Director of Public Prosecutions -v- Byrne [2015] IECA 51 (09 March 2015)

Judgment


Title:	Director of Public Prosecutions -v- Byrne
Neutral Citation:	[2015] IECA 51
Court of Appeal Record Number:	129/12
Date of Delivery:	09/03/2015
Court:	Court of Appeal
Composition of Court:	Ryan P., Sheehan J., Edwards J.
Judgment by:	Court of Appeal
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Record No: 129/2012

Ryan J.
Sheehan J.
Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

Edward Byrne

Appellant

Judgment of the Court delivered on the 9th day of March, 2015 by Mr. Justice Edwards

Introduction
1. This is a case in which the appellant was initially charged, along with two other persons, Stephen Byrne and Martin Morgan, respectively, with the murder of Mr Lucasz Rzeszutko on the 4th October, 2010. Their trial was scheduled to commence on the 27th February, 2012. At the arraignment, prior to being put in the charge of the jury on that date, the appellant pleaded not guilty to murder but guilty of manslaughter. That plea was acceptable to the respondent, and this was indicated to the Court by counsel for the prosecution. The appellant was then remanded in custody for sentencing at a later date.

2. The trial then commenced before the jury as against the two remaining accused. On day three of the trial both defendants were re-arraigned at their request. Stephen Byrne pleaded not guilty to murder but guilty to manslaughter upon being re-arraigned, and that was accepted by the respondent. Martin Morgan also pleaded not guilty to murder but guilty to manslaughter upon being re-arraigned. However, counsel for the respondent indicated that his client was not prepared to accept a plea to manslaughter in Martin Morgan’s case, and thereafter the trial proceeded against Martin Morgan alone on the charge of murder. Martin Morgan was convicted of murder by a 10:2 majority verdict of the jury on the 15th March, 2012.

3. The appellant was sentenced on the 30th March, 2012 and received a sentence of twelve years imprisonment to date from the date of his sentencing. Stephen Byrne and Martin Morgan were also sentenced on the same occasion. Stephen Byrne was sentenced to nine years imprisonment to date from the date of his sentencing, with the last three years thereof conditionally suspended. Martin Morgan received the mandatory sentence for murder of imprisonment for life, backdated to the 15th March, 2012.

4. The appellant now appeals against the severity of his sentence.

Relevant Background
5. At about 4:20 am on the 2nd October, 2012 Mr. Lukasz Rzeszutko was on his way to work at a fish processing facility in Newtown Industrial Estate in the Coolock area of Dublin. He was walking to work as he usually did, and he was alone.

6. Mr. Rzeszutko was a Polish national, aged 27, and had been living and working in Ireland for approximately 3 years.

7. At the same time, five people were in the vicinity, having been drinking heavily the previous day into the early hours of the next morning. These were the appellant Edward Byrne, Stephen Byrne, Martin Morgan, Angela Whelan and Lauren Mooney.

8. CCTV footage taken from a camera mounted on an adjacent business premises showed the victim approaching a crooked crossroads within the Newtown Industrial Estate and within the sight of this group. It showed Stephen Byrne approaching the man first, followed by the appellant and finally Edward Byrne. The CCTV did not show the assault itself, which occurred just off camera.

9. The sentencing judge also heard evidence concerning the accounts of the incident given by Lauren Mooney and Angela Whelan in the trial of Martin Morgan. In opening the case at the sentencing hearing, counsel for the prosecution gave an outline of the evidence that they had given, and no objection was raised to this by or on behalf of the appellant. Moreover, Detective Garda Gibbs, who was the first witness for the prosecution at the sentencing hearing, was asked by counsel for the prosecution if he agreed with counsel’s outline, and he did so.

10. The outline of the evidence of Lauren Mooney and Angela Whelan, respectively, given to the sentencing court, which was conducting a joint sentencing hearing in respect of the appellant, Stephen Byrne and Martin Morgan, respectively, was as follows:

“The position in relation to the evidence of Lauren Mooney is that she gave evidence in the course of the trial saying that Stephen Byrne had gone over to ask this man who was approaching for a cigarette. She said that Stephen Byrne had hit Mr Rzeszutko first and then Martin Morgan had hit him and the man went to the ground, she thought that he fell. She says that Martin and Stephen were kicking him in the stomach and the legs and she went on to say that Martin Morgan was kicking him in the head and then she said that Martin Morgan was standing on him and she said that Edward Byrne had moved towards the man as he tried to get away. She said that Edward was trying to stop it, stop the incident. But she said that Edward Byrne got a kick in the face at some stage and she said that Edward was also kicking him but she said he didn't kick him in the head or hit him in the head. She says that she only saw Edward hit him one kick and when it was suggested to her that he did more she said she didn't see it but she says that Stephen Byrne kicked him a number of times, three or four times and she said that Edward Byrne left, then Stephen and that when Stephen left Martin Morgan was still kicking him in the head. Angela Whelan had said that she saw the man approach and she saw Stephen Byrne go over and hit him a dig in the side of the head. She said he was followed by Martin Morgan who was hitting him a dig and she said that Eddie Byrne ran over to stop it and she said that Edward had given her his documents before he went over and she said that Edward hit him two digs and she ran away then and was crying. She said that afterwards they discussed the matter and that she had noticed blood on Martin Morgan's runners and clothes and she said that Stephen Byrne said that he, Stephen, had hit him two digs and one boot and she said that Martin Morgan said that he stood on his head and jumped on his head.”

11. The Court also heard that a colleague of the victim who was leaving work at 4.30am found the victim and an ambulance was called. His wallet, rucksack and mobile phone were all present at the scene and the victim was taken to hospital with numerous fractures to his skull and facial bones. His injuries were described in evidence as not survivable and he died two days later on the 4th October, 2010.

12. In the opinion of the Assistant State Pathologist, Dr Kalid Jabbar, who carried out a post mortem on the victim, death was caused by significant and wide ranging craniocerebral and facial injuries, directly caused by blunt force trauma.

13. Later on the day of the assault at about 3.30 pm, the appellant met Detective Garda Gibbs at the locus, and went to Coolock Garda station voluntarily where he was interviewed. During the first interview, he gave an account of what had happened, but blamed two others, whom he was not prepared to name. He stated that he had been drinking heavily and agreed that himself and Angela Whelan separated from the group. He stated that one of the boys had gone to ask the victim for a cigarette and then tried to rob his mobile phone.

14. The appellant stated that when the victim fought back, Martin Morgan went over to help and started punching and kicking the victim to the ground. The man was dragged to the ground by his backpack. The appellant stated that he then ran over and gave the man three or four digs in the head and that when he was on the ground he gave him two knees in the chest. He said that he injured his own knuckle when he hit the man in the mouth and that the man had hit his head against a gate. He later admitted that he could have kicked him in the side of the head, twice or more times.

15. The appellant continued to say that he had hit the man the most, did the most damage and would take the rap for the offence. Evidence was given that, having initially blamed two others, the appellant essentially changed tack after the first interview and took the blame himself for the offence. He admitted that Mr Morgan could have hit him when he left, that he heard someone kicking as he walked away and heard the man shouting. He said they saw blood coming out of his ear and ran away. He stated they should not have done it as the man was only going to work and that they only stopped because the girls were screaming at them to leave him alone. The appellant stated in interview that he was sorry, that it was a stupid drunken mistake and he expressed concern about the man and his family. Detective Garda Gibbs accepted that his remorse was genuine.

16. Under cross-examination, Detective Garda Gibbs accepted that the appellant had exaggerated his role in the assault, and that he had not done all the damage to the head of the deceased as he had tried to suggest. Nevertheless, he admitted kicking and hitting the victim a number of times, and that some of the blows he struck were to the victim’s head.

17. Detective Garda Gibbs also accepted that the appellant claimed to have consumed, prior to the assault, half a litre of Pernod, some vodka and a cocktail of tablets including Dalmane and Zimovane, and that he had had difficulty putting together a coherent account of the event in any of his interviews.

18. The appellant committed the offence in question while on bail.

19. The appellant had 55 previous convictions including convictions for robbery, threatening to kill, possession of knives and other articles (a screwdriver), possession of drugs, possession of drugs for sale or supply, throwing drugs over the wall of Mountjoy prison, criminal damage, unlawful interference with an MPV, breach of a protection order, and various road traffic offences in connection with joy-riding incidents. The appellant has served various periods in detention and prison sentences in the past and, at the time of sentencing, had just commenced a three year prison sentence for drugs offences.

20. The appellant was born on the 20th August, 1990 and was 21 at the date of sentencing. He was 20 at the time of the offence for which he was being sentenced. The appellant left school at 14, and was unemployed at the time of the offence. His parents are separated. He is estranged from his mother but has a reasonably good relationship with his father. However, he was living in a hostel at the time of the offence.

Grounds of Appeal
21. The appellant contends that his sentence ought to be set aside on the basis that his sentence was too severe, and because he contends that the sentencing judge erred in principle in a number of respects in sentencing him:

1. It is contended that the sentencing judge breached the parity principle by imposing a twelve year sentence on the appellant compared to a sentence of nine years with the final three years suspended on the co-accused, Stephen Byrne, having expressly held that he should not differentiate in real terms on the question of sentence between the two co-accused.

2. It is contended that the learned sentencing judge erred in principle in rejecting the account of the facts tendered in evidence by the Director of Public Prosecutions against the appellant in the course of the sentence hearing in favour of a more adverse view which he had formed in the course of the trial of a co-accused for murder at which the appellant and his legal team were not participants.

3. It is contended that the learned sentencing judge erred in law and in fact in determining that the offence of the appellant lay in the upper range of seriousness of manslaughter offences and merited a sentence of fifteen years.

4. It is contended that the sentencing judge erred in principle in failing to have sufficient regard to all of the mitigating factors in relation to the appellant holding that the sole mitigating factor was his plea of guilty and his remorse.

The Judge’s remarks at sentencing
22. Having imposed the mandatory life sentence on Martin Morgan, the sentencing judge went on to sentence both the appellant and Stephen Byrne in these terms:

“The sentence for manslaughter is discretionary. Sentences for manslaughter have ranged from suspended sentences to imprisonment for life, depending on the circumstances of each particular case. I must look to the facts of this case and determine what is the appropriate sentence for the crime itself, and then to the circumstances of Stephen Byrne and Edward Byrne to determine what sentence is appropriate to each of them. I wish to make it clear from the outset that the nationality of a victim is neither an aggravating nor an ameliorating circumstance, and the nationality of a person does not affect the gravity of the offence, it is the circumstances of the offence and only the circumstances of the offence that are to be taken into consideration.

In the course of the garda interviews with the suspects in this case, there has been a suggestion that robbery might have been a motive but no property belonging to Mr Rzeszutko was taken, and Stephen Byrne in interview stated, and I quote, "We just done it for a buzz." I have no doubt that robbery was not a motive in the savage attack on Mr Rzeszutko, and I am satisfied that the attack was purely gratuitous. The Director of Public Prosecutions considers this to be a case that falls into the upper end of the mid-range of manslaughter cases. I do not agree with this assessment. I consider it to be far more serious than that. Random attacks on innocent victims cannot be tolerated, and society must be protected against such attacks. People must be free to walk our streets, at any hour of the day or night, in safety. If I thought for one moment that a life sentence would stand the test of the Court of Criminal Appeal, I would have no hesitation in imposing such a sentence, but I have no doubt that the imposition of such a sentence would be viewed by the Court of Criminal Appeal as an error in principle. Thus, I must consider a finite sentence in relation to the killing of Mr Rzeszutko and I consider, having regard to all the surrounding circumstances, that the appropriate sentence for the offence itself is one of fifteen years. It is not entirely clear as to the precise extent of the involvement of Stephen Byrne and Edward Byrne in the attack on Mr Rzeszutko. By their own admissions, it was greater than that stated by Lauren Mooney and Angela White in their evidence to the Court, particularly having regard to the role of Edward Byrne. Having regard to Ms Whelan, having lied to the Garda Síochána regarding the circumstances in which she came into possession of Edward Byrne's, what was described as, TR papers and which I now understand to be a labour card, and having regard to the initial reluctance on the part of Ms Mooney to give evidence in accordance with her script of intended evidence, I have no doubt that Edward Byrne's and Stephen Byrne's interview notes more accurately set out the true position.

As regards Edward Byrne, he was on bail at the time this offence was committed, a factor that I find aggravating. He has a considerable criminal record, 55 convictions in all. I was appalled, as would all right-minded citizens be, at the callousness of the behaviour of Martin Morgan, Stephen Byrne and Edward Byrne in the immediate aftermath of their attack upon Mr Rzeszutko, as can be seen from the CCTV footage from Tesco's, but I do not consider that I can have regard thereto in passing sentence. The sole mitigating factor that I can find in relation to [Edward] Byrne is his plea of guilty and his remorse. He is currently serving a three-year sentence imposed upon him only last week for drug offences committed in May 2010. I am strongly minded to make my sentence consecutive upon that sentence but rather than doing so I propose that my sentence should run from today. Balancing the gravity of the offence with his personal circumstances, I consider that the appropriate sentence to impose upon [Edward] Byrne is one of 12 years. … . In imposing a sentence of 12 years to run from today, I am conscious of the fact that, in reality, having regard to the fact that he already has three years to serve, that he is receiving a sentence not of 12 years, but one of nine years imprisonment.”

23. Then, with reference to Stephen Byrne, the sentencing judge continued:

“His co-accused has no previous convictions and he has also pleaded guilty to the offence of manslaughter, and has expressed remorse. A psychological report has been provided to me which describes him as having limited cognitive ability and which assesses his overall thinking and reasoning abilities as being exceeded by 96 % of his peers. This report is in contrast to his school testimonial, which describes him as being intelligent. Giving him the benefit of the doubt, I'm prepared to accept the psychological analysis or report as being more probable. Having regard to the gravity of the offence, I cannot but impose a custodial sentence. Stephen Byrne had a greater involvement in the matter than Edward Byrne, having been the first to approach Mr Rzeszutko. But, as I say, being of previous good character, unlike Mr Edward Byrne, balancing his greater involvement with his better record, I consider that I should not differentiate in real terms on the question of sentence and it seems to me that a sentence of nine years is appropriate in his case. However, to give him hope, and in the hope of rehabilitation, having regard to his previous good character, I propose to suspend the final three years of that sentence.”

The alleged unjustifiable disparity in sentencing:
24. Counsel for the appellant has referred the Court to the judgment of Keane C.J. in the Supreme Court case of The People (Director of Public Prosecutions) v. Duffy [2003] 2 I.R. 192 at p. 200, where he stated:-

“There appear to be two reasons underlying the principle that an appellate court will interfere where there is a significant and unjustifiable disparity between the sentences imposed on two or more persons involved in the same criminal offence. The first, identified by Finlay C.J. in

The People (D.P.P.) v. Conroy

(No. 2) [1989] I.R. 160, is the substantial sense of grievance at unfair treatment which may be caused by apparently unequal sentences. It could be added that the appellate court should only take into account a grievance which, objectively viewed, could be reasonably entertained by the accused person: a person who has received what appears to him/her to be a severe sentence may be unable or unwilling to recognise that the disparity between that sentence and a lighter sentence imposed on his/her co-accused is, in the particular circumstances, justifiable. The second reason is the harmful effect on public confidence in the administration of justice resulting from a significant disparity in the sentences which seems incapable of being justified: see

R. v. Fawcett

(1983) Cr. App. R. (S.) 158.

25. Counsel for the appellant refers to the specific determination by the sentencing judge that he should not differentiate in real terms on the question of sentence between the appellant and his co-accused, Stephen Byrne, and that the appropriate sentence for each of them to serve in real terms was one of nine years. He submits that, viewed objectively, the appellant could only reasonably entertain a substantial sense of grievance and unfair treatment over the fact that Stephen Byrne was required to serve only a six-year sentence while he was required to serve twice that.

26. Counsel for the appellant further submits that the substantial difference of six years between the two sentences is one which seems incapable of being justified and amounts to such a disparity as would undermine public confidence in the administration of justice.

27. In reply to this counsel for the respondent argues that the sentencing judge properly sentenced the appellant. The Court was referred, inter alia, to the following passage from R v. Lowe (1984) 154 CLR 606 where Gibb C.J. in the High Court of Australia said at p. 609:-

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as age, background, previous criminal history and general character of the offender, and the part that he or she played in the commission of the offence, have to be taken into account.”

28. The respondent points out that this approach is reflected in The People (Director of Public Prosecutions) v. Doyle, Court of Criminal Appeal, Barrington J., ex tempore, 27th April 1998, where the Court of Criminal Appeal refused to interfere with a lengthy prison sentence imposed for armed robbery where the applicant’s co-accused had received a suspended sentence. The applicant had significant previous convictions whereas the co-accused was an eighteen year old girl of previous good character, and had a young child.

29. It was submitted on behalf of the respondent that in the present case the appellant has a very bad previous record whereas his co-accused, Stephen Byrne, had no previous convictions. In addition, the appellant was an adult at the time of the offence whereas Stephen Byrne was still a minor, and was of limited cognitive ability. In addition there was the aggravating feature in the appellant’s case that the offence was committed while he was on bail. As the appellant had fully served the sentence imposed upon him for the matter in respect of which he had been on bail by the date on which he was sentenced for the present case, the question of a mandatory consecutive sentence did not arise. Nevertheless it remained the position that, in the absence of exceptional circumstances (of which there were none in this case), the sentencing judge was obliged by s. 11 of the Criminal Justice Act 1984, as amended by s. 10 of the Bail Act 1997, to treat the fact that the offence was committed while on bail as being an aggravating factor in the appellant’s case.

30. This Court agrees that the ostensible disparity in sentencing was justified in the circumstances of this case. The sentencing judge took account of the fact that the appellant played a different role to that of Stephen Byrne, the latter having initiated the fight. That he did so is clear from the sentencing judge’s statement that Stephen Byrne and “to a lesser extent, Edward Byrne” were lucky to have pleas accepted by the DPP. However, the sentencing judge was obliged to treat the fact that this appellant was on bail as an aggravating factor in his case and to consider his particular circumstances, such as his large number of previous convictions, in reaching the correct sentence. Subsequently, the sentencing judge, having fully considered the factors relevant to each accused, decided on a sentence of twelve years for the appellant, to run concurrently with an existing sentence of three years for another matter. Essentially, the appellant’s time in custody was extended by nine years. The sentencing judge also imposed a sentence of nine years imprisonment on Stephen Byrne, but suspended the final three years of it in light of his previous good character and as an inducement to his rehabilitation. This approach was in line with the dictum of Walsh J. in the Court of Criminal Appeal in The People (Attorney General) v. O'Driscoll (1972) 1 Frewen 351, where he stated:

"The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him insofar as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal."

31. The Court also considers that any sense of grievance harboured by the appellant is not objectively justified in the circumstances of this case.

32. In the circumstances the Court is not disposed to uphold this ground of appeal.

The alleged reliance on extraneous matters
33. The appellant alleges that the sentencing judge erred in principle in rejecting the account of the facts tendered in evidence by the Director of Public Prosecutions against the appellant at the sentencing hearing in favour of a more adverse view that he had formed in the course of the trial of Martin Morgan for murder at which the appellant and his legal team were not participants.

34. The appellant asserts that the sentencing judge, having heard the evidence of Lauren Mooney and Angela Whelan at the trial of Martin Morgan, rejected their evidence as to the role of the appellant and formed the view that the appellant’s admissions during interview more accurately set out the true position. The appellant contends that this was a breach of natural and constitutional justice as he was not present at the trial and a sentencing judge, in imposing sentence, is not permitted to go behind the evidence adduced by the prosecution at the sentencing hearing.

35. In reply to this the respondent points to the evidence of Detective Garda Gibbs concerning the contents of the various interviews with the appellant, as well as his summary of the evidence given by Ms Whelan and Ms Mooney, and contends that the sentencing judge took into account the totality of the evidence adduced at the sentencing hearing, and was entitled to form the view that he did. Moreover, it was submitted there was no basis for contending that extraneous matters were taken into account.

36. While Detective Garda Gibbs had agreed that the appellant had exaggerated his role in some of his interviews, and that he had not done all the damage to the head of the deceased as he had tried to suggest, he never sought to suggest that it was accepted that the appellant had not joined in assaulting the victim. On the contrary, the trial judge had before him evidence that the appellant had admitted to kicking and hitting the victim a number of times, and that some of the blows he struck were to the victim’s head. He also had evidence, elicited from Detective Garda Gibbs by counsel for the appellant, that while Angela Whelan had said in her statement to the Gardai that she did not see the appellant strike the victim, she had admitted under cross-examination at the trial of Martin Morgan that he had struck the victim twice.

37. If the judge had formed a view based on that evidence alone he could not be criticised unless the view formed was actually perverse. However, the sentencing judge rejected the evidence of Lauren Mooney and Angela Whelan because he believed Angela Whelan had been exposed as having told lies at the trial of Martin Morgan, and because he considered that Lauren Mooney had been reluctant to give evidence in accordance with her script of intended evidence.

38. This Court considers that the sentencing judge erred in principle in rejecting the evidence of Lauren Mooney and Angela Whelan on the basis of an adverse view he had formed of their credibility on the basis of their testimony and cross-examination in the trial of Martin Morgan. As counsel for the appellant rightly points out, the appellant was neither present for, nor represented in, the trial of Martin Morgan. The only evidence the sentencing judge had before him in relation to what Lauren Mooney and Angela Whelan had had to say was the outline given by prosecuting counsel in his opening, which was verified as being correct by Detective Garda Gibbs. He was not entitled to look behind that, and proceed on the basis of an adverse impression he had formed in breach of those persons’ credibility at a trial at which the appellant was not present, particularly in circumstances where counsel for the appellant was not on notice prior to the actual passing of sentence that he intended doing so. In doing so, the sentencing judge breached the principle of audi alteram partem and failed to apply the principles of natural and constitutional justice.

39. Accordingly, the Court is disposed to uphold this ground of appeal.

Alleged over-estimation of the seriousness of the offence
40. The appellant complains that the sentencing judge was in error in adjudging that the case fell into the upper end of the mid-range of manslaughter cases and that the appropriate sentence for the offence itself is one of fifteen years. He bases this on the contention that the trial judge ought to have accepted that he entered the fight not as an aggressor but in an attempt to stop it, that he was engaged in it only briefly and only struck the victim because he had been struck himself, and that he was the first to leave it.

41. In reply, counsel for the respondent contends that the trial judge correctly rated the offence. It was submitted that an offence of manslaughter is correctly to be located towards the top of the scale of gravity if it followed from a particularly callous and deliberate attack.

42. The Court was also referred to R v. Stravresi [2004] VSC 16 145 A Crim R 44, at p. 48, where Redlich J. said that “it is well recognised that manslaughter varies from a nominal crime to the boundaries of murder and that sentences can vary from being extremely light to very severe. There is no tariff as to the appropriate sentence for manslaughter.” It was submitted that the amount of violence intended or inflicted is a crucial factor.

43. The Court was also referred to the English case of Attorney-General’s reference Nos 19, 20 and 21 of 2001 (Byrne) [2002] 1 Cr App R (S) 33, where the Court of Appeal said at p.136:-

“At one end of the scale there would be a case where a young man spotted a lady with a handbag, decided to seize the handbag by pulling the strap, thereby caused the lady to fall and bang her head on the pavement. There would be no use of gratuitous violence of any kind and it would be an offence which was committed on the spur of the moment. At the other end of the scale would be a case where a group of people deliberately set out to find and rob people on their own in the street late at night and caused death by their contemplated violence, albeit without the necessary intention to amount to murder… In considering any case of manslaughter the court inevitably looked at a number of factors to determine the appropriate sentence. First the court would examine the context in which the death was caused. If it was particularly reprehensible conduct, or conduct that calls for deterrence, the court was bound to impose a longer sentence than might otherwise be the case…. The next factor that inevitably has to be considered in a manslaughter case is whether violence of any kind was contemplated or intended by the defendant. There will be manslaughter cases, for example, involving the use of a car, where the defendant never contemplated or intended any violence at all. Where actual violence is clearly intended the sentence must inevitably reflect both the fact of that intention and the extent of the violence contemplated… A further factor to consider is the behaviour of the defendant after inflicting the unintended serious injury.”

44. It was submitted that the death of Lukasz Rzeszutko resulted from the reprehensible conduct of the appellant and his co-accused, which the sentencing judge referred to as a “mindless savage attack that cost him his life”. He focussed on the need for deterrence, stating that “random attacks on innocent victims cannot be tolerated and society must be prevented against such attacks. People must be free to walk our streets at any time of the day or night, in safety.” Mr Rzeszutko was attacked while on his way to work at 4.00 am in a deserted industrial estate when he was alone, vulnerable and defenceless. It was submitted that the appellant, who of his own volition became involved in the assault and subsequently admitted to kicking the victim in the head, did so deliberately and with contemplation.

45. The Court has considered the submissions on both sides on this issue and considers that the trial judge was correct in assessing the offending behaviour in this case as being at the upper end of the mid-range of manslaughter cases and that the appropriate sentence for the offence itself is one of fifteen years. This was a completely gratuitous and callous attack on a wholly innocent victim. It involved great violence and viciousness. In his own interviews the appellant states not that he ran over to attempt to stop the fight, but rather that he did so to help his friends because the victim was fighting back. However, even if it were the case that this appellant initially entered the melee in an effort to stop it, there is clear evidence that once involved he joined the others in attacking the victim and struck and kicked the victim a number of times. The Court considers that the trial judge’s assessment of the seriousness of the appellant’s role was one that was legitimately open to him on the evidence.

46. Accordingly, the Court is not disposed to uphold this ground of appeal.

Alleged failure to take account of mitigating factors
47. The appellant has submitted that the sentencing judge erred in principle in failing to have sufficient regard to all of the mitigating factors in relation to the appellant and in holding that the sole mitigating factor was his plea of guilty and his remorse.

48. It was submitted that he ignored as a mitigating factor the fact that the appellant was the first to go to the Gardai, that he went to the Gardai voluntarily, that he co-operated to a degree with the Gardai in their investigation, that he had a limited role in the assault on Mr. Rzeszutko, that he got involved initially for the purpose of stopping the assault, that he had retreated early from it, that he has made progress to date in rehabilitating himself by endeavouring to deal with his drug and alcohol abuse, his record of education and work within the prison system, his youth at the time of the offence and the comparatively early stage at which his plea of guilty was offered.

49. In reply, the respondent has submitted that, in sentencing Stephen Byrne, the sentencing judge referred to the fact that he had greater involvement in the offence. It was submitted that as such, it was clear that the sentencing judge was entirely aware of the differing roles played by each co-accused and that he took these into account when sentencing the appellant.

50. It was further submitted by the respondent that the sentencing judge was entitled to disregard any factors raised by defence as mitigation, including those enunciated in the appellant’s submissions. In particular the issues raised by the appellant are contradictory e.g. his own memoranda of interview give lie to the claim that he only ran over to stop the fight when he said he ran over to help the others because the deceased was fighting back. Furthermore in those memos he placed another person at the scene. It was submitted that the sentencing judge proportionately balanced the aggravating and mitigating factors, considered the personal circumstances of the accused, and found that the appropriate sentence to impose of one of twelve years was appropriate.

51. The Court has considered the submissions on both sides and is not satisfied that appropriate mitigation was in fact afforded.

52. The failure to afford mitigation for supposed co-operation was certainly justified. The appellant’s co-operation was very limited. He gave contradictory and untrue accounts, and sought to place blame on others, including persons who were never at the scene. At other points in the course of being interviewed he exaggerated his own role.

53. However, on the basis of the evidence of Lauren Mooney and Angela Whelan, that the appellant was the last in and first out of the fray, which was consistent with the CCTV evidence, and their evidence that he had entered the fray in an attempt to stop the attack, the trial judge should have afforded him some modest mitigation on account of those circumstances. While it is true that, whatever his motive might have been for entering the fray, he joined in the attack having entered it, the evidence before the sentencing court did indicate that he may have become caught up in the violence in a manner he had neither envisaged nor initially planned, and his personal role in the attack was of shorter duration, and was more limited, than was that of the other assailants. The Court considers that these circumstances were insufficiently taken into account as mitigation in the appellant’s case.

54. Further, while his efforts at addressing his drug and alcohol problems and his participation in educational programs and work in prison were certainly to be welcomed, these things could not in and of themselves mitigate in any meaningful sense the appalling behaviour of the appellant in participating in this attack. However, they were nevertheless indicative of efforts at rehabilitation and there is an extensive body of jurisprudence to support the idea that rehabilitation should be encouraged and incentivised in an appropriate case. Given the appellant’s bad record, and some reason to believe that he had been making a serious effort in prison to address his underlying problems, it was highly desirable both in the public interest and in the interest of the appellant that he be encouraged to keep going, and that he should see some light at the end of the tunnel. Accordingly, there was a case for taking the appellant’s efforts into greater account in mitigation of sentence than was in fact done.

55. In the circumstances outlined above the Court also finds an error of principle in terms of the trial judge having insufficient regard to the mitigating circumstances of the case.

Decision
56. The Court, having upheld two of the appellant’s four grounds of appeal, will allow the appeal, set aside the sentence imposed by the learned trial judge, and proceed to substitute an appropriate sentence in lieu of the sentence that has been set aside.

57. Before doing so, and in accordance with established jurisprudence, we will afford the appellant an opportunity of putting forward any up to date material that may be relevant to the appellant’s sentencing by this Court.

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Byrne [2015] IECA 51 (09 March 2015) URL: http://www.bailii.org/ie/cases/IECA/2015/CA51.html Cite as: [2015] IECA 51

Irish Court of Appeal