Court of Appeal in Northern Ireland Decisions

"My client would wish me to state at the outset of the interview that he suffers from depression, is currently receiving treatment from his GP and furthermore is attending with a psychiatrist, Dr Bell, who is based at Woodstock Link. He's investigating the possibility that my client suffers from temporal lobe epilepsy and is subject to blackouts which is confirmed by a letter in his property and he regrets that he may not be able to help as extensively as he would like with your enquiries".

"I've a memory of … I don't know whether I was sitting up or sitting down … of this man you're talking about coming to me with a knife and me going for the knife with my hand and that's, that's my recollection. I don't remember stabbing no one or doing anything. All I remember is grabbing for the knife."

When asked why he had not mentioned this earlier in the interviews he said he had remembered when he first came in to the police station but he had been told by his solicitor to say 'no comment'. The learned trial judge observed in his sentencing remarks that this did not sit easily with the appellant's earlier statement in an interview when he said –

"I suffer from temporal or could be suffering from temporal lobe epilepsy and I haven't a baldy about anything in relation to what you are talking about that's all I have to say."

"The prosecution therefore indicated that they were prepared to accept a plea to manslaughter on the basis that the evidence raised the possibility, which they would have had to persuade the jury beyond reasonable doubt had not been the case, that the defendant had been defending himself at one stage. Nevertheless, as Mr Mooney observed, the plea to manslaughter accepted that the defendant's actions went beyond reasonable self defence. And (sic) that he stabbed the deceased several times shows that he grossly over-acted. For the defendant Mr Terence McDonald QC said that whilst his client may have been making a drunken attempt to defend himself he accepted that the defendant went too far".

The learned trial judge then went on to say that he had to sentence the appellant in light of what had been said by the prosecution.

[12] The grounds of appeal were –

1. The sentence imposed for the offence of manslaughter in the circumstances was manifestly excessive and wrong in principle.

2. The learned trial judge gave no apparent credit to the accused for the fact that he pleaded guilty at the first appropriate time.

3. Notwithstanding the accused's previous record the learned trial judge was wrong in law in not making a portion of the sentence imposed a period of probation together with conditions designed to address the accused's problems.

4. The sentence imposed by the Judge had no regard to the fact that the accused may have been defending himself from attack.

5. The learned trial judge was provided with bundles of authorities dealing specifically with manslaughter caused by the use of a knife. These authorities surveyed both the English and Northern Ireland jurisdiction approached. Notwithstanding these authorities the learned trial judge imposed a sentence which in the circumstances was not based on proper precedent.

The Single Judge granted leave on grounds 1, 2 and 4.

"However this was only to deal with what Dr Craig referred to as "the episodes of ascending sickness with associated fear and a feeling of emptiness etc, which had been associated with periods of unresponsiveness according to his father". In the following passage Dr Craig then dealt with another aspect of the defendant's behaviour which has been described as "periods of rage". And I quote: "With regards the other episodes which have been described as periods of rage, in my opinion these are not at all typical for epileptic attacks in that they appear to be situation specific, prolonged and involved, directed aggression, both verbal and physical, which would be extremely rare in epileptic seizures. In my opinion these attacks are likely to be a reflection of Mr Harwood's personality and exacerbated by excessive alcohol intake and illicit drugs. They also occur in the context of previous psychiatric type symptoms, although the nature of these would best be characterised and quantified by a psychiatrist, such as Dr Bell, whom Mr Harwood has seen in the past."

It is apparent from that passage that the episode was not due to an epileptic event occurring outside the defendants' control. It is significant that Dr Craig refers to the defendant's personality and what he describes as his "excessive alcohol intake and illicit drugs".

The learned trial judge then referred to a report prepared by a Consultant Psychiatrist and stated –

"Of particular relevance is the long history of drug and alcohol abuse which he [ the psychiatrist] was given by the defendant. Harwood described how he started smoking cannabis at 13 and drinking heavily around 18, he has continued to smoke cannabis and has taken a wide range of drugs including cocaine, ecstasy, GHB and amphetamines."

The judge then referred to the pre-sentence report and to the passage under the heading "Risks of harm to the public and likelihood of re-offending" which he then quoted. This stated –

"Over the past ten years the defendant has developed a pattern of dishonest and violent behaviour. This has been fuelled by abuse of alcohol and drugs. He has on many occasions used threatening and violent behaviour towards others. His involvement in this offence of manslaughter has demonstrated the high risk of harm he can pose to others when he is intoxicated.

As with many previous offences the defendant, due to a high level of intoxication , claims he has minimal recollection of events leading up to the commission of the offence.

It is my assessment that if Mr Harwood, upon his eventual release from custody, reverts to a lifestyle of drug and alcohol abuse, he will continue to pose a high risk of harm to others and his likelihood of re-offending will also be high. The identifiable risk factors are (1) his established pattern of aggression and violence towards others; (2) his abuse of alcohol and drugs; (3) reckless behaviour and lack of control; (4) lack of victim awareness; (5) lack of motivation to address any of the above factors".

The grounds of appeal.

It was submitted that insufficient credit was given for the guilty plea to manslaughter in the particular circumstances of this case. Mr McDonald QC contended that the appellant had a potential defence based on self defence. The basis for this was the suggestion that the deceased attacked the appellant with a knife and caused the wound to the palm of the appellant's right hand and in stabbing the deceased the appellant acted in self defence. Discussions between counsel about this case commenced before the Long Vacation and continued on the opening day of the trial. It seems clear these discussions centred on a plea to manslaughter and it was indicated that, if acceptable, such a plea would be entered. Clearly the injury to the appellant was a matter which prosecuting counsel required to investigate. Eventually he determined that the presence of this wound raised the possibility that at one stage the appellant was defending himself. In light of this he reasoned that it formed the basis for a possible plea to manslaughter where the appellant's actions went beyond reasonable self-defence or as Mr McDonald put it, an over-reaction on the part of the appellant in defending himself. Once the prosecution decided that a plea of guilty to manslaughter on this basis would be accepted this was communicated to defence counsel whereupon the appellant pleaded guilty to manslaughter. The plea was entered on the second morning and the learned trial judge was obliged to consider what credit, if any, the appellant should receive for his plea of guilty at that stage. In his sentencing remarks the judge dealt with this issue in the following manner –

"But Mr Mooney informed me that there had been discussions for some time between counsel about a possible plea to manslaughter and I take this into account when deciding how much credit to give to the defendant for his plea of guilty, although it has to be said that it is always open to a defendant to enter a plea of manslaughter when arraigned on a charge of murder, particularly where, as here, the ultimate plea abandoned a defence of self-defence."

It was submitted that the comment by the trial judge that it was always open to a defendant to enter a plea of guilty to manslaughter when arraigned on a charge of murder, indicated that the trial judge considered that, in the circumstances of this case, the appellant could have entered a plea to manslaughter at an earlier stage. Mr McDonald submitted that a plea to manslaughter, in circumstances where the defence statement indicated a defence of self-defence, could not be entered until such time as the prosecution indicated that it would be accepted. It was submitted the learned Trial Judge, in stating that it was always open to a defendant charged with murder to enter a plea of manslaughter, failed to recognise that the plea to manslaughter was made, in effect, at the earliest opportunity. Thus it was submitted that the applicant was not afforded credit for a plea of guilty to manslaughter at the earliest opportunity.

provides: -

"33.—(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence a court shall take into account—

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

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

Thus the stage at which the appellant indicated his intention to plead guilty and the circumstances in which the indication was given are both relevant and critical matters. Here the indication was given before the trial commenced, whereupon, it was a matter for prosecuting counsel to decide what course he should adopt, in light of the report from the former deputy State Pathologist and prosecuting counsel's consultation with the present Assistant State Pathologist. It seems this took some time. It is suggested that the learned trial judge's remarks, quoted above, are capable of the implication that the reduction in sentence for the plea of guilty to manslaughter would be less than the reduction warranted by such a plea entered at an earlier time than the morning of the second day.

In the course of his sentencing remarks the judge recognised that the appellant needed to address his alcohol and drug addiction and that a period of probation supervision would offer a means of achieving this objective. He then stated "On the other hand, I have to consider whether Harwood would comply with any probation conditions". He concluded that the appellant's record of breaches of probation, re-offending whilst on licence, failing to answer to bail and breaches of non-molestation orders satisfied him that he would not honour any probation conditions. The probation officer did not recommend a custody probation order. She stated that the appellant recognised that he would need the assistance of the Community Addiction Services and the Probation Board and that he would require to address his abuse of alcohol and drugs. But without making any recommendation, the Probation officer properly left the decision about a probation element to the sentence, to the judge. She stated that if the court deemed a custody probation sentence order appropriate then she would request two conditions be attached to the probation element of the order, namely that he reside in probation-approved accommodation and engage in treatment for substance abuse. In the circumstances the Trial Judge was satisfied that the appellant would not abide by any conditions and therefore did not consider a custody/probation order was justified.

"24. —(1) Where, in the case of a person convicted of an offence punishable with a custodial sentence other than one fixed by law, a court has formed the opinion under Articles 19 and 20 that a custodial sentence of 12 months or more would be justified for the offence, the court shall consider whether it would be appropriate to make a custody probation order, that is to say, an order requiring him both—

(a) to serve a custodial sentence; and

(b) on his release from custody, to be under the supervision of a probation officer for a period specified in the order, being not less than 12 months nor more than 3 years.

(2)  Under a custody probation order the custodial sentence shall be for such term as the court would under Article 20 pass on the offender less such period as the court thinks appropriate to take account of the effect of the offender's supervision by the probation officer on his release from custody in protecting the public from harm from him or for preventing the commission by him of further offences."

(3) A court shall not make a custody probation order in respect of any offender unless the offender consents and, where an offender does not so consent, the court shall not pass a custodial sentence of a greater length than the term the court would otherwise pass under Article 20.

(4) Where in any case a court does not consider a custody probation order to be appropriate, the court shall state in open court that it is of that opinion and why it is of that opinion.

(5) A court which makes a custody probation order shall state the term of the custodial sentence it would have passed under Article 20 if the offender had not consented to the order."

In any case in which the court has formed the opinion that a custodial sentence of twelve months or more is justified, the court must consider whether it would be appropriate to make a custody probation order. The effect of a custody probation order is to place the offender under the supervision of a probation officer for a specified period, following his release from custody. The period that may be specified is not less than twelve months or more than three years. The decision whether to impose a custody probation order depends on whether the sentencing judge considers it to be appropriate. If he does not consider it to be appropriate then he should pass a custodial sentence commensurate with the seriousness of the offence or where the offence is an offence of violence, such longer term as is necessary to protect the public from serious harm from the offender – see Article 20 (2) (a) and (b). If a court considers a custody probation order to be appropriate then the custodial sentence shall be for such term as the court would, under Article 20, pass less such period as the court thinks appropriate to take account of the effect of the offender's supervision by the probation officer in protecting the public from harm from him or for preventing the commission by him of further offences. There is no requirement that the reduction in the custodial sentence is the same length as the period of supervision. The primary purpose in imposing a custody probation order, which reduces the length of the custodial sentence, is the protection of the public from harm and the prevention of further offences by the offender. The first question for the court must be whether the public need protection from the offender or whether the offender is likely to re-offend or both. The custodial sentence that the offence justifies should not be reduced ( by the imposition of a custody probation order ) unless the supervision of a probation officer is likely to bring about protection of the public or the prevention of further offences by the offender. A number of the appellant's previous convictions were alcohol and/or drug related. The judge recognised that supervision might address that problem. However the objectives of probation supervision are not likely to be achieved unless there is co-operation with the probation officer and compliance with any conditions that might be imposed. If co-operation and compliance are in doubt then the making of a custody probation order would not be justified or appropriate. The decision whether it is appropriate or not has to be made at the time of sentencing on the information then available to the trial judge. He is best placed to make that decision and his conclusion whether it is appropriate or not is an exercise of his discretion which should not be set aside lightly. It is clear the learned trial judge considered whether the appellant would co-operate and comply with any conditions that might be imposed. It is correct that the sentencing judge does not know at the time of sentencing whether the appellant would be co-operative and compliant a number of years into the future. That is so in every case and past behaviour is usually the only indicator and invariably a reliable one. The appellant has shown himself to be unable to co-operate or comply in the past. In being satisfied that the appellant would not honour any probation conditions it cannot be said that the learned trial judge was acting without firm grounds for that view. He cannot be criticised for arriving at that conclusion and there are no grounds for interfering with the exercise of his discretion not to impose a custody probation order.

It was submitted that the learned Trial Judge failed to give any or sufficient weight to the acceptance by the prosecution that the appellant may well have been initially defending himself from attack by the deceased. Mr McDonald QC relied on the evidence that a fight had broken out between the appellant and the deceased, the cause of which was unknown. There was no evidence of animosity between them nor did the appellant go to the house with the intention of fighting with the deceased. Furthermore there was no evidence that the appellant brought the knife to the house rather it was a household knife belonging to the house in which the deceased was found. It was submitted that while the trial judge did outline the basis upon which the prosecution accepted the appellant's plea of guilty to manslaughter, he did not otherwise take account of the fact that the appellant may well have been initially defending himself against attack by the deceased. In setting out the prosecution approach to the case the trial judge did refer to the prosecution taking the view that they could not exclude the possibility that at one stage the appellant may have been defending himself from a knife attack. He then said – "it is also relevant to recall at this stage the initial statement by Wellington to Constable Kidd that there had been a fight". Later he referred to Mr McDonald's submission that his client may have been making a drunken attempt to defend himself. After referring to the prosecution view the trial judge went on to say " in view of what has been said by the prosecution I have to sentence the defendant on that basis". Whilst the trial judge made no further reference to the possibility of the appellant being under attack initially, it is clear that he had in mind from his earlier remarks the possibility which the prosecution said they would have to persuade the jury beyond reasonable doubt was not the case, namely that he had been defending himself at one stage. In those circumstances the submission that the learned Trial Judge failed to have regard to this factor in his sentencing is not borne out. Reliance was also placed on the Trial Judge's comment that the only mitigating feature was the defendant's plea of guilty" whereas the suggestion that he was defending himself, which was accepted by the prosecution, was a mitigating feature. That issue will be considered later in this judgment.

"We must approach this case on the basis that the appellant must be punished for the nature and quality of his acts, the only element lacking being his ultimate intention to kill the deceased or inflict grievous bodily harm. We therefore consider that the judge was fully justified in regarding him as a violent and dangerous man from whom the public requires protection. Having said that, however, we do consider that the sentence of 13 years was above the range which might properly be imposed in such cases, even after a contest."

this type of manslaughter. The Court of Appeal after referring to R v McCullough and the comments of Carswell LCJ considered the sentence was outside the range and reduced it accordingly.

"Mr Harwood informs me that prior to the offence taking place he had been drinking heavily and persistently for a number of days and he states he has minimal recollection of the events up to the offence or subsequently.

He states that he does remember being in the home of Mr Wellington having drunk a bottle of vodka and taken cocaine. He states that his victim threatened him with a knife and that he tried to protect himself by taking hold of the knife which was resulted in wounds (sic) to his hand. He states that he has no recollection of causing the harm to his victim but accepts he was responsible for causing the death of Mr Lavery."

The deceased had numerous injuries whereas the appellant had none, other than the cut to the palm of his hand. This was caused by the knife when it was in the possession of the deceased. Somehow the knife came into the possession of the appellant and thereafter the deceased was unarmed. When unarmed he was stabbed three times in the chest, one of which entered the heart. In addition he was stabbed in the right side of the neck and the right ear as well as around the left ear. It is extremely unlikely he was grasped by the neck after the stab wounds were inflicted and the footprints made in blood on the deceased's back would have occurred after the stabbing. It was submitted that this was an over-reaction by the appellant to the actions of the deceased. The Trial Judge described the appellant's actions as going well beyond reasonable self defence and the fact that he stabbed the deceased several times showed that he grossly over-reacted. This was not a case in which, once the deceased was unarmed, the appellant could be said to be in immediate peril from the deceased, a person who had consumed so much alcohol that his blood reading was 353 mgs. In a situation of immediate peril a person being attacked cannot weigh to a nicety the exact measure of his defensive action, but that was not this case. The appellant left the house with the deceased lying on the floor, where he was found much later by the owner of the house. No assistance was sought for him. Much later the appellant returned to the scene as if he was a bystander and gave a false name to the police. Thus can be seen the type of manslaughter case for which this appellant, with his criminal record and background, was to be sentenced.