Neutral Citation No. [2006] NICC 14	Ref:     	MORF5608	
			
Judgment: approved by the Court for handing down	Delivered:	23/06/2006	
(subject to editorial corrections)			

IN THE CROWN COURT IN NORTHERN IRELAND

 _________

THE QUEEN

-v-

FULTON AND OTHERS
 ________

MORGAN J

[1]	On 18 February 2005 the accused were arraigned on one count that on 25 April 2004 each of them murdered Thomas Glen Venus.  Each pleaded not guilty.  The defendants Fulton and McCullough indicated that they would plead to a count of manslaughter but the Crown were not prepared to accept that plea.  On 3 May 2006 the Crown applied to add 2 further counts of manslaughter against Fulton and McCullough and two counts of affray against McCartney and Annesley.  The defendants were arraigned on those counts and pleaded guilty.  The Crown indicated that it did not intend to proceed on the murder charge.  In those circumstances I consider that I should deal with this case on the basis that the accused indicated their intention to plead guilty at the earliest opportunity. 

[2]	The circumstances of the offences were that in the early hours of 25 April 2004 the accused and the deceased had been drinking in the Alexandra Bar.  The deceased had not been in the company of the accused nor does it appear at that he was known to the accused.  They were all outside the bar at approximately 3 am.  There was a large crowd of people waiting for taxis.  It appears that there was some verbal exchange between the deceased and the defendants Fulton and McCullough.  As a result of this it is alleged that the deceased punched the defendant McCullough on the back of the head.  It appears that the four defendants then turned on the deceased and chased him a distance of almost 300 yards along York Street.  In the course of this all of the defendants swung fists at the deceased although there is no evidence that the defendants McCartney or Annesley actually struck him.  Annesley says that he was trying to calm things down but the deceased misinterpreted and swung at him and he swung back.  In any event it is clear that McCartney and Annesley detached themselves from the attack on the deceased before he received his fatal injuries. 

[3]	The defendants Fulton and McCullough accept that they delivered punches to the deceased and that each of them delivered a number of kicks to the deceased while he lay on the ground.  The deceased sustained a fractured skull but the Crown accept that this may have occurred as a result of a fall rather than a punch or kick.  It appears that the deceased ended up in a position in the middle of York Street.  The defendants Fulton and McCullough moved him a distance of approximately 7 m towards the side of the road.  They became concerned about the injuries sustained by the deceased and decided to go back to have a look at him.  As a result of that the four of them went in a car driven by Annesley to a telephone box and phoned for an ambulance.  Shortly thereafter the deceased was found and pronounced dead.  It appears that the deceased's death was contributed to by blows to his head which probably caused internal bleeding.  In particular there were fractures to the deceased’s nasal bones which one of the pathologists believed must have been caused by a kick. Each of the accused voluntarily presented themselves to police the next day.

[4]	Fulton is a 21-year-old man.  He has an unfortunate background in that his mother was exposed to a number of physically abusive relationships.  He himself had learning difficulties and was expelled from school at the age of 13.  He has become a heavy drinker and has abused drugs.  He has 10 previous convictions accumulated in 2003.  These related to offences of dishonesty and road traffic offences.  He voluntarily attended for police interview to disclose his part in the events and indicated at an early stage his intention to plead guilty.  His risk of re-offending is clearly related to his alcohol and drug abuse and the pre-sentence report makes it clear that he could benefit from a period of probation supervision. 

[5]	The defendant McCullough is now 19.  He comes from a stable family background and had some academic success.  By the age of 15 he had started drinking and regularly drank heavily at weekends.  He has no previous convictions.  He voluntarily attended at police interview to disclose his part in the events and indicated at an early stage his intention to plead guilty.  He has expressed his remorse in correspondence to the deceased’s family.  The pre-sentence report makes it clear that he also would benefit from a period of probation supervision. 

[6]	The defendant McCartney is 28 years old.  He had problems with his stepfather as a result of which he was placed in a children's home at the age of 14.  He has had no contact with his family since then.  He has had a steady relationship for the last 10 years and he and his partner live with their seven-year-old child.  He has convictions for offences of dishonesty in the 1990s and two convictions for common assault in 1999.  He has a recent conviction for a road traffic matter which is of no relevance.  The pre-sentence report makes it clear that he must address issues in relation to the abuse of alcohol and illegal drugs.  Like the other defendants he voluntarily presented himself to police to disclose his part in this offence and indicated his intention to plead guilty at an early stage. 

[7]	The defendant Annesley is 23.  He had a stable family background and success academically as a result of which he achieved an NVQ in computers.  Unfortunately as a result of the abuse of alcohol and drugs he lost his job.  He has no previous convictions.  Like his co-accused he has expressed deep remorse for his participation in this matter.  He has made considerable progress in dealing with his abuse of alcohol and drugs over the last two years and I consider that he would be further assisted if he were subject to probation supervision. 

[8]	In respect of the manslaughter charges this is a case in which Fulton and McCullough admit punching and kicking the deceased. Neither had an intention to kill or cause grievous bodily harm.   Although no weapon was used I consider that the use of feet to inflict injury is a serious aggravating factor.  Having regard to the nature of Fulton's record I do not consider it appropriate to make a distinction between them on that ground nor does it seem to me that the age difference of some 18 months should lead to any distinction.  

[9]	Because of the variety of circumstances in which the offence of manslaughter can be committed there are no guideline cases.  I have had the advantage, however, of being referred to a number of relevant decisions including in particular of the decision of the Court of Appeal in R v Quinn (2 June 2006).  At paragraph 19 of that decision the court said:

"As we have said, it is now, sadly, common experience that serious assaults involving young men leading to grave injury and, far too often, death occur after offenders and victims have been drinking heavily.  The courts must respond to this experience by the imposition of penalties not only for the purpose of deterrence but also to mark our society’s abhorrence and rejection of the phenomenon.  Those sentences must also reflect the devastation wrought by the death of a young man such as Mr McVey."

I consider that the remarks made by the court are clearly applicable to this case and that I must take into account that this was an incident in a public street which occurred over a considerable distance at a time when other members of the public were waiting for their taxis. Taking into account their age, their remorse which I accept is genuine and the way in which they met the offence I consider that the appropriate sentence is one of seven years imprisonment.  I consider that each would benefit from a period of probation supervision and with their consent I propose to impose a sentence of six years imprisonment followed by a period of 12 months probation supervision. In respect of McCullough I consider that the gravity of the offence is such as to require me to impose a sentence of imprisonment.

[10]	McCartney and Annesley have pleaded guilty to affray.  Because of the variety of circumstances in which that offence may occur there are again no guideline cases.  I have the benefit, however, of the decision of the Court of Appeal in Attorney General’s Reference (Number 1 of 2006) [2006] NICA 4. At paragraph 25 the court set out the approach to sentencing: 

"Because of the infinitely varying circumstances in which affray may occur and the wide diversity of possible participation of those engaged in it, comprehensive rules as to the level of sentencing are impossible to devise.  Certain general principles can be recognised, however.  Active, central participation will normally attract more condign punishment than peripheral or passive support for the affray.  The use of weapons will generally merit the imposition of greater penalties.  The extent to which members of the public have been put in fear will also be a factor that will influence the level of sentence and a distinction should be drawn between an affray that has ignited spontaneously and one which has been planned – see R v Anderson and others (1985) 7 Cr App R (S) 210.  Heavier sentences should in general be passed where, as in this case, the affray consists of a number of incidents rather than a single self contained episode."

These accused have no direct responsibility for the death but I am entitled to take into account as an aggravating factor that there was a death associated with the affray.  I approach their cases on the basis that they were not central participants.  There were no weapons used. There is no evidence that either inflicted blows on the deceased. This incident ignited spontaneously. Having regard to the way in which they have met their responsibilities I consider that the appropriate sentence is one of 2 years imprisonment.  In each case I consider that a period of probation supervision would be in the public interest and with their consent I propose to impose a sentence of 12 months imprisonment followed by a period of 12 months probation supervision.