Judicial Communications Office
Friday 25 January 2013
BARRY MICHAEL McCARNEY SENTENCED
Summary of Judgment
Mr Justice Stephens, in the Crown Court sitting in Belfast, today sentenced Barry Michael
McCarney for murder, grievous bodily harm and the sexual assault of Millie Martin.
Millie was born on 5 September 2008 and died on 10 December 2009 aged 15 months. On 4
December 2012, the defendant was found guilty by unanimous verdict of:
• murder;
• grievous bodily harm with intent, contrary to section 18 of the Offences against the
Person Act 1861; and
• sexual assault contrary to Article 14(1) of the Sexual Offences (Northern Ireland)
Order 2008.
The conviction followed an 8 week jury trial. On 4 December a life sentence was imposed
on the defendant in respect of the murder charge. The Judge today specified the minimum
term the defendant would have to serve before he would become eligible for
consideration for release on licence [2] and the sentences he would serve for sexual assault
and grievous bodily harm.
The Court heard that the defendant began a relationship with Millie’s mother, Rachael
Martin, at the end of August 2009 and moved into the family home between the end of
September and start of October 2009. Mr Justice Stephens said that he had gained the total
trust of Rachael Martin, using Millie as a tool to gain her affection.
The Court heard that the defendant had been found guilty of breaking 7 of Millie’s ribs by
using a force equivalent to that of a significant road traffic accident. Those fractures were
sustained some weeks before her death.
On the day of her death, Millie sustained multiple bruising in the genital area. Her head
also impacted on a hard surface causing severe bruising to her brain and irretrievable and
fatal damage to vital structures in her skull.
Mr Justice Stephens said that Millie’s death was not a result of a child trying the patience
of an adult. He said that Millie had not been crying but was lying quietly and placidly in
her cot. The Judge said the defendant had induced Ms Martin to leave him alone with
Millie with the intention of committing a sadistic sexual assault and that her head injury
was likely a spontaneous response to her crying out in pain. He said, however, that
spontaneity had to be seen in the context of the previous fracture of 7 of Millie’s ribs.
Commenting on the impact of Millie’s death on her family, Mr Justice Stephens said no
one could fail to be moved by the palpable anguish, heartfelt loss and enduring emotional
scars which had been caused. He said the consequences for the entire family were of a
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marked and enduring character. The Judge noted the family did not even have the
consolation of an honest explanation or expressions of remorse because the defendant
continued to maintain that he was innocent of the offences and to be immune to the
suffering of the family.
The Judge outlined the legal principles governing sentencing for murder [3]. The Court
heard that the normal starting point was 12 years but that a higher starting point of 15/16
years applied to cases where the offenders culpability was high or where the victim was a
child or particularly vulnerable. Mr Justice Stephens said that the starting point could be
varied upwards or downwards to take account of aggravating or mitigating factors,
where, for example, there was intention to inflict grievous bodily harm rather than death,
or there was clear evidence of remorse or a timely guilty plea. The Judge noted, however,
that aggravating or mitigating factors are not to be applied mechanistically. He said there
was discretion as to whether there was a mitigation when the intention was to commit
grievous bodily harm rather than to kill.
Mr Justice Stephens said he had accepted the prosecution assertion that the higher
starting point of 15/16 years was appropriate in this case. He said Millie was particularly
young, totally helpless, and completely vulnerable and that the defendant could have
been in no doubt as to her fragility and defencelessness. The Judge said that in
aggravation it was necessary to take account of a breach of trust which had occurred and
element of planning necessary to ensure that the defendant was left alone with Millie. In
mitigation, it was noted that the defendant had intended to commit grievous bodily harm
rather than murder, which was committed spontaneously. The Judge said, however, that
degree of mitigation was to be kept in proportion because the line between an intention to
kill and an intention to cause grievous bodily harm was thin in the context of Millie’s age
and frailty and the extent of violence involved. Balancing the mitigating and aggravating
factors, the Judge said it was a serious case in which there should be a substantial upward
adjustment from the higher starting point and that the defendant should serve 25 years
before being considered for release on licence.
The Court heard that release on licence was a matter for the Parole Commissioners based
on their assessment of risk and that, if released, the defendant could be recalled to prison
at any time if he did not comply with the terms of his licence. The Court also heard that
unlike a fixed term of imprisonment, a minimum term of imprisonment did not attract
remission for good behaviour and the defendant would receive no remission and serve at
least the full term imposed.
Turning to the sentence for grievous bodily harm, Mr Justice Stephens explained that the
sentencing range was a determinate prison sentence of 7 – 15 years. He said the offence
was a serious offence and a specified violent offence under the Criminal Justice (Northern
Ireland) Order 2008 [4] and that he was therefore required to determine whether the
defendant posed a significant risk of serious harm to members of the public through the
commission of further offences. Mr Justice Stephens said that the offence of sexual assault
carried a maximum sentence of 14 years. He said that the offence was both a serious
offence and a specified sexual offence within Criminal Justice (Northern Ireland) Order
2008 [5] and that he was again required to consider whether there was a significant risk of
serious harm to members of the public. The Judge explained that on reaching a
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conclusion as to dangerousness, it was then open to him to decide whether an
indeterminate or extended custodial sentence would be appropriate [6].
Mr Justice Stephens noted that pre-sentence reports prepared by the Probation Board had
concluded the defendant posed a significant risk of serious harm to the public. The Judge
said the defendant was a deeply manipulative individual devoid of any regard for social
norms, the ordinary human obligations to a vulnerable child, or the consequences for
Millie’s mother and her extended family. He said the defendant perceived Millie to be his
to torture and abuse and that he obtained personal and sexual gratification from inflicting
physical abuse on her. The Judge said the defendant had no insight or remorse and had
demonstrated himself to be a violent individual. Based on that assessment, and the
conclusion that the defendant posed a significant risk of further serious harm to members
of the public, the Judge imposed a life sentence with a minimum term of 6 years for the
offence of grievous bodily harm. In respect of the offence of sexual assault, the Judge said
that, in combination with the other offences, he had concluded that an indeterminate
custodial sentence with a minimum term of 2 years was appropriate. The Judge ordered
that all 3 sentences be served concurrently together with the suspended sentences of 9 and
4 months applied in respect of previous offences committed by the defendant.
The Judge also made the defendant the subject of a Notification Order (requiring
information to be entered on the sex offenders register, a Sexual Offences Prevention
Order [7] prohibiting him from:
a) having contact or communication with any child under the age of 18 without the
prior approval of his designated risk manager;
b) residing or staying overnight at any place without prior approval from his
designated risk manager; and
c) entering into any relationship or friendship with a female without first having
disclosed his offending history;
and a Disqualification Order [8] preventing him from working or applying to work with
children.
NOTES TO EDITORS
1.
This summary should be read together with the judgment and should not be read
in isolation. Nothing said in this summary adds to or amends the judgment. The
full judgment will be available on the Court Service website
(www.courtsni.gov.uk).
2.
Article 5 of the Life Sentence (Northern Ireland) Order 2001 requires that the
minimum sentence that it is required to be served before an offender becomes first
eligible to be considered for parole to be determined. Release on licence after that
point is a matter for the Parole Commission based on assessment of risk. The
sentence will be the period that the Court considers appropriate to satisfy the
requirements of retribution and deterrence having regard to the seriousness of the
offence, or of the combination of the offence and one or more offences associated
with it. A Practice Statement, [2002] 3 All ER 417, sets out the approach to be
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adopted by the court when fixing the minimum term to be served before a person
convicted of murder can be considered for release by the Parole Commissioners.
3.
Practice Statement, [2002] 3 All ER 417 also sets out two starting points for
sentencing. The lower point is 12 years, and the higher starting point is 15/16
years imprisonment. In determining the minimum term, the judge will assess the
appropriate starting point in accordance with sentencing guidance and then vary
that 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.
4.
Offences under section 18 of the Offences against the Person Act 1861 come within
the provisions of the Criminal Justice (Northern Ireland) Order 2008 (‘2008 Order’)
(it is both a serious offence under Schedule 1, paragraph 7 to the 2008 Order and a specified
violent offence within Schedule 2, paragraph 6 to the Order).
5.
Offences under Article 14(1) of the Sexual Offences (Northern Ireland) Order 2008
also come within the provisions of the 2008 Order (it is a serious offence under
Schedule 1, paragraph 31A to the 2008 Order and a specified sexual offence within
Schedule 2, Part II, paragraph 14A to the Order).
6.
The 2008 Order provides for the sentencing and sentencing and assessment of
dangerous violent and sexual offenders. Article 8 requires a judge to specify the
custodial period at the end of which a defendant should be released on licence. By
virtue of Article 8(3) the maximum custodial period is one half of the term of the
sentence. A licence can be revoked under Article 28 of the 2008 Order.
Dangerousness is assessed as whether there is a significant risk of serious harm to
members of the public including risk of death or serious physical or psychological
personal injury. An offender assessed as dangerous will receive a discretionary life
sentence, an indeterminate custodial sentence (Article 13 of the 2008 Order), or an
extended custodial sentence (Article 14 of the 2008 Order), depending on the type
of offence. An indeterminate custodial sentence will be applied if the court
considers that an extended sentence would not be adequate to protect the public
from serious harm. It requires a minimum term or “tariff” which the offender is
required to serve in custody before becoming eligible for release. The minimum
term must be at least two years and be a period which the court considers to be
appropriate to satisfy the requirements of retribution and deterrence having regard
to the seriousness of the offence, or of the combination of the offence and one or
more offences associated with it. The application of an extended custodial sentence
requires the court to specify the appropriate custodial term plus a further period
for which the offender is to be subject to a licence for the purpose of protecting
members of the public from serious harm as the result of the commission of further
specified offences. The extension period in the case of a specified sexual offence
shall not exceed 8 years.
7.
Made under the Sexual Offences Act 2003.
8.
Made under the Children and Vulnerable Adults (Northern Ireland) Order 2003.
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ENDS
If you have any further enquiries about this or other court related matters please
contact:
Bronagh O’Reilly
Judicial Communications Officer
Lord Chief Justice’s Office
Royal Courts of Justice
Chichester Street
BELFAST
BT1 3JF
Telephone: 028 9072 5921
Fax: 028 9023 6838
E-mail: Bronagh.O’[email protected]