Neutral Citation No. [2010] NILST 1  

Ref:    

2010NILST1

Tariff certified by the Secretary of State under Life Sentences (NI) Order 2001 on 03-02-2010

 

 

 

 

THE QUEEN v DAVID CRAIG BROWN

 

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DECISION ON TARIFF

 

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Ruling by Kerr LCJ

 

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KERR LCJ

 

Introduction

 

1. On 10 October 1995 the prisoner, David Craig Brown, was sentenced to life imprisonment by Nicholson LJ at Belfast Crown Court after pleading guilty at the start of his trial to the murder of Roberta St. Clair-Gunn on 27 May 1994.  A second count of rape was left on the books.  The prisoner has been in custody since 27 May 1994.

 

2. An oral hearing took place in March 2008 in relation to the fixing of the minimum term to be served by the prisoner under article 11 of the Life Sentences (Northern Ireland) Order 2001.  This minimum term or, as it is more commonly known, ‘the tariff’, represents the appropriate sentence for retribution and deterrence and is the length of time that the prisoner will be required to serve before his case is sent to the Life Sentence Review Commissioners whose responsibility it will then be to assess his suitability for release on the basis of risk.

 

Factual background

 

3. The deceased, a 46 year old married mother of two daughters, lived in the Sandy Row area of Belfast.  She suffered from depression and drank heavily and it was not unusual for her to go out drinking alone in venues that were unknown to her family.  Despite her lifestyle, she was the main wage earner in the family.

 

4. At about 10pm on Friday 27 May 1994 the deceased went to the Sportsman’s Bar in Upper Charleville Street in the Shankill area of Belfast.  It appears that she was already drunk when she arrived at the bar.  She introduced herself to a group of women and sat with them and left when the bar closed at 11.30pm.  The others tried to get her to take a taxi but she refused.  She had earlier told the women that she had previously lived on the Shankill Road and felt safe there.  Despite what she had said to the women in the bar, it seems likely that she looked for a taxi after she left them. 

 

5. Shortly after 9.30am on Saturday 28 May 1994 a man out walking his dog discovered the deceased’s body in bushes at waste ground to the rear of St Michael’s Church, between Malvern Way and Craven Street, off the Shankill Road.  Police arriving at the scene noted that the deceased was lying on her back, naked from the waist down, her legs were parted and there was a substantial amount of blood around her head.  The doctor who declared life extinct recalled:

 

“I was shown the body of a female lying on her back under some bushes.  The body was partially clothed but she was naked from the waist down except for a sock on her right foot.  The legs were wide apart.  Inspection of the face showed severe bruising and swelling of the right side with apparent severe laceration of the scalp on the left side with fracture of the skull and brain (?) matter on the ground…”

 

6. Having heard from a friend that it had been reported that a woman’s body had been found on the Shankill, the deceased’s husband contacted the police and formally identified his wife’s body at 2.30pm.

 

Ms Nelson’s account

 

7. The papers include a statement from Julie Nelson, a friend of the prisoner. She told police that on the morning of Saturday 28 May 1994 the prisoner watched the police activity around the body from a neighbouring hairdressers’ salon where he was sitting Ms Nelson.  Early that afternoon he told Ms Nelson that he was responsible for the deceased’s death and asked her to provide him with an alibi.  He told Ms Nelson that the deceased had hit him over the head with a bottle after they met in a fast food outlet and he endeavoured to prove this by showing her his injured ear.[1]  They then fought.  Ms Nelson told police that the prisoner: “said when he found her at the toilets he hit her a punch and then she punched him back.  He said he trailed her down the wee alley facing the toilets and he beat her in there” before removing her body to the waste ground in the belief that it would not be found until the next Monday when workmen returned to the area.  The prisoner is said to have told Ms Nelson that he hit the deceased at least 50 times with a brick and then disposed of the weapon near bins while throwing the deceased’s purse onto a nearby roof.  The purse was later recovered by police.  He denied having sexually assaulted the deceased.  On Monday 30 May Ms Nelson told a member of the prisoner’s family what he had confessed to her and on Wednesday 1 June she made a full statement to police.

 

Police investigations

 

8. Investigating officers discovered that the prisoner had spent Sunday 29 May with his family at their caravan in Ballyhalbert before returning to Belfast on Monday 30 May.  He then went to a friend’s home at Ballyduff.  The prisoner’s father told police that he later tried to find his son in Ballyduff when he heard that paramilitaries suspected him of Mrs Gunn’s murder but that he could not be found.  In the early morning of Thursday 2 June 1994 the police searched 13 Roeview Park, Limavady, the home of one of the prisoner’s friends, and found the prisoner, dressed only in underwear, hiding behind a water tank in the darkened roof space of the house.  He was arrested and when cautioned he replied: “Know fuck all about any murder.”

 

The prisoner’s account

 

9. Having initially denied any involvement in the murder, during his third police interview, at 9.41pm on the day of his arrest, the prisoner made admissions.  He told police that after a night spent drinking in local bars he returned to his parents’ home at around 11.30pm.  He said that he was “full”[2]  but that he was hungry so he left the house and went to a Chinese take-away on the Shankill Road, just above Agnes Street.  He bought some food and left the shop, meeting the deceased (whom he did not know) at the bottom of Agnes Street.  She asked for a chip and then to go home with him to which he agreed.  On their way the prisoner claimed that he had remembered that his parents were at home so they had sex in the bushes where the deceased’s body was later discovered.  After intercourse, as the prisoner got up and walked away, the deceased shouted for him to come back or she would claim that he had raped her.  Afraid of her being heard the prisoner went back and punched the deceased.  He continued: “…she fell, she got up, she swung at me with a bag and I hit her again and after that it’s just a blank…”I just lost control…I had drink in me…” 

 

10. The prisoner asserted that the sexual intercourse was consensual.  He initially denied that he had hit the deceased with a brick, contending that he had punched her about six times, but before long admitted that he had used a brick which he had picked up at the murder scene.  He told police that he hit the deceased with the brick approximately six or seven times about the face and head.  He then pulled her further into the bushes, threw her purse onto the roof of the nearby health centre and threw the murder weapon into the bushes.  The prisoner told police that much of the witness statement given by Ms Nelson was incorrect, including the chronology of the attack.  He explained that he had been hiding in the roof space in Limavady because he had heard rumours that he was to be shot by paramilitaries.

 

11. In a later interview the prisoner continued to assert that intercourse with the deceased was consensual.  He did not think that the sexual contact had involved the deceased’s anus.  He maintained that he had returned to the deceased when she started shouting: “Come back here you bastard or I’m squealing rape”.  He punched her, whereupon “she fell and she got up and she swung at me and I hit her again…”  The investigating officers asked whether the deceased had put her clothes back on when she stood up and he said that she had not done so. 

 

12. In this interview he said that he had hit the deceased with the brick up to eight times.  He denied kicking her in the face.  When he left the scene he thought the deceased was unconscious.  The prisoner was asked about the deceased’s purse.  He told police that the purse was lying outside the deceased’s handbag.  He picked it up, opened it and found it to be empty.  He denied having the intention to steal money.  He also denied Ms Nelson’s claim that he had flushed other items down the lavatory. 

 

13. The prisoner was formally charged at 11.31am on 3 June 1994 and said: “I am deeply sorry that it happened and I did not intend to kill the girl.  It was through drink and I lost control.”

 

Autopsy report

 

14. Professor Jack Crane, State Pathologist, performed a post mortem examination of the deceased’s body at 5.30pm on 28 May 1994.  He concluded that the cause of death was bruising and laceration of the brain associated with multiple fractures of the skull.  The deceased had been heavily intoxicated at the time of death and Professor Crane was of the view that unsteadiness and lack of coordination was likely to have prevented the deceased from putting up much resistance against her assailant. The following are the relevant passages from his report: -

 

“Death was due to a head injury which she had sustained.  There was an extensive area of laceration on the back of the scalp caused by her having been struck a number of heavy blows from a blunt object, possibly having a fairly sharp edge.  The underlying skull had been fractured into a number of fragments, some of which had been driven into the surface of the brain which was extensively bruised, superficially lacerated and had undergone slight reactive swelling.  The severity of the head injury was such as to have caused her fairly rapid loss of consciousness and death.

 

There were further injuries to the face.  The right ear was bruised and superficially lacerated and there were further lacerations, up to about 3 inches long on the right temple, the right side of the forehead, at the outer end of the lower eyelid of the right eye and on the left side of the forehead where the skin had been stripped away from the surface of the underlying skull.  There were areas of bruising and abrasion around the eyes, on the nose, on both cheeks, over the lower jaw which was fractured on the right side and in the lining of the lips which was also lacerated.  These injuries were caused by multiple blows to the face.  Some could have been caused by punching or kicking whilst others were more in keeping with blows from a blunt object…..

 

There was an abrasion on the left lower forearm and some small spots of bruising and abrasion on the back of the left hand, possibly sustained in an attempt to ward off blows by raising the arm in a defensive gesture.  A roughly circular abrasion, about an inch and a half diameter, was present on the back of the right upper arm…Other abrasions on the right elbow, wrist and hand, and on the right calf and right foot might have been caused if the body had been dragged across uneven ground whilst another abrasion on the upper back might have been caused in a similar fashion or due to contact with rough ground if she had been lying on her back.  There was a bruise and some small abrasions on the left knee also consistent with contact with rough ground possibly if she had been kneeling or had fallen onto her knees….

 

There was faint petechial bruising around the nipple of the right breast but the significance of this is uncertain.  Such bruising could occur if the nipple had been sucked but it is also possible that firm pressure applied to overlying clothing could have given a similar appearance.

 

She had also been sexually assaulted.  Just inside the vagina there were two areas of bruising consistent with the forceful introduction during life of a firm object, possibly an adult penis.  There was also a minute linear abrasion beyond the vaginal opening which could also have been caused by penile penetration or interference with a finger.  In addition to the vaginal injuries there were two small superficial tears just at the opening to the anus and consistent with the attempted forceful introduction of a penis or similar object.”

 

Antecedents

 

16. The prisoner’s criminal record consists of nine appearances before the criminal courts and twelve previous convictions.  He has a history of violent offending.  Among the convictions are three for robbery, each dealt with by Belfast Crown Court in 1985, 1987 and 1990 respectively and each resulting in a custodial sentence.  Most significantly, on 30 October 1987, the prisoner was sentenced to seven years’ imprisonment on one count of rape.  At the time of the commission of the present offence, 27 May 1994, the prisoner had been on licence for less than 2 months, having been released from prison on 8 April 1994.

 

Sentencing remarks

 

17. The prisoner was sentenced to life imprisonment on 10 October 1995.  Nicholson LJ made the following observations:-

 

“David Craig Brown, you have pleaded guilty to the brutal murder of a defenceless woman. Nothing I can say can speak more strongly than the facts themselves.

 

About midnight on 27 May you came across Mrs Roberta Gunn, a stranger to you, and having knocked her to the ground battered her skull in with a brick, striking numerous blows.

 

The only redeeming feature in this case is that you have pleaded guilty and so saved the family and friends of Mrs Gunn, and indeed your own parents from hearing the dreadful details of that night being described in the court.

 

The prosecution have quite rightly not proceeded with the other charge which is to be left on the books of the court. If they had not done so this would have necessitated a lengthy trial and the family and the family and friends and acquaintances of Mrs Gunn and your own family again have been spared the sickening details.

 

You are no stranger to violence as your criminal record shows, not least the fact that you have been convicted of rape in 1987 with a sentence of seven years imprisonment being imposed at that time. That was when you were twenty one years of age.

 

The mandatory sentence for murder is life imprisonment and I propose to impose that sentence on you, and I do not propose to invoke the relevant Article in relation to your licence so that your sentence of life imprisonment will start from today.

 

I trust that the prison authorities and the life sentence review body will think long and hard before you are ever released into the community.

 

I propose to forward the report of the pathologist on the death of Mrs Gunn along with my comments to the appropriate authorities.”

 

Victims’ representations

 

17. Written submissions were made by the deceased’s daughters.  Geraldine St. Clair-Gunn was aged 10 when her mother was murdered.  She made the following representations:-

 

“It would be impossible for me to tell you completely how my mother’s death has affected my life; during my most important years of development I was denied the support and guidance of my mother not by any natural cause but by the wilful act of another human being.”

 

18. Ms St. Clair-Gunn said that she felt the loss of her mother’s comfort and the emotional security and practical support she provided, particularly regarding her health problems and the deceased’s support with her physiotherapy.  The family became the focus of public attention; her father became over-protective and the family suffered materially.

 

19. Ann Marie St. Clair-Gunn was 24 years’ old when her mother was murdered.  She said that it would be impossible for the prisoner to be aware of how his savage act impacted on her life.  Overnight she became the main carer for her father (who had previously suffered a stroke) and her sister (who had health problems).  She gave up her job and independence and this brought about financial and social restrictions.  Her father died within 18 months of the murder and she considers her mother’s death to have been a major contributing factor in his decline.  The strain, including that of caring for her younger sister, provoked the breakdown of her relationship with her boyfriend, Roy Hanna.  Mr Hanna confirmed that their relationship underwent a considerable upheaval.  From a point where he and Ms St. Clair-Gunn had their own home, employment and a happy relationship, they suddenly had responsibility for a “ready made family”, taking on the care of the younger sister and the practical and financial ramifications that involved.  His relationship with Ms St. Clair-Gunn broke down but was later repaired and the younger sister, Geraldine, continued to live with the couple into adulthood.

 

20. Mr Hanna made personal representations in which he stated that his life with Ann Marie being turned upside down following the death of Roberta St. Clair-Gunn. The strain lead to the break down of their relationship however after some time they are now a couple again and Geraldine St. Clair Gunn lives with them.

 

Representations on behalf of the prisoner

 

21. Harte Coyle Collins, the prisoner’s solicitors, have made written submissions in which they asserted that the prisoner’s account of the events surrounding the murder, where it conflicts with the account allegedly given by him to Julie Ann Nelson, is to be preferred.  They drew attention to the following claims in particular made by the prisoner in the course of his confession interviews:-

 

·        That he had been out drinking most of the day and during all of the evening and night before meeting the victim;

·        That he met the deceased at the corner of Agnes Street and the Shankill Road and that the deceased spoke to him and asked him for a few chips. After eating some chips she asked where he was going and asked if she could come too. When he replied that she could, she took his arm.

·        That the prisoner anticipated a sexual encounter and initially considered that he could take the deceased home, but decided against this as he knew his parents were home.

·        That the “couple” turned off Agnes Street and walked towards the swings; they stopped at the wall adjacent to the swings where the prisoner finished his Chinese meal and they started kissing. The prisoner told the deceased that they could not go to his house; so they went to nearby bushes to have sexual intercourse.

·        That the deceased removed her own lower clothing, taking off her leggings on one leg only and did not remove her upper clothing. Harte Coyle Collins submit that the fact that the deceased appeared to remove her own clothing appears to be confirmed by (i) the presence of her various items of clothing found at the scene and (ii) the lack of any report of any real tearing or damage to these items of clothing.

·        That the two had intercourse and the deceased consented to this, but the Defendant did not ejaculate; he was ‘too drunk by that time’. No semen was found on any swab of the Deceased’s body which again appears to confirm the Defendant’s account.

·        That after intercourse the prisoner made to leave, but the deceased started shouting after him ‘Come back here you bastard or I’m squealing rape’; he went back and told her to ‘shut up’; she started ‘slabbering’ and the prisoner reports being scared of anyone else walking past; as a result he hit her in or about the left cheek.

·        That the victim attempted to hit him back, but he, with drink, then lost control and hit her with an adjacent brick, striking her all over, possibly six, seven or eight times.  He also kicked her about the leg, but does not think he kicked her about the face. To the best of his knowledge he did not bite her. The prisoner believes that the deceased was conscious when he first struck her with the brick.

·        That after the attack he pulled her body the few feet into the bushes; the prisoner reports that at that stage he did not consider that she was dead. He also threw away the brick which had been in his hands and threw the Deceased’s purse onto the roof of the Health Centre.

 

22. The solicitors indicated that the prisoner acknowledged that he had confessed to Julie Ann Nelson that he was responsible for the death and did ask her to lie for him - however he told her that this was due to his fears from paramilitaries; he did not mention police. The prisoner asserted that he did not tell her that he met the victim at the Chinese; the evidence of another witness, Ann Davies, indicated, in any event, that this is not what happened. The prisoner asserted that he did not tell Ms Nelson that the victim had hit him with a bottle, rather he mentioned to her that another woman had hit him with a bottle whilst in the Mountainview Bar. He did not tell her that he stumbled, then chased the woman (who had allegedly hit him with a bottle) up Agnes Street, and started a fight with her. He did not tell her that he trailed her into an alley facing the toilets in Agnes Street and did not tell her that this alley was where he killed her or where ‘it all happened’. Police appear to have found no blood in any alley in the vicinity and no sign of a struggle or of anyone being dragged in any such alley. The report of Janet Kirkwood referred to blood splatters which indicated that the blows causing death were struck in the bushes in the Hammer complex, rather than in the alley. Furthermore the discovery of a white plastic fork in the vicinity of the swings indicated that he had walked to that area, eating his Chinese takeaway as he had claimed during interviews.  The prisoner did not tell Ms Nelson, his solicitors suggested, that he threw the brick past the bin chutes; police did not recovered a brick from any such area. The prisoner did not tell her that he flushed anything belonging to the victim down the lavatory and did not tell her that he must have hit the Deceased at least 50 times.

 

23. A further general submission was made that Julie Ann Nelson was not a reliable source of information. Her account contained an obvious inconsistency as to which member of the prisoner’s family she reported the prisoner’s admissions.

 

24. The prisoner’s solicitors made a number of submissions on the appropriate starting point to be chosen; on the issue of aggravating and mitigating features; and on the prisoner’s claimed remorse.  I have taken all these matters into account.  I have also had regard to the oral submissions made on behalf of Mr Brown and finally, I have read and carefully considered his personal letter.

 

Practice Statement

 

25. 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.”

 

Conclusions

 

26. I consider that this is clearly a higher staring point case.  Although one must accept the possibility that the sexual intercourse that took place was consensual, there can be little doubt that the deceased was heavily intoxicated at the time that this and the subsequent attack on her took place and that she was in an extremely vulnerable condition on that account.  Certainly, she was in no position to offer anything other than token resistance to the ferocious attack that the prisoner launched on her.  Extensive, multiple injuries were inflicted on the deceased.

 

27. The prisoner claims to have suffered remorse but I am far from persuaded that this is genuine in the sense of representing true repentance for his actions and a clear insight into the effect that his actions have had on the lives of others.  Although there is a passing reference to this in his letter, the contents of this appear to be preoccupied principally with his own situation.  His expressions of remorse during interview are at least as consistent with regret at his own plight as with genuine sorrow for the terrible crime that he committed and the terrible suffering that the family of his victim have had to endure.

 

28. There was some attempt to conceal the body but this was fairly ineffectual and I would not be disposed to regard that as a significantly aggravating feature in relation to the offence.

 

29. There has been a considerable concentration in the submissions made on the prisoner’s behalf about the account given by Ms Nelson.  I have to say that I would find it difficult to conclude that her account should be discounted on the basis of the factors that have been prayed in aid to advance this claim.  Quite why Ms Nelson should fabricate a more damning account of the prisoner’s actions on this occasion has not been satisfactorily explained.  I do not consider, however, that this signifies to any great extent in the selection of the minimum sentence.

 

30. The prisoner’s previous convictions are clearly aggravating features personal to him within the terms of paragraph 15 of the Practice Statement. I consider, however, that this is offset to some extent by the progress that he has made in prison since his incarceration for this offence.

 

31. Having taken all these factors into account, I have concluded that the appropriate minimum term in this case is seventeen years.  This will include the time spent on remand.

 

 

 

 

 



[1]It later emerged that the prisoner’s ear had been injured when he had been assaulted by another woman earlier on the evening of Friday 27 May.  The counter assistant in the fast food outlet did not recall the prisoner being accompanied and neither did she see any fighting outside the premises.

[2] Neither the take away counter assistant nor the prisoner’s father remember him as being drunk.