Court of Appeal in Northern Ireland Decisions

Neutral Citation no. [2012] NICA 4	Ref:	MOR8449
Judgment: approved by the Court for handing down	Delivered:	23/03/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _______ THE QUEEN -v- JAMES OLIVER MEEHAN ________ APPEAL AGAINST SENTENCE _______ Before: Morgan LCJ, Higgins LJ and Coghlin LJ ________

MORGAN LCJ (delivering the judgment of the court)

[1] The appellant was convicted of the murder of James McFadden on 5 May 2006 at Coleraine Crown Court on 15 July 2009. McCloskey J imposed a tariff of 14 years under the Life Sentences (Northern Ireland) Order 2001. His appeal against conviction was dismissed by this court on 23 May 2011 and this judgment deals with his appeal against the tariff.

Background

[2] On 4 May 2006 the deceased and the appellant and their respective families had been guests at a wedding reception in County Donegal. The appellant had been drinking for a large part of the day and the appellant's family became involved in a dispute with the deceased's family. The appellant, his wife and son travelled home by taxi in the early hours of the morning of 5 May 2006. There was some discussion between them about the circumstances of the confrontation at the wedding as a result of which the appellant drove his wife and son from their home to the deceased's home in order to confront him. He parked the car a short distance from the deceased's home.

[3] As the deceased made his way from a bus leaving him near his home after the wedding reception the appellant got out of his car and ran towards him. One of the deceased's children was walking with a crutch and seeing the clearly violent intent on the part of the appellant she threw it to her father in order to defend himself. The deceased was a relatively slight man approximately half the weight of the appellant. The appellant launched an attack upon the deceased as a result of which the deceased suffered a laceration of the heart giving rise to a rupture. The prosecution case was that this has been caused by blows to the chest of the deceased by way of a forceful kick or stamping with a shod foot. Three separate lacerations of important structures of the heart were caused. There were fractures of the sternum and several fractures of the ribs on either side and various injuries in the area of the right ear of a shape and pattern that were indicative of having been inflicted by the sole of footwear from behind. Forensic evidence on the trousers and footwear of the appellant linked him to the deceased.

[4] The appellant pleaded guilty to manslaughter once the trial had commenced. He admitted that he approached the deceased on the evening in question. He said that the deceased threatened him with a crutch and swung it at him in an aggressive manner. The appellant attempted to disarm him in the course of which both men exchanged a number of blows. Eventually they fell through a hedge landing together on the ground but according to the appellant no further blows were exchanged. The appellant's case is that he never had the intention to kill or cause serious bodily injury to the deceased but he accepted that he unlawfully killed the deceased. It is clear that by their verdict the jury rejected this self-serving account.

[5] Guidance on the setting of the minimum term in murder cases was given in the case of R v McCandless [2004] NICA 1 which adopted the Practice Statement issued by Lord Woolf on 31 May 2002. Insofar as this case is concerned the relevant portion is set out below.

"The normal starting point of 12 years

10. Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 12. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.

11. The normal starting point can be reduced because the murder is one where the offender's culpability is significantly reduced, for example, because: (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or (d) the case involved an overreaction in self-defence; or (e) the offence was a mercy killing. These factors could justify a reduction to eight/nine years (equivalent to 16/18 years).

The higher starting point of 15/16 years

12. The higher starting point will apply to cases where the offender's culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was 'professional' or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders.

Variation of the starting point

13. Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

14. Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; (e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.

15. Aggravating factors relating to the offender will include the offender's previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.

16. Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation.

17. Mitigating factors relating to the offender may include: (a) the offender's age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty. "

The reasoning of the learned trial judge

[6] The learned trial judge first considered the appropriate starting point. He noted that the appellant carried out a planned and determined attack on the victim who was caught unawares. He noted the considerable disparity in physiques and weight. He accepted that the victim was especially vulnerable in the circumstances. He also accepted that in light of the medical evidence it could be said that the victim had multiple injuries inflicted on him before his death. He recognised, however, that the existence of two of the factors set out in paragraph 12 did not automatically render the case one where the appellant's culpability was exceptionally high. He concluded that this was a case on the borderline between the normal and higher starting points and resolved that issue in favour of the appellant by taking the normal starting point.

[7] The vulnerability of the victim and the infliction of multiple injuries still remained, of course, substantial aggravating factors. In addition to this he recognised that there was a substantial degree of premeditation and planning in this attack which inevitably had a devastating effect on the family of the deceased. The fact that this attack was carried out in the public street in front of the children of the deceased who were forced to witness their father being beaten to death is a particularly shocking aggravating factor.

[8] The appellant was not a person of good character. He had two previous convictions both at Londonderry Crown Court on 2 February 2000 for assault occasioning actual bodily harm and common assault. These arose out of an incident on 22 July 1998. The appellant and two others were involved in an attack on an adult at a nightclub. The attack consisted of the appellant head-butting the victim and inflicting several punches on him. Both the perpetrators and the victim were ejected from the club. The appellant then assaulted a second victim who was rendered unconscious.

[9] The learned trial judge accepted that this was a case in which the intention of the appellant was to inflict serious bodily injury rather than to kill. He noted his good working record. The appellant also relied on his difficult upbringing as a child. His parent's relationship had been characterised by domestic violence and when he was four years old his father killed his mother. Initially he returned to the family home to be brought up by the older children but when he was six years old he was sent to a children's home where he remained until his late teenage years.

The issues on appeal

[10] Mr McCartney QC for the appellant submitted that the learned trial judge was correct to conclude that this was a case in which the normal starting point was appropriate. He argued that the verdict of the jury did not imply that they had accepted every aspect of the prosecution case. He referred in particular to the discrepancies in the eye witness accounts as to whether the appellant had stamped on the deceased and where it was alleged that this activity had occurred. We consider that this was evidence which the learned trial judge was entitled to weigh in coming to his conclusion on the factual basis for the conviction and he was entitled to give appropriate weight to the medical evidence which supported the prosecution case that multiple injuries were inflicted. Indeed in our view any other conclusion would have been difficult to sustain.

[11] It was accepted that the deceased was vulnerable. Mr McCartney submitted, however, that there was no evidence that the appellant had caused or perpetuated the original dispute at the wedding. Although there was evidence that he had pieces of wood in the back of his car which he used in the course of his joinery work he did not avail of those as weapons in order to carry out his assault upon the deceased. His industrious lifestyle suggested that this attack was out of character despite his conviction.

[12] Finally the appellant relied upon the evidence as to the effect his disrupted early life had on him. In particular the appellant relied on a report from Mr Finegan a consultant psychologist which was prepared subsequent to his sentencing and was not, therefore, available to the learned trial judge. He described the appellant's exposure to exceptional domestic violence, his aggressive behaviour while in residential care as a protective mechanism and his vulnerability as a result of the absence of a stable relationship with a trusted adult.

Conclusion

[13] We accept that the presence of one or more of the factors listed in paragraph 12 of the Practice Statement set out in McCandless should not automatically lead to the conclusion that the higher starting point is appropriate. In this case the exceptional vulnerability of the victim accepted by the learned trial judge might well have justified the higher starting point but we recognise that we should take into account that the learned trial judge had the advantage of hearing the witnesses including the appellant and we should accordingly be slow to interfere with his conclusion as to culpability.

[14] There were, however, substantial aggravating factors in this case which we have set out above and those factors in our view would have required a tariff in excess of the 14 years imposed in the absence of mitigation. As we said in R v Steven Leslie Brown (aka Revels) the personal background of the offender is unlikely to weigh heavily against the need to impose a sentence appropriate for the needs of retribution and deterrence for violent crime of this nature. Although we have no reason to doubt the lasting effects of the appellant's unhappy childhood experiences we consider that the imposition of a tariff of 14 years in this case made some material allowance for the personal circumstances of the appellant. In light of the nature of this violent attack in the public street where the deceased was beaten to death in front of his wife and children we do not consider that this sentence was in any way inappropriate. Accordingly this appeal is dismissed.