THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.18/13
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court delivered on the 9th day of December 2016 by Mr. Justice Birmingham
1. In December 2012, the applicant stood trial in the Central Criminal Court facing a single charge of murder. On 20th December, 2012, the jury returned a unanimous verdict of not guilty of murder, but guilty of manslaughter. Subsequently a sentencing hearing took place on 30th January, 2013 and on the following day, White J. imposed a sentence of fourteen years imprisonment with the final five years suspended on conditions. Mr. Kinsella lodged an appeal against his conviction for manslaughter and against the severity of the sentence. However, when both matters were listed for hearing, it was indicated that he was withdrawing his appeal against his conviction for manslaughter and so the appeal has proceeded as one against severity of sentence only.
2. The background to the trial and conviction is that on 26th/27th August, 2011, the applicant was in the Cushlawn area of Tallaght along with two acquaintances when they came into contact, to use that neutral phrase, with a group of three males that included the deceased, Mr. John Murdoch. The initial contact occurred outside a shop at the top of the housing estate and the group that included the deceased then followed the group that included the appellant down the road where the altercation or engagement became violent. There was evidence to suggest that members of the group that included the deceased threw missiles and then, at one stage the appellant produced a knife and proceeded to inflict the fatal wound.
3. The appellant has always accepted that he caused the fatal injury, but at trial contended that he was acting in self defence. He says that, on the night, he believed that the deceased was armed with a bottle and that he produced the knife to defend himself. It is of relevance to note that the appellant was someone who was struggling with drugs and alcohol addiction and was experiencing homelessness. He was also harbouring fears for his own safety, as some time prior to the incident the gardaí had warned him that his life was under threat.
4. The jury verdict has to be interpreted as meaning that it accepted that the appellant believed that he was acting in self defence and was using no more force than he thought was necessary, though objectively the force used was excessive.
5. In terms of the accused’s background and circumstances he was 32 years of age at the time the stabbing occurred. He was homeless, living on the streets and in various hostels. He had started taking heroin when aged sixteen years and at the time of the offence he was on a methadone programme, he was drinking a bottle of vodka a day and was taking cocaine and prescription drugs. Prior to succumbing to heroin addiction he was a plasterer by trade, but that was far in the past.
6. In all he had 22 previous convictions of which 3 were dealt with in the Circuit Court. The convictions recorded in the 10 years prior to the offence were relatively minor: s. 4 thefts, charges of failing to appear in court and so on, however, there were 3 significant prior convictions recorded. In June 2001, he received a three year sentence in the Dublin Circuit Court in respect of robbery, in July 2001, again in the Dublin Circuit Court, he received a three and a half year sentence in respect of possession of a syringe and demanding with menaces and in November 2001, at the Circuit Court in Mullingar, he received a three year sentence in respect of attempted robbery.
7. The sentencing court was told that the offence and the surrounding circumstances meant that the offence was at the higher end of the scale. Counsel for the Director of Public Prosecutions has maintained that position before this Court, referring to the fact that Mr. Kinsella carried a knife on a regular basis, that he was the only one in the altercation carrying a knife, that Mr. Kinsella had an opportunity to retreat, but unlike his companions did not avail of it and that three stab wounds were inflicted including the fatal wound. The sentencing judge observed that he was of the view that the DPP’s assessment in putting the case at the higher end of the scale was correct.
8. There was evidence during the course of the trial that about a year before the incident, Mr. Kinsella had been told that there was a threat to his life. It may be that the gardaí felt that the threat dissipated after approximately two months, but it does not appear that this was communicated to the appellant. The Court was also told that, some six to eight weeks prior to the incident, the appellant had received a stab wound to the neck while on the street.
9. There was a probation report before the Court which referred to the appellant being at a moderate to high risk of re-offending. The sentencing judge obviously saw this assessment as a significant one and engaged in exchanges with counsel in relation to it.
10. Killings involving stabbings with a knife have been the subject of a number of decisions of this Court and its predecessor in recent times. In DPP v. John Dillon (ex tempore, Court of Criminal Appeal, 10th April, 2012), where the judgment in the Court of Criminal Appeal was delivered by McCracken J., the court was of the view that the sentence imposed, which was not actually stated in the report but is understood to have been fourteen years, was “seriously excessive”. The court allowed the appeal and replaced it with a sentence of eight years imprisonment. It may be noted that in the course of the judgment it is stated:-
“It must be stressed that he had offered to plead guilty to manslaughter before the trial ever commenced so that this must be treated effectively as if it were a plea of guilty to manslaughter and no trial.”
11. In the case of The People (DPP) v. Stephen Kelly [2005] 2 IR 321, the appellant had been charged with murder, had offered to plead to manslaughter, an offer which was not accepted and after a trial was convicted of manslaughter and sentenced to fourteen years imprisonment. In this case, as in Dillon, the trial judge, who is the same trial judge who dealt with the present case, had taken the view that the starting point before mitigation was a sentence of twenty years. It is to be noted that in the Kelly case, it was also the situation that the accused had offered to plead to manslaughter and that the Court of Criminal Appeal said that therefore the case should be treated as one where he had pleaded guilty to manslaughter at the outset. The Court of Criminal Appeal was of the view that an aggravating feature was the use of a knife, but that there was, however, no sense that the knife was carried with a view to being used as weapon. It is also the case that Mr. Kelly had no previous convictions and the Court of Criminal Appeal commented that a court was required to give considerable weight to the absence of previous convictions. The case of The People (DPP) v. Garrett Cooney (Unreported, Court of Criminal Appeal, 27th July 2004) was another case where the appellant was charged with murder, offered a plea of guilty to manslaughter and in this instance the plea was accepted. The judgment of the Court of Criminal Appeal was delivered by McGuinness J. and saw the sentence reduced to one of eight years imprisonment. The sentence that had been imposed in the Central Criminal Court was one of fourteen years imprisonment. The appellant, it may be noted, had only a very limited prior record, which did not involve any offence involving violence.
12. The case of DPP v. Shane Millea [2016] IECA 137 was a decision of this Court where judgment was delivered by Finlay Geoghegan J. The sentence under appeal was one of ten years imprisonment with two suspended, which was reduced to eight years with three years suspended. The case was a somewhat unusual one insofar as the appellant and the deceased victim were cousins and best friends. They had been drinking together and according to the appellant, the deceased became aggressive and attacked him with an axe, causing him to defend himself with a knife.
13. By reference to the cases mentioned, the actual sentence required to be served in the present case of nine years is not out of line with sentences indentified as appropriate by appellate courts. In Dillon, Kelly and Cooney, pleas of guilty to manslaughter had been offered or accepted. None of those appellants had a significant relevant previous record. In these circumstances the sentence of nine years to be served cannot be said to be out of line with the earlier sentences. Indeed, given that in this case there was no offer of a plea and the relevant fact that the appellant had prior convictions for offences involving violence for which he had received significant sentences, a somewhat higher sentence might actually have been imposed.
14. What is out of line with the earlier sentences served is the starting sentence of fourteen years imprisonment. It appears to this Court that the sentencing judge may have been influenced by the fact that he was told by the Probation Service that the appellant was at a moderate to high risk of re-offending and that the judge was anxious that there should be a substantial suspended sentence hanging over the appellant’s head when he was eventually released to dissuade him from re-offending.
15. The appellant’s arguments on this appeal have focused to a significant extent on this suspended sentence. Counsel submits that the starting sentence of fourteen years was too high and that having started too high, to suspend a significant portion was not an adequate reflection of the factors that were in favour of the appellant. He says that when somebody with a history of addiction and homelessness receives a suspended sentence that the reality is that there is a high risk that the appellant will fall from grace and will be called on to serve the suspended sentence. He says that if that were to happen in this case, the appellant would be serving the full fourteen year sentence for manslaughter which he says is an excessive sentence and one that is not consistent with available comparators.
16. This Court sees merit in the arguments that have been advanced on behalf of the appellant. In the view of the Court, the starting sentence of fourteen years was out of line with sentences imposed by appellate courts in cases that bore some similarities. On the other hand, given the fact that there was here a relevant prior record and that a plea to manslaughter was not offered, a starting sentence higher than that imposed by the Court of Criminal Appeal and this Court in Dillon, Kelly, Millea and Cooney was to be expected. Having taken the view that the starting sentence here of fourteen years was excessive to the extent of amounting to an error in principle, this Court is required to resentence.
17. The Court will deal with the matter by reducing the sentence imposed of fourteen years to one of eleven years imprisonment and will suspend the final two years of that sentence. In doing so the Court has regard to the fact that information was put before the Court that the appellant has made significant progress during the significant period that he has been in custody to date. It appears he has been attending AA meetings, and a drugs counsellor and he says that he is now proud to be in a position to say that he is drug and alcohol free to the extent that he is no longer on methadone, which he had been taking for fifteen years.
18. The Court is pleased to hear that Mr. Kinsella is making progress while in custody and hopes that when he has served his sentence and rejoins the community that he can avoid re-offending. The Court is of the view that the sentence it is proposing and the balance that it is striking between the sentence to be served and the portion of the sentence that will be suspended will provide a real incentive for him to avoid re-offending and the sentence will hang over his head to dissuade him from re-offending. On the other hand, the suspended portion will not be so lengthy that if it came to be activated that it would result in Mr. Kinsella serving a sentence which was very seriously out of line with other manslaughter sentences.
19. So the Court therefore will vary the sentence imposed in the Central Criminal Court to one of eleven years with two years suspended. The sentence will obviously date from the same date as that originally imposed.
