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THE COURT OF CRIMINAL APPEAL
Hardiman J. 34/03
Laffoy J.
Quirke J.
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS
and
STEPHEN KELLY
JUDGMENT of the Court delivered the 5th day of July, 2004 by Hardiman J.
This is the applicant’s application for leave to appeal against a sentence of fourteen years imprisonment imposed on him for manslaughter. The application is somewhat unusual in the sense that it features what is alleged to be a pure error of principle, that is to say the explicit expounding of an approach to sentencing which is admirably clear and transparent but which Mr. McEntee says is wrong and unwarranted in law. Both sides are agreed that that approach is set out at pages 34 and 35 of the transcript of the sentencing hearing of the 18th February, 2003. There the learned trial judge is recorded as saying the following:-“… there now appears to be a somewhat total lack of regard or value placed on human life and far too many in our society seem all too ready to resort to the use of knives or other sharp instruments in the course of disputes with their fellow man. I am not taking into account newspaper reports that one might see on this but one only has to look at the cases coming before this Court and other courts to see that that is the position. A halt must be called to this type of conduct and deterrent sentences must be imposed in cases involving death and serious injury on the use of knives in the hope that such a halt will be effected. The penalty permissible for manslaughter is life imprisonment and in a case such as this one I consider that a sentence of not less than twenty years is appropriate. That however is not the end of the matter, I must evenly balance the rights of society and your rights and having determined what I consider to be the appropriate sentence for the particular offence or crime I must look to your personal circumstances and see what mitigating factors if any there are that would render it inappropriate for me to impose a sentence of twenty years and would render it appropriate for me to impose a lesser sentence upon you”.
The mitigating factors are then discussed.
Mr. McEntee says that this approach is quite wrong in principle. He says that it amounts to the positing of a minimum sentence for this offence where none has been laid down by the Legislature. He refers us to the case of the DPP v. John Dillon (unreported Court of Criminal Appeal, 17th December, 2003) a judgment of this Court on the 17th December, 2003 where the trial judge (as Mr. O’Connell points out, the same learned trial judge) said:- “The maximum permissible sentence for manslaughter is life but I do not consider life to be the appropriate sentence. In my view however where a knife is used and life is taken the minimum sentence upon trial and conviction by a jury is twenty years and that would seem to be the appropriate sentence without having regard to your particular circumstances”.
This Court commented:- “The trial judge did then go on and take into account in an exemplary judgment the various matters which constituted the particular circumstances of Mr. Dillon’s case. However it seems to this Court that he erred seriously in principle. First of all by saying that there was a minimum sentence of twenty years which seems totally wrong in principle no matter what the offence or what the circumstance”.
Mr. O’Connell concedes that if we are to follow the Dillon case that this sentence must be regarded as wrong in principle. He urges however on behalf of the Director that the approach which was taken is mandated by the decision of the Supreme Court in The DPP v. M [1994] 3 IR at 306. He quotes from that judgment a passage which is the penultimate sentence in the judgment of Mr. Justice Egan. The paragraph reads as follows:-“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made”.
The Court has very seriously considered that paragraph since it is effectively the whole of the case put forward by the Director on this issue. We are quite unable to see how the passage supports the approach which was taken on this case and we are quite unable to see the basis on which the Director might consider that it did. Mr. Justice Egan is saying a number of things. He is saying first of all that one does not simply apply the mitigating factors to the maximum sentence and come up as a result with the appropriate sentence. On the contrary, he says, one looks first at the range of penalties and locates where on the range the particular case should lie and one then applies the mitigating factors after having performed that exercise. Now the exercise described there seems to us quite clearly to be inconsistent with the approach which was taken in this case. In this case no attempt was made, logically having regard to what the learned trial judge considered the right approach, to find the whereabouts on the range of penalties this particular case lay before applying the mitigating circumstances. On the contrary the learned trial judge very transparently declared that the minimum sentence for a type of offence involving a fatality caused by a knife or other sharp instrument was twenty years. He then went on to say in a passage conspicuous for its clarity that the role of the mitigating circumstances would be to render it appropriate for him to impose a lesser sentence, that is to say a sentence less than twenty years.
We have to say therefore that the approach to sentencing in the present case, although conspicuous for its straightforwardness and its clarity, and although plainly based on the very laudable motive of deterring offences such as this, was wrong in principle and represented a departure without any supporting authority from the established principles of sentencing. We therefore find that there is an error of principle in the sentence in the present case and we will therefore, following the procedures required under the authority of DPP v. Cunningham [2002] 2 IR 712, proceed now to hear submissions and to consider what is the appropriate sentence.
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The Court has already found, in its judgment of 26th May, 2004 that the sentence of fourteen years imprisonment imposed on the applicant was wrong in principle. The reasons for this conclusion are set out above.
Accordingly, by reason of section 34 of the Courts of Justice of Act 1924, substituted by section 3 of the Criminal Procedure Act 1993, it becomes the duty of the Court to “impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the Court of trial……” This sentence will then apply “in place of” the original sentence. We have heard submissions on the question of the appropriate sentence.
In D.P.P. v Cunningham [2002] 2 IR 712, the Supreme Court held that this court is normally precluded from considering “evidence in relation to events or facts subsequently occurring relating to the behaviour of the applicant, his state of health or otherwise which might be relevant to the Court were itself deciding on the correct sentence”. The Supreme Court continued, however:“The position would be different if a stage is reached where the Court has allowed an appeal against sentence, and quashed the sentence originally imposed. It may then proceed, in the exercise of its statutory power, to substitute an appropriate sentence of its own. In doing so the Court is entitled to consider all relevant factors then existing and properly before it, including matters arising subsequent to the original sentence. This is precisely because the Court is then ‘is self deciding on the correct sentence’, in the words of the certified question. This will not arise unless and until the original sentence has been found to be wrong in principle. In this context, the approach of the Court in imposing an appropriate sentence is similar to that adopted at the same stage of a D.P.P.’s application for review on the ground of undue leniency. A prisoner can never be regarded as more constrained in the matters he can urge in relation to sentence than the Director.”
Factual Background
The appellant was charged with the murder of Mr Jonathan Guy. After a fifteen day trial he was found not guilty of murder but guilty of manslaughter. This occurred on the 17th December 2002. On the 18th February 2003 evidence and submissions in relation to sentence were heard and the appellant received the fourteen year sentence mentioned above.
As part of the sentencing process, counsel on behalf of the Director summarised the case as follows for the learned trial judge:
“The Court is aware that Mr Kelly was found guilty of manslaughter by the jury in circumstances where one of the issues left to the jury was the use of excessive force in self defence and the absence of intent to kill [or] cause serious injury. Ultimately, we did not know on what basis the jury decided to bring in a verdict of manslaughter.”
The events leading to the conviction of manslaughter took place in the early hours of the morning of the 11th March 2001 at Newgrove Estate, Donaghmede, Dublin. The appellant had been in town with a companion in the late afternoon and evening of the previous day. After this he went to a house in the Newgrove Estate. There, the tenant of the house had gone out for the evening leaving a teenage girl who was living with her at the time to look after her son and “another young child”. The girl, however, without the knowledge of the tenant, had invited a considerable number of young men to the house. A larger number of people than the girl originally intended may have come to the house: it appears that about twenty people in all were present. The appellant, in his statement, said that he had taken three pints of beer in town and brought five cans of Budweiser to the party. In appears from the evidence that most if not all of the people who intended the party had drunk considerable quantities of alcohol and many of them had taken ecstasy and cannabis resin. In the course of the night the appellant went to a room where a son of the tenant, aged about fourteen, was with two friends and had an altercation with one of these. He struck this boy. Shortly afterwards the boy he had struck and two others left the house and they were followed almost immediately by the appellant. According to his statement, this was because he thought that one of the boys had taken his mobile phone. In fact he had not done so: the appellant found his phone in the bathroom of the house when he returned to it in circumstances to be described.
There was a laneway adjacent to the house and the appellant found the boys who had left the house there. He demanded his mobile phone and when he did not receive it he searched the boy in question and took what transpired to be the boy’s own mobile phone from him. This was observed by a young man who lived in the house on the other side of the laneway. This gentleman, Mr Peter Gallagher, was a friend of the deceased and had been drinking with him earlier that evening in Swords. The two had returned to Mr Gallagher’s house in the Newgrove Estate. Mr Gallagher and Mr Guy left the Gallagher house and confronted the applicant in the laneway. No blows were struck but strong language was exchanged between them and the appellant. The latter then returned to the house where the party was. Mr Gallagher took a sweeping brush and went to the door of the party house and spoke to the young girl who was in charge of the house. He requested or ordered that she clear the house because of the commotion there. She made efforts to clear the house.
At this stage it was between 2 and 3 a.m. on the 11th March (the evidence varied). The three young boys who had earlier left the house followed by the appellant remained in the vicinity of the house.
Mr Gallagher also remained outside. Two other people named in evidence as the deceased and Alan Gallagher, who was not related to Peter Gallagher, were also present. A number of people left the house and were not molested by those outside. Shortly afterwards, in the words of prosecuting counsel adopted by a Garda witness, “in essence [the appellant] sallied forth from the front door of the house, with others and he stabbed the deceased Jonathan Guy who on [the appellant’s] own admission did not strike him, [and] appears to be unarmed at the time he was stabbed.”
The appellant’s account of events was that the earlier confrontation in the laneway had ended with the man who had come from a neighbouring house saying “you just hang on there and we will see.” He went back to the house where the party was and shortly afterwards looked out and saw “about six blokes” in the front garden. He said they were shouting “come on, come on”. At that time: “Everyone in the house was running around as they thought the house was going to be smashed up. I saw batons, poles and a hammer with them. I opened the door a second time and the blokes were still there. It all happened quick. Some of our people went out by the blokes and they did not stop them. I know they were looking for me. I went into the kitchen with others and picked up a spoon out of the cutlery thing, a pencil and a chair. The cutlery thing is on your right as you go in the kitchen. Melia had a bag of empty cans, Kieran a chair and Cummo had something. I don’t know what he had. I brought a chair into the hall to use for defence but I dropped it in the hall. Kieran fell over the chair. The front door was open and the blokes were still there. Me, Kieran, David, Melia and maybe Karl and Vinno were there. We all went out. In the hall before I went out someone said ‘Waddler, come on we will go out and give them a go’. I don’t know who said that. Everyone was getting worked up. There was a lot of shouting going on back and forth. Someone said in the hall ‘Waddler take this.’ I grabbed a handle and when I took it in my hand I saw it was a knife. It was a little small black knife. I did not intend to use it but felt if they saw that, they would not come any closer, and I would not get a smack of a baton or a crack of a hammer…..When I got the knife I ran out. I had it in my right hand. From my right a bloke went to come at me but did not. There was six blokes out there. I got a box in the side of the head. I put my left hand across my face and I spun the knife. A bloke came from behind the first bloke. I turned to meet the first bloke and block his box. As I was turning the second came at me and the knife went into him. I was swinging the knife with my body turn and I think that it was a combination of my body turn and his running into to me that caused the knife to go in. I only came up with the knife in my hand to defend myself from getting a smack and not to stab him. I was not watching what way he was coming at me. I was just trying to get away from the area. I did not mean to hurt that chap. The bloke just fell.”
Later he said:“I felt the knife would put the frighteners on them. I did not intend to use it. I only had it for defending myself.”
In a later statement he said:“…it was an accident and as I told you already I had the knife only as a frightener. I did not go out to stab that young fella. It was an accident as a result of self defence”.
In a further statement he said:“I do not think I would have known the bloke again who I had the trouble with when I took the phone off the young fella. I do not remember him being outside the house when I left. I remember being in the sitting room but I don’t remember not letting Jenny in. I remember the knock at the front but that was the blokes trying to get in. I remember holding the sitting room door closed with Rheinisch but that was because we thought the blokes had booted in the front door and were trying to get in at us…I was hit a box leaving that house, one box at the left side of the head . It hurt but I was not marked. It did not connect proper. I know youse were told that I was not hit but I was….I saw nobody being hit. There was not any two on two, it was just scuffles. There was all shouting and roaring and people coming back and forth. It was over very quick. I seen a baton with one bloke and another leading on a steel pole and another with a hammer. That is the three people I saw and another three with them. I saw no machetes or knives. A steel bar could have been a golf club. The fella I hit with the knife had nothing in his hand as far as I can recall. He could have had but if he did I did not see it. He was not the one who hit me….I did not deliberately set out to stab any one. I had the knife only for my own safety self defence. I thought it would put the frighteners on them.”
At the time of the appellant’s interviews the deceased had not yet died: this occurred a week later. At the end of one interview the appellant said: “…..I am terribly sorry for the pain and hurt of this terrible incident. It should never have happened and as I said earlier I hope this lad makes a full recovery.”
In evidence at the sentencing hearing the Garda in charge of the investigation agreed that there was “some evidence” that some of the people outside the house may have had “sticks or something.” The Garda was not able to resolve this issue and agreed with prosecuting counsel that “we do not actually know”. He told Mr Patrick McEntee S.C. for the defence that “the Gallagher party had returned to No. 56. The people in the other, 57, would have been “fuelled” and while the amounts taken by each individual are still unknown, it was, there was certainly a quantity of empty beer cans recovered in subsequent examination.”
Referring to consumption of drugs the Garda witness said:
“I do not know how substantial quantities were used. We mostly concentrated on No. 57. There was some controversy at the trial in relation to the volume of drugs used in relation to ecstasy. [The teenage girl] had taken one ecstasy tablet and in relation to the cannabis there was possibly two incidences, possibly one instance which occurred upstairs in the front box room and there was an account of people smoking cannabis.”
Asked whether there was any alarming stories circulating about the number of people outside of what their intentions were, the Garda witness said “one could only speculate, looking from the outside, certainly it would be quite possible given the group of people that were there, the amount of both alcohol they had consumed and also the previous tension between Mr Kelly and [one of the younger boys at the party] it may have been that people were on edge.”
Asked whether the people in the house just before the stabbing may have had the impression that the house was going to be entered, particularly for the purposes of punishing the appellant for what had happened in the laneway, the witness said:
“I am not too sure about that and the reason I would base my unsureness, a number of people had walked before Mr Kelly left the house and they had been totally uninterfered with…..I think it is difficult for me to cover the apprehension. The facts remained that Mr Peter Gallagher arrived at the front of the house and did not enter the house for some period and it would appear that Mr Gallagher only entered the house after Mr Guy had been stabbed.”
The witness agreed that Mr Gallagher had been at the front door
“vociferously insisting that [the teenage girl] emptied the house.” At this time “there were a number of people in the vicinity, both the driveway and the laneway beside them”.
On the question of how the appellant had possessed himself of the knife the garda witness said “I can’t vouch that he received the knife at a very late stage. However there were other indications that he had been rummaging with other people in the cutlery drawer in the kitchen prior to when he says he received the knife. I am trying to outline the scheme of events.” He was asked to agree that the question of how the appellant had got hold of the knife was an unresolved problem and answered “absolutely”.
The witness also agreed that a plea to manslaughter had been offered by the appellant prior to the trial but it was not accepted by the Director.
Manslaughter.
Apart from infanticide and dangerous driving causing death, all unlawful homicides which fall short of murder constitute manslaughter. Murder, of course, by s.4 of the Criminal Justice Act, 1964 requires proof of an intent to kill or cause serious injury. According to prosecuting counsel, it was this issue, together with the question of whether the defendant had used excessive force in self defence that constituted the basis for the contention that the killing was manslaughter and not murder. These issues clearly overlap. The appellant succeeded at the trial either, (at most) in satisfying the jury that he had acted, albeit excessively, in self defence and/or (on that basis or otherwise) lacked the required intention to kill or cause serious injury or (at least) in raising a reasonable doubt on these issues. It appears that the question of murder or manslaughter was effectively the only contentious issue at the trial.
Sentences for manslaughter.
Professor Thomas O’Malley in his Sentencing Law and Practice (Roundhall Sweet and Maxwell, Dublin 2000) observes:“In view of the variety of circumstances in which the offence [of manslaughter] may be committed, it is scarcely surprising that it attracts a wide range of sentences. The maximum sentence is life imprisonment and it may also be punished with a fine. It will occasionally attract a suspended sentence, such as when it was committed in response to severe or prolonged provocation or when, in view of all the circumstances, nothing would be gained by sending the offender to prison. Generally speaking, however, it will lead to a prison sentence. Of those imprisoned for manslaughter in 1993 and 1994, exactly 50% got five years or less and 50% got five to ten years. Sentences in excess of ten years are rare, though not unknown, and are generally reserved for manslaughters which in terms of gravity are bordering on murder. The general trend seems to be that the more deliberate and gratuitous the assault or violence leading to the victim’s death, the heavier the punishment that is deserved”.
For the purpose of this manslaughter appeal and another heard on the same day, counsel for the Director handed into court two lists of sentences imposed in the Central Criminal Court on pleas to, or convictions for, manslaughter. This Court has held in DPP v. Botha
(C.C.A. unreported 19th January, 2004) that a trial judge is entitled to request information of this sort and we are glad to have it. It must be stressed that it is of limited value because it does not give information on the individual crimes or what aggravating or mitigating factors there may have been in any case. It appears from internal evidence that at least many of the cases in the list are recent ones. It should also be noted that, because the figures relate solely to the Central Criminal Court, the cases are all ones where the defendant was originally charged with murder and either a plea to manslaughter was accepted by the Director or the defendant was acquitted of murder but convicted of manslaughter. Manslaughter in itself is triable in the Circuit Court and it is only where the exclusive jurisdiction of the Central Criminal Court is invoked that a sentence for the offence will take place in that Court. The list given to this Court, accordingly, must be regarded as applying only to cases where the original charge was murder and not as a guide to the practice in the Circuit Court where it may be that the manslaughter cases are of a less aggravated kind: certainly they are such as, in the view of the prosecution, do not attract a charge of murder.
Some of the sentences on the list with which we have been provided are suspended, in whole or in part. Where they are part suspended, the portion suspended ranges from six months to seven years. There is nothing to indicate whether those portions of the sentence are suspended conditionally or unconditionally. Accordingly, for ease of presentation we have considered, for example, a six year sentence with one year suspended as a five year sentence.
With that qualification, the information with which we have been provided and which extends to fifty cases may be summarised as follows. Sixteen of them were cases of pleas of guilty. Of these, three attracted sentences of over ten years. Thirteen cases, therefore, attracted sentences of less than ten years of which nine featured sentences of under five years. Of this group four sentences were wholly suspended.
Of the thirty-four cases of convictions for manslaughter, ten attracted sentences in excess of ten years. Twenty-four, therefore, attracted sentences of less than ten years of which fifteen were under five years. Two of these were wholly suspended.
In aggregate, therefore, of the fifty cases there were thirteen sentences in excess of ten years and thirty-seven of under ten years. Of this latter group twenty-four sentences were of under five years. Of this group, in turn, six sentences were wholly suspended.
Of the sentences in excess of ten years in conviction cases, one was of twelve years, three of fourteen years and one of seventeen years. There were in all five cases attracting sentences over ten years of which the present case was one. Of the sixteen cases of pleas to manslaughter, three attracted sentences of over 10 years, 14 years being the longest sentence imposed.
General Principles of sentencing.
The general principles on which the Courts act in determining the appropriate sentence in a particular instance are to be found in a long series of reported cases. They are discussed in a growing academic literature in which pride of place must be given to Professor Thomas O’Malley’s book cited elsewhere in this judgment. However, although these sources are available to the public and the media, some public commentary suggests that the principles may not, in fact, be as widely understood as they should be.
It is not, of course, suggested that these principles are immutable or that others might not be adopted. In fact, as will appear below, some other comparable jurisdictions have, by statute, adopted significantly different and more rigid principles such as the well known “three strikes” principle adopted in parts of the United States whereby a third felony conviction, regardless of its nature or triviality, attracts a minimum sentence usually of twenty five years. It is not for the Court to say whether that or any other innovation should be adopted in this country.
In cases where there has been a death and especially a death caused by an intentional as opposed to a negligent act, unhappiness with the sentence is often expressed in the reflection that even the longest sentence will end at some point, probably while the defendant is still quite young, whereas the suffering and deprivation of the deceased person’s family will be permanent. This is very sadly true. But it ignores the fact that under our present sentencing regime, sentences must be proportionate not only to the crime but to the individual offender.
This principle in itself is well established and is derived at least partly from the Constitution. In The State (Healy) v Donoghue [1976] IR 325 Henchy J said that the Constitution guarantees that a citizen should not be deprived of his liberty by a trial conducted so as to shut out “a sentence appropriate to his degree of guilt and his relevant personal circumstances” (emphasis added).
In The People (Attorney General) v O’Driscoll (1972) 1 Frewen 351 Walsh J said:“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”.
These passages have been approved many times in particular in DPP v M [1994] 3 I.R. 306. That case also emphasised that though the principles are as stated nevertheless, in the words of Denham J:“Sentencing is a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation. Thus, while on the one hand a grave crime should be reflected by a long sentence, attention must also be paid to individual factors, which include remorse and rehabilitation, often expressed inter alia in a plea of guilty, which in principle reduce the sentence”.
The same learned judge described the requirement that the personal situation of the appellant must be taken into consideration by the Courts in sentencing as “the essence of the discretionary nature of sentencing”.
It is, of course, obvious that a different approach could be adopted. In particular, the approach often described as being based on “just desserts” has attracted attention and support in several parts of the world. This approach would centre largely, and perhaps exclusively, on imposing a sentence proportionate to the offence leaving largely or even entirely out of account the personal circumstances of the offender. This might be thought to yield a result more proportionate to the distress, grief or outrage caused by a particular offence and to have a manifest deterrent effect. It might also be thought to lead to injustice in many individual cases. Be that as it may, our principles of sentencing as they stand require an individuated approach. To quote Denham J again, in M:“Sentencing is neither an exercise in vengeance, nor the retaliation by victims on a defendant. However, the general impact on victims is a factor to be considered by the Court in sentencing … The nature of the crime and the personal circumstances of the appellant are the kernel issues to be considered and applied in accordance with the principles of sentencing, for this is an action between the State and the appellant and not an action between the appellant and the victims”.
In that case the Supreme Court was inter alia considering appeals against sentences of nine years for an offence where the maximum sentence was ten years. Egan J. said, at p. 315:-“It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made (emphasis added)”.
Application of these Principles
The aggravating features of this case are all too clear. The death of a young man in the circumstances described was an outrage to the community as a whole and an appalling affliction of his family. He was a very promising person who had studied electronic engineering in Dundalk and had a long life ahead of him. His mother described him as a “kind, loyal, caring, loving son, loving friend.” He was a person of very good character and his loss is irreparable.
It is also clear that the background to the events leading to Mr Guy’s death features alcohol and drugs in a major way. The appellant repeatedly and consistently stated that he had consumed only three pints in town and five or six cans at the party. He said he had taken no drugs at all. His counsel suggested that the account of his drinking may be minimised but there is no other evidence on the point. It is however clear from the reports handed in that the appellant has a problem with alcohol and, according to his counsellor, in the period between the crime and the trial “his way of coping with the anxiety of the pending court case was to continue to indulge in the consumption of alcohol”.
There is however, no evidence of gross over consumption of alcohol by the appellant on the night in question and even if there were it would not be a mitigating factor. The following things can be said in his favour - first of all he was just passed his twentieth birthday at the time of the crime. He had been educated to Junior Cert standard, in which examination he received four honours. He was then in constant employment and was in fact about to start a new job in the security area at the time of the offence. He was a talented footballer as a youth and was described as his former trainer as “an exceptional athlete”. His employer described him as “a reliable, courteous and conscientious worker and I would have no hesitation in re-employing him”.
The prison chaplain emphasized his regret for his crime and for the loss pain and suffering caused to Mr. Guy’s family. He was described as a model prisoner who spent his time in a positive way in prison. He has no previous convictions of any kind.
In DPP v. M. cited above, Egan J. said;-“As was stated in the judgment of the Court of Criminal Appeal in AG v. O’Driscoll (1972) 1 Frewen 351 and AG v. Poyning [1972] IR 402 an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such a person so as to enter into society after a period of imprisonment. This is clearly not a case in which it could be said that there is no reasonable possibility of the accused re-entering society as a rehabilitated member of it after a substantial period of imprisonment.
One of the ingredients in that possibility of rehabilitation clearly would appear to be the maintenance during the period of imprisonment involved of an element of hope and of something to look forward to which gives motivation to the self improvement and the rehabilitation necessary. This has been described in some of the literature as the light at the end of the tunnel”.
In submissions on sentence, Mr. McEntee S.C. made two principal points. He said that the sentence was clearly disproportionate to other manslaughter sentences. He referred in particular to the decision in DPP v. McAuley & Anor. [2001] 4 I.R. 160. In that case the Court of Criminal Appeal refused the Director’s application to review for undue leniency a sentence of fourteen years imprisonment for manslaughter of a garda in the course of his duty, where the original offence charged had been capital murder. This was a crime carried out with firearms and in the course of an organized and premeditated criminal enterprise. This case is in our view a useful comparator for (unlike the cases in the list the Court was given) the full circumstances of the crime emerge from the report. Grave as the present crime was it is in our view not possible to consider it in the most aggravated category of manslaughter cases. The case cited is in that category and while a higher sentence might have been imposed in it, the Court did not consider a sentence of fourteen years unduly lenient. The present case was a killing without any similar context of premeditated criminality. A gravely aggravating feature is the use of a knife. There is, however, no sense that the knife was “carried”, to use a phrase from the English cases, with a view to being used as a weapon. The defendant, on the evidence, was given or took possession of a knife shortly before the fatal incident in the circumstances described where, according to the Garda witness, “… it may have been that people were on edge.”
The very wide range of facts which a manslaughter case may feature make it difficult to establish any very precise range of sentencing. Nevertheless, we are of the opinion that the present case is in the upper part of the middle range of gravity in offences of manslaughter.
Secondly, Mr. McEntee placed great emphasis on the fact that the defendant was twenty years old at the time of the offence, had a supportive family, very deeply regretted the offence and, above all, had no previous convictions. He said that he had taken an anger management course whilst in prison and was coming to terms with his alcohol problem. However that may be, the Court clearly has to give very considerable weight to the absence of previous convictions. Professor O’Malley in the work already cited says at page 187:-“It is widely accepted, even by ardent retributivists who would insist that punishment would be strictly proportionate to the crime, that previous good character justifies mitigation… there was a general policy that penal servitude, when it existed as a distinct form of custody, should not ordinarily be imposed for a first offence unless it is particularly serious. Today the same policy would apply to imprisonment and, when a custodial sentence is imposed, the absence of previous convictions provides a valid ground for making it a short as is at all consistent with the gravity of the offence…
All the available evidence about the experience of imprisonment, its stigmatizing quality and its impact on the future prospects of offenders points to the wisdom of community based sanctions for first time offenders whenever possible. The absence of previous convictions may also indicate that the offence was out of character and unlikely to be repeated. It has also been said that for a person of previous good character, the first time in prison ‘is likely to be a severe punishment than the same period would be for a hardened criminal, or even when suffered for the second time’. Under a ‘totality of hardship’ approach, a first time offender should therefore receive a lighter prison sentence than would be appropriate for a more seasoned criminal. Despite all of this, if the offence is of a particularly serious nature (as is often true in the case of sex offenders) imprisonment for some length of time may be inevitable”.
In this case, however, the death of an innocent young man as a result of being knifed by the appellant clearly mandates and requires a substantial custodial sentence. We have considered the fact that the defendant offered to plead guilty to manslaughter and successfully defended the most serious allegation of murder. We therefore treat him as having pleaded. It was not established that he had an intent to kill or cause serious injury and this factor must be give full weight. It is also clear that he was not going about armed with a knife but he entered into what he perceived to be a fraught situation equipped with one. He fought while so equipped: even on the view of the evidence most favourable to him this is conduct which requires to be severely stigmatized in sentencing.
In the circumstances the Court will impose as the appropriate sentence a period of eight years imprisonment to date from the date of his conviction, the 17th December, 2002.
StephenKelly
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