R v Oakley  EWCA Crim 2419
Sentencing for diminished responsibility manslaughter. [Summary required.]
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Until the transcript appears on Bailii, it will be reproduced below (Crown Copyright).
Neutral Citation Number:  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©
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  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  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.