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Crown Court for Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Crown Court for Northern Ireland Decisions >> King, R v [2009] NICC 17 (26 February 2009) URL: http://www.bailii.org/nie/cases/NICC/2009/17.html Cite as: [2009] NICC 17 |
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Ref: HAR7383
HART J
[1] The defendant has pleaded guilty to the attempted murder of Darren Couser on 6 June 2007. When arraigned on 18 April 2008 she pleaded not guilty to attempted murder and to a further count of malicious wounding with intent, contrary to s. 18 of the Offences Against The Person Act 1861. However, on the morning of her trial on 19 January 2009 she asked to be re-arraigned and pleaded guilty to the charge of attempted murder, and the charge contrary to s. 18 of the Offences Against The Person Act was ordered to lie on the file, not to be proceeded with without leave of the Crown Court or the Court of Appeal. [2] The defendant and Darren Couser met over the internet. She lived in England and came to Northern Ireland to live with him at 10 Ards Drive, Monkstown. He worked as a hotel porter at the time but the defendant did not work, and it appears that the relationship between them became tense and there were a number of arguments. On the afternoon of Wednesday 6 June 2007 there was another argument about the defendant not working, and Mr Couser eventually went to his bedroom where he lay down on the bed. The defendant followed him into the bedroom and the argument continued. He described how he tried to push past her, whereupon she pushed him back onto the bed. I should say that although the defendant is not very tall she is very heavily built and appears to be a powerful woman. She then grabbed a nearby tie, wrapped both ends of the tie around both hands, and pushed the tie down hard across Mr Couser's neck and he passed out. When he came round he found that he was only wearing his boxer shorts although he had been wearing jeans and a shirt when he lay down on the bed. Shortly afterwards he opened the door to find police and ambulance personnel at the door. Mr McCrory QC (who appeared on behalf of the defendant with Mr Barlow) said that his client explained that during these events Mr Couser urinated and so she removed his trousers. [3] The police and ambulance personnel answered a 999 call from the defendant who told the ambulance controller that she found Mr Couser on the bed with a knife in his hand, that she had taken the knife from him and that blood was coming from his mouth. [4] On the arrival of the police and ambulance personnel the defendant told Constable Scott that she had come home and found Mr Couser hanging from a wardrobe. She showed Constable Scott a text on her mobile phone she said had been sent by Mr Couser which said to her "come back, come back or I'll kill myself" and that this had been sent at 12.45 that day. Mr Terence Mooney QC (who appeared for the prosecution with Mrs McKay) said that police investigations established that the defendant, who had access to Mr Couser's mobile phone, had sent this message to herself in an effort to mislead the police. [5] The defendant then told Constable Scott that after she had got the defendant down from his hanging position by untying the tie from which he was hanging with her teeth, Mr Couser as she put it was all fluffy and grabbed the knife but she was able to take the knife from him. [6] Mr Couser was admitted to hospital in a very confused condition. Staff Nurse Kearney spoke to him the next morning and asked him if he knew where he was, and by this time he understood that he was in the Royal Victoria Hospital. Her statement continues:"I asked him if he knew why he was here and he said, 'Because my girl tried to slash me.' I was shocked by this and I asked the question again. He again said that, 'My girlfriend took a knife to me. Look at the marks on my hand.' I asked him if he was sure and did he understand what it meant by making these allegations and what did he do. He said, 'There was nothing I could do because she tried to strangle me with a tie.' I asked him if he wanted to take this allegation further and he said, 'Something has to be done. She's a psycho'."[7] Nurse Kearney then reported the matter and the police were contacted. The defendant was arrested and questioned. During her first three interviews she maintained that she had gone out for a walk, and when returned she found Mr Couser hanging from the wardrobe by a tie which she then untied. Although this account was queried by the police, she maintained it throughout the three interviews. At the end of the third interview her solicitor invited her to take the opportunity to say whether she was, for example, attacked by Mr Couser with a knife as she alleged, and whether she had retaliated with the tie, and she denied that she had acted in self-defence. [8] She was interviewed again the next day, and in the fourth interview at 16.42 on 8 June advanced a different version. She said that after the row had taken place Mr Couser followed her into the bedroom, punched her on the belly and arms and then came at her with a knife. She panicked, took a tie from the door handle and put it round his neck. She alleged that Mr Couser started punching her on the head and face and while he was punching her she pulled the tie and he stopped punching her. She maintained this version of events throughout the remainder of the interview, saying at page 79 that she wanted to scare him. [9] In her defence statement the defendant reiterated her claim that she was acting in self-defence, and when arraigned as already stated pleaded not guilty to both counts. [10] On 8 June Detective Constable Cummings showed photographs of the injuries to Mr Couser's neck to Professor Crane, the State Pathologist for Northern Ireland. In his report Professor Crane stated that:
"The photograph showed –
(i) A broad indistinct band of bruising roughly horizontally across the front and left side of the neck.
(ii) Some streaky linear bruising crossing the back of the neck.
(iii) Petechial haemorrhages in the lower eyelids of both eyes and possibly in the upper eyelids.
(iv) Faint subconjunctival haemorrhage over the right eyeball.
(v) A linear abrasion on the back of the left hand and some bloodstaining on the back of the right hand.
The injury to the neck is consistent with the application of a ligature to the neck and with sufficient force to obstruct or partially obstruct the venous return to the head, thereby causing the formation of pinhead sized haemorrhages to form in the skin of the eyelids. The horizontal nature of the mark is not that associated with suspension ie. in hanging where the weight or partial weight of the victim causes the ligature to tighten. In such circumstances the mark is typically seen as an inverted V-shaped mark rising to the point of suspension.
If as is suggested that this man had been fully suspended off the ground for a period of 4-5 minutes then death would almost certainly have occurred due to obstruction to breathing and interference with the flow of blood to and from the head.
It is my opinion that the mark represents an attempt at ligature strangulation being effected by another person. Had the pressure on the neck been sustained then unconsciousness and death would have occurred, probably after a period of several minutes.
There are no finger marks, nail marks or teeth marks apparent on the neck such as might be expected if fingers or teeth were being used to untie the ligature."[11] It is clear from Professor Crane's account of the nature of the injuries that this was a determined attack upon Mr Couser, and one which could well have resulted in his death had the defendant not desisted from her attack, as Mr Mooney QC accepted she must have done before she rang 999. This attack undoubtedly endangered his life, as is apparent not only from Professor Crane's account, but from the remarks of Doctor Nicholls who stated in his statement of 23 July 2007:
"He had been found at home, hanging from a wardrobe door by his neck tie. At that time he was deeply unconscious and needed emergency treatment by the ambulance crew. On arrival at the hospital his condition had improved a lot, although he was drowsy and finding it difficult to talk. He had ligature marks on the neck, subconjunctival bleeds in the sides of both eyes, and blood spots (petechiae) on his face and mouth, all consistent with the history of oxygen starvation (asphyxia). No other injuries were noted. A CT scan of head and neck showed only mild changes of lack of oxygen to the brain. By the following day, when I saw him, he had fully recovered and was allowed home at 2.13 pm on 7 June 2007."[12] I have been provided with three reports on the defendant by Dr Vieweg, a consultant psychiatrist at St James' Hospital, Portsmouth. It appears that the defendant has had a number of unsatisfactory relationships with men other than that with Mr Couser. At the time Dr Vieweg interviewed her she told him that she was 18 weeks pregnant and was living with a new partner in Newbury, Berkshire, but she had obtained an injunction against a previous partner who was the father of the unborn child. However, in his third report of 17 February 2009 he records that she told him that this was found to be a phantom pregnancy and the relationship ended in August 2008. The defendant, who is 21, had therefore been in three different relationships in less than a year. [13] Dr Vieweg has diagnosed her to be suffering from Borderline Personality Disorder characterised by
• Chronic feelings of emptiness
• Low mood
• Repeated chronic self-harm to relieve unpleasant feelings, as well as seeking to kill herself on occasions
• A history of volatile rapidly changing and unstable relationships and emotional instability.
[14] Whilst Dr Vieweg found that there was no evidence of mental illness at the time of the offence and considered her fit to plead, in his opinion there was a high likelihood that she will become acutely distressed and may become dissociate (that is cut herself off and appear blank). In addition he considered there was a high likelihood that her mental state will deteriorate if she is placed in custody and that self-harming behaviour which has been apparent in the past will increase during court proceedings. It was his opinion that a psychiatric assessment would be necessary if she received a custodial sentence. In his most recent report he confirmed that diagnosis, which is that "she does not have a serious or enduring mental illness", and cautioned that "There is a risk that she may take overdoses in the future and if this occurs her mental state should be reassessed". [15] I have been provided with a victim impact report dated 4 February 2009 in relation to the effect of this attack upon Mr Couser prepared by Dr Judith O'Neill, a consultant psychiatrist. She describes the effect of the events upon Mr Couser, and how he has developed feelings of mistrust, a degree of social isolation and reduced self-confidence, as well as some re-living experiences in the form of flashbacks and dreams, particularly in the period leading up to the trial. She concludes that "His symptoms are primarily those of anxiety, particularly social anxiety; and some post traumatic symptomology". She also records that he found that he was unable to work for a considerable period after the attack, and so lost his job. Although he regained employment he has not been able to remain in constant employment, and she concludes her report by observing"It therefore seems that the incident has had a significant occupational and financial, as well as emotional, impact on Darren Couser".
[16] A pre-sentence report has been prepared on the defendant by a probation officer in Hampshire where the defendant is living. Although very detailed, the report does not add significantly to the description by Dr Vieweg of the defendant's background, or the account of the events relating to the charge, although the writer underlines the risk of self harm by the defendant if she receives a custodial sentence. Understandably the report refers to the sentencing framework in England which is largely the same as that which now applies in Northern Ireland, but does not apply to this case because this offence was committed before the new law came into effect here. Nevertheless, the analysis that the defendant presents a "high risk of harm to the public, in particular, a high risk of 'significant harm' to males, and known adults in this case Mr Darren Couser" is relevant. [17] The first aggravating feature of the case is that this was a determined attack upon him which placed Mr Couser's life in real and immediate danger.
A further aggravating feature is that it has had a significant effect upon him.
[18] There are a number of mitigating features of the case.
(i) The defendant's plea of guilty, although as this was only entered on the morning of the trial the credit to be allowed for her plea is significantly less than it would have been if it had been entered at an earlier opportunity.
(ii) She has a clear record.
(iii) It is apparent from Dr Vieweg's reports that she has had a very troubled and unhappy upbringing, as well as a significant physical disability in the shape of a club foot. In particular there have been a number of instances where she has engaged in self harming.
(iv) The defendant must have relented and called the ambulance in an effort to save the defendant's life.
(v) The attack was impulsive but not pre-meditated.
[19] Cases of attempted murder can vary widely in their gravity depending upon the nature of the attempt and any injuries sustained by the victim; nevertheless, as the defendant has accepted by her plea in the present case, it was her intention to murder Mr Couser by attempting to strangle him with a tie. Mr Mooney reminded me that in R v Northcott I considered the range of sentences in attempted murder cases and which appears to extend from six years on a plea of guilty, see R v Hough [2001] 1 Cr. App. R. (S) 261, to twenty years on conviction after a plea of not guilty, see R v Edwards [2003] NICA 11. As Newman J observed in R v Sandasi [2005] 2 Cr. App. R. (S) 92 cases of attempted murder arising out of domestic conflicts indicate"That, on a conviction after a trial, a sentence of 15 or 16 years would normally mark the top end of the range. As a result sentences of ten years are commonly imposed on pleas of guilty."
This was a case of attempted murder arising out of a domestic conflict and I propose to treat it as such.
[20] As the sentence must inevitably exceed twelve months imprisonment I am obliged by statute to consider whether a custody probation order is appropriate in this case. Understandably, as that option is not available in England the pre-sentence report does not consider it. However, given the psychiatric problems this lady has I consider that a probation element in the sentence could play a useful purpose, although as she is a native of Hampshire and intends return to England upon her release the supervision and enforcement of such an order would be difficult, but not impossible, outside this jurisdiction. Mr McCrory said that enquiries he had made from the Probation Board for Northern Ireland confirmed that it was possible to transfer such an order to England, and this has since been confirmed in an addendum pre-sentence report from PBNI. The report refers to supervision and monitoring of the defendant upon her release, and, provided she consents, I therefore propose to impose a probation order upon her release that will require the defendant "to comply with any requirement imposed by her probation officer, and in particular to participate in any courses and/or medical treatment she may be directed to attend or to undertake". [21] Taking all of the relevant circumstances into account, and in particular the defendant's unhappy background and the risk of her self harming in the future, I sentence her to seven years' imprisonment, to be followed by one year's probation. The sentence would otherwise have been eight years' imprisonment.
