DPP v B (W)

 
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[2011] IECCC 1

THE HIGH COURT

[CC 0109/08]
DPP v B (W)
CENTRAL CRIMINAL COURT

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR

AND

W. B.
DEFENDANT

CC109/2008 - Sheehan - CCC - 7/4/2011 - 2011 15 3696 2013 15 4490 2011 IECCC 1

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S3

CRIMINAL LAW (INSANITY) ACT 2006 S5(3)

CRIMINAL LAW (INSANITY) ACT 2006 S5(3)(C)

CRIMINAL LAW (INSANITY) ACT 2006 S3

CRIMINAL LAW (INSANITY) ACT 2006 S5(1)

CRIMINAL LAW (INSANITY) ACT 2006 S5(2)

MENTAL HEALTH ACT 2001 S3

MENTAL HEALTH ACT 2001 S4

CRIMINAL LAW (INSANITY) ACT 2006 S13

MENTAL HEALTH ACT 2001 S3(1)(B)(i)

CRIMINAL LAW

Sentence

Undue leniency - Seriousness of offence - Previous convictions - Amount of drugs seized - Guilty plea - Rehabilitation - Proportionality - Lenient sentence conditional on rehabilitation programme - Whether error of principle - Whether sentence adequately reflected seriousness of offence - Whether all aspects of evidence taken account of - Whether sentence proportionate - Whether substantial departure from appropriate sentence - People (DPP) v Byrne [1995] 1 ILRM 279 and People (DPP) v McGinty [2006] IECCA 37, [2007] 1 IR 633 considered - Criminal Justice Act 1993 (No 6), s 2 - Misuse of Drugs Act 1977 (No 12), ss 3, 5, 15 and 27 - Misuse of Drugs Regulations 1988 (SI 328/1988) - Application dismissed (190CJA/2009 - CCA- 10/2/2011) [2011] IECCA 1

People (DPP) v Burke

CRIMINAL LAW

Committal

Mental illness - Not guilty by reason of insanity - Aggravated sexual assault - Paranoid schizophrenia - Nature or format of in patient care or suitable treatment - Role of Court - Whether defendant in need of in patient care or treatment in designated centre - Whether Central Mental Hospital appropriate environment - Discrepancy in protection offered to patients between Criminal Law (Insanity) Act 2006 and Mental Health Act 2001 - Mental Health Act 2001 (No 5), ss 3 & 4 - Criminal Law (Insanity) Act 2006 (No 11), ss 3, 5 & 13 - Defendant committed to designated centre (2008/109CC - Sheehan J - 7/4/2011) [2011] IECCC 1

People (DPP) v B(W)

[1] Overview
2

2 [1.1] On the 8 th March, 2011, I ordered that W.B. (hereinafter referred to as "the defendant") be detained in the Central Mental Hospital pursuant to a jury finding of not guilty by reason of insanity in respect of a charge of aggravated sexual assault. At the time of making this order, I indicated that I had grave concerns about the adequacy of the treatment the defendant had received during the two and a half year period that he had already been in the Central Mental Hospital and that I would set these concerns out in the course of a judgment.

[2] Factual Background
2

2 [2.1] The defendant was tried in the Central Criminal Court on a charge of aggravated sexual assault contrary to s. 3 of the Criminal Law (Rape)(Amendment) Act 1990. The trial took place over two days on the 7 th and 8 th February, 2011. On the 8 th February 2011, the jury returned a verdict of not guilty by reason of insanity.

3

3 [2.2] At the start of the trial, the defendant admitted that at about I am on the 10 th August, 2008, he had forced his way into a security lodge in an industrial estate in County Dublin and locked the door behind him. The defendant had a knife in his hand which he presented to C.D., the male security officer, (hereinafter referred to as "the injured party") and who he then pushed into the toilet. The defendant put the injured party's hand on his penis and attempted to force the injured party to masturbate him. This was done on three occasions. The defendant proceeded to take off the injured party's security tag, shirt and other clothes. The injured party managed to close the toilet door in an effort to keep the defendant away but the defendant ran at the door, kicked it and eventually broke it down. The defendant punched the injured party and put his thumbs into the injured party's eyes; the injured party recalled the defendant having very long fingernails. The defendant then took off the injured party's underpants and forced the injured party to smell them and proceeded to take off his own clothes and forced the injured party to touch his penis and he did likewise to the injured party's penis. The defendant then placed his penis in the injured party's mouth and kissed the injured party. Thereafter, the defendant performed fellatio upon the injured party and demanded that the injured party scratch the tattoos which the defendant had on his stomach. Following this, the defendant urinated on the injured party's shirt presenting in a threatening and aggressive manner. The defendant then allowed the injured party to dress himself apart from his underpants or socks. The sexual assault lasted for approximately 35 to 40 minutes. The injured party told the Gardaí that during the course of the assault on him the defendant, on some occasions, appeared to be talking to a window and a sliding door and, on other occasions, to someone who was not there.

4

4 [2.3] At this point, in an effort to escape, the injured party convinced the defendant that he was going to his car to get some sweets and he was allowed to leave. The injured party ran away and encountered an individual who brought him to his two colleagues. The defendant had also left the security lodge at this point and the injured party, his two colleagues and the individual went in search of the defendant. The defendant was discovered within the proximity of the industrial park and the injured party approached him. The defendant, while showing and waving the knife, approached the other two security officers and took possession of the vehicle that the security officers had been travelling in and drove off eventually crashing the vehicle into a bus at a local shopping centre.

5

5 [2.4] Following the defendant's arrest at the scene by Detective Sergeant McLoughlin, he was taken to a local Garda Station where he was detained for questioning.

6

6 [2.5] Detective Sergeant McLoughlin described the defendant as initially being very aggressive and agitated. He described him as having long painted fingernails, long hair and being unshaven. He said that he gave some very odd and bizarre answers to questions and that his appearance was odd.

7

7 [2.6] Apart from the evidence of Detective Sergeant McLoughlin, who had also told the Court and jury of the actions which the accused had admitted, the remaining evidence was given by two consultant forensic psychiatrists attached to the Central Mental Hospital who both gave similar evidence to the Court.

[3] Psychiatric Evidence
2

2 [3.1] The remaining evidence in the case consisted of the evidence of two consultant forensic psychiatrists, both attached to the Central Mental Hospital, who both gave similar evidence. Through interviewing the defendant, his sister and mother the following factual background circumstances were elicited by Dr. O'C., consultant forensic psychiatrist attached to the Central Mental Hospital. The defendant is a thirty year old male who was born in Poland and is of Romany ethnicity. The defendant received limited formal education and left school aged eight because of his family's frequent changes of address within countries and between countries including Poland, Germany, Holland and currently Ireland. It appears that the defendant began smoking cannabis when he was sixteen years old and thereafter regularly smoked cannabis and used ecstasy. The defendant had also never engaged in regular employment. The defendant was previously married but is now divorced with no dependants.

3

3 [3.2] Dr. O'C., on behalf of the defendant, stated that the defendant suffers from paranoid schizophrenia. Dr. O'C. gave evidence that this was a mental illness characterised by persecutory delusions, grandiose delusions, multimodal hallucinations (including auditory, visual, olfactory and tactile) and disorganised thinking and behaviour. He stated there was evidence of marked negative symptoms of schizophrenia, notably loss of motivation and social isolation.

4

4 [3.3] Dr. O'C. stated that although the defendant had improved to the extent that he had passed the threshold for fitness to be tried he remained seriously ill and that it was appropriate for the defendant to remain as a patient in the Central Mental Hospital.

5

5 [3.3] The consultant forensic psychiatrist stated that it was his opinion that the defendant was seriously ill at the...

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