Court of Criminal Appeal dismisses appeal; sentencing courts cannot impose open-ended detention for future risk.

THE COURT OF CRIMINAL APPEAL

161CJA/09

O’Donnell J.

Clark J.

O’Keefe J.

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-AND-

ANTHONY MCMAHON

RESPONDENT

Judgment delivered by O’Donnell J. on the 14th day of December 2011.

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 17th 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 12th 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 anti-psychotic 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. McMahon’s mood had improved and his day was no longer marked by paranoid

delusions which were present at the time of the homicide in 2001 and probably during the two attacks in question. His opinion was

that if he continued to take Clozapine, the risk of further violence may be modified. However should he stop taking that treatment,

the risk of serious violence would dramatically escalate. Furthermore, because of the requirement to have medical staff monitor the

side effects of the drug treatment, it could not be prescribed effectively in a prison setting.

On cross-examination, Dr. O’Connell accepted that the accused man had a history of disturbed and threatening behaviour after his

release from prison in 2007 including his refusal to accept treatment in the form of injections. Several people had been threatened

including members of his family during this period and this history was the context of his anger directed against Dr. Pullela who had

advised him that the treatment was necessary. Dr. O’Connell also accepted that the medical director of the Central Mental Hospital

who had also examined the accused before he commenced on Clozapine reported that Mr. McMahon had no insight into the effect of

his actions in stabbing Dr. Pullela and Dr. Burns.

9 The very full history on Mr McMahon provided by Dr. O’Connell revealed a pattern of severely disturbed and threatening behaviour

towards the Respondent’s family, members of the Garda Síochána, and psychiatric care workers during the short period between the

time of his release from prison on the 24th April 2007 and his arrest after the attack on Dr. Pullela and Dr. Burns on the 21st January

2008. This short period included a period of inpatient care in a psychiatric unit as an involuntary patient following his release from his

sentence for manslaughter. On discharge from that inpatient care he was provided with housing and ongoing care in the community.

However his attendance for recommended treatment in the community was not regular. It is a disturbing feature of this case, that a

person so seriously disturbed as Mr. McMahon clearly was nevertheless at liberty, and that it fell to people like Dr. Pullela and Dr.

Burns to manage his behaviour in the community.

10 On these facts, the DPP invited the sentencing judge to consider that the protection of society should be considered and provided

for by the imposition of a life sentence in which the Applicant’s release would be monitored by the parole board.

11 The learned trial judge considered the matter very carefully and delivered his decision some three days later. He identified

mitigating factors in the Respondent’s plea of guilty and the charitable attitude adopted by Dr. Burns, and the Respondent’s

psychiatric illness. Aggravating factors were the serious injuries suffered by Dr. Pullela, the life changing consequences for him as a

victim, the previous killing in 2001 and the danger which Mr. McMahon posed to other persons with whom he might come into contact,

including members of his immediate family. Consequently he sentenced the accused to ten years imprisonment in respect of the

offence under s.4 and three years on the offence under s.3 to run concurrently. Significantly, the judge did not backdate the

sentences to include the period which the accused had already served in custody which by that stage amounted to some 56 weeks.

Accordingly, it was accepted by both parties to this appeal that the sentence was equivalent to a sentence of eleven and a half

years imprisonment.

12 Against that sentence, the DPP has appealed pursuant to the provisions of s.2 of the Criminal Justice Act 1993 contending that

the sentence is unduly lenient.

13 On this appeal the Director of Public Prosecutions did not argue that the sentence imposed was outside the permissible range of

sentences for what might be described, however inaccurately, as an ordinary offender who committed an offence contrary to s.4 of

the 1997 Act shortly after serving a prison sentence for manslaughter. This Court considers that the sentence imposed was at the

lower end of that spectrum, and that a heavier sentence could have been imposed. However that was not the issue argued here.

Instead the case raised an issue of principle. Here it was said there was clear evidence of danger to others and thus the Court was

entitled, indeed obliged, to impose the maximum sentence of life imprisonment. The Director of Public Prosecutions argued that if the

appropriate plea of not guilty by reason of insanity had been entered on behalf of the Respondent, he would now be detained in the

Central Mental Hospital until he was considered safe to be released, and that a similar result could, and should, be achieved by

imposing a life sentence.

14 For the Respondent it was argued that the sentencing process could not be used for what would in effect be preventive detention

and that the Mental Health Act of 2001 provided the only mechanism for the detention of someone considered a danger to the public

or indeed, themselves. Under this mechanism it may well be that a person such as Mr. McMahon would be involuntarily detained for an

extended period, but if so, that would be under the procedure created, and the safeguards imposed, by the Mental Health Act 2001.

15 This is a difficult question, particularly since the evidence of further propensity to violence is supported not just by the diagnosis

of a consultant psychiatrist, but by the circumstances of the previous conviction and indeed, those of the present offence. However,

the principle at issue here is not limited to the cases of psychiatric illness difficult though they are. The same issue can in theory arise

where courts are faced with offences committed by persons of whom it can be said with a high degree of assurance that they pose a

real and serious threat to the public – whether by reason of fanatical commitment to a violent cause, or from simple and irremediable

evil. Many countries have struggled with this issue. Some of them have enacted elaborate legislative regimes permitting a sentencing

court to impose, over and above the appropriate sentence, a form of detention until a person is no longer deemed a danger to the

public. See, for example, the United Kingdom Criminal Justice Act 2003. These matters, and more, are usefully discussed in Serious

Violent Offenders: Sentencing, Psychiatry and Law Reform, being the proceedings of a conference published under the auspices of

the Australian Institute of Criminology.

16 There is no doubt that protection of the public is an objective of the criminal law and therefore a component of sentencing. The

unlikelihood that the offender will ever re-offend is often a mitigating factor. Conversely the fact that an offender is a danger to the

public can justify a sentence towards the highest end of the appropriate scale. Here however, what is contended for is something

which is conceptually quite distinct. It is said that a court can, and perhaps must, go beyond any sentence however severe which

might be considered normally appropriate to the crime (and the criminal) and impose a life sentence, if it is available, to ensure that

an offender who on cogent evidence poses a threat to the public, is prevented by the simple fact of detention in prison from carrying

out that threat.

17 The very fact that this issue has been addressed by legislation in other jurisdictions suggests that there is a real issue which

needs to be addressed. However, other than asserting the manifest attraction of protecting the public and referring to the troubling

behaviour of the Respondent choosing to plead guilty for the express purpose of seeking a lower sentence and perhaps the implied

purpose of avoiding detention and treatment in the Central Mental Hospital pursuant to a verdict of not guilty by reason of insanity,

very little was offered as a principled guide to an area which bristles with difficulties. In particular, the Appellant was not able to point

to any Irish case in which the power now contended for was exercised. Nor indeed was the Appellant able to point to any jurisdiction

in which, in the absence of statutory provision, any such orders were made, whether as part of, or in addition to, the sentencing

process.

18 The imposition of sentence in Ireland is a matter which is largely within the discretion of the trial judge. It has been repeatedly

emphasised that the task of the sentencing court is to impose an appropriate sentence on the particular offender. The consequent

flexibility of this system is one of its distinctive features, and in many cases, one of its strengths. But it seems to stretch that

flexibility to breaking point to attempt to incorporate within the sentencing process the type of detention jurisdiction now contended

for by the Appellant.

19 First, the argument made is dependent on the happenstance that the offence which brings the offender before the Court is one

which carries a possible life sentence. If for example, the Respondent had committed a less serious offence – the assault on Dr. Burns

alone is perhaps a case in point – this argument could simply not be made. The Court would be confined to a sentence up to a

maximum of five years. This would be so even though almost by definition, exactly the same psychiatric evidence could be given and

the Respondent would pose exactly the same threat to the public. On the other hand, the mere fact that a life sentence is in theory

available (as it might be for common law offences) could mean that when an offender who posed a threat to the public committed a

relatively trivial offence he or she would nevertheless be exposed to the possibility of a life sentence on this argument. Indeed, the

possibility of a serious threat to the public can exist whether or not the individual happens to come before a criminal court for

sentencing. In this case for example, it is presumably the case that the Respondent suffered from the same illness, posed the same

threat, and required the same treatment on the day before the incident as the day after, but there was nothing that a court

exercising criminal jurisdiction could have done prior to the commission of the offence and the apprehension of the offender.

20 On the other hand, a sentence of imprisonment seems an inappropriately indirect and crude way of dealing with the offender

suffering from a serious psychiatric illness. In this case, what the Respondent clearly requires is detention in a hospital setting where

he can be treated, and all the more so because his current therapy requires medical supervision and monitoring. Furthermore it is plain

that the detention of persons on the grounds that they pose a threat to the public raises issues of compatibility with the European

Convention on Human Rights and Fundamental Freedoms, and even more clearly, the Constitution of Ireland. Indeed, it was the

perceived inadequacy of the existing regime in this regard, which gave rise to the enactment of the Mental Health Act 2001.

21 Some of the issues which arise in this type of case are usefully illustrated by the striking facts of the Australian cases of R. v Veen

(No.1) [1979] 143 CLR 458 and R. v Veen (No.2) (1988) 62 AL JR 224.

22 In R. v Veen (No.1) the accused suffered from alcohol induced brain damage and experienced uncontrollable urges leading him to

commit violent crimes. In 1975 he was charged with murder in New South Wales but was convicted of manslaughter having regard to

the defence of diminished responsibility. The trial judge having explicit regard to the needs for community protection, sentenced the

accused to life imprisonment. The accused successfully appealed to the High Court where a sentence of 12 years was substituted for

the life term. The view taken by the majority was that while the protection of the community was a factor in determining sentence, it

was not a consideration which would justify what was in substance a sentence of preventive detention. The matter did not however

end there. Veen was released after serving eight years and tragically killed another person. Once again he was charged with murder,

and found guilty of manslaughter on the same basis, and again sentenced to life imprisonment. Once again he appealed to the High

Court against sentence (R. v Veen (No.2)), but on this occasion his appeal failed. The Court pointed out that the mitigating factors

which were present in the first case such as youth and possible rehabilitation were no longer present and in this case, the fact that

there was a previous conviction rendered the second offence much more serious. Accordingly, a sentence of life imprisonment was an

appropriate sentence. In a joint judgment, Mason C.J., Brennan Dawson and Toohey J.J., expressed the principle in the following way:

“It is one thing to say that the principle of proportionality precludes the imposition of a sentence extended beyond what

is appropriate to the crime merely to protect society; it is another thing to say that the protection of society is not a

material factor in fixing an appropriate sentence. A distinction in principle is clear between an extension merely by way of

preventive detention, which is impermissible and an exercise in the sentencing discretion and having regard to the

protection of society among other factors, which is permissible.”

23 This passage expresses the law as it appears to this Court to stand in Ireland in the absence of legislation. The protection of the

public is an appropriate factor in the exercise of the sentencing function, but it cannot 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, is a matter which should be addressed in the first place by detailed legislation by the Oireachtas

after appropriate research and debate, and subject to Constitutional and Convention review if appropriate. Detention outside the

context of the criminal justice system may be justified in certain circumstances. See In re Article 26 and sections 5 and 10 of the

Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360. Similarly orders made under the Mental Health Act 2001 are orders of

detention. But in each of these cases, the jurisdiction is carefully defined by legislation.

24 In this case, it should be pointed out that there is a mechanism in place for the involuntary detention of those persons who pose a

risk to themselves or others by reason of mental illness. That is provided for explicitly by the provisions of the Mental Health Act

2001. That Act permits involuntary detention of such persons for a defined period subject to review of the decision, and if necessary

to scrutiny by a court. It was expressly submitted on behalf of the Respondent that the appropriate manner in which the future

treatment of the Respondent should be dealt with, was under the mechanism of the 2001 Act. If it was considered that at the expiry

of his sentence the Respondent continued to represent a danger to the public then, it was submitted, it was open to any competent

person, including someone from the prison psychiatric service, the prison governor or members of An Garda Síochána, to make an

application under the 2001 Act in respect of the Respondent.

25 It is certainly to be hoped that the Respondent will receive appropriate treatment for his illness, during the period of his

imprisonment. It is also to be hoped that before the time for release from imprisonment arises, that his position will be reviewed and

that if necessary application under the Mental Health Act 2001 will be made. However, a sentencing court can only sentence the

offender in respect of the offence. It cannot direct either of these results (treatment or an application under the 2001 Act), however

desirable they might appear, or seek to ensure that the regimes being created by the imposition of a sentence on the one hand, and

the Mental Health Act 2001 on the other, intersect without difficulty. Whether sentencing courts should be given additional powers in

respect of persons who for whatever reason are deemed to pose a real and serious threat to the public, is a matter which would

require the most careful review and sophisticated analysis by all the organs of government as to the mechanism by which such a

result might be achieved, the prudence of adopting such a course, and ultimately its legality. However it does not appear to this

Court, that the Court’s power to impose sentence for a criminal offence can by itself permit the Court to impose open ended

detention on the grounds of anticipated future risk of harm.

26 The appeal will be dismissed.