DPP v McMahon

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: O'Donnell J.
• Judgment Date: 14 December 2011
• Neutral Citation: [2011] IECCA 94
• Date: 14 December 2011

[2011] IECCA 94

THE COURT OF CRIMINAL APPEAL

O'Donnell J.

Clark J.

O'Keefe J.

161CJA/09

DPP v McMahon

Between:

The People at the Suit of the Director of Public Prosecutions

-and-

Anthony McMahon

Respondent

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL LAW (INSANITY) ACT 2006 S5(1)

MENTAL HEALTH ACT 2001 S3

CRIMINAL JUSTICE ACT 1993 S2

GERULL & LUCAS SERIOUS VIOLENT OFFENDERS: SENTENCING PSYCHIATRY & LAW REFORM 1993

VEEN v R (NO 1) 143 CLR 458 1979 HCA 7

VEEN v R (NO 2) 164 CLR 465 1988 HCA 14

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

CRIMINAL LAW

Sentence

Undue leniency - Preventative detention - Guilty plea - Risk of immediate and serious harm to others - Medical evidence accused did not know acts were wrong - Sufficient evidence for finding of not guilty by reason of insanity on not guilty plea - Detention in medical setting required for appropriate treatment - Detention under mental health legislation not open to sentencing court - Whether sentencing court obliged to impose life sentence to achieve similar outcome - Veen v R (No2) (1988) 164 CLR 465 followed; Veen v R (No 1) (1979) 143 CLR 458 considered - Criminal Justice Act 1993 (No 6), s 2(1) - Non-Fatal Offences Against the Person Act 1997 (No 26), ss 3 and 4 - Mental Health Act 2001 (No 25), s 3 - Criminal Law (Insanity) Act 2006 (No 11), s 5(1) - Appeal refused; sentence affirmed (161/2009 - CCA - 14/12/2011) [2011] IECCA 94

People (DPP) v McMahon

Facts The respondent had attacked medical staff at a psychiatric institution, stabbing them a number of times resulting in serious injury. The respondent was charged under the Non-Fatal Offences Against the Person Act, 1997 and pleaded guilty. The DPP had contended that the protection of society should be considered and provided for by the imposition of a life sentence in which the respondent's release would be monitored by the parole board. The respondent received sentences of ten years and three years to run concurrently. The respondent had a previous conviction for manslaughter and had been sentenced to ten years reduced on appeal to seven years. Evidence was given that the accused man had a history of disturbed and threatening behaviour after his original release from prison. The DPP appealed pursuant to the provisions of s.2 of the Criminal Justice Act 1993 contending that the sentences were unduly lenient. It was contended that there was clear evidence of danger to others and thus the court was entitled to impose the maximum sentence of life imprisonment.

Held by the Court of Criminal Appeal (O'Donnell J delivering judgment) in dismissing the appeal. Had the case proceeded to a trial, the jury could have returned the special verdict of not guilty by reason of insanity, in which case the respondent would have been detained in the Central Mental Hospital. The protection of the public was an appropriate factor in the exercise of the sentencing function, but it could not be extracted from that function to create a self-standing judicially created jurisdiction to impose a form of preventive detention. Whether sentencing courts should have the power to order the detention of individuals deemed to posed an immediate threat to the public, over and beyond any appropriate sentence for the crime committed, was a matter which should be addressed by the Oireachtas.

Reporter: R.F.

1 This case raises an important and difficult issue in relation to the sentencing of offenders who by reason of mental illness pose a serious risk of immediate harm to others.

2 On the 17 ^th January 2008 the Respondent, Anthony McMahon, attended St Anne's Day Hospital, Roxboro Road, Limerick, a day hospital for people suffering from psychiatric illness. He was being treated by Doctor Ananth Pullela, a consultant psychiatrist. The Respondent had been refusing injections of medication which had been prescribed for him. He was angry with the advice given to him by Dr. Pullela that it was important to continue with his medication. He also believed that his family were putting pressure on him to take the medication. Dr. Pullela however persuaded the Respondent to go to Willowdale Hospital that afternoon for the injection and Mr. McMahon left but returned to St. Anne's shortly after at around 2.45 pm requesting to see Dr. Pullela again. He found Dr. Pullela in a corridor and attacked him with a knife stabbing him on his front and right side and chest and into his right elbow. He stabbed him in total eight times. A psychologist, Dr. Burns, working in the hospital heard the commotion and came out of her office and went down the stairs. She opened the door and saw a man coming towards her holding a knife extended in his right hand. Mr McMahon stabbed her a number of times. She thought she was going to be killed. She put her hand on his shoulder and said there is no need for this and eventually he stopped. He then went in to a waiting room and when the gardaí arrived they found the Respondent in this room.

3 As previously stated Dr. Pullela suffered eight stab wounds. The accident and emergency consultant who treated him was of the view that any one of the eight wounds to the chest could have proven fatal due to the blood loss alone. The right internal mammary artery had been transected and led to considerable blood loss. Dr. Pullela had a through and through puncture wound in the middle lobe of his right lung. He had a laceration to the lobe of his liver. He also had a stab wound which had entered the abdominal cavity and resulted in a three centimetre laceration to his left diaphragm. There were 15 stab wounds incorporating internal and external stab wounds. He suffered from a life-threatening haemorrhage and now suffers from a severe form of Post Traumatic Stress Disorder with superimposed depression. The possibility of his returning to work is remote.

4 Dr. Burns for her part suffered a penetrative wound. Her injuries could have been of life threatening importance due to the site of the abdominal wound and its proximity to significant underlying viscera. Fortunately her injuries were not as serious as those suffered by Dr. Pullela. Although Dr. Burns had suffered a traumatic injury, she was nevertheless inclined to view the Respondent charitably. This was an horrific incident, and made more serious and disturbing by the evidence which emerged on the sentencing hearing.

5 The Respondent was charged with causing serious harm to Dr. Pullela contrary to s.4 of the Non Fatal Offences Against the Person Act 1997, which carries a maximum life sentence, and assault causing harm to Catherine Burns contrary to s.3 of the same Act, which has a maximum sentence of five years. The Respondent having pleaded guilty, the sentencing hearing came on before the Circuit Court in Limerick on the 12 ^th May 2009. Evidence was given that the Respondent had a previous conviction for manslaughter committed in 2001, and in 2004 had been sentenced to ten years reduced on appeal to seven years. He had been released from prison in April 2007 some eight months before this incident occurred. Evidence was also given that Mr. McMahon had expressed his intention to the gardaí to plead guilty to ensure a shorter sentence.

6 On the day after the incident in question, the Respondent was transferred to the Central Mental Hospital and was placed in the care of Dr. Paul O'Connell, a consultant psychiatrist Dr. O'Connell prepared a very detailed and helpful report for the Court and also gave evidence viva voce. The accused was, in Dr. O'Connell's opinion, fit to plead and to be tried. However, Dr. O'Connell was also of the opinion was that the Respondent satisfied the test under s.5(1) of the Criminal Law (Insanity) Act 2006 in that while he may have known the nature of the act he was committing, he did not know that what he was doing was wrong. Accordingly, had the case proceeded to a trial, a jury which accepted Dr. O'Connell's evidence could have returned the special verdict of not guilty by reason of insanity, in which case the Respondent would have been detained in the Central Mental Hospital. However, that course is not open to the sentencing Court, because of the Respondent's plea of guilty. Dr. O'Connell concluded that although there was evidence of positive response to treatment, the Respondent was at a very early stage of what might prove to be a recovery. At the time however when he wrote the report, Dr. O'Connell considered that Mr. McMahon presented a serious risk of immediate and serious harm to others in particular, but not exclusively towards family members. The phrase "where there is a serious likelihood of the person concerned causing immediate and serious harm to himself or herself or to other persons" is the language of s.3 of the Mental Health Act 2001.

7 Dr. O'Connell informed the Court that the Respondent's behaviour following his transfer from Limerick prison had been resistant to improvement until almost a year later when he was prescribed the antipsychotic drug Clozapine, a drug which can only be commenced in a hospital setting because of the need to monitor a range of possible severe side effects. Dr. O'Connell gave evidence that since receiving Clozapine in late 2008, Mr....