Judgment: approved by the Court for handing down
(subject to editorial corrections)
Delivered: 22 June 2001	

Ref:    	CARC3452

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN 

v

WILLIAM JOHN PEDEN and ROBERT ANDREW STIRLING

_____ 

CARSWELL LCJ

The applicants Peden and Stirling on 12 September 1999 mounted a revenge attack on one Frederick Gerald Hunter, whom they suspected, it transpired rightly, of sexually abusing Peden’s twelve-year-old daughter.  They ambushed him in his home and inflicted fearful injuries on him, from which he might well have died.  They were apprehended and charged with attempted murder and other lesser charges, to which they pleaded not guilty.  On 8 January 2001 they were re-arraigned and pleaded guilty to the three other counts on the indictment, which charged them with causing grievous bodily harm with intent, criminal damage and theft, the count of attempted murder being left to lie on the file.  On 19 February 2001 at Antrim Crown Court sitting in Ballymena, Girvan J on the grievous bodily harm count imposed on Peden a custody probation order consisting of six years’ custody and eighteen months’ probation, and on Stirling a similar order consisting of six and a half years’ custody and eighteen months’ probation.  The case attracted some interest and a volume of criticism because of the public perception of imbalance between the applicants’ sentences and the disposition in a lower court of the prosecution of Hunter for his offences against Peden’s daughter.  Their applications for leave to appeal were refused by the single judge, and they now renew their applications to this court.
On Saturday 11 September Peden made a complaint to the police alleging sexual abuse by Hunter of his daughter.  On the morning of 12 September a detective constable came to see him to explain the procedure which would be followed in relation to investigating the complaint.  Peden and his cousin Stirling spent some time drinking that day, in the course of which they decided to take what they saw as revenge on Hunter, since they considered that the police had not acted with sufficient speed to arrest him.
	The applicants were seen to enter Hunter’s house at 25 Kingsbury Gardens, Coleraine at approximately 8.15 pm.  Their faces were masked and one of them was carrying a plastic shopping bag.  According to Peden’s account given to the probation officer, they found photographs of young girls, including Peden’s daughter, and they set about wrecking the house.  Shortly afterwards Hunter arrived home and the applicants seized him, tied him up with flex and assaulted him, interrogating him about the abuse of Peden’s daughter.  They attacked him with a hatchet and a Stanley knife.  The Stanley knife was found on the premises after the assault, stained with blood.  A hatchet was also found there, but it did not bear any bloodstains.  The applicants denied that they had brought these weapons with them, but Hunter stated that he did not own them and the fact that one of the applicants carried a shopping bag tends to support the case that they were brought for the purpose of attacking their victim.  
	The injuries sustained by Hunter were manifold and serious:
1.	Compound depressed fracture of the skull.
2.	Le fort type III facial injury.  The CT scan showed multiple fractures of the facial and nasal bones.
3.	Fractures of the right forearm and wrist.
4.	Fractures of both legs.
5.	Multiple soft tissue lacerations and abrasions all over his body.
He had lengthy hospital treatment for his injuries, which were slow to heal, and for psychiatric complications.  In June 2000 he was still in a wheelchair and unable to weightbear.  The report given then by Mr IV Adair FRCS indicated a very guarded prognosis for the future mobility of his legs and his walking ability.
	The assailants inflicted severe damage upon Hunter’s house, which one of the witnesses who arrived on the scene described as “completely trashed”.  They drove off in his car and attempted to burn it.
	The applicants were seen that evening walking past Hunter’s house, when a police officer heard Peden say “Wonder what happened here?”  The applicants were both interviewed by police, but denied that they had attacked Hunter.  Peden admitted that he had set out to confront him at his house, but maintained that at first he did not find the right house and then Hunter was not at home.  Stirling made no admissions in interview.  Subsequently the results of forensic tests showed a strong connection between the applicants and the attack on Hunter at 25 Kingsbury Gardens.
	Peden, now aged 33 years, has an extensive criminal record dating back to 1984, which includes a couple of assault and public order offences and several criminal damage convictions.  He had a disturbed family background.  In his youth he was involved in solvent abuse and truancy as well as offending, and has subsequently been prone to considerable alcohol abuse.  He was divorced some three years ago.  The pre-sentence report said of him:
“Mr Peden’s attitude to this whole incident is somewhat mixed.  Whilst Mr Peden accepts that he should not have taken the law into his own hands, he still feels somewhat justified in his actions given that in his view this man had abused his daughter.  He is fully aware of the pain and loss he has caused his victim and stated that he wanted to take everything from this man as he feels he has taken everything from his daughter.  With hindsight he recognises that his revenge attack has cost him much personal anguish and states that he is not proud of what he has done.  He  recognises that the extent of the injuries he caused him was in the extreme and could have resulted in the death of the injured party.”

The probation officer states in her conclusion:
“It would appear that a combination of his intoxicated state and a desire for revenge against a man whom he believed had abused his daughter are the main factors in the present offence.

In addition it is my view that the traumatic events in the preceding years in Mr Peden’s own life have left him with strong feelings of anger, guilt and powerlessness from which he has escaped by daily drinking of alcohol.  His daughter’s disclosure of more abuse propelled him into taking action on this occasion.

Mr Peden is fully aware that he is likely to receive a custodial sentence today for his involvement in the present offences.

However on his release in my view there are a number of factors which Mr Peden needs to address in order to avoid re-offending.  These are:-

(a)	his alcohol misuse
(b)	his traumatic past
(c)	his attitudes and beliefs about offending and justice
(d)	his company
(e)	achievement of stable accommodation.

Probation supervision as part of a custody probation order would focus on the expectation that Mr Peden address the above issues.  Mr Peden has in the past responded positively to probation intervention and is adamant that he would co-operate in future.”

	Stirling, now aged 37 years, has an even longer criminal record than Peden and has been a persistent offender since 1976.  His record includes assaults, public order offences and many criminal damage convictions.  He is described in the pre-sentence report as a volatile man whose mood can change quickly.  He misuses alcohol, but does not see it as a problem and has sought no treatment for it.  He is said to be “a strong-willed man and not someone who would normally be open to influence from others.”  He claimed that the applicants were angry that Hunter had not been arrested at once and after heavy drinking during the day they decided to go to his home.  Stirling averred that in the attack on Hunter he “lost control”.  The pre-sentence states:
“Mr Stirling shows an ambivalent attitude in his reaction to the victim.  On occasions he states that the attack went too far and was out of control.  On other occasions, he expresses total justification for his actions because of his belief that the victim had been responsible for a sexual assault.  In general, he shows little empathy for the fear and trauma suffered by the victim.”

The probation officer sets out the issues which Stirling needs to address, but states that while these could be addressed in the community supervision period of a custody probation order Stirling stated that he did not wish to consider it.
	The judge in his sentencing remarks acknowledged the extent of the provocation felt by Peden, but regarded his response as wholly disproportionate and unacceptable in a civilised and law-abiding society.  He observed that Stirling, in whose case the provocation could not be said to have been so direct or severe, ought to have acted as a restraining influence, but instead actively joined in the planning and execution of the attack.  He regarded the punishment beating cases such as R v McGuigan (1997, JSB Sentencing Guidelines, vol 2, section 6.3.1) as affording some analogy with the instant case.  He took the view that Peden’s offence would carry a sentence of seven years if he had not made a custody probation order.  Reflecting the higher degree of provocation in Peden’s case, he made an order on Count 2 consisting of six years’ custody and eighteen months’ probation.  In Stirling’s case, not withstanding his reservations about the usefulness of probation, he made a custody probation order on Count 2, consisting of six and a half years’ custody and eighteen months’ probation.  In respect of Counts 3 and 4 he sentenced each defendant to twelve months’ imprisonment, concurrent with the other sentences.
	The main thrust of the submissions cogently presented to us on behalf of the applicants was that the analogy with the paramilitary punishment beating cases was inappropriate and misleading.  Counsel for the applicants laid emphasis on the degree of provocation involved in the case.  While accepting that the response of the applicants was wrong and could not be tolerated, they urged upon us the proposition that the judge had to strike a balance between the demands of a civilised society and the mitigating factor of the provocation, but had struck it in the wrong place.  They pointed to the tenor of sentencing for violent assaults and contended that the present sentences were out of line with those imposed in other serious assault cases.
	We are very conscious of the extreme pressures placed upon a father in Peden’s position, informed of sexual interference by a man such as Hunter upon his young daughter, and we make full allowance for them in considering our disposition of the appeal.  While recognising the strain which such knowledge must have placed upon his emotions, we are compelled nevertheless to confirm and reiterate the judge’s condemnation of his actions, which, as he said, cannot be countenanced in a society regulated by the rule of law.  Stirling has substantially less excuse for his participation with Peden in this appalling punishment beating.  He should, as the judge rightly observed, have acted as a moderating influence, but instead allied himself with Peden in planning and executing the attack, albeit perhaps in a subordinate role, as his counsel suggested was accepted by the police.  
	We are unable to accept the validity of the complaint, which was not made by counsel on behalf of the applicants, but which remained as an unspoken theme in these appeals because of the public criticisms made of the sentences, that they were too severe in comparison with the leniency shown to Hunter.  We did not have details before us of the views of the court which sentenced Hunter, but we can readily see how the severity of the injuries inflicted by the applicants and his consequent incapacity could have been very material factors.  It is not, however, a factor which should affect our judgment or that of the sentencing judge, for it is our and his function to fix upon an appropriate sentence to reflect the quality of the acts of these offenders and the circumstances in which the offences were committed.
	We must start by considering whether the judge was right in regarding the appropriate sentence in Peden’s case as one of seven years, if he had not made a custody probation order.  One may find a considerable range of sentences in the cases of severe physical assaults reported in this jurisdiction  and in England.  One may find in the worst cases that they go as high as ten or twelve years, but it is probably correct to say that the general level on a plea of guilty of sentences in grievous bodily harm cases is in the range of three to six years, depending on the severity of the attack and the circumstances of the case.  
	We do accept the validity of the argument that there are factors in the paramilitary punishment beatings which materially increase the seriousness with which the courts regard them.  As Kerr J observed in R v McGuigan at page 3.37, in upholding a sentence of twelve years –
 “No one in Northern Ireland can be unaware of the misery that punishment beatings and shootings have caused in recent years.  This experience is alone sufficient to warrant the imposition of a more severe penalty than would be appropriate to most grievous bodily harm cases.  But perhaps of even greater importance is the consideration that these attacks are designed to undermine the rule of law, not only in substituting the savage and arbitrary sanction of paramilitary organisations for the operation of the criminal law but also in preventing victims from testifying against their attackers.” 
In  R v Pywell and others (2000, unreported) this court dismissed appeals against sentences of up to fifteen years imposed upon members of a paramilitary group who had inflicted dreadful injuries in a series of punishment shootings.
	We agree with the proposition that the element of deliberate undermining of the rule of law and subversion of the ordered life of society must operate as an aggravating factor to effect a substantial increase in sentences for paramilitary punishment attacks, especially where they are carried out with firearms.  This alone suffices to constitute a distinguishing feature from the present case.  The major effect of the deliberately vengeful nature of the attack in cases such as the present is not so much to increase the level of sentencing above other cases of violent physical assaults.  It is rather to negative, to a greater or lesser extent, depending on the circumstances of each case, the mitigating effect of the pressure or provocation constituted by the sexual abuse of Peden’s daughter.  This case was not one of an unpremeditated attack in the heat of revelation and confrontation with the perpetrator.  It was planned and prepared and carried out with sustained savagery, fuelled by alcohol, which cannot be allowed to furnish an excuse or mitigation.
	Taking these factors into account, we are of opinion that an equivalent sentence of seven years is too long to meet the justice of the case.  We consider that in Peden’s case a term of five years is appropriate.  We have taken into account the factors in Stirling’s case which might be put forward as aggravation or mitigation, but have concluded that we should not make a difference between them.  
	The judge made a custody probation order in each case, though he expressed well-grounded reservations about doing so in Stirling’s case.  We agree with his conclusion that Peden could properly benefit from a period of probation.  He did respond positively to earlier community service and probation supervision, though it was less successful more recently because of the effect on him of traumatic events within his family.  Stirling told the probation officer preparing the pre-sentence report that he did not wish to consider probation, which may indicate that its usefulness would be limited.  He did, however, express willingness in the court below to accept probation supervision.  We share the judge’s reservations about making a custody probation order, but we are also reluctant to effect a different disposition of the two applicants’ cases.  We shall therefore make a custody probation order in respect of each, the custody element being four years, with probation supervision of eighteen months.  Each applicant will have to act under the direction of the probation officer and undergo such course of treatment for alcohol dependency or other form of treatment as he or she may direct.
	We therefore grant each applicant leave to appeal and allow his appeal.  We shall vary the custody probation order made on Count 2 in each case in the manner we have set out and confirm the other sentences.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

THE QUEEN 

v

WILLIAM JOHN PEDEN and ROBERT ANDREW STIRLING

_____ 

JUDGMENT

OF

CARSWELL LCJ

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