View source for R v Oakley (2010) EWCA Crim 2419

Sentencing for diminished responsibility manslaughter.

==Judgment==
Until the transcript appears on Bailii, it will be reproduced below (Crown Copyright).

<pre>
Neutral Citation Number: [2010] EWCA Crim 2419


No: 201000391/A9


IN THE COURT OF APPEAL


CRIMINAL DIVISION



                            Royal Courts of Justice




                                     Strand




                                London, WC2A 2LL




                           Wednesday, 6 October 2009









                                  B e f o r e:




                             LORD JUSTICE RICHARDS




                          MR JUSTICE GRIFFITH WILLIAMS









                            HIS HONOUR JUDGE ROOK QC




         (Sitting as a Judge of the Court of Appeal Criminal Division)









                                  R E G I N A




                                       v




                               KARL LEWIS OAKLEY














              Computer Aided Transcript of the Stenograph Notes of




                         WordWave International Limited




                        A Merrill Communications Company




                       165 Fleet Street  London EC4A 2DY




                  Tel No: 020 7404 1400 Fax No: 020 7404 1424




                   (Official Shorthand Writers to the Court)



Mr P Shears QC and Mr K Molloy appeared on behalf of the Appellant


Mr J Coffey QC and Miss B Cripps appeared on behalf of the Crown








                                J U D G M E N T




                           (As approved by the Court)









                                Crown copyright©
</pre>


1.     LORD JUSTICE RICHARDS:  On 1 September 2009 at Luton Crown Court the
appellant, on an indictment for murder, pleaded guilty to the lesser alternative
offence of manslaughter.  On 18 December he was sentenced by His Honour Judge
Bevan QC to a discretionary sentence of life imprisonment.  The period of 15
years was specified as the minimum term under section 82A of the Powers of
Criminal Courts (Sentencing) Act 2000, less 300 days spent in custody on remand.



2.     He now appeals against sentence by leave of the single judge.


3.     The deceased, a young woman by the name of Taylor Burrows, was a
sixth‑form student and part‑time shop assistant who lived with her mother in
Luton.  She met the appellant, who was five years her senior, in the spring of
2008 and began a relationship with him which continued for about ten months.
Initially his relationship with both the deceased and her mother was good.
However, when the deceased's college performance began to suffer her mother
limited the time she spent with him.  By September 2009 the mother had excluded
him from the family home; nonetheless the relationship continued.  The mother
had concerns about the appellant's temper and had become involved in a number of
verbal disputes with him.  She was also concerned that he monopolised the
deceased's time, telephoning her constantly and following her when she was out
with friends.  The deceased also confided in her friends that she was becoming
concerned at his behaviour.  On one occasion a friend by the name of Chardonnay
Beech witnessed him threaten and push the deceased simply because he had not
been able to get hold of her on the telephone.


4.     In February 2009, about a week before she was killed, the deceased
decided to end relationship.  The appellant would not accept that the
relationship had ended and he had to be formally warned by the police about his
ensuing behaviour.


5.     On 16 February there occurred an incident during which he firstly stole a
bag of clothes from the deceased's house, and then, when returning the bag to
her, he held a knife to her throat and threatened to kill her and then kill
himself.  The police were informed of the incident but the deceased provided
them with a sanitised version of events and the appellant was simply warned
about his behaviour.  He continued to make attempts to contact the deceased via
friends and neighbours.


6.     On 17 February he travelled with his mother to Brighton where the
deceased had gone to visit her father.  The appellant's mother contacted the
deceased's father in the hope of persuading the deceased to give the
relationship another chance.


7.     On 20 February the appellant's mother reported to the police that her son
was going mad and was possibly in possession of a knife.  As a precautionary
measure he was taken to hospital for an assessment.  A psychiatric nurse found
him to be rational and coherent but with an agitated and angry mood.  He was not
exhibiting signs of clinical mental illness but was not coping well with the
possible end of his relationship.  He was discharged from hospital with a plan
to refer him to his GP.


8.     Later that same morning his mother again called the police with concerns
about his behaviour.  Officers attended and advised him to leave his mother's
address.


9.     On 21 February the deceased, who was now back at home in Luton, was at
work in Sainsbury's.  There her neighbour, Claire Walker, witnessed the
appellant standing next to her and trying to take hold of her arm.  The deceased
kept telling him to go away.  Miss Walker intervened and led him away, but, as
she did so, he headbutted a wall and started crying.  Security were called and
he was told to leave the store.  The deceased told Miss Walker that she did not
think the appellant would give up.  She stated that he was scaring her.  At
about 2.30 pm that day the appellant was again seen in the store's staff area by
a member of staff.  The police were called but he had left by the time they
arrived.


10.     As her mother was not at home the deceased asked to be taken to the home
of her friend, Chardonnay.  Chardonnay lived with her parents and the family
were very close with the deceased's family.  Chardonnay's mother was aware of
the problems that existed with the appellant and she agreed that the deceased
could stay with them.


11.     At 6.30 pm the appellant called at the house and asked to talk to the
deceased.  He was told by Chardonnay's parents that he could not and he was told
to leave.  Chardonnay also came downstairs and tried to persuade him to leave,
informing him that the deceased knew he was there and did not wish to speak with
him.  The appellant moved into the house and closed the door behind him.  He
refused to leave despite being repeatedly asked to do so.  The deceased came
down the stairs and told him he should go.  Both of them were calm.


12.     Mr Beech told him if he did not leave the police would be called.  The
appellant made no attempt to leave but edged his way towards the kitchen.  Mr
Beech therefore went to the telephone in the living room.  The appellant then
moved quickly to the kitchen and calmly came out holding a kitchen knife.  He
went straight to the deceased and stabbed her in a downward motion.  She
immediately fell to the floor.  He bent over her, stabbing her repeatedly.
Chardonnay and her mother both tried without success to pull him off.  The
appellant carried on stabbing the deceased, without any display of emotion.  It
appeared to Mrs Beech that it was his intention to kill her.


13.     Mr Beech pulled his family away from the appellant who then left the
house.  The police arrived at the house.  The deceased had gone into cardiac
arrest, was taken to hospital but was pronounced dead not long afterwards.  The
cause of death was shock and haemorrhage resulting from the stab wounds to the
chest.  She had suffered a total of 34 stab wounds, together with eight minor
wounds, distributed across her face, head, arms and the front and back of her
torso.  The wounds were consistent with a frenzied dynamic assault, with the use
of severe force to inflict them.


14.     The appellant was arrested one and a half miles from the scene of the
incident.  He was covered in mud and blood.  Upon being arrested and cautioned,
he replied "What murder?" He was shaking and began crying.  He then said, "I am
so, so sorry."  He was admitted to hospital where he underwent a mental health
assessment.  He provided the nurse with an obsessively detailed history of
recent events but was only able to say of the killing itself that he went into a
panic and then left the house.  He appeared to have no detailed recollection of
the event.  At that time a nurse found no evidence of mental illness.  He
appeared to be cognitively intact, highly intelligent with no evidence of
thought disorder or psychosis.  He presented as calm, controlled and almost
emotionally detached.  He was deemed to be fit for detention and questioning.


15.     It is relevant to note that the appellant, who is 24 years old, had a
criminal record which included a caution in 2006 for harassment and convictions
in 2007 for assault occasioning actual bodily harm and possession of an
offensive weapon.  Those matters related to incidents involving other former
girlfriends.  It was observed in the pre‑sentence report that there was a clear
pattern of similar behaviour in his history following the end of a relationship.



16.     There was agreement among the psychiatric experts that the appellant
suffered from an abnormality of the mind within section 2(1) of the Homicide Act
1957 which substantially impaired his mental responsibility for his act in doing
the killing.  For example, in a report of 7 August 2009 Dr Samuels, the
principal expert instructed by the Crown, stated as follows:


"In my opinion, Mr Oakley's developmental and personal history has resulted in
dysfunctional deeply ingrained and enduring behaviour patterns.  These
behaviours represent significant deviations from the way the average individual
perceives, thinks and relates to others.  In my opinion, it demonstrates a
severe disturbance in attitude and behaviour which affects Mr Oakley's
functioning, thinking and relating to others.  This behaviour is pervasive,
longstanding and began manifesting during his late childhood and has continued
into adulthood.


I am therefore of the opinion that Mr Oakley is suffering with an Emotionally
Unstable Personality Disorder, particularly the impulsive subtype. This disorder
is characterised by a marked the tendency to act impulsively without
consideration of consequences, together with mood instability.   ... The
predominant characteristics of this subtype are emotional instability and a lack
of impulse control.  Outbursts of violence or threatening behaviour are common
particularly in response to criticism by others.


In addition, in my opinion Mr Oakley also demonstrates characteristics of the
borderline subtype which includes a disturbed self‑image, chronic feelings of
emptiness, intense and unstable relationships with repeated emotional crises and
excessive efforts to avoid abandonment when these regulations are in jeopardy."


17.     In an addendum report of 25 August Dr Samuels added:


"... Mr Oakley's condition has been pervasive and  maladaptive and resulted in a
significant number of incidents prior to the alleged offence which suggests that
Mr Oakley's thinking, appraisal of situations and resultant behaviour reflects a
'substantial impairment' in his response to these."


18.     He then set out numerous such situations, observing in conclusion that
the incidents in question reflected the appellant's marked tendency to intense
anger and to act impulsively without consideration of the consequences.


19.     All that is indicative of why the Crown accepted a plea of guilty to
manslaughter.


20.     By the time it came to sentencing the judge had before him the reports
of five experts in the field.  Two of them also gave oral evidence.  They were
Dr Samuels and Dr Alcock, the expert instructed by the defence.  The options
under consideration were custody, a hospital order under section 37 of the
Mental Health Act 1983 coupled with a restriction order under section 41, an
interim hospital order under section 38 of the 1983 Act, or a hybrid order under
section 45A of that Act.


21.     In the event, for reasons that we will explain, the issue of a hospital
order has fallen away, but in order to explain the judge's approach to
sentencing it is relevant to note that before him there was a real issue in
particular as to whether there should be an interim hospital order under section
38.  There was a body of evidence from the experts relevant to that and the
other hospital order issues.


22.     Thus, Dr Samuels, who is the forensic gatekeeper for the Eastern Region,
made a report in which he indicated that the appellant's risk of future violence
remained high.  He was concerned about the adequacy of a section 37 hospital
order and preferred a custodial disposal.  He gave oral evidence in support of
that view.  He had also referred the case to a Dr Morris, who also counselled
against a purely medical disposal.  The defence expert, Dr Alcock, by contrast,
was of the view that the most appropriate immediate disposal was by way of a
section 38 interim hospital order to assess the appellant's suitability for
long‑term psychological treatment.


23.     In sentencing, the judge referred to the views that had been expressed
before him by the various experts and continued as follows:


"I have to make a judgment not only on his condition ‑‑ namely, the personality
disorder ‑‑ but looking at the whole picture.  This is not a case, as so often
is the case in diminished responsibility, of a psychiatric disorder such as
schizophrenia or depression which takes over a person's personality or behaviour
and causes him or her to act irrationality.  This offence is a product ‑‑ to use
Dr Samuels's words, of his core personality ingrained either in his genes or in
his chaotic and abusive upbringing, or both.  As Dr Samuels put it, he cannot be
treated with pills, save for any peripheral depressive traits.  He knew exactly
what he wanted to do and why.  He did it and he then fled the scene afterwards
knowing what he had done."


24.     The judge then said that the views of the family of the deceased about a
delay of another year, which a section 38 order would involve, was a
consideration, though only a minor consideration.


25.     He went on to say that he was mindful of the case of Wood [2009] EWCA
Crim 651, in which the court gave guidance on the approach to sentencing in
cases of diminished responsibility.  We note that the Court in Wood, echoing
what had been said previously in Kehoe [2007] Crim LR 728, stated at paragraph
18 that:


"... the mere fact that the case is one of manslaughter on the grounds of
diminished responsibility does not preclude a sentence of imprisonment for life.
In reality this sentence will be rare in such cases, usually reserved for
particularly grave cases, where the defendant's responsibility for his actions,
although diminished, remains high."


26.     In Wood the Court upheld the life sentence on the particular facts of
the case, holding that it was a case at the highest level of seriousness for an
offence of the kind.  A striking feature of the offence was that the victim was
killed in the course of a prolonged, murderous and unprovoked attack of repeated
and utmost ferocity.  The appellant's culpability was diminished but was very
far from extinguished and his level of responsibility for his actions merited
examination in the light of his immediate activities before the attack and after
it was concluded, and his insight into the need to do what could be done to
cover up the fact of the killing and his involvement in this.  There was
evidence of some planning or preparation, and after the attack he took steps to
hinder the finding of the deceased's body and to obstruct access to the room
where the body was located.  The Court said that the level of the appellant's
responsibility in Wood was just, but only just, sufficiently diminished for the
purposes of section 2 of the 1957 Act.  A very substantial element of mental
responsibility remained.  Further, the risk represented by the appellant had not
diminished.  The court could not satisfied that if and when released he would
not return to his excessive and dangerous drinking habits which lay at the root
of the offence.  Having referred to all such matters, the court concluded that a
discretionary life sentence was appropriate but it went on to reduce the minimum
term to one of 13 years.


27.     The judge in the present case referred to Wood as being of some
relevance both in relation to fact and law.  He then went on to state:


"This is a case where responsibility is diminished, but there are degrees of
diminishment, and the defendant's responsibility for this extraordinarily wicked
act remains considerable.


In the end, I am driven to the conclusion that the decision I have to make is a
clear‑cut one.  I am not satisfied that a section 38 order would be likely to
produce the desired outcome.  Dr Samuels, as 'gatekeeper',  accepts that he
would honour my decision, but he is against it for the reasons he gives,
supported as he is, by Dr Morris.  I am by no means certain that this is a case
where justice would merit a section 37/41 order, even if there was a real
prospect of success.  But, where the doctors differ even on that, I am in no
doubt that section 45A is not an option, and a custodial sentence, one hopes in
a therapeutic environment such as Grendon, is the only realistic and just
option."


28.     The judge went on to consider the appropriate custodial sentence,
concluding that in view of the extreme danger that the appellant would continue
to represent for a long time and the fact that this was to any objective
observer an unprovoked, deliberate and brutal killing of an innocent young girl
with an intent to kill, a life sentence was, as he put it, the only option.


29.     He then set a minimum term of 15 years, reasoning as follows.  He said
that if this were a case of murder the starting point would be 15 years.  The
aggravation constituted by the use of a knife and the extreme nature of the
killing, together with the appellant's obsessive, threatening and violent
behaviour towards past girlfriends, and for weeks before her death his treatment
of the deceased herself, would elevate the minimum term in a case of murder to
the order of 23 years.  That would be reduced by the appellant's age and other
mitigation and his plea, for which he would receive one‑sixth credit, to a
minimum term of about 18 years.  The judge made a further reduction for the fact
that this was manslaughter not murder, although he stated that it was
"manslaughter very much at the top end of the range."  In that way he came back
to the starting point of 15 years which he then set as the minimum term.


30.     Leave to appeal was granted both in relation to the issue of whether a
section 38 order should have been made and as to the particular custodial
sentence determined by the judge.


31.     Pursuant to directions of the court up‑to‑date evidence has been
provided both by Dr Samuels and Dr Alcock.  In the circumstances we need deal
with that only very briefly.  It is right to say that in his report of 31 August
2010 Dr Samuels adheres to his previous diagnosis and, whilst stating that there
are two appropriate sources of treatment for the appellant's personality
disorders, one being a hospital setting and the other within the criminal
justice setting, he adheres to the view previously expressed that the
appropriate course is that of custody rather than a hospital order.


32.     Dr Alcock in his report of 29 September continues to support a section
38 interim hospital order, but he also deals with the current position of the
appellant in prison.  He gives detailed reasons as to why he is satisfied that
the appellant's therapeutic needs are being met within the prison establishment;
the appellant is presently at HMP Swaleside.  He says that the appellant is
making positive progress within that environment.


33.     It should also be noted that Dr Samuels has informed the court that
there is a prospect of the appellant's transfer from HMP Swaleside to HMP
Grendon.  It seems to be common ground that Grendon would provide an appropriate
setting for further treatment or meeting the therapeutic needs of the appellant.



34.     In the light of that further evidence, in particular what Dr Alcock has
said about the present situation of the appellant in prison, Mr Shears QC,
opening the appeal on behalf of the appellant, informed the court that the
section 38 interim hospital order is no longer being pursued as a disposal in
this case.  Following very careful consideration, the view has been taken that,
on balance, it is in the appellant's best interests to remain where he is and
with the reasonable prospect of a transfer to HMP Grendon.  It is accepted that
that is the better course now than the appellant going to hospital.


35.     It seems to us that that decision was an entirely sensible, and, indeed,
correct decision.  We take the view that whilst it might have been open to the
sentencing judge to follow the course of making a section 38 interim hospital
order, he was, in fact, even on the material before him, entitled to decide on
the custodial option.  The further material that we have seen reinforces our
view that a custodial sentence is the appropriate disposal in this case.


36.     We can therefore concentrate on the criticisms advanced by Mr Shears of
the particular custodial sentence imposed by the judge.  Those criticisms relate
both to the imposition of a life sentence rather than a sentence of imprisonment
for public protection and to the minimum term fixed by the judge.


37.     Mr Shears accepts, as he must on the evidence before the court, that the
appellant represents at present a high risk of serious harm.  He makes, however,
a number of criticisms of the judge's reasoning and conclusion in respect of the
custodial sentence.  He says that the judge was wrong to treat the appellant's
previous conduct as an aggravating feature.  That conduct is part and parcel of
the appellant's psychiatric disorder and should be taken into account not as
aggravating the offence, but, in effect, as a factor which, together with all
the other considerations relevant to the appellant's psychiatric condition,
tends to reduce the appropriate minimum term.


38.     A further point of criticism is that the judge limited himself to
one‑sixth credit for the plea of guilty.  It is submitted that the appellant
should have been given the credit of one‑quarter as vouchsafed in the case law
as being appropriate in a case of manslaughter in circumstances such as have
arisen here.


39.     Mr Shears places great weight on what was said in paragraph 18 of the
judgment in Wood, and the quotation from Kehoe on which that passage was based,
to the effect that a life sentence should be reserved for particularly grave
cases.  He submits that the judge was wrong to treat this as a particularly
grave case warranting a life sentence.  It is said that the judge appeared to
attach insufficient weight to the finding of the experts that the appellant's
responsibility was substantially impaired due to his condition and that that
condition was a severe condition.  The submission is that this was not a case of
responsibility diminished just enough for it to be manslaughter; this was a case
where culpability was severely diminished, and the judge was wrong to conclude
that the appellant's responsibility for his acts remained considerable.


40.     In relation to Wood a further point made is that the court in that case
reduced the minimum term to one of 13 years.  Mr Shears made submissions as to
various points of distinction between this case and Wood itself, contending that
Wood had a greater number of aggravating features and warranted a higher minimum
term than is warranted by the facts of the present case.


41.     He pointed out that in Kehoe the sentence was one of imprisonment for
public protection.  He also made submissions comparing the facts of this case
with those in Kehoe, contending that there are echoes here of the sort of
difficulties that faced the appellant in Kehoe.


42.     He drew attention to the passage at page 3 of the pre‑sentence report
which reads:


"Karl Oakley expressed considerable remorse for his actions and fully
acknowledged that what he had done was absolutely unjustified.  He expressed
sorrow for the impact of his offence on the victim's family and demonstrated an
awareness of the effect this is likely to have had.  However, in spite of this,
he made comments during both interviews which focused on his perception of
wrong‑doing by others, in particular the victim and her mother."


43.     That evidences, as Mr Shears puts it, the unhappy balance that exists in
this case, but favourable points are that the appellant is capable of expressing
and has expressed remorse for his actions and is capable of gaining insight into
his actions through appropriate treatment.


44.     A further passage in the same report to which our attention is drawn
reads as follows:


"Karl Oakley's schooling was disrupted by changes in foster carers and, later by
his diagnosis with and treatment for Hodgkin's Lymphoma.  He indicated that
frequent changes of school made it difficult for him to maintain friendships
with peers.  The psychiatric reports and previous Probation Service records
document Karl Oakley's difficult and chaotic childhood; he experienced severe
physical and emotional abuse from his mother before being placed into Local
Authority Care at the age of seven.  Karl Oakley was placed with a number of
foster families and he reports that his relationships with his carers broke down
after time; often due to arguments and on one occasion he alleges he was the
victim of physical abuse by a carer.  The deficiencies in his care during his
childhood have impacted severely on his development, his attachment to others
and his enduring adult perceptions and behaviour."


45.     Taking all these matters in the round, looking at the appellant's
background and the details that are given in the various reports of the
psychiatric experts, Mr Shears submits that the picture is not one of
responsibility minimally reduced by his condition but one of a substantial
reduction of responsibility.  That is relied on as a reason why a life sentence
is inappropriate.  It is also relied on as a reason why it is submitted that the
minimum term imposed by the judge was too high.


46.     We consider, first, whether the judge was right to pass a discretionary
life sentence in this case.


47.     The court in Wood made clear that such sentences will be rare and will
be reserved for particularly grave cases, where the defendant's responsibility,
though diminished, remains high, though it is right to note that in practice the
court in that case took into account a number of factors in assessing the
seriousness of the offence and upholding the sentence of life imprisonment on
the facts of the case.


48.     In our judgment, notwithstanding the substantial impairment of
responsibility which justified the acceptance of the plea to manslaughter and
notwithstanding the various points advanced on the appellant's behalf, the judge
was entitled to treat this as a particularly grave case warranting a life
sentence.  The offence itself took place against a background of threats and
violence used by the appellant against those with whom he had been in a
relationship and who had tried to end it.  In the case of the deceased he had,
as submitted by Mr Coffey QC for the Crown, been relentless in his pursuit of
her contrary to her wishes.  He had previously threatened to kill her, putting a
knife to her throat.  He had disregarded police, her friends and her family in
persisting in his attempts to contact her.  He deliberately sought her out,
following her even to her work place and to the home where she was staying with
a friend on the occasion when she was killed.  In that house he armed himself
with a knife and engaged in a truly brutal and frenzied attack and he acted with
the intent to kill.  He was and remains assessed as dangerous and the risk of
future violence is at present high.


49.     There is no dispute that his dangerousness is such as to meet the
conditions for the imposition of a sentence of imprisonment for public
protection if a life sentence is not considered appropriate.  We are satisfied,
however, that in all the circumstances the judge was right to conclude that a
life sentence was appropriate and to pass that sentence.


50.     The remaining question concerns the minimum term.  The general process
by which the judge arrived at his final figure using the guidance applicable to
a murder case, but factoring in the additional considerations relevant to a case
of diminished responsibility, was in principle appropriate.  It is vouchsafed by
the latter part of the judgment in Wood.  We also note what was said in Wood
about the general relationship between sentences for murder and those for
manslaughter.


51.     For our part, we would not disagree with the figure of 18 years the
judge indicated would have been appropriate if the case had been one of murder.
The issue is whether he went on to make a sufficient reduction for the fact that
this was a case of diminished responsibility and for the specific matters relied
on by Mr Shears in his submissions.


52.     As to that, notwithstanding that the appellant's culpability is
sufficiently high, when taken with other factors, to warrant a life sentence, we
accept the submission that the judge set the minimum term too high.


53.     First, we accept that credit should be given in the normal way for the
plea of guilty to manslaughter and that the one‑sixth credit applicable to
murder, which was included in the judge's approach to the assessment of the
appropriate minimum term, was insufficient.  Greater credit is called for.


54.     Secondly, we accept that the judge made an insufficient allowance for
the element of diminished responsibility in this case.  It seems to us that the
expert evidence, together with the facts of the case, supports a somewhat higher
degree of impairment of responsibility than the reduction of three years allowed
for by the judge would suggest.


55.     In saying that, we take into account the point that the appellant's
conduct towards previous girlfriends is attributable to the same psychiatric
condition and that whilst the judge treated it as an aggravating factor it falls
in fact to be looked at as part and parcel of the psychiatric condition itself,
and an appropriate reflection of that should be made in setting the minimum
term.  We also bear in mind that the element of dangerousness and the need for
protection of the public is catered for by the very fact of the life sentence.



56.     Taking everything into account, we have concluded that the appropriate
minimum term in this case is one of 12 years' imprisonment.


57.     We therefore allow the appeal, but only to the extent of quashing the
minimum term set by the judge and substituting one of 12 years, less the 300
days spent in custody on remand.

==External link==
{{#bailii:(2010) EWCA Crim 2419|no}}

[[Category:Judgment available on MHLO]]

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[[Category:Transcript]]
[[Category:2010 cases]]
[[Category:Diminished responsibility cases]]