DPP v Berry

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Sheehan
• Judgment Date: 21 October 2011
• Docket Number: NO. 56 CC/[2010]
• Court: Central Criminal Court (Ireland)
• Date: 21 October 2011

[2011] IECCC 4

THE HIGH COURT CENTRAL CRIMINAL COURT

NO. 56 CC/[2010]

DPP v Berry

Between

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

Prosecutor

v.

ANN BERRY

Accused

DPP v KELLY 2005 2 IR 321

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 PARA 1015

DPP v L 14.11.2000 IRISH TIMES

R v GARDENER 1994 14 CAR 364

DPP v PRINCS UNREP CCA 31.7.2007 2008/21/4521 2007 IECCA 142

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 PP256-257

DPP v AHERNE UNREP CCA 5.7.2004 2004/14/3197

Criminal law - Sentencing - Manslaughter - Provocation - Whether a suspended sentence for manslaughter was appropriate in the circumstances of the case.

Facts The accused pleaded guilty to the unlawful killing of her partner, who died following a stab wound to the abdomen. The accused had reported to her doctor and the Gardai a severe assault at the hands of the deceased earlier on the day of the killing. Later on the day of the assault the accused, together with her sister and her sister's four children visited the deceased and the deceased was fatally injured by the accused. On behalf of the prosecutor it was submitted that the appropriate sentence lay in the lower range due to the accused's well established psychiatric history, her expression of remorse and that at the time of the offence she was assisting her sister whom she believed the deceased posed a threat to. Counsel on behalf of the accused submitted four psychiatric reports to the court and relied on provocation arising from the fact the accused had been subjected to numerous severe assaults during the course of her short relationship with the deceased. The accused had also been abused in the past. It was submitted on behalf of the prosecutor that provocation should not be regarded as a mitigating factor as it had already been taken into consideration by the prosecution in accepting a plea of guilty to manslaughter. The accused had ten previous convictions for public order offences, criminal damage and possession of a knife.

Held by Sheehan J. in imposing a sentence of five years imprisonment: That a suspended sentence was not appropriate in this case. Although the court took into account the provocation resulting from the severe assaults of the accused by the deceased and the suffering inflicted on the accused during childhood, the court could not ignore the fact that a knife was used and that four young children were present at the time of the killing. The court considered the probation report and the psychiatric reports. The appropriate sentence before taking into account the mitigating factors was eight years imprisonment. However, taking into account the accused's plea of guilty, her remorse, her co-operation with the Gardai and her personal circumstances the sentence was mitigated to five years imprisonment.

Mr. Justice Garrett Sheehan

2 [1.1] On the 16^th May 2011, Ann Berry pleaded guilty to the unlawful killing of Anthony Riordan on the 5^th 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 [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.

3 [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.

2 [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...