Neutral Citation No. [2009] NILST 1

Ref:    

2009NILST1

 

Tariff certified by the Secretary of State under Life Sentences (NI) Order 2001 on 23/12/2009

 

 

THE QUEEN v JOHN ANTHONY CONLON

 

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DECISION ON TARIFF

 

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Ruling by Kerr LCJ

 

 

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KERR LCJ

 

Introduction

 

1. On 17 December 1998 the prisoner, John Anthony Conlon, was sentenced to life imprisonment by Pringle J at Enniskillen Crown Court, having been found guilty by a jury of the rape and murder of his estranged wife, Fiona Conlon.  Mrs Conlon was 28 years old when she was murdered.  The prisoner killed her some time between 3 and 4 March 1997. He was given a mandatory life sentence for the murder and ten years’ imprisonment (to run concurrently) for the rape.  The prisoner was 27 years of age at the date of the offences.  There was no appeal against conviction or sentence.  The prisoner was committed into custody 6 March, 1997 and has served just over twelve years and three months in prison to date.

 

2. The prisoner was offered the opportunity to make oral submissions in relation to the tariff to be set under Article 11 of the Life Sentences (Northern Ireland) Order 2001.  He declined that opportunity but written submissions have been made by him and on his behalf.  The tariff represents the appropriate sentence for retribution and deterrence and is the length of time that the prisoner will serve before his case is sent to the Parole Commissioners for Northern Ireland who will then assess his suitability for release on the basis of risk.

 

Factual Background

 

3. On Tuesday 4 March, 1997, following the reported disappearance of the deceased Fiona Conlon, who resided at 25, Ballysaggart Park, Dungannon, her remains were found in a stream adjacent to a field beside Ballysaggart Park.  Police had earlier questioned the prisoner concerning the deceased’s disappearance.  He had led them to the area where the body was found.  He falsely claimed that he had last seen her alive in this area.  He told police that he and she had engaged in consensual sexual intercourse there and that he was then knocked unconscious by being struck on the back of the head by an unidentified male.  This male was wielding a knife, according to the prisoner. 

 

4. Police noted that at the time the body was discovered both the head and face of the deceased were fully submerged in the water.   As well as clothes later identified as her own, the deceased was clothed in a green army style parka coat which belonged to the prisoner.  Initial examination revealed a large stab wound to her right lower back.  A knife was recovered from the top of a nearby grass slope.  Semen present on vaginal swabs taken from the deceased indicated ejaculation in the vagina recent to the last time that she had been mobile.  The semen had a DNA profiling consistent with the prisoner’s.

 

5. In the period prior to the date of the deceased’s death, the prisoner and she had been in dispute about the residence of the two children of their union and the prisoner’s contact with them.  The deceased had four children in total, the younger two of whom were the prisoner’s.  They had been married for approximately two years but had been estranged for some time prior to the index offences and, in fact, the prisoner was the subject of an order of the Magistrates’ Court excluding him from the vicinity of the deceased’s residence at the time of the murder.

 

6. Over the course of five interviews, in response to police questioning, the prisoner repeatedly maintained that he had made an arrangement with the deceased to meet her on the night of Monday 3 March, 1997.  He alleged that they had a conversation outside No. 1, Ballysaggart Park and then went down to the adjacent field, in the corner of which they had consensual sexual intercourse.  After this he claimed to have been struck unconscious by an unidentified male who was carrying a knife and when he eventually came to, there was no sign of the deceased or the alleged attacker. 

 

7. At the sixth interview the prisoner changed his account, claiming instead that when the deceased came out to meet him she was carrying a knife in her left hand.  In the course of an ensuing row about the prisoner seeing the children, he claimed that he ‘lost it’, took the knife from the deceased and stabbed her.  He claimed that he did not intend to kill her and hadn’t realised how seriously she was injured.  He said that they then walked down the field and he gave her his jacket as she was cold and in the corner of the field they had consensual sexual intercourse.  Subsequently, he noted that she was motionless and assumed she was dead so he put her clothes back in place and dragged her body to the stream where she was later found.  He claimed that he made sure that her head was out of the water on the bank.

 

8. In the face of the evidence presented at trial the jury were unpersuaded by this rather improbable account offered at interview and, having retired at 11.16 am on 17 December, 1998 to consider their verdict, returned just after lunchtime on the same date to return unanimous guilty verdicts in respect of both counts.

 

Personal background of prisoner

 

9. The prisoner’s previous convictions involve a small number of motoring offences and are not relevant for these purposes.  It is clear from the papers that he had been experiencing severe marital difficulties and was frustrated in his desire to gain access to his children.   As noted above, he was subject, at the relevant time, to an exclusion order from the Magistrates’ Court.

 

10. A report from Dr Bownes, consultant psychiatrist, dated 18 November, 1998, provides a detailed history from the prisoner.  It notes that there is no indication for psychiatric treatment and that the difficulties which the prisoner described were consistent with reactive depression from which Dr Bownes concludes that it is probable that the prisoner was suffering from ‘abnormality of the mind’ ensuing from the depression.  However, he notes that ‘the extent to which the prisoner’s responsibility for his actions would have been impaired is clearly for the jury to decide.’

 

Victim Representation

 

11. The only statement on file is an undated handwritten note from the deceased’s sister, Una Sherry.  Ms. Sherry stated that she discovered that the deceased was missing when she went to her home on the morning of 4 March 1997 and the deceased did not answer the door.  She said that the family’s lives have been turned upside down as a result of her sister’s murder.  She suggested that the prisoner was on bail at the time of the killing and she has found it difficult to come to terms with this fact, given that she felt that both Social Services and Police ‘knew what he was capable of’. 

 

12. Ms Sherry has described how she and her sister Mary decided to look after the deceased’s four children.  Mary took the older two and Ms Sherry, who is a single mother with four children of her own and who clearly subsists on modest means, took the younger two.  She stated that it took a long time for the children, one of whom would not eat or play with toys, to settle.  She said that her whole family had been affected by the murder and that her father ‘has never been the same’ and that the family will continue to serve a life sentence for the rest of their lives.

Legal representations on behalf of the prisoner

 

13. Written representations were submitted by the prisoners’ solicitor, Aidan Quinn under cover of a letter dated 13 December, 2007.  The following points were made:

 

              i.            While not seeking to resile from the fact that this was a domestic murder with ‘antecedent issues of domestic violence’ this factor was “not necessarily conclusive of the issue”.  (By this one may assume was meant that the domestic dispute dimension to the case did not provide the full explanation of why the murder occurred).

 

           ii.            The prisoner deserved credit in that he now fully accepts the depth and degree of his culpability, as evidenced by his progress in custody.

 

         iii.            While there was cogent evidence of planning to meet the deceased, consistent with an intention falling far short of murder, it cannot be concluded that there was sophisticated planning of a murder.

 

         iv.            It was not a frenzied attack involving multiple blows and no firearm was used.

 

            v.            The prisoner’s record was not an aggravating feature ‘with the exception of the matter for which he was on bail.’

 

         vi.            It is acknowledged that the prisoner’s rape of his wife and leaving her in a position where she drowned were aggravating factors.

 

       vii.            In terms of mitigation, there was evidence of spontaneity.  His age, progress in custody and acceptance of culpability are further mitigating features.  Also there was provocation in the non-technical sense in that he had been unwillingly separated from his wife and children for some considerable period and the deceased was determined to maintain that separation.

 

14. There is an earlier letter on file from the prisoner’s solicitor addressed to the Life Sentence Unit and dated 28 November, 2002 which is, in essence, a prototype of the later more formal submissions summarised above.  It should be noted, however, that that letter expressly acknowledged that the prisoner was present at the scene of the murder ‘in contravention of a Magistrates’ Court Exclusion Order’

 

15. A form LSP7 on file dated 16 July, 2007 indicates that by that stage the prisoner had completed a number of educational courses as well as the sexual offenders’ treatment programme and an anger management course.  He was to begin one-to-one work with a psychologist on issues of sexual arousal and violence and appears to have been engaged in an Open University course.

 

Representations from the prisoner

 

16. The prisoner submitted personal representations in which he sought to relay how his thinking and mindset have changed since he murdered the victim – which he refers to as ‘a most horrendous crime.’ He stated that he looks back every day with deep regret on the ‘murder and rape of my late wife.’  He claimed that the sex offenders’ programme in which he had participated showed him how wrong his mindset was.  He rehearsed the consequences for the four young children left without their mother and the pain and distress caused to his own family.  He accepted that his children may never want to see him again.

 

17. The prisoner stated that he took full responsibility for his actions and the hurt and distress that he has caused.  He continues to rehabilitate himself everyday ‘never forgetting the damage that I have caused to so many people.’

He specifically asked that, in setting the tariff, account be taken of his change of mindset.  He concluded by acknowledging that life is sacred and no one has the right to take a life.  He stated that he will accept whatever tariff he is given ‘as a result of the terrible crime I have committed.’

 

Practice Statement

 

18. In R v. McCandless & others [2004] NICA 1 the Court of Appeal held that the Practice Statement issued by Lord Woolf CJ and reported at [2002] 3 All ER 412 should be applied by sentencers in this jurisdiction who were required to fix tariffs under the 2001 Order.  The relevant parts of the Practice Statement for the purpose of this case are as follows: -

 

“The normal starting point of 12 years

 

10.       Cases falling within this starting point will normally involve the killing of an adult victim, arising from a quarrel or loss of temper between two people known to each other. It will not have the characteristics referred to in para 12. Exceptionally, the starting point may be reduced because of the sort of circumstances described in the next paragraph.

 

11.       The normal starting point can be reduced because the murder is one where the offender’s culpability is significantly reduced, for example, because: (a) the case came close to the borderline between murder and manslaughter; or (b) the offender suffered from mental disorder, or from a mental disability which lowered the degree of his criminal responsibility for the killing, although not affording a defence of diminished responsibility; or (c) the offender was provoked (in a non-technical sense), such as by prolonged and eventually unsupportable stress; or (d) the case involved an overreaction in self-defence; or (e) the offence was a mercy killing. These factors could justify a reduction to eight/nine years (equivalent to 16/18 years).

 

The higher starting point of 15/16 years

 

12.       The higher starting point will apply to cases where the offender’s culpability was exceptionally high or the victim was in a particularly vulnerable position. Such cases will be characterised by a feature which makes the crime especially serious, such as: (a) the killing was ‘professional’ or a contract killing; (b) the killing was politically motivated; (c) the killing was done for gain (in the course of a burglary, robbery etc.); (d) the killing was intended to defeat the ends of justice (as in the killing of a witness or potential witness); (e) the victim was providing a public service; (f) the victim was a child or was otherwise vulnerable; (g) the killing was racially aggravated; (h) the victim was deliberately targeted because of his or her religion or sexual orientation; (i) there was evidence of sadism, gratuitous violence or sexual maltreatment, humiliation or degradation of the victim before the killing; (j) extensive and/or multiple injuries were inflicted on the victim before death; (k) the offender committed multiple murders.

 

Variation of the starting point

 

13.       Whichever starting point is selected in a particular case, it may be appropriate for the trial judge to vary the starting point upwards or downwards, to take account of aggravating or mitigating factors, which relate to either the offence or the offender, in the particular case.

 

14.       Aggravating factors relating to the offence can include: (a) the fact that the killing was planned; (b) the use of a firearm; (c) arming with a weapon in advance; (d) concealment of the body, destruction of the crime scene and/or dismemberment of the body; (e) particularly in domestic violence cases, the fact that the murder was the culmination of cruel and violent behaviour by the offender over a period of time.

 

15.       Aggravating factors relating to the offender will include the offender’s previous record and failures to respond to previous sentences, to the extent that this is relevant to culpability rather than to risk.

 

16.              Mitigating factors relating to the offence will include: (a) an intention to cause grievous bodily harm, rather than to kill; (b) spontaneity and lack of pre-meditation.

 

17.              Mitigating factors relating to the offender may include: (a) the offender’s age; (b) clear evidence of remorse or contrition; (c) a timely plea of guilty.

 

Very serious cases

 

18.       A substantial upward adjustment may be appropriate in the most serious cases, for example, those involving a substantial number of murders, or if there are several factors identified as attracting the higher starting point present. In suitable cases, the result might even be a minimum term of 30 years (equivalent to 60 years) which would offer little or no hope of the offender’s eventual release. In cases of exceptional gravity, the judge, rather than setting a whole life minimum term, can state that there is no minimum period which could properly be set in that particular case.”

 

Discussion

 

19. This is clearly a higher starting point case.  There is every reason to believe that it was planned.  The inference that the prisoner brought the knife to the murder scene is overwhelming.  The prisoner had written to his father and brother Sean before the killing.  These letters were discovered among his effects by his aunt, Maureen Maginn. 

 

20. Aggravating features are the sexual degradation of his victim and the placing of her body in a position where her head was in the stream.  The only possible mitigating feature is the prisoner’s claimed remorse.  I entertain grave reservations about the genuineness of this.  Certainly his performance at interview and the manner in which he contested the case do not partake of the behaviour of someone who was genuinely repentant.

 

21. I have concluded that the appropriate minimum period that the prisoner should serve is sixteen years.  This will include the period spent in custody on remand before his trial.