DPP -v- Leigh Crowe COURT OF CRIMINAL APPEALJudgment was delivered on May 27th by Mr Justice Kearns, sitting with Mr Justice de Valera and Mr Justice McCarthy
JUDGMENT
A 20-year sentence was substituted for a life sentence for manslaughter, where the applicant had pleaded guilty on the grounds of diminished responsibility and this plea was accepted by the DPP. A substantial but finite sentence was appropriate, recognising that the offence was at the absolute upper end of the scale, but recognising also the mitigating factors: the early plea; the psychiatric history; and the demonstrated capacity of the applicant for rehabilitation.
BACKGROUND
On October 8th, 2007, in the Central Criminal Court the applicant pleaded not guilty to murder but guilty to the manslaughter on the grounds of diminished responsibility of Owen Cahill at Poulbay, Clonmel, Co Tipperary, on April 2nd, 2006. The DPP accepted his plea. He also pleaded guilty to the attempted murder of Mark Doolan on the same date, and to assault causing harm to Sharon Rossiter.
The three were attending a party on the night of April 2nd when the appellant arrived with another man, David Ryan, both wearing balaclavas and armed with shotguns. Owen Cahill was shot at point-blank range by David Ryan, Mark Doolan was shot and injured by Crowe and Sharon Rossiter was struck by the butt end of one of the weapons and injured.
Evidence was given that Crowe had been shot in the back in December 2004 and believed that Owen Cahill was one of the people who had shot him. He also had significant problems with both alcohol and drugs and had 23 previous convictions, including multiple convictions for assault between 1995 and 2002. After the attack he had burned the clothes he had been wearing.
The court also heard that he had not engaged in criminal activity between 2002 and 2004, and that he had been remorseful following the attack and had attempted to abstain from intoxicants and had succeeded in holding down a job.
The court received medical reports from Dr Paul O’Connell, a consultant forensic psychiatrist at the Central Mental Hospital, and from Dr Nataraj Gojanur, visiting psychiatrist to Limerick prison.
Dr Gojanur interviewed the applicant four times in Limerick prison and stated in his report that for two months prior to the attack he had been drinking heavily and became paranoid. He believed that Owen Cahill was following him and plotting to kill him. He had been admitted to the psychiatric unit in Clonmel on two occasions having taken drug overdoses. In Dr Gojanur’s view, he was fit to plead, attend court and stand trial.
In his report, Dr O’Connell suggested that the accused could have been suffering from post-traumatic stress at the time of the attack, arising out of his near-death experience when he was shot. He considered that his use of intoxicants was likely to exaggerate aspects of his post-traumatic stress, adding drug-induced grandiosity and impulsivity. His written report also pointed out that the Criminal Law Insanity Act 2006 excluded 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,” Mr Justice Kearns said.
He quoted at length the sentencing ruling of Mr Justice Carney, who said: “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 subsequent actions.
“Taking all the circumstances of this case into consideration it seems to me that in respect of the manslaughter count . . . that anything less than a sentence of imprisonment for life would not be proportionate.”
Mr Justice Kearns said that, notwithstanding the DPP’s acceptance of the plea of manslaughter, which was advanced on the grounds of diminished responsibility, it was quite clear that the judge did not impose sentence on that basis. “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,” he said.
“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.”
Mr Justice Kearns summarised the submissions made on behalf of Crowe by his counsel, Michael O’Higgins SC, pointing out that he had got nothing for his plea of guilty and that the sentence failed to reflect the fact that at the time he was suffering from a mental disorder, as well as other mitigating factors.
Opposing a finite sentence, Denis Vaughan Buckley SC said that there were aggravating factors in the case, including the premeditation of the attack, the fact that it took place following alcohol consumption and that it was carried out with total disregard for the safety of others in the house.
DECISION
Mr Justice Kearns said that the Supreme Court had previously held that a maximum sentence could be imposed when there was a guilty plea “in rare and exceptional circumstances”. It stated in The People (Director of Public Prosecutions) -v- R McC and The People (Director of Public Prosecutions) -v- C that it would be an essential requirement “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.”
He said that here the court “was left in a position of very considerable difficulty” by the fact that the DPP saw fit to accept the plea of manslaughter on the ground of diminished responsibility, but this had been rejected by the court, and there was no citation of any relevant authority as to how the court should review the sentence.
He said that, when asked why the director had accepted the plea on this ground, while arguing that this was a case with grave and exceptional circumstances warranting a life sentence, “no explanation was forthcoming”. A plea of manslaughter simpliciter would have allowed the sentencing judge to impose a life sentence.
However, accepting a plea to manslaughter by reason of diminished responsibility due to a 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 actions,” he said. It would be utterly destructive of the 2006 Criminal Law Insanity Act to hold otherwise.
The court was of the view that the proper approach to sentencing in this case was one which would involve a substantial but finite sentence, taking into account that the offence was at the absolute upper end of the scale, but also of the mitigating factors. Accordingly he quashed the life sentence and substituted one of 20 years.
The full judgment is on www.courts.ie;
Michael O’Higgins SC and Michael Bowman BL, instructed by James Reilly Son, for the applicant; Denis Vaughan Buckley SC and Remy Farrell BL, instructed by the Chief Prosecution Solicitor, for the DPP