previous criminal acquaintances. It was Doctor O’Connell’s view that the intoxicants were likely to have exaggerated aspects of his post traumatic stress. He noted that the applicant had become increasingly vigilant and paranoid. These were symptoms consistent with both heightened anxiety as well as the direct intoxicating effect of cocaine and amphetamines.

Doctor O’Connell noted that the consumption of alcohol and drugs in the case of the applicant could contribute to a post traumatic stress disorder by adding drug induced grandiosity and impulsivity. Doctor O’Connell considered the video tapes of the garda interviews which took place within hours of the offence and noted that the applicant did not exhibit gross confusion or thought disorder but rather presented as talkative and familiar with the interview process. He later informed Doctor O’Connell that he could not be sure of anything he had said in the garda interviews because of the effect of the drugs he was taking.

In the concluding paragraph of his report, Doctor O’Connell stated as follows:-

“In conclusion, even if a mental disorder was present at the material time, in my opinion there is insufficient evidence that this mental disorder, namely PTSD, would have of itself compromised Mr. Crowe’s capacity for the act. In my opinion the effect of the variety of intoxicants being used by Mr. Crowe, in the particular context of being supported by his associates at the time, were determining factors in the act, overriding consideration of a mental disorder. The Criminal Law Insanity Act, 2006, excludes intoxication from a consideration of diminished responsibility.”

It was against this clearly unsatisfactory state of evidence that the learned sentencing judge had to consider what sentence was appropriate, notably in respect of an offence which invoked the partial defence of diminished responsibility as set out in the Criminal Law Insanity Act, 2006. No guidance or assistance was offered to the court by either the prosecution or the defence to suggest a range of appropriate sentences which might be appropriate for such an offence by reference to similar offences in this jurisdiction or elsewhere.

Having been informed that the applicant offered an early plea in April, 2007 to the manslaughter offence, the learned trial judge pronounced sentence in the following terms:-

“I am required by decisions of the Court of Criminal Appeal and, in particular, decisions of Mrs. Justice Denham, to in the first instance identify the range of penalty available and, secondly, place the crime on the scale of penalties available and, thirdly, discount in respect of such matters as may operate in favour of the accused. More recently in giving judgment in the Supreme Court in PT v. DPP on 31st July, 2007, Mrs. Justice Denham reiterated that I was not concerned with vengeance but that I was concerned with proportionality. Most of the matters which have been urged on me in mitigation rest on a foundation of the accused having had a history of self-induced alcohol and drug taking. It seems to me that if people develop lifestyles revolving around the taking of drink and drugs they should not in my view come into this court and set up that as a mitigating factor for their consequent actions.

The significant features of this case are that the accused, with another, equipped himself with balaclava disguises, went to a party armed with the deadliest of weapons and at point blank range shot off the face of the unfortunate Owen Cahill. It is also the situation that the accused has a history of eight convictions for assault, two of them at the serious end of the scale. His plea of guilty is a small matter in terms of proportionality with those factors and I am also asked to take into account remorse; well, his interviews were highly calculated. He wanted to know how much the police had before he was prepared to concede anything. Taking all the circumstances of this case into consideration it seems to me that in respect of the manslaughter count and in particular the circumstances I have just adverted to that anything less than a sentence of imprisonment for life would not be proportionate. Accordingly I sentence the accused in respect of the manslaughter count to imprisonment for life, in respect of the attempted murder, to fifteen years imprisonment, in respect of the assault, to five years imprisonment. All sentences to run concurrently and to date from 3rd April, 2006.”

DISCUSSION
Section 6 of the Criminal Law Insanity Act, 2006, provides as follows:

“(1) Where a person is tried for murder and the jury or, as the case may be, the Special Criminal Court finds that the person—

(a) did the act alleged,

(b) was at the time suffering from a mental disorder (herein “mental disorder” includes mental illness, mental disability, dementia or any disease of the mind but does not include intoxication), and

(c) the mental disorder was not such as to justify finding him or her not guilty by reason of insanity, but was such as to diminish substantially his or her responsibility for the act,

the jury or court, as the case may be, shall find the person not guilty of that offence but guilty of manslaughter on the ground of diminished responsibility.”

Notwithstanding the acceptance of the plea to manslaughter by reason of diminished responsibility in this case, it is quite clear that the sentencing judge did not impose sentence on that basis. On the contrary, he specifically rejected any contention that the applicant had substantially reduced responsibility because in his view the applicant had a history of self-induced alcohol and drug taking and could not rely upon those factors to mitigate his consequent actions. In short, the sentencing judge rejected the defence which had been accepted on behalf of the Director of Public Prosecutions and this rejection formed the basis for the imposition of a life sentence.

To the extent that the sentencing judge had some support for the position he took from the concluding paragraph of Doctor O’Connell’s report, the sentence, which is the maximum sentence available in law, does not reflect the fact that the prosecution accepted that the applicant had substantially diminished responsibility for the shooting to death of Owen Cahill by reason of mental disorder.

The Law Reform Commission Consultation Paper (Dublin 1993) noted at para. 1.41 that the first task of a sentencing judge is to determine the factual basis upon which to assess the appropriate sentence. It noted:-

“A principle of fundamental importance in determining the factual basis upon which to assess the appropriate sentence is expressed in the ancient maxim nulla poena sine lege, i.e. no one is to be punished on a charge for which they have not been tried and found guilty”

It noted further that in The People (Attorney General) v. O’Callaghan [1966] I.R. 501 at 516, Walsh J gave this the weight of a constitutional prescript:-

“In this country it would be quite contrary to the concept of -personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he has not been convicted”

In so far as the offence in this case was premeditated, perpetrated by persons who were armed and wearing balaclavas and carried out in the enclosed surroundings of a dwelling house, this case may truly be stated to be at the absolute upper end of heinousness. That is accepted on behalf of the applicant. However, it was not a plea to murder, but to manslaughter and it was a plea accepted on a very particular basis.

In the course of submissions, Mr. Michael O’Higgins, senior counsel on behalf of the applicant, argued that the sentence as imposed gave the applicant nothing for his early plea of guilty, but more particularly the sentence imposed failed to reflect the fact that the applicant at the time was suffering from mental disorder. It also failed to take into account the character evidence given on behalf of the applicant and the fact that the plaintiff’s criminal activity had ceased in 2002. It also failed to take into account that subsequent to the incident in 2004 when he was shot, the applicant turned his life around and for a period of fifteen months enjoyed persistent and productive employment.

Quite apart from the evidence of Doctor Gojunar which suggested the applicant suffered from paranoia, the evidence of Doctor O’Connell was supportive of a diagnosis of post traumatic stress disorder, a disorder associated with increased impulsivity and anxiety. Doctor O’Connell had pointed out that the latter state exaggerated the risk of intoxicant dependence. He had also stated that those impulsivity and intoxicant use conferred a general increase in the risk of offending behaviour.

Mr. O’Higgins submitted that a lesser degree of culpability must attach to the offence of manslaughter than to the offence of murder, notably in circumstances where the offence is not the consequence of a deliberate or intentional action on the part of an accused person.

Mr. O’Higgins referred to a range of sentences appropriate to manslaughter cases, including offences involving firearms, to suggest that a sentence of a finite number of years should have been imposed. Such a sentence would take into account the fact that the applicant was a relatively young man, was remorseful, and had genuine prospects of rehabilitation, based not least on the fact that he had achieved a degree of self-rehabilitation following the shooting incident in 2004.

As events had transpired, the sentencing judge had dismissed the psychiatric evidence and attached no weight to it.

In response, Denis Vaughan Buckley, senior counsel for the respondent, argued that there were aggravating circumstances in the present case which justified the imposition of a life sentence notwithstanding the plea of guilty. The aggravating factors included the fact that the offence was premeditated and was carried out following alcohol consumption. It was further carried out with total disregard for the safety of other persons present in the dwelling house where the shootings occurred. Mr. Vaughan Buckley further submitted that the court should take a jaundiced view of the levels of co-operation which it had been submitted were forthcoming from the applicant. His admissions were only forthcoming after he sought and demanded information from the gardai as to the evidence they had already accumulated. It could not be ignored in the instant case that in the aftermath of the offence, the applicant had burned the clothing he was wearing which was plainly an effort to destroy relevant and material evidence.

DECISION
The Court is mindful of the role in sentencing in this case of s.29 of the Criminal Justice Act, 1999 which provides:-

“(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account—

(a) the stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

(b) the circumstances in which this indication was given.

(2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”

In arguing that there was a clear entitlement to pass the maximum sentence in this case, counsel for the respondent relied on the interpretation given to s.29 of the Act of 1999 by the Supreme Court in The People (Director of Public Prosecutions) v. RMcC and The People (Director of Public Prosecutions) v. CD [Supreme Court, Unreported, 25th October, 2007) when, in the course of delivering a judgment with which all members of the court concurred, I stated:-

“The presence in a case of ‘exceptional circumstances’ must now be seen, in the light of s. 29, as enabling a court, notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. That does not mean that the Court is relieved of the obligation to consider all mitigating factors and give them due weight, but rather that, having done so, the court is not precluded from passing such maximum sentence. It would however be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea that the court would identify those exceptional circumstances in such a way that would make it absolutely clear why the maximum sentence is warranted when there had been mitigating factors in the case. Such instances will of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question.”

I have already alluded to the circumstances which counsel for the Director has described as “exceptional aggravating circumstances”. The Court has been referred to decisions such as DPP v. Kelly [2005] 1 ILRM, DPP v. Ahern [Unreported, Court of Criminal Appeal, 5th July, 2004] and DPP v. McAuley & Walsh [2001] 4 IR 160 as indicative of a range of cases which fell into the most serious category of manslaughter. This Court has no difficulty in accepting that the facts of this case, looked at objectively, are such as to put the case into the category of the most serious and of the worst kind imaginable. The killing of Owen Cahill was nothing less than a premeditated execution involving the use of lethal weapons in a dwelling house.

The Court’s difficulty and frustration arises from the fact that the Director saw fit in this case to accept a plea to manslaughter by reason of diminished responsibility due to mental disorder. But, as noted above, the Central Criminal Court did not impose sentence on that basis because it rejected the very basis upon which the plea had been offered and accepted. In the absence of citation of any relevant authority from either side as to how this Court should review this sentence, the Court has been thus left in a position of very considerable difficulty.

When pressed by the Court to explain why the Director, if he took the view that this was a case with grave and exceptional circumstances at the very upper end of the scale which warranted a life sentence notwithstanding the acceptance of a plea of to manslaughter on the basis of diminished responsibility, no explanation was forthcoming. A plea to manslaughter simpliciter would certainly have permitted the learned trial judge in the opinion of this Court to impose the maximum sentence of life imprisonment notwithstanding the plea of guilty.

However, implicit in the acceptance of a plea to manslaughter by reason of diminished responsibility due to mental disorder is the recognition that the applicant can not and should not be treated in precisely the same manner as a person fully responsible for his own actions. It would be utterly destructive of s.6 of the Criminal Law Insanity Act, 2006, to hold otherwise. At the very least, the applicant is, in the view of the Court, entitled to expect the imposition of some sentence short of life imprisonment, with all the associated stigma attached to that sentence, where a manslaughter plea is accepted in this way.

The Court is therefore of the view that the proper approach to sentencing in this case was one which would involve the imposition of a substantial but finite sentence, being one which recognised that the offence was at the absolute upper end of the scale, but recognising also that some measure of mitigation necessarily had to be incorporated in the sentence by reason of the early plea, the psychiatric history and the other factors relied upon by the applicant in advancing his submissions in this case.

The Court is of the view that the appropriate sentence in this case, taking all circumstances into account, including the demonstrated capacity of the applicant for rehabilitation, is a term of imprisonment of twenty two years for the manslaughter offence. The Court would not interfere with the periods of imprisonment directed in respect of the offences of attempted murder and assault, which were fifteen years and five years respectively.

The Court would in conclusion wish to point out that it has no function whatsoever in relation to remission of sentence, the process whereby the time served on foot of a sentence imposed is reduced by 25%. Courts impose sentence without regard to remission and have always done so. Arrangements whereby remission is granted to a person serving a sentence is solely and exclusively a matter for the Executive. It is a matter over which the courts exercise no control whatsoever. Some recent commentary which suggested that judges would react adversely to the abolition or curtailment of remission was not only seriously inaccurate but bore no relation to the reality of sentencing practice of the courts in this jurisdiction.