THE COURT OF CRIMINAL APPEAL
de Valera, J.
THE DIRECTOR OF PUBLIC PROSECUTIONS
Judgment of the Court delivered this 8th day of February 2008 by Macken, J.
This is an application for leave to appeal brought on behalf of the Applicant. The appeal is against severity of sentence only. The applicant and her sister, both in their twenties, were each charged with the murder of a Mr. Noor. He was the companion of the applicant’s mother, and she, the mother, at the time resided at an apartment in Ballybough in Dublin, where the events the subject of the trial took place. The applicant was found guilty of manslaughter by the jury at the end of the trial in October 2006 and, some weeks later in early December 2006, was sentenced to 15 years imprisonment.
The Background Facts
This application is based on the submission made on behalf of the applicant that the learned sentencing judge erred in law in sentencing the applicant without having before him certain probation and psychological reports, requested by counsel for the applicant and directed by the trial court to be made available. In particular, it is contended that, absent the reports, the learned sentencing judge could not have constructed a sentence appropriate to the applicant, and in consequence erred in law and imposed an unduly harsh sentence.
For the purposes of understanding the case made on behalf of the applicant, it is necessary to set out in some detail the background to the crime and the rather grim events in question, the events leading up to the arrest and trial of the applicant and her later history in relation to the events.
The evidence, as concerns the applicant, is that in or around the 20th March 2005, she, her sister and their mother, who had previously resided in Tallaght with her now deceased husband, had arranged to meet in Dublin City. According to the statements made by the applicant, admitted in evidence as against her, prior to leaving Tallaght, she and her sister had been drinking vodka, and met up with their mother in Dublin, who was in the company of the deceased. The applicant felt her mother was “tipsy”. The deceased purchased a bottle of vodka, towards the evening time, and the applicant’s mother purchased bottles of coca cola, and they commenced drinking the vodka and coca cola in the street. The applicant had ecstasy tablets, and she, her sister and her mother each took one, and the mother put one into the drink of the deceased, although according to some of the applicant’s statements, she or they may have had several more tablets, as she had only one left out of twelve or so when she got home. The applicant’s mother and the deceased started arguing, and the group went up O’Connell Street with the argument continuing, and into the apartment in Ballybough, which was the first occasion on which the applicant had been there.
The evidence suggests that highly inappropriate comments were made to the applicant by the deceased which disturbed her greatly. He had a grip of the applicant and the applicant’s mother started to roar at the deceased, and all appeared to be shouting, but he retained his grip around the applicant. According to the applicant’s statements the sister and the mother tried to get him to stop and he then started pushing the mother, and drew his finger across the mother’s throat. The applicant said she thought he was going to kill the mother. The mother pushed the deceased towards the bedroom and the sister picked up a Stanley blade and cut him on the throat, he staggered into the bedroom where there were bunk beds, and he more or less fell into them. The applicant thereupon picked up a hammer from the sink and hit the deceased on the head, and in the course of interviews, said she had done so “loads of times, a good few times”. He fell on the ground and she hit him again. He was stabbed several times by the sister, who eventually said he was dead. The mother, the accused and the sister were all screaming at this time, and the mother said to “get him out, get him out”. The applicant and her sister then dragged the deceased into the bathroom, where the cutting up of the body took place, each sister taking turns with the hammer and/or a knife, the applicant cutting off his penis. The mother the sister and the applicant walked to the nearby Royal Canal, where they disposed of the body parts, apart from the head. Later the mother, the sister and the applicant took the bags, the knives and the head to a park in Tallaght. The head was put in a shallow hole and the mother threw the knives into water or lake in the area. Subsequently the applicant removed the head from the park, on at least one occasion, and eventually took it to another location, in Brittas, County Dublin, hit it again with a hammer and buried it in that new location. Despite the fact that the applicant took the gardaí to these locations, the head of the deceased was never found.
Shortly after the torso and other body parts were found in the canal in late March, the torso was identified by a person who recognized the tee shirt the deceased was wearing, and the deceased was then identified. In August 2005, after enquiries were commenced which involved the applicant and her mother, the applicant was interviewed but she denied any knowledge of the events. A short time later again she contacted the gardaí voluntarily, and effectively confessed or admitted her role.
The reason for setting out the above, extremely grim details, is because of the nature of the application which is now made, and which forms the basis for the grounds raised for leave to appeal against severity of sentence. During the course of the sentencing hearing, the evidence of the gardaí was that the applicant had been of considerable assistance to them in taking them to places where events took place, including where at the canal bank the body was put into the water, how the events unfolded, who – according to the applicant - took part in the killing of the deceased, how his body was dismembered, her role (and the roles of others) in that, and in giving information concerning the sports bags, the disposal and replacement of these, the disposal of the head, and so forth. The garda witness also gave evidence that the applicant was very remorseful of her role in the events, from the commencement of her voluntary interaction with them, that she was extremely distressed about the events, had difficulty sleeping at night, her children had suffered considerable violence at the hands of their father, her then partner, she had at the time three rather young children to whom she was devoted, and several other matters frequently exposed or explored in the course of sentencing hearings. All these matters are ones which counsel for the applicant says would have been the subject of the requested reports.
At the end of the jury trial, the sentencing hearing was adjourned. It is agreed between the parties that this was on the basis that the applicant’s legal team had requested that the trial judge might direct that certain psychological and probation reports be secured prior to sentencing. The court directed such reports to be made available, and in the usual way, the learned sentencing judge thereupon adjourned the sentencing hearing. The matter then came on for hearing on the adjourned date. According to counsel for the applicant it would appear her legal advisors were of the view that an application for an adjournment would be made on behalf of the respondent, apparently for the purposes of securing the attendance of a member of the victim’s family, who would have to travel from Africa. It is said further, on behalf of the applicant, that it is not unusual for a probation officer to be in touch with the gardaí involved in the case with a view to ascertaining the up to date position as to a likely hearing date for sentencing.
In the present case, it is evident from a report of a probation officer furnished to the learned sentencing judge on the adjourned date, and to this court, that several visits, probably three in all, had been made by the probation officer to the prison where the applicant was being held with a view to interviewing her, but that on the first two occasions it had not been possible to carry out any useful interview due to the applicant being in some distress. On the third occasion, so far as can be gleaned from the material available, the interview was held in a satisfactory manner. However, a full report was not concluded (nor perhaps even embarked upon) in a manner appropriate or sufficient to be presented to the sentencing judge on that adjourned date, due to the belief of the probation officer that the sentencing hearing would be adjourned. Before this court there was no indication as to whether or not any psychological report had been sought or secured, and none appears to have been before the sentencing judge.
The sentencing hearing proceeded with the report, such as it was, of the probation officer to hand, and although counsel for the applicant indicated that he was unhappy with the absence of a full report and would prefer if the hearing were adjourned in the circumstances, he did not formally apply for an adjournment. The existing report did not explain in any sufficient detail the results of any interview, and reached no conclusions and did not express any view on the condition of the applicant, nor on her background in any detail, nor as to her family or other history, or her then condition – if this required mention - nor did it seek to suggest or make any recommendations or reach any findings from the point of view of the effects on her of the grim events she had been involved in, nor as to her future.
The learned sentencing judge proceeded to sentence the applicant, indicating that he does not in general adjourn such hearings indefinitely. Having considered the report, such as it was, and having regard to several matters properly taken into account by him for the purposes of sentence, such as the applicant’s prior good behaviour, her assistance to the gardaí, her remorse and so forth, as well as the seriousness of the crime, he sentenced the applicant to 15 years. It is not necessary at this stage to set out in detail the approach taken by the sentencing judge to the construction of the sentence.
Counsel for the applicant submits that it is a fundamental right of the applicant to have before the sentencing judge reports from a probation officer, and/or from psychologists or psychiatrists or others skilled in such matters, which may be considered by her advisers to be appropriate to have before the court imposing sentence, and referring to matters peculiar to the applicant, such as the existence of young children in her care, the possibility of the suspension of some future part of the sentence, her remorse and how the crime had affected her, and other relevant information. He contends that, given he had requested, on behalf of the applicant, that such reports from a psychologist and a probation officer be directed to be available prior to sentencing, her right to a fair trial - including her right to a fair sentence hearing which is an integral part of the trial - had been unlawfully impinged upon. The learned sentencing judge could not lawfully, in such circumstances construct a sentence which was tailored, not simply to the crime, however serious this was, but also to this particular applicant, being obliged, on well established case law, to have regard, inter alia, to the personal circumstances of the person being sentenced. The learned sentencing judge had, he argued, committed an error in principle in proceeding with the sentence hearing in the absence of such reports.
Counsel for the respondent, on the contrary, submits that it is clear from the sentence hearing as recorded in the transcript that the learned sentencing judge took into account all matters which were germane to the issue of sentencing. Further he argues that it is not possible to say there had been any error in principle on the part of the sentencing judge, since the sentence imposed, taking into account all the matters which had been considered by the sentencing judge, might not have been any different had such reports been before him.
The conclusion of the court is as follows. It is not a fundamental principle of law, as contended for by counsel for the applicant, that in each and every case in which an accused seeks to do so, the sentence hearing must be adjourned to facilitate the provision of such reports as an accused wishes to have available. That right must at all times depend on the case and on its particular features, factors well appreciated by sentencing judges, including the sentencing judge in the present case. That said, however, there are cases in which it is undoubtedly true that the crime is of such a nature and the convicted person is of such a background, or of such characteristics, traits or personal disposition, apparent from the trial itself or from evidence given in that regard and including those arising from the events leading to the trial, that it would be both inappropriate, and legally improper, to proceed with the sentencing of an accused, without relevant report(s) being available, and ordinarily available in good time, for the sentencing hearing. In the opinion of this Court, this is such a case, notwithstanding this court’s acceptance of a judge’s proper desire to bring finality to a case.
It is not necessary to lay down fixed or rigid rules as to when such reports are appropriate, and if not available for good reason, when a sentencing hearing should not proceed in their absence. In the present case there are several reasons why, in order to do justice to the accused in constructing an appropriate sentence, the hearing ought to have proceeded only upon the receipt of the reports which had been directed to be made available. Firstly, the learned sentencing judge had agreed, at the request of counsel for the applicant, to adjourn the matter pending receipt of reports from the probation services, and from a psychologist. It must be assumed therefore that the learned sentencing judge accepted it was appropriate or desirable to have these before sentence was imposed. Secondly, and while noting that the report, at least a full report arising from what was apparently a successful interview with the applicant, ought to have been before the learned sentencing judge on the relevant day (instead of the rather short letter indicating that it would be helpful to have an adjournment to provide such a report), it seems clear that its absence was due overwhelmingly to the erroneous belief on the part of its author that an application would be made on the part of the prosecution to adjourn the sentencing hearing to facilitate a victim impact statement being made available. Even if the belief was misguided as to whether such an application, if made, would be acceded to, the belief itself appears to have been genuinely held. The absence of the report was not due to mala fides on the part of the person who would have prepared it, nor to any deliberate act on the part of the applicant. Thirdly, having regard to the extremely unusual case, its background and its seriousness, the applicant’s background and her involvement in the death of the deceased and its immediate aftermath, it is likely that such a report(s) would address matters particularly germane to sentencing. Finally, it might be considered especially important to have such a report(s) if the sentencing judge, as here, envisaged imposing a lengthy sentence.
As to the argument of Mr. O’Connell, Senior Counsel for the respondent, that it is not possible to say, in the absence of such a report, that the sentence was unduly severe, that is true in logic. But that submission does not resolve the issue, because the true issue is whether, in this particular case, having regard to the particular circumstances of the crime and the personal circumstances of the applicant, she ought to have been entitled to have before the court reports which were not before the court due to no deliberate fault on her part, and whether, in the absence of such a report(s), the court could construct a lawfully appropriate sentence.
In light of the severity of the crime, its nature, and the evidence tendered by gardaí at the sentencing hearing as to the particular circumstances of the applicant, this court concludes that it would not be possible in this case to have full regard for the established principles of sentencing, without the reports sought to be procured on behalf of the applicant. In that sense, and in that sense only, the learned sentencing judge erred in law.
The court refrains at this time from passing any comment on whether the sentence actually imposed is or is not unduly severe, or on the question as to whether any part of the custodial sentence should or should not have been suspended. It is both inappropriate and impossible to reach a conclusion on these matters without having the benefit of the above referred to reports. This court, now being the sentencing court, notes that both psychological and probation reports were to be made available, and that, peculiarly, only a probation report is referred to in the sentence hearing, it being clear this was the only report available. Since both were sought, on the application of counsel for the applicant, both should now be procured and made available to this court as soon as possible.
In the circumstances the court will adjourn this application for leave to appeal pending receipt of the report(s). This court will then determine the arguments on severity of sentence in light of the reports to be furnished, and will hear counsel as to the appropriate time within which they can be made available.