Judgment Title: DPP -v- Berry
Neutral Citation: 2012 IECCC 4
Central Criminal Court Record Number: 2010 56CC
Date of Delivery: 21/10/2011
Court: Central Criminal Court
Composition of Court:
Judgment by: Sheehan J.
Status of Judgment: Approved
Neutral Citation Number:  IECCC 4
THE HIGH COURT
CENTRAL CRIMINAL COURT
 NO. 56 CC
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of Mr. Justice Garrett Sheehan delivered on the 21st October 2011
 Factual background
[2.2] Various incidents took place between then and the time the deceased was stabbed. Apart from the suggestion that the accused considered the deceased to be some threat to her sister, it would appear from the evidence that the deceased presented no threat to the accused at the time of his death. It is, however, the case that the accused was seriously assaulted on a number of occasions prior to this over the course of their relatively short relationship which was also marked by a miscarriage and the consumption of excessive amounts of alcohol.
 Facts arising from the sentencing hearing
[3.2] Counsel for the defence submitted four psychiatric reports on behalf of the accused and told the Court that she came from a travelling family. She had got married when she was eighteen and is the mother of nine children ranging in age from seven to twenty-four. She had been separated for eleven years and her husband has custody of the six youngest children who live with him. Counsel also told the Court that a week prior to the killing the accused had attended the hospital for a surgical procedure under general anaesthetic and prior to the present hearing she required urgent surgery in connection with a further health problem. Counsel urged the Court to take into consideration the tragedy and abuse in the accused’s life as evidenced by the psychiatric reports which had been presented to the Court.
[3.3] Counsel for the defence also stated that the circumstances of the offence suggested that there was something of the nature of a sudden and complete loss of self-control resulting in a single act of violence that was tragically a fatal one in circumstances where others including her sister initiated the violence. Counsel put forward the following mitigating factors: 1. the early plea of guilty; 2. remorse; 3. provocation resulting in the commission of the offence; and 4. the accused’s history of being abused. In relation to the accused’s previous convictions, counsel submitted that they were not at the level of what this offence involves and in that regard they were insignificant. In addressing the Court on a specific sentence, counsel submitted that a suspended sentence might be appropriate and relied upon O’Malley, Sentencing Law and Practice, (2nd Ed., Thomson Round Hall, Dublin, 2006) at para. 1015 in relation to sentencing in respect of manslaughter offences. Counsel also relied upon the cases of the Director of Public Prosecutions v. L. (Reported in the Irish Times, 14th November 2000) and R. v. Gardener  14 C.A.R. 364).
[3.4] In response to counsel for the accused’s submissions, counsel for the prosecution replied that the issue of provocation should not be regarded as a mitigating factor as it had already been taken into consideration by the Director of Public Prosecutions in accepting a plea of guilty to manslaughter i.e. the issue of provocation had already reduced the charge of murder into the Director’s acceptance of a plea of guilty in respect of manslaughter. In essence, it was submitted that it would be incorrect as a matter of legal principle should provocation be factored in twice.
[3.5] In response to counsel’s assertion that provocation has no bearing in sentencing, counsel for the accused disagreed and relied upon the case of the Director of Public Prosecutions v. Jurijs Princs (Unreported, Court of Criminal Appeal, Murray C.J., 31st July 2007) as authority for the proposition that it was appropriate to have regard to the nature and degree of provocation in the sentencing context.
[3.6] The Court has also considered the probation report which unfortunately concludes by saying that the accused presently presents as an ongoing risk of harm to herself and to others. The Court also notes the short but dignified statement of the father of the deceased which he made on behalf of his family regarding the loss of their son.
 Principles applicable to the determination of sentence
[4.2] In considering the question of imprisonment, the Court is conscious of what Judge Michael Reilly, the Inspector of Prisons, had to say in 2010 about the question of overcrowding in the women's prisons, the reduction of staff there and the impact this has on proper rehabilitative programmes. If this is still the case then the punitive aspect of a prison sentence today is aggravated by these factors.
[4.3] Returning to the particular circumstances of this case, and the judgment of the Court of Criminal Appeal in the Director of Public Prosecutions v. Stephen Kelly  2 IR 321, the Court is obliged to examine the range of penalties, place this case in the appropriate range and then consider the mitigating circumstances and determine what the final sentence should be. It would appear from the case of the Director of Public Prosecutions v. Stephen Kelly that there are three categories of sentence described in that judgment. First, the high range, namely any sentence of ten years imprisonment or more; secondly, the middle range, namely any sentence between five and ten years imprisonment; and, thirdly, the lower range which is any sentence less than five years imprisonment including a non-custodial penalty.
[4.4] In considering what the appropriate penalty is, the Court is cognisant that it must endeavour to reconcile the principle of proportionality with the aim of rehabilitation. The Court has considered whether or not this case is one in which the Court should impose a suspended sentence and it does not consider it to be such a case. Even if a credible rehabilitation programme had been proposed, it is hard to see how this case could have had a non-custodial outcome. While one psychiatrist suggested the accused should receive outpatient psychiatric care, unfortunately this recommendation has to be viewed in the light of the accused's lengthy involvement with the psychiatric services which do not seem to have enabled her to make much progress to date. The Court also notes the considerable amount of medication presently prescribed for the accused.
[4.5] In determining the appropriate sentence, the Court takes into account the provocation as evidenced by Detective Garda Phylan's outline of the severe assaults the accused received from the deceased, as well as the accused’s own human frailties arising out of a huge suffering inflicted on her in her childhood. However, the Court cannot ignore the fact that a knife was used, as well as the fact that four young children were present when the deceased was killed.
[5.2] The Court has been asked by the prosecution to take into account the question of alcohol. It is necessary to say that intoxication is not a factor that the Court will take into account in mitigation. But it is, however, relevant in the context of rehabilitation. One must hope that the accused will receive assistance in coming to terms with her dependence on alcohol and, more particularly, in coming to terms in some manner with her own personal problems, which are undoubtedly a prime motivator in her abuse of alcohol.
[5.3] As a result of all the mitigating factors the accused is entitled to a significant reduction in sentence. Accordingly the Court will mitigate the sentence of eight years imprisonment to one of five years imprisonment which it now imposes.