Life tariff of 13 years for murder – defendant had a lower degree of responsibility due to two psychiatric factors identified by the Defence Psychiatric Report.

  Ref: WEI8792

Judgment: approved by the Court for handing down

Delivered: 06.03.2013
(subject to editorial corrections)*    











Bill No. 12/087802





[1]        Barry Christopher Cavan, you have pleaded guilty to the murder on 15 March 2012 of David Corr and I have imposed upon you the only sentence for that offence permitted by law, namely life imprisonment.


[2]        It is now my responsibility, in accordance with the provisions of Article 5 of the Life Sentences (Northern Ireland) Order 2001, to determine the minimum term that you will be required to serve before you will first become eligible to have your case considered as to whether, and if so when, you are to be released on licence.  I make it clear however that if and when you are in the future released on licence you will for the rest of your life be liable to be recalled to prison if at any time you do not comply with the terms of your licence.


[3]        I wish further to make it clear to you and to the public that a minimum term is exactly that; it does not attract remission as a sentence of imprisonment would where a prisoner has been of good behaviour.  You will receive no remission for any part of the minimum term that I now impose and will be required to serve every day of it. I hope that, should the media report my decision, they will make that position clear.


[4]        Mr McCollum QC has outlined the circumstances of this murder and I merely summarise them for the purposes of the determination.  At 10.13 on the evening of the murder you telephoned 999 and informed the operator that the ambulance and police were needed at 4B Churchill House as you had killed someone in that flat.  You said you had stabbed him “maybe 30 or 40 times” and that he was dead. Police and ambulance teams came immediately to the flat where they found you waiting for them and they also found the deceased’s body.  When questioned after caution by police you replied:


“Basically the noise has been going on for 3-4 months from 3.00 am every morning.  I have made numerous complaints.  There is nothing justifies it, I killed him.  I went down with a knife with the intention of killing him.  I didn’t actually think I would it do it.  I said to him a few times.  He said he would stop but he didn’t and I just lost the plot …”


[5]        The reference to noise concerns the deceased’s habit of playing music loudly in his flat which lay directly below yours.  There is no doubt that you had made complaints about the noise to the deceased, to the caretaker of the flats and to the City Council Noise Pollution Office and that there had also been complaints about noise from other residents.  The deceased had in fact mentioned to his aunt that he had received a complaint from a neighbour.  It seems equally clear that you had become increasingly pre-occupied with this noise nuisance and about a month before the killing you had begun to complain to your friend “S” about it and about a fortnight beforehand you told S that you were thinking of getting a knife and stabbing the deceased.


[6]        On the day of the murder you drank about 5 litres of cider.  At around 7.00 pm you called at the deceased’s flat where he was with a friend.  It appears that at that time you had a kitchen knife in your pocket but did not then produce it.  He and a friend were going out so you arranged to call back later, ostensibly to have a drink with him.  You did call back at around 10.00 pm and while in his flat sitting on the settee beside him you began stabbing him and continued, despite his pleas and screams, to both stab and cut him.  The deceased tried to grab you and hold onto your arms before collapsing on the floor fatally wounded when you continued to stab him.  The pathologist found a total of 17 stab wounds, death being due to a stab wound to the chest, and 22 incised wounds.  Many of the incised wounds to the arms and hands were consistent with defence-type injuries indicative of the deceased having raised his arms to protect his head or by his having grasped the knife.


[7]        It is noteworthy that at 7.31 pm you had sent a text to S who was on that evening away in England saying “I’m in his flat now.  Kitchen knife in pocket …” to which S responded by telling you to get out of the deceased’s flat and back to your own flat which you did and at 7.55 pm you texted back to S saying “I’m back in [my] flat now.  He barely spoke two words.  Told him I would kill him if it happened again.  He said he would wear headphones.”  S then telephoned you urging you to see sense and he spoke to you again about an hour later at which time he felt re-assured that you would not use the knife.  However, at 10.10 pm you texted S to ask him to ring you and when he did so you told him “I’ve killed him, I went for it”.  He told you to contact the authorities and also did so himself.


[8]        The deceased was a single man of 24 who lived on his own.  He had been brought up by his mother and her sister, his aunt, until the age of 18. It is clear from their moving victim impact statements that he had a talent for art and was an accomplished and popular skateboarder who enjoyed teaching its skills to young people.  In his memory a commemorative plaque has been erected in one of the parks.  He also played the tin whistle with a well-known folk group.  At your hands he suffered a sustained, horrific and merciless attack from which you did not desist even when he had fallen incapable to the floor.  His making of noise by the playing of loud music cannot begin to explain, never mind justify, this brutal and senseless killing.


[9]        What of your own circumstances?  I have the benefit of a most detailed report from Dr Fred Browne, consultant forensic psychiatrist, and from the Probation Board Assessment Unit which together provide a wealth of information. Moreover, your counsel, Ms McDermott QC has, in the course of her detailed and well-marshalled submissions, said everything that might conceivably be urged on your behalf.  You too were 24 years old at the date of the offence and also a single man without children.  It appears that you had rather a harsh and frightening upbringing, your father being a stern disciplinarian, and that you were bullied at primary school due to a lack of prowess at games and your being rather quiet and withdrawn, probably due to your home circumstances.  On transferring to secondary school things seem to have improved somewhat although you began to drink alcohol at an early age and left school at 16 with poor GCSE results due to a lack of application.  Unfortunately no formal assessment of your intelligence has been carried out but you appeared to the probation officer to be intelligent and articulate and that coincides with my own impression on reading the papers.  On leaving school you tried various jobs including joinery, working in a concrete factory, the army, a linen factory, security and supermarket work and carpet fitting but you never seem to have stuck at anything for long.  Your one serious relationship came to an end at the age of 21 after three years.


[10]      Dr Browne has reviewed your medical notes and records which indicate that at 18 you were noted to suffer from Alcohol Dependence Syndrome and social anxiety.  Shortly thereafter you were found to be suffering from anxiety with depression.  You took a paracetamol overdose causing acute renal failure. You jumped through a window while drunk and at 20 you slashed your wrists having taken excessive drink and sleeping tablets.  Thereafter the episodes of self-harm increased in frequency with overdoses in October and November 2009 and cutting of your wrists and arms in February and June 2010.  Heavy alcohol consumption was a feature of these events.  On 18 November 2009 you were diagnosed as having alcohol problems and personality disorder and on 14 November 2010 you were noted to have Alcohol Dependence Syndrome and Dissocial Behaviour traits.  Two days later having been drinking you threatened to jump off a multi-storey car park but were talked down.  From that point throughout 2011 until January 2012 there are no entries recorded but on 30 January 2012 you were in hospital having been assaulted to the head and on 7 February you were seen at the Mater Hospital having cut yourself with a Stanley knife.  You declined to see a psychiatrist.  Mental health records appear fairly scant but in September 2009 you clearly had a history of episodic drug and alcohol abuse since your mid-teens. At that time it was noted that you might drink up to a litre of spirits and several beers a day and that in the recent past you had been drinking up to 6 litres of cider per day.  You also had a history of the sporadic use of cocaine and ecstasy and the substantive use of cannabis.  The prison medical records created following your remand in custody on this charge show that your disturbed, self-harming behaviour has continued although you self-report having obtained some benefit from Cognitive Behavioural Therapy provided in the prison.


[11]      Dr Browne considers that you suffer from a disorder of your personality with predominantly emotionally unstable and dissocial traits and that in addition you have a history of multiple drug use and Alcohol Dependence Syndrome.  He concludes that, while you were not suffering from a recognised mental condition at the time of the killing such as would reduce your culpability by reason of diminished responsibility to the offence of manslaughter, nevertheless:


“There are two main psychiatric factors that support the argument that Mr Cavan was suffering from a mental disorder or mental disability which lowered the degree of his criminal responsibility for the killing.  The first is that Mr Cavan was suffering from Alcohol Dependence Syndrome at the time of the killing.  This condition makes it difficult for the subject to control his alcohol consumption.  Mr Cavan has reported that he consumed about 5 litres of cider on the day of the killing.  While I do not consider that, at the time of the killing, Mr Cavan was so intoxicated with alcohol that he was incapable of forming intent, it seems reasonable to conclude that the alcohol he had consumed had a disinhibiting effect on his behaviour.  The second factor is that Mr Cavan suffers from a disorder of his personality.  I consider that the available information indicates that he has had disturbances in his thoughts, feelings and behaviour since childhood that have continued into his adult personality.  Generally personality disorders are thought to develop as a consequence of both constitutional and environmental factors.  One cannot know what constitutional factors may have contributed to this condition but Mr Cavan gave accounts of environmental factors such as disturbed relationships, bullying and violence in his childhood.  I consider it reasonable to conclude that these factors had an adverse effect on his developing personality.  In my opinion Mr Cavan’s personality disorder significantly contributed to his behaviour at the time of the index incident.


Thus I consider that, at the time of the killing, Mr Cavan was suffering from Alcohol Dependence Syndrome that made it difficult for him to control his alcohol consumption and that the alcohol that he had consumed was likely to have had a disinhibiting effect on his behaviour at the time of the killing.  Secondly I consider that the index offence was significantly influenced by disorder of his personality that has its origins in his childhood. I consider that both of these factors lower the degree of his responsibility for the killing.”


The prosecution did not take issue with Dr Browne’s analysis or conclusions and I accept them.


[12]      In the light of all that I have said so far, I now come to fix the minimum term that you will be required to serve in prison to reflect the elements of retribution and deterrence.  As Carswell LCJ observed in R v McCandless [2004] NICA 1, which is the authority that I must follow in carrying out this exercise, “The factual background of murder cases is infinitely variable and the culpability of individual offenders covers a very wide spectrum” ibid at para [2].  McCandless prescribes the use by sentencers in this jurisdiction of the English Practice Statement issued by Lord Woolf CJ in 2002 which  provides for a “normal” starting point of 12 years and a “higher” starting point of 15 or 16 years, either of which may be varied upwards or downwards to take account of aggravating or mitigating factors which relate to either the offence or the offender in the particular case.  This is the approach that I intend to follow in the present case but in arriving at the ultimate figure I keep in mind the further observation of Carswell LCJ inMcCandless that “Not only is the Practice Statementintended to be only guidance, but the starting points are, as the term indicates, points at which the sentencer may start on his journey towards the goal of deciding upon a right and appropriate sentence for the instant case” ibid at para [8].


[13]      As to whether this is a case to which the normal or higher starting point should apply there was disagreement between counsel for the prosecution and defence.  For my part I am entirely satisfied that this is a higher starting point case.  The multiple injuries inflicted on the deceased even after he became helpless on the floor is a feature which makes this crime especially serious so as to attract the higher starting point.  In view of the decision of the Court of Appeal in A.G.’s Reference No. 6 of 2004 (Conor Doyle) it is not necessary to be able to determine how many wounds were inflicted before and how many after death as that decision removes the apparent distinction in the Practice Directionbetween the two categories, at least so far as this jurisdiction is concerned, ibid at paragraph [31].  In any event, as noted earlier, it is plain that many of the injuries were sustained while the deceased was still alive and trying to defend himself from your attack.


[14]      That higher starting point falls to be varied upwards by reason of the aggravating factor that this murder was clearly premeditated.  I am entirely satisfied of that on the basis of what you had said to S both in the weeks leading up to the killing and on the evening of it and to the police in its immediate aftermath.  Any doubt in your mind was not as to whether you wanted to kill the deceased but as to whether you would be able to carry it through.


[15]      Your criminal record is relatively minor and I have not treated it as an aggravating factor although its existence means that you cannot receive credit for having a clear record.


[16]      As to mitigating factors, firstly you telephoned the police immediately after the crime, waited quietly for them to arrive and confessed your involvement to them without delay.  As a result the investigation was completed relatively speedily and the deceased’s family were spared the wait for a trial or, as unfortunately is so often the case in this jurisdiction, a belated plea of guilty.  The prosecution accepted that any delay was purposeful as the opinion of a psychiatrist had to be obtained before an appropriate plea could properly be entered and that you are therefore to be treated as having pleaded guilty at the very first opportunity.


[17]      I now have to consider what effect if any your mental state and your Alcohol Dependence Syndrome should have upon the minimum term? In the course of submissions it was noted that paragraph 11 of the Practice Statement speaks of reducing the normal starting point where the offender’s culpability is significantly reduced by reason of the sort of matters exemplified there which include at (b) those matters identified by Dr Browne in your case and also at (c), provocation (in a non-technical sense), such as by prolonged and eventually unsupportable stress.  The question, which so far as I am aware has not previously been considered, is whether such factors can also serve to reduce a higher starting point.  After discussion it was agreed between counsel that it would be inequitable if such factors could not be taken account of in a higher starting point case merely because of the way in which paragraph 11 has been expressed and inserted into the Practice Statement.  I have therefore decided to take account of your personality disorder, your Alcohol Dependence Syndrome and the provocative effect upon you of the loud music as significant additional mitigating factors.


[18]            Finally I say a word about remorse or, in your case, the distinct absence of it as documented by Dr Browne at paragraph 9.20 of his report.  I am inclined to the view that what on the face of it seems a highly callous attitude to what you have done is likely in fact to be a feature of your mental state. Plainly your lack of any expressed remorse cannot be a mitigating feature but neither, as Mr Gary McCrudden for the prosecution fairly conceded, is it to be regarded as an aggravating one.  I accept Ms McDermott’s submission that in sentencing terms its effect is neutral.  Whether it will be a matter of concern at the stage when your eventual release from prison is under consideration will be a matter for others.


[19]            Having regard to all the considerations discussed above I conclude that the minimum term that you must serve before becoming eligible to be considered for release is one of 13 years.


[20]            Finally, I am obliged to inform you that the Independent Barring Board will include you in the barred list for adults by virtue of your conviction.