DPP v Crowe

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 27 May 2009
• Neutral Citation: [2009] IECCA 57
• Court: Court of Criminal Appeal
• Date: 27 May 2009

[2009] IECCA 57

THE COURT OF CRIMINAL APPEAL

Kearns J.

de Valera J.

McCarthy J.

[C.C.A. No. 213 of 2007]

DPP v Crowe

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

LEIGH CROWE

APPLICANT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL LAW (INSANITY) ACT 2006 S6

LAW REFORM CMSN CONSULTATION PAPER ON SENTENCING 1993 PARA 1.41

AG, PEOPLE v O'CALLAGHAN 1966 IR 501

CRIMINAL JUSTICE ACT 1999 S29

DPP v MCC (R) & D (C) UNREP SUPREME 12.5.2005 2008 1 ILRM 321 2007/19/3923 2007 IESC 47

DPP v KELLY 2005 1 ILRM 19 2004/16/3531

DPP v AHERNE UNREP CCA 5.7.2004 2004/14/3197

DPP v MCCAULEY & WALSH 2001 4 IR 160 2001/8/1908

CRIMINAL LAW

Sentence

Severity - Manslaughter - Diminished responsibility - Guilty plea - Whether sentence of life imprisonment permissible - Criminal Justice Act 1999 (No 10), s 29 - Criminal Law (Insanity) Act 2006 (No 11), s 6 - Sentence reduced from life to 20 years (213/2007 - CCA - 27/5/2009) [2009] IECCA 57

People (DPP) v Crowe

1 JUDGMENT of the Court delivered by Mr. Justice Kearns on the 27th day of May, 2009

2 On 8 ^th October, 2007 at the Central Criminal Court the applicant pleaded not guilty to the murder of Owen Cahill on the 2 ^nd April, 2006 at Poulboy, Clonmel, Co. Tipperary, but guilty of manslaughter on the grounds of diminished responsibility which said plea was accepted by the Director of Public Prosecutions. On the same occasion the applicant pleaded guilty to the attempted murder of one Mark Doolan on the same date and location and to assault causing harm to one Sharon Rossiter contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997, also at Poulboy, Clonmel, on the same date in April, 2006.

3 The court had before it medical reports from Doctor Paul O'Connell, a Consultant Forensic Psychiatrist at the Central Mental Hospital, and from Doctor Nataraj Gojanur, visiting Psychiatrist to Limerick Prison. The court also heard character evidence in relation to the applicant from Mr. Tom O'Mahony, Manager of the local GAA Football Club, Mr. Edward Dooley, Building Contractor, who had employed the applicant between 2004 and 2006. The court also had before it a victim impact statement from Catherine Cahill, the mother of the deceased Owen Cahill.

4 Following a plea in mitigation, the trial judge (Carney J.) imposed a sentence of imprisonment for life in respect of the manslaughter count. He further imposed sentences of fifteen years imprisonment in respect of the attempted murder and five years imprisonment in respect of the assault, all sentences to run concurrently and to date from the 3 ^rd April, 2006.

5 This appeal is one against the severity of the sentence imposed in respect of the counts of manslaughter and attempted murder.

BACKGROUND

6 Evidence as to the background circumstances of the offence was given by Detective Sergeant O'Riordan. He outlined that on Sunday, 2 ^nd April, 2006 a party was taking place at the dwelling house premises of Mr. Cliff Hennessy at Poulboy in Clonmel. The applicant became aware that Owen Cahill, Mark Doolan and Sharon Rossiter were attending the party in question and travelled by car in the small hours of the morning to the location of the party, armed with two shotguns, one a sawn-off shotgun and the other a pump action shotgun. Both David Ryan and the accused arrived at Mr. Hennessy's house wearing balaclavas and each armed with a shotgun. Having entered the house, the two men targeted Owen Cahill and Mark Doolan. Owen Cahill was shot at point blank range in the face by David Ryan and death was instantaneous. The applicant shot Mark Doolan who managed to distract the applicant momentarily, as a result of which he was shot in the upper right arm, suffering serious injuries. It appears that Sharon Rossiter was struck by the butt end of one of the weapons carried by the applicant and David Ryan. Both gunmen then fled the scene leaving behind one of the shotguns. The applicant was arrested shortly afterwards in Clonmel and brought to Clonmel Garda Station. He was later charged with the murder of Owen Cahill, the attempted murder of Mark Doolan and also of the charge of assault causing harm to Sharon Rossiter.

7 In the course of interview, the applicant eventually admitted his part in the offences. During the course of interview he requested that the tapes be turned off, following which he demanded to know of the gardai what evidence they had against him. On being informed that the gardai were in possession of a statement from a witness who was in the house when the shooting took place and who identified him as one of the participants in the shootings. Having initially protested that he was wearing a balaclava and gloves and was thus unrecognisable, he then admitted that David Ryan had shot Owen Cahill and that he had gone into the kitchen where he shot Mark Doolan.

8 The deceased Owen Cahill was twenty-five years of age. The applicant was born in July, 1974 and was thus thirty-one years of age at the time of the incident. He remained in custody from 3 ^rd April, 2006 and did not apply for bail. Following a direction from the District Court, a psychiatric report on the applicant was prepared by Doctor Gojanur. At a later point in time the defence procured a report from Doctor Paul O'Connell, Consultant Forensic Psychiatrist, which is dated 16 ^th September, 2007.

9 The Central Criminal Court also heard evidence from Detective Sergeant O'Riordan that the applicant was shot in the back in December, 2004 and believed that Owen Cahill, the deceased, was one of the people who had shot him. There was also evidence in that the gardai had warned the applicant on occasions that his life was in danger and that an attempt was going to be made to kill him.

10 Evidence was also given that in the aftermath of the incident the applicant got rid of the gun which he had been carrying and burned the clothes which he had been wearing. Evidence was also given that the applicant had significant problems with both alcohol and drugs and had twenty-three previous convictions, including multiple convictions for assault between 1995 and 2002.

THE PSYCHIATRIC EVIDENCE

11 In his written report dated 6 ^th June, 2006, Doctor Nataraj Gojunar stated that he had interviewed the applicant on four occasions in Limerick Prison. He reported how some two months prior to committing the offences which were before the court he started drinking regularly and heavily and started becoming paranoid. In particular, he believed that Owen Cahill was following him and plotting to kill him. His feelings of paranoia became worse whenever he took more alcohol. Doctor Gojunar reported that, following the incident, the applicant felt very remorseful for his action and blamed alcohol and drug excess for his impulsive action. He reported that the applicant was born in July, 1974 and that his parents were separated. The applicant lived with his girlfriend and two children. As a child, he suffered from hyperactivity and attention deficit disorder. He abandoned school at the age of sixteen and went to England where he lived for ten months. Following his return to Ireland, he had been regularly in trouble with the law. He started drinking at the age of sixteen and soon became heavily dependent on alcohol, drinking twelve/fourteen pints of beer and a bottle of vodka every day. The applicant also abused cocaine, speed, acid, and other stimulants and experienced blackouts from time to time. He had been admitted to the psychiatric unit in Clonmel on two occasions having taken drug overdoses.

12 In Doctor Gojunar's view, the applicant was fit to plead, attend court and stand trial. He had a history of alcohol and drug abuse and some paranoid ideation. In Doctor Gojunar's view, the applicant had failed to benefit from multiple prison sentences and posed an ongoing risk to others. His future progress would depend on his abstinence from alcohol and other illicit drugs.

13 In a lengthy twenty-seven page report, Doctor Paul O'Connell suggested that the applicant "could have been suffering a post traumatic stress disorder at the material time" arising from his near death experience of having been shot. He conceded, however, that such a diagnosis had not been made prior to his assessment which was based on three interviews with the applicant in September, 2007.

14 Doctor O'Connell noted that the applicant had abstained from alcohol and drug use following the episode in which he had been shot. He had also considered leaving the area where he lived. However, on being informed by the gardai of a new plot to assassinate him, he reverted to harmful use of intoxicants and reliance upon previous criminal acquaintances. It was Doctor O'Connell's view that the intoxicants were likely to have exaggerated aspects of his post traumatic stress. He noted that the applicant had become increasingly vigilant and paranoid. These were symptoms consistent with both heightened anxiety as well as the direct intoxicating effect of cocaine and amphetamines.

15 Doctor O'Connell noted that the consumption of alcohol and drugs in the case of the applicant could contribute to a post traumatic stress disorder by adding drug induced grandiosity and impulsivity. Doctor O'Connell considered the video tapes of the garda interviews which took place within hours of the offence and noted that the applicant did not exhibit gross confusion or thought disorder but rather presented as talkative and familiar with the interview process. He later informed Doctor O'Connell that he could not be sure of anything he had said in the garda interviews because of the effect of the drugs he was taking.

16 In the concluding paragraph of his report, Doctor O'Connell stated as follows:-

"In...