DPP v Egan

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 21 March 2017
• Neutral Citation: [2017] IECA 95
• Docket Number: 62 CPA /16
• Court: Court of Appeal (Ireland)
• Date: 21 March 2017

[2017] IECA 95

THE COURT OF APPEAL

Edwards J.

Sheehan J.

Mahon J.

Edwards J.

62 CPA /16

IN THE MATTER OF S. 2 OF THE CRIMINAL PROCEDURE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

STEPHEN EGAN

Applicant

Sentencing – Manslaughter – Manifestly excessive sentence – Applicant seeking review of sentence – Whether sentence was manifestly excessive

Facts: The applicant, Mr Egan, applied to the Court of Appeal pursuant to s. 2 of the Criminal Procedure Act 1993 for the purpose of seeking a review of a life sentence imposed upon him for the crime of manslaughter by the Central Criminal Court, and subsequently upheld by the Court of Criminal Appeal, on the grounds that a new or newly discovered fact showed that the sentence imposed was excessive. The applicant accepted that the law on the admissibility of new evidence on appeal is as set out in The People (DPP) v Willoughby [2005] IECCA 4 (unreported, Court of Criminal Appeal, 18th February, 2005).

Held by the Court that the applicant failed to satisfy limb (b) of the Willoughby test. The Court held that the application to adduce the findings of the Commission of Investigation as evidence of new or newly discovered facts must be refused on that account.

The Court held that the application for leave to rely on further evidence should be refused. That being the case, the Court held that the applicant had no basis for seeking to re-open his appeal against the severity of his sentence. The Court held that the application under s. 2 of the 1993 Act should be refused.

Appeal dismissed.

Judgment of the Court delivered 21st March 2017 by Mr. Justice Edwards .

Introduction

1 This is an application pursuant to s. 2 of the Criminal Procedure Act 1993 (‘the Act of 1993’) brought by the applicant for the purpose of seeking a review of a life sentence imposed upon him for the crime of manslaughter by the Central Criminal Court, and subsequently upheld by the Court of Criminal Appeal, on the grounds that a new or newly discovered fact shows that the sentence imposed was excessive.

Background to the application

2 In this case the applicant, who at the material time was a prisoner in Mountjoy prison, was charged with the murder of a co-prisoner, one Gary Douch. The applicant had beaten and kicked Gary Douch to death in circumstances where he seemingly believed, entirely incorrectly, that Mr. Douch was a sex offender and that he represented a threat to others. At his trial for the said alleged murder before the Central Criminal Court a jury found him ‘Not guilty of murder but guilty of manslaughter by reason of diminished responsibility’, pursuant to s. 6 of the Criminal Law (Insanity) Act, 2006 (the Act of 2006).

3 The evidence before the jury from a consultant psychiatrist, a Dr. Fahy, had been to the effect that the applicant was suffering from a mental disorder within the meaning of the Act of 2006 at the material time, which was stated to be schizoaffective disorder on a background of anti-social personality disorder, with his schizoaffective disorder exhibiting features both of psychosis and disturbance of mood. Dr. Fahy had given it as his expert opinion that at the time of the killing the appellant had been experiencing delusional beliefs due to his mental disorder, and that his responsibility for the killing of Gary Douch was diminished on account of this ‘because, in his paranoid state, he – his judgment was impaired’.

4 On the 26th of June 2006 the applicant was sentenced to life imprisonment for the said manslaughter, the sentencing judge being of the view that while the applicant's responsibility was ‘significantly reduced’ on account of his mental disorder it was not eliminated. In the sentencing judge's view the applicant's responsibility, albeit significantly reduced, remained ‘a substantial one’ in the circumstances of the case. The sentencing judge referred specifically to Dr. Fahy's evidence that the applicant had been labouring under delusional beliefs, and he commented:

‘In relation to those delusional beliefs, it must be said, clearly and unequivocally, that they are utterly and totally false but it also has to be said that even if they were true, they could provide no explanation or justification for what happened because the offence involved quite appalling levels of extreme violence. Not only was Mr. Douch the victim of a savage assault, his attacker also set out to degrade and humiliate him.’

5 The sentencing judge explained in detail his reasons for imposing a life sentence. In summary, the sentencing judge was greatly influenced by a perceived need to protect the public, and while acknowledging that a life sentence imposed purely for public protection purposes would be a form of impermissible preventative detention, he felt, citing the judgment of Kearns J. in the Court of Criminal Appeal in The People (Director of Public Prosecutions) v Crowe [2010] 1 I.R. 129 that the applicant's case fell fairly and squarely into the category of ‘special and exceptional cases’ where a maximum sentence might legitimately be imposed notwithstanding substantial mitigating factors. (We note in passing, though nothing turns on it, that the phrase actually used in the Crowe judgment was ‘rare and exceptional cases’, and that it originated in fact in Kearns J's earlier Supreme Court judgment in The People (Director of Public Prosecutions) v R McC [2008] 2 I.R. 92 which he in turn quotes in the Crowe judgment).

6 The applicant appealed the severity of his sentence to the Court of Criminal Appeal, which heard the case on the 29th of October 2010. We have been provided with a full transcript of the appeal hearing and it is clear that the grounds upon which the appeal was pursued included complaints both that the sentence imposed had failed to adequately reflect the jury's finding, in accordance with the Act of 2006, that the applicant's responsibility for the killing of Gary Douch was ‘substantially diminished’ on account of his mental disorder; and further that it amounted to impermissible preventative detention.

7 In relation to the former complaint much reliance was placed upon an addendum report of Dr. Fahy, which had been before the sentencing judge, in which he had criticised aspects of the medical management of the applicant's mental illness in the weeks and days leading up to the killing of Gary Douch. That report had stated ( inter alia):

‘The only significant point of possible criticism concerns the very short duration of Mr. Egan's first admission to hospital. This is an unusually short treatment episode for a first episode of psychotic illness. There appears to have been a degree of inappropriate uncertainty about the validity of Mr. Egan's reported symptoms despite the fact that these symptoms could be traced back over several months and despite the absence of any obvious secondary gain to be obtained from reporting of any such symptoms.’

8 After opening this quotation from the addendum report to the Court of Criminal Appeal, counsel for the applicant went on to summarize its further contents as follows:

‘in any event what happened was that he was discharged back into Cloverhill from where he had come after that short stay in the Central Mental Hospital and he was discharged on the basis that his medications, anti psychotic medication ought to continue while in prison until otherwise prescribed and having returned to Cloverhill on the 14th with that prescription he was then moved, for reasons which are not entirely clear, into the environment of Mountjoy and that was on the 29th of July 2006, three days before the offence, and unfortunately when he was transferred he was not transferred with his medication and the uncontested evidence was that between the 29th and the 1st of August he was left without his Olanzapine, his anti psychotic medication and his condition quickly deteriorated culminating in this appalling attack on his fellow prisoner in an overcrowded cell in the basement of Mountjoy Prison. And Professor Fahy went on then, by way of chronology, to explain that he was then readmit he was admitted briefly to Cloverhill immediately after the attack and very shortly thereafter, I think within the next 24 hours, readmitted to the Central Mental Hospital.

MR. JUSTICE HARDIMAN: Yes.

MR. AYLMER: He was kept there for a further two months over August and most of September before he was ultimately discharged back into the prison environment and Professor Fahy carefully reports, with reference to all of his notes, his medical history notes, that he was entirely satisfied that throughout that period, two month period after the offence he was slowly recovering from what he describes as an acute psychosis in the form of schizoaffective disorder. And having been returned to the prison environment the situation has been ever since that he has remained on Olanzapine - -.’

9 The Court of Criminal Appeal rejected the applicant's said complaints and dismissed his appeal in a judgment delivered ex-tempore by Hardiman J, also on the 29th of October 2010. In the course of his said judgment Hardiman J. had remarked:

‘Now, the sentencing remarks of the learned judge are quite lengthy and very impressive in the Court's view. He was quite aware of the law and showed himself quite aware of the law in relation to sentencing generally and the extent to which it might be applied, by analogy or otherwise, in this particular case. He first identified the case, as he was obliged to do, as being at the very top end of cases of manslaughter. It is a notorious thing expounded by this court in the case of DPP v. Kelly some years ago that manslaughter varies more than almost any other offence from the defendant doing something that has just evolved, common assault, to something which is on very borders of murder and this the...