About this case:

• Citation:
  [2024] NICA 35
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Lady Chief Justice Siobhan Keegan

Delivering judgment for the Court of Appeal, Lady Chief Justice Siobhan Keegan reiterated the position that “pre-existing coercive and controlling behaviour is… an aggravating factor that will result in higher sentences when domestic murders of this kind occur and that sentences of 20 years and possibly more will be upheld”.

Background

On 12 April 2017, the appellant, his late wife Lu Na and two children boarded a hired boat on Lough Erne. At 1.15am, the appellant called the emergency services to report that his wife had fallen into the water. Lu Na could not swim. When the police and RNLI personnel reached the scene, they found the deceased’s body floating immediately at the stern of the boat, which was moored at the jetty.

Post-mortem evidence revealed that the deceased had drowned, that there was no evidence of a struggle and that her blood contained a sedative beyond therapeutic levels. The appellant claimed that the deceased had fallen in and that he had attempted to save her.

The trial judge found that the appellant was coercive and controlling in respect of the deceased and had abused her throughout their marriage, that the murder was premeditated and that the jury had accepted that the appellant placed the deceased in the water, dousing himself with bottled water in an attempt to give the impression that he had tried to rescue his victim.

The trial judge determined that the deceased’s vulnerability and other aggravating factors including the coercive behaviour of the appellant and his luring her to the location where he killed her attracted a higher starting point for sentencing, deciding on a minimum tariff of 20 years.

The appellant appealed the severity of his sentence.

The Court of Appeal

As to the appellant’s first ground of appeal, that the trial judge preferred a version of events which maximised his culpability and excluded other possibilities, the Court of Appeal found that the trial judge had acknowledged that the appellant was entitled to be sentenced on the factual basis of the evidence most favourable to him.

The court found that having considered the defence submissions and on the basis of the jury’s verdict, the trial judge had reasonably rejected the novel proposition that the offence could have occurred in a ‘heat of the moment’ argument and the suggestion that the appellant had attempted to save his victim, noting that “the evidence heard at trial in relation to the impact the ingestion of Zopiclone would have had on the deceased would render the possibility of a heated exchange an unlikely scenario in the event that this scenario had been advanced… the trial judge acted entirely reasonably in her conclusions that there had been premeditation in respect of the murder, and in her reading of the facts of the case”.

Turning to the second ground of appeal, that the trial judge erred in selecting an upper starting point of 15/16 years having regard to R v McCandless & Ors [2004] NICA 1, the Court of Appeal considered that the trial judge had directed herself properly in that each case is fact-specific and the guidelines therein were not to be imposed in a “rigid compartmentalised structure”.

Rejecting the second ground of appeal, the Lady Chief Justice stated: “Without doubt this was a case that required a higher starting point as per McCandless. To be clear, the normal starting point of 12 years is reserved for cases involving a spontaneous quarrel or loss of temper between two people known to each other. This category does not include cases which involve some build up or history, be that through a difficult marriage or relationship or cases involving a planned or premeditated attack.”

The appellant’s third ground of appeal concerned the trial judge’s finding that his actions were premeditated and constituted an aggravating factor, arguing that the circumstantial evidence was insufficient to support that conclusion. The Court of Appeal found that following her hearing of the entirety of the evidence at trial over a period of months, including “the appellant’s knowledge of the deceased’s inability to swim” and “the mooring of the boat at a quiet, otherwise deserted jetty”, the trial judge reasonably concluded that there was premeditation and that such was an aggravating factor.

The appellant’s fourth ground of appeal asserted that the trial judge erred in finding that the presence of the appellant’s children on the boat at the time of the murder was an aggravating factor. Dismissing that ground, Lady Chief Justice Keegan noted the trial judge had not suggested that the children had witnessed the incident, but had rightly concluded that “their presence in a small boat at a remote location in the middle of the night at the time of their mother’s death and their subsequent removal by police to the local hospital all would have been an incredibly traumatic event for the young children”.

On the fifth and sixth grounds, that the trial judge erred in finding that bad character evidence was relevant to sentencing and that that evidence amounted to coercive control which the judge equated with “cruel and violent behaviour by the offender over a period of time” as per McCandless, the court remarked: “Twenty years on from McCandless our society and legal system is now much more alive to the issue of domestic abuse and coercive control. Indeed, as the prosecution rightly point out the appellant’s conduct would now amount to an offence of domestic abuse, contrary to section 1 of the Domestic Abuse and Civil Proceedings Act (Northern Ireland) 2021.”

The court noted that as the relevant sections of that legislation had not been enacted at the time of the appellant’s conviction, there would have been no requirement then to make a statutory ruling on aggravation by way of domestic abuse. However, the court considered that had those sections been applicable at the time of sentencing, the trial judge would have “undoubtedly resulted in the judge finding aggravation by virtue of the coercive and controlling behaviour of the appellant during the marriage”.

The Lady Chief Justice emphasised: “Even without this statutory imprimatur the judge could not possibly have left this element out of account in this case. It is nonsensical to say that as McCandless does not specifically mention this type of behaviour a judge is precluded from considering it. McCandless, as we and previous senior courts have said, should not be applied mechanically. It is a guide only which must be adapted to modern circumstances and move with the times… Lest there is any lingering uncertainty, we consider that coercive and controlling behaviour in a relationship is a specific aggravating factor which should be read into para [12] of the Practice Statement which McCandless applies.”

The court found inter alia that the trial judge was correct in her conclusion that the contents of a Skype chat between the appellant and the deceased evidenced “cruel and violent behaviour” for the purposes of McCandless, which conduct was sufficient to constitute an aggravating factor.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

The King v Stephen McKinney [2024] NICA 35