Irish Central Criminal Court

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Cite as: [2011] IECCC 4

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Judgment Title: DPP -v- Berry

Neutral Citation: [2011] 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: [2011] IECCC 4

THE HIGH COURT

CENTRAL CRIMINAL COURT

[2010] NO. 56 CC

Between

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor

ANN BERRY

Accused

Judgment of Mr. Justice Garrett Sheehan delivered on the 21st October 2011

[1] Overview
[1.1] On the 16th May 2011, Ann Berry pleaded guilty to the unlawful killing of Anthony Riordan on the 5th June 2009. The deceased died as a result of a stab wound to his abdomen inflicted by the accused. According to the report of the State Pathologist, Dr. Marie Cassidy, the fatal injury had been caused by a fairly broad bladed knife with a long blade, the track of the wound being six and a half inches.

[2] Factual background
[2.1] According to the report of the consultant who had been the accused’s treating psychiatrist for many years, it had been the tendency of the accused to readily enter abusive relationships and to tolerate and accept abusive behaviour. She had been in a relationship with the deceased for three to four months and earlier on the day of the killing she had been severely assaulted by him and reported this assault to her doctor and to the gardaí. The gardai advised her to return to the hostel accommodation that had been provided for her following her discharge from a five-month stay as a psychiatric patient in St. Luke's Hospital in Kilkenny. However, she chose instead to visit her sister and at about 11pm that evening she went with her sister and her sister's four children, who ranged in age from about eight to thirteen years of age, to the deceased’s apartment where further alcohol was consumed.

[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.

[3] Facts arising from the sentencing hearing
[3.1] The accused has ten previous convictions which the Court was told had all occurred in the context of excessive consumption of alcohol. Eight of the convictions were for public order offences; one was for criminal damage and one for the unlawful possession of a knife. Counsel for the prosecution told the Court that it was the view of the Director of Public Prosecutions that the appropriate sentence lay in the lower range bearing in mind the following matters: - that the accused had a well-established psychiatric history; that she expressed remorse immediately; that she went to the assistance of her sister whom she believed the deceased was going to hurt. Counsel also referred the Court to the judgment of Hardiman J. in the Director of Public Prosecutions v. Stephen Kelly [2005] 2 IR 321.

[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 [1994] 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.

[4] Principles applicable to the determination of sentence
[4.1] In determining the appropriate sentence in respect of the accused, the Court has had regard to the following: - O’Malley, Sentencing Law and Practice, (2nd Ed., Thomson Round Hall, Dublin, 2006) pp.256-257 concerning manslaughter following provocation, the judgment of the Court of Criminal Appeal in the Director of Public Prosecutions v. Stephen Kelly [2005] 2 IR 321, the judgment of the Court of Criminal Appeal in the Director of Public Prosecutions v. Stephen Aherne (Unreported, Court of Criminal Appeal, Hardiman J., 5th July 2004), as well as the decision of the Court of Criminal Appeal in the Director of Public Prosecutions v. Jurijs Princs (Unreported, Court of Criminal Appeal, Murray C.J., 31st July 2007).

[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 [2005] 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] Decision
[5.1] The Court has considered the submissions of counsel for the prosecution and counsel for the defence and has also considered the probation report as well as the four psychiatric reports relied upon by the defence. Taking all matters into account, it appears that the appropriate sentence, before taking into account the mitigating factors, is one of eight years imprisonment. The following are the clear mitigating factors: 1. the plea of guilty; 2. the remorse expressed which this Court regards as an important mitigating factor; 3. the accused’s co-operation with the gardaí when she was deemed fit to answer their questions; and 4. the personal circumstances of the accused as outlined to the Court. At this point, it is relevant to note that while the accused has a previous conviction for the possession of a knife, given what Detective Garda Phylan told the Court about the circumstances of this offence, namely that it was for self-harm, the Court does not propose to have regard to this offence or to her other previous convictions.

[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.