Jersey Unreported Judgments

Superior Number Sentencing - manslaughter by reason of diminished responsibility.

[2012]JRC198

Royal Court

(Samedi)

29 October 2012

Before     :

Sir Michael Birt, Kt., Bailiff, and Jurats Clapham, Le Cornu, Morgan, Marett-Crosby, Nicolle, Crill, Liston, Blampied, de Veulle and Tibbo.

The Attorney General

-v-

Damien David Rzeszowski

Sentencing by the Superior Number of the Royal Court, to which the accused was remanded by the Inferior Number on 24^th August, 2012, following conviction at Inferior Number Trial to charges of:-

6 counts of:

Manslaughter by reason of diminished responsibility (Counts 1 to 6).

Age:  32.

Plea: Guilty (acquitted of six counts of murder).

Details of Offence:

On 14^th August, 2011, the defendant stabbed to death his wife, son (2½ years old), daughter (5½ years old), father-in-law, female friend and her daughter (5 years old).  These events took place at the family home - a two bedroom flat - following a barbeque that afternoon. 

There was no provocation.  The father-in-law was the first person to be attacked.  He was sitting on his bed watching TV and was taken by surprise. 

At this point, the women were at the other end of the flat - probably helping the three children paint pictures in the lounge.  The defendant moved to the lounge where he attacked all three children.  Each child was stabbed more than ten times.  Aggravating factors included the vulnerability of the children and the abuse of a position of trust. 

The friend's daughter was stabbed in two different locations: first in the lounge and after she made it out of the lounge, for a second time in the adjacent hallway.  The father-in-law was also stabbed in two different bedrooms with one blow being of such force that a knife severed his spinal cord and remained in his back.  He was unable to walk and crawled towards the lounge where he came to rest. 

At least four of the six victims, including the female friend, were attacked with two knives.  There was an intent to kill in respect of each victim. 

The defendant's wife was stabbed in the lounge and then chased through the flat and into the courtyard - to escape she climbed through the bathroom window back into the flat and then ran out onto the street.  The defendant followed his wife by climbing through the window after her and he then chased her up the street, stabbing her again.  Neighbours saw this and intervened.  The defendant returned to his flat repeatedly stabbing himself - he suffered a collapsed lung which required surgery.  Emergency services were called but it was too late to save any of the victims. 

Details of Mitigation:

The defendant was suffering from severe depression with psychotic symptoms which reduced his capacity to maintain self-control and inhibited his capacity for rational judgment.

The marriage had been under considerable strain in the months beforehand.  The wife had confessed to having an affair in July 2011 and this coincided with a change in the defendant's mood.  There was serious talk of separation.  The defendant had a one night stand in response and also took an overdose of medication.  A family holiday to Poland from 1^st to 14^th August did not resolve issues.  The defendant visited a prostitute during the trip.  On the ferry back to St Helier from France on the morning of 14^th August, the defendant was thinking about his wife's affair.  On their return to the flat, there was a heated argument and the defendant repeatedly used a Polish swear word that can mean whore. 

The defendant said that he started to hear voices for the first time on 13^th August, when the family travelled back from Poland.  He said he heard them again at around 12:30pm on 14^th August when he had sole care of his children because his wife and father-in-law had gone out to collect the female friend and her daughter for the barbeque.  The defendant went for a drive and there was another argument on his return at around 1pm - his wife was unhappy that their children had been left alone.  Following this argument, the defendant heard voices saying that his wife and female friend would be raped and the children barbequed.  The defendant says that he also heard the words "kill kill" but he did not know what this meant.  He did not take it to be a command.  The defendant was very angry with his wife and this anger and the voices are the last thing he can remember.  The barbeque then took place at 1:30pm and the violence occurred at approximately 2:45pm. 

There was no premeditation and the defendant had entered a guilty plea to the manslaughter offences.  He was acquitted after the trial of the more serious charges of murder. 

Previous Convictions:

None.

Conclusions:

If the Law had permitted it, the Crown would have moved for six life sentences with a minimum period of 20 years.  In the event, the Crown moved for 30 years' imprisonment in respect of each count.

Starting point 30 years' imprisonment.

Count 1:	30 years' imprisonment.
Count 2:	30 years' imprisonment, concurrent.
Count 3:	30 years' imprisonment, concurrent.
Count 4:	30 years' imprisonment, concurrent.
Count 5:	30 years' imprisonment, concurrent.
Count 6:	30 years' imprisonment, concurrent.

Total: 30 years' imprisonment. 

Recommendation for deportation at conclusion of sentence sought.

Sentence and Observations of Court:

The Royal Court was clearly troubled by the lack of a statutory power that would have provided it with the opportunity to consider imposing a discretionary life sentence with a suitable minimum term and observed that this lacuna in the law should be quickly addressed. 

The Royal Court noted the significance of the Mandatory Minimum Periods Law which signalled an intent to increase sentences for offending that resulted in death and it was important that there was a proportionate relationship between sentences in murder and manslaughter cases. 

The Royal Court concluded that the defendant's responsibility for the offences was significant even allowing for the fact that the illness had substantially diminished his responsibility.  The Court also concluded that the defendant posed a material risk in the future, particularly in respect of persons with whom he might form a relationship. 

The Royal Court imposed a sentence of 30 years' imprisonment, concurrent in respect of each count and expressed the wish, consistent with expert evidence, that the defendant would be referred to hospital for further treatment. 

Conclusions granted.

H. Sharpe, Q.C., HM Solicitor General.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The horror and brutality of these killings is hard to believe.  It must have appeared, on the surface, to have been an ordinary peaceful afternoon.  A barbeque had taken place and the three children were in the lounge playing, perhaps painting.  But within a quarter of an hour or so, six people had their lives cruelly cut short at the hand of this defendant. 

2.        You stabbed your 2½ year old son, Kacper, five times to the chest.  Once he was slumped over the table, you stabbed him a further eight times in the back with a different knife. 

3.        In the case of your daughter Kinga, who was 5½, you stabbed her sixteen times, three times to the chest and thirteen times to the back. 

4.        Julia de la Haye was a little 5 year old girl who simply had the misfortune to be there for lunch with her mother Marta.  You stabbed her seven times in the chest and nine times in the back.  She was attacked first in the lounge but managed to get to the hallway, where you stabbed her again.  In her case, too, you used two different knives. 

5.        Marta de la Haye, Julia's mother, was stabbed with two different knives; she managed to stagger out into the street before collapsing.

6.        Marek, your father-in-law, was stabbed nine times with two different knives.  It started in the bedroom where he was watching television.  You then attacked him again in another bedroom.  During that attack you stabbed him with such force that you severed his spinal cord and the knife remained in his body.  Despite that, he managed to crawl into the hallway before collapsing. 

7.        Finally your wife Izabella.  After you stabbed her twice she tried to escape.  She ran through two bedrooms and into the courtyard.  She then climbed through the bathroom window, which we have seen.  You were clearly chasing her.  It must have been terrifying.  She made it out of the flat, shortly after Marta, and yet you chased her into the street where you stabbed her again. 

8.        In many cases of murder the defendant does not intend to kill the victim, only to cause serious injury, but the Court is in no doubt from the nature of the attacks in this case, that you intended to kill all six of your victims. 

9.        But, and it is important to emphasise this, this is not a case of murder.  The Court found that you were guilty of manslaughter on the grounds of diminished responsibility because you were suffering at the time from a psychotic depressive illness.  You were depressed because of the difficulties in your marriage and you had developed psychotic symptoms, in particular hearing voices, during the course of your trip back from Poland.  The Court held that this psychotic depression substantially impaired your responsibility for the killings and that indeed was the evidence of four out of the five psychiatric experts who gave evidence. 

10.      We turn to consider the principles that we should apply when deciding upon your sentence and we regret this will be slightly longer than normal because there is no recent authority in Jersey and we have therefore had to consider several recent English cases which have dealt with sentencing for diminished responsibility manslaughter.  The leading case is R-v-Clive Wood [2009] EWCA Crim 651.  In that case a five-judge Court of Appeal, led by the Lord Chief Justice, said that when assessing the seriousness of the homicide in a manslaughter case the court should have regard to the features listed in schedule 21 of the Criminal Justice Act 2003 of England and Wales, which is the equivalent of Article 9 of the Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment)(Jersey) Law 2005.  The Court of Appeal pointed out that the 2003 Act had increased the sentencing levels for murder and that this must be reflected in sentencing levels for diminished responsibility manslaughter, if there was not become too much of a mis-match.  Sentences in cases which preceded the 2003 Act should therefore be treated with considerable caution.  The Court went on to say that, having assessed the seriousness of the killing, a court must of course then have regard to the culpability of the accused, given the finding of diminished responsibility.  The court pointed out that the culpability of an accused in diminished responsibility cases may sometimes be reduced almost to extinction whilst in other cases it may remain very high. 

11.      So we consider first the gravity of these killings.  It was a particularly serious case, as that expression is defined in the 2005 Law, because it included the death of two or more people.  In terms of the aggravating features spelt out in that Law there is the fact that there were as many as six people who were killed, that three of the victims were children, and that the defendant was in a position of trust in relation to his children. 

12.      In terms of mitigating factors, as set out in Article 9 of the 2005 Law, these were a lack of premeditation, and the fact that the defendant had been subject to stress for a few months in relation to his marriage generally, including in relation to his wife's affair.  Additional features of mitigation outside the statute are his guilty plea to manslaughter from an early stage, and his lack of any previous convictions. 

13.      Turning to culpability, the Court is of the view that, notwithstanding the substantial impairment of responsibility caused by his psychotic illness, the defendant retains a significant degree of culpability for what he did.  This was not a case where the voices directed him to kill anyone; on his own admission to Professor Eastman, the defendant was very angry with his wife that lunchtime, and he had been dwelling on her infidelity on the ferry on the way back to Jersey that morning.  As the defence experts agreed, the effect of the illness was to impair his judgement, reasoning and self-control.  But the Court considers that it did not extinguish his culpability for what he did.  As Professor Eastman said, the defendant's personality was such that he was like a pressure cooker which was capable of exploding and the illness simply weakened the seams.  We should add of course that his personality is not a mental abnormality and therefore he remains responsibility for anything which arises as a result of his personality as opposed to his mental illness. 

14.      As the English Court in Wood made clear, citing an earlier case of R-v-Chambers (Stephen Francis) (1983) 5 Cr. App. R. (S) 190, (1983) Crim. L.R. 688 CA (Crim Div), even when considering a determinate sentence of imprisonment, the court must consider the question of danger to the public and the period of time for which the defendant may be a danger. 

15.      So we now turn to consider that aspect.  What risk might the defendant pose in the future?  We have of course considered carefully the report of Professor Eastman in this respect, together with all the other evidence in the case.  In our judgement the defendant does pose a material risk of serious harm to others in the future on the following basis:-

(i)        He has killed six people after suffering psychotic symptoms for only about 48 hours.  It is clear therefore that when suffering from a psychotic illness, he is capable of extreme violence.

(ii)       That psychosis continued until the trial, despite treatment, and continued after the trial despite treatment, although it appears now to have diminished and to have responded to treatment in terms of the psychosis, although he is clearly still suffering from a depressive illness.

(iii)      When a drug-free trial was undertaken in Broadmoor during his period of remand, he became violent.  This endorses the finding that he is capable of violence when suffering from a psychotic illness. 

(iv)      Professor Eastman says that there is no evidence that he might perpetrate serious violence against people with whom he is not in a relationship.  That may well be so.  The Professor does not deal specifically with the danger to persons with whom he is in a relationship, although we assume that he is referring to such people on page 19 of his report when he concludes that the risk of further serious violence is "much less" than his risk of suicide.  As the Professor assesses the defendant as being at high long-term risk of suicide, we conclude that the Professor is accepting that there is still a material risk of violence to such category of persons.  And we think that must be right.  It is after all quite likely that upon his release he will form new relationships.  What if those relationships run into difficulty and he again becomes depressed, and he again becomes psychotically depressed.  In view of the violence which he has shown he is capable of committing when he is psychotically depressed, we consider there is a very real risk of serious harm being caused to persons with whom he is in a relationship, should that occur in future.  We also note that, even if his main target in this case was his wife and children because of his anger and distress, this did not stop him killing a completely unrelated person who happened to be around at the time, namely Julia. 

(v)       Professor Eastman is of the view that the defendant needs to be detained for the protection of others.  As he said at page 18 of his report:-

"It has to be accepted that the defendant has been multiply violent to an extreme degree when mentally ill in a way that is less than well understood at present."

(vi)      We note the conclusion of the experienced probation officer in the background report, paragraphs 56 to 65, where the author concludes "the defendant presents a high risk of harm to others."

All in all we conclude that this defendant poses a material risk of harm to persons with whom he may be in a relationship in future. 

16.      To summarise therefore, our findings are that this is a particularly serious killing involving the death of six people; that the defendant retains significant culpability despite his mental illness; and that there is a material risk of his perpetrating serious violence in future against people he may be in a relationship with, should he suffer a recurrence of psychotic illness. 

17.      All the experts are agreed that a hospital order would be the best disposal in this case.  He needs treatment in a hospital setting.  However, the Court does not have power to make such an order; we can only impose a period of imprisonment.  We therefore express the hope that the prison authorities will transfer the defendant to a secure hospital in England, following what we imagine will be a transfer to England, and we note that Broadmoor have indicated that they would support this occurring. 

18.      In the Court's opinion the correct sentence in this case would be one of life imprisonment because of the material risk of future violence in the circumstances we have described.  The great advantage of a life sentence is that after the minimum period has passed a defendant is only released if the Parole Board considers it safe for him to be released.  However, having heard the Solicitor-General, it seems that it is not possible for us to impose a life sentence because of a lacuna in the 2005 Law which does not provide for the Court to order a fixed minimum period of imprisonment in cases of a discretionary, as opposed to a mandatory, term of life imprisonment.  We were advised that therefore we could only, in effect in English terms and in our terms, make a recommendation, as opposed to make an order, and that in those circumstances, if the defendant were transferred to England, the Parole Board would not feel able to exercise a role and it was therefore likely that the defendant would spend the rest of his life in prison without possibility of release.  In a case of manslaughter that does not seem appropriate. 

19.      Regretfully therefore we have had to conclude that we can only impose a determinate sentence, in other words a sentence for a particular period.  As I have already indicated the Court is not happy about this because it means that at some stage in the future the defendant will be released, even if he is still considered a danger to himself or to others.  But, because of the lacuna in the 2005 Law, our hands are tied. 

20.      The English decisions indicate that it is good practice to consider what sentence would be passed for murder before considering the relevant sentence for manslaughter and that is an exercise we propose to undertake.  As already indicated, this is, within the meaning of the 2005 Law, a particularly serious case.  The starting point is therefore one of 30 years minimum period of detention.  We have already listed the aggravating features which serve to increase that figure and the mitigating factors which would serve to reduce it.  In our judgement the key feature here is that there are as many as six deaths.  Had this been a case of murder we would have imposed a sentence of life imprisonment with a minimum term of 35 years.  That would have meant that the Parole Board would only consider the defendant's release after 35 years, and even then would only release him if satisfied that it was safe to do so.  But as we say, this is not a case of murder this is a case of manslaughter.  On the facts of this case, had we been able to impose a term of life imprisonment, we think that the right minimum term would have been one of 20 years as suggested by the Crown.  In particular we disagree with the observation in the English case of R-v-Deighton [2012] EWCA Crim 1372 that the number of deaths is not of great significance in cases of manslaughter.  We do not think that approach has been followed by other cases to which we have been referred, which do seem to have placed weight upon the number of deaths and we certainly think that it is significant. 

21.      Given that our conclusion is that, had we been able to do so we would have imposed a minimum term of 20 years in agreement with the conclusions of the Crown but as we must impose a determinate sentence, we think the right sentence is one of 30 years' imprisonment. 

22.      The sentence of the Court is that you are sentenced to a term of imprisonment of 30 years' imprisonment, concurrent on all six counts. 

23.      We also make a recommendation that the defendant should be deported at the end of his sentence; we have no hesitation in concluding that his continued presence in the Island would be detrimental, given the seriousness of the crimes he has committed and the risk in the future; there are no human rights grounds which would point against that and, accordingly, that is why we make the recommendation. 

24.      Finally we would mention just this.  We would urge that there be speedy reform of the 2005 Law.  It is not easy to understand why the 2005 Law did not deal with discretionary life terms but we consider it very important that it should do so, so that the sort of problems with which we have been faced in this case will not reoccur. 

Authorities

R-v-Wood [2010] 1 Cr App R (S) 2.

R-v-Clive Wood [2009] EWCA Crim 651.

Criminal Justice Act 2003 of England and Wales.

Criminal Justice (Mandatory Minimum Periods of Actual Imprisonment)(Jersey) Law 2005.

R-v-Chambers (Stephen Francis) (1983) 5 Cr. App. R. (S) 190.

R-v-Chambers (Stephen Francis) (1983) Crim. L. R. 688 CA (Crim Div).

R-v-Deighton [2012] EWCA Crim 1372.

R-v-Dass [2009] EWCA Crim 1208.

R-v-Erskine [2010] 1 WLR 183.