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Cite as: [2020] IECA 41

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THE COURT OF APPEAL

(CRIMINAL)

Record Numbers: CCA CJ 0134/2019

Birmingham P

McGovern J

Collins J.

IN THE MATTER OF

AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT/

- AND -

CRAIG MC GRATH

RESPONDENT

Judgment of the Court delivered on the 18th day of February 2020, by Mr. Justice

Collins

BACKGROUND.

1. This is a leniency appeal brought by the Director of Public Prosecutions (hereafter “the

DPP” or “the Director”) arising from a sentence imposed on the Respondent by His Honour

Judge Eugene O’Kelly in the Circuit Court (South Eastern Circuit, County of Waterford) on

24 May 2019 following his prosecution and conviction on a plea of guilty for assault

causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act,

1997 (hereafter “section 3”) and a separate prosecution and conviction for manslaughter,

again on a plea of guilty.

2. The first in time of these offences (Bill 43/2018) – the section 3 assault causing harm –

involved an unprovoked assault on a Kiefer Dowling on 18 August 2017, first within and

then immediately outside a nightclub in Waterford which resulted in the victim being

knocked unconscious. The Respondent pleaded guilty to this count on 7 November 2018.

At the time of the offence, the Respondent was subject to a three months suspended

sentence which had been imposed in the Circuit Court (on appeal) on 16 June 2017.

3. The second of the offences (Bill 70/2018) involved the unlawful killing of Damien O’Brien,

arising from another unprovoked assault during which the Respondent punched the

deceased in the face with sufficient force to knock him to the ground, resulting in him

sustaining a fractured skull and consequential brain injuries that proved fatal. The post-

mortem report indicates that Mr O’ Brien had suffered a broken nose, broken eye sockets

and a broken jaw as a result of the assault on him by the Respondent, in addition to the

skull fracture that was the immediate cause of his death. The Court was told that it was

accepted before the Circuit Court that Mr O’ Brien was knocked unconscious by the force

of the punches, that is to say that he was unconscious before his head impacted against

the ground. The Court was also told that it had been accepted that the facial injuries

suffered by Mr O’ Brien were caused by the punches, not by the impact of Mr O’ Brien

striking the ground.

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4. This second assault occurred on 7 July 2017 at a time when the Respondent was on bail

on the section 3 assault charge. Mr O’Brien died on 13 July 2017 which therefore was the

date of the manslaughter offence. The Respondent pleaded guilty to this offence on 26

February 2019.

THE SENTENCING HEARING

5. For logistical reasons, the Judge heard the evidence of Detective Garda Seamus Halpin in

relation to the manslaughter offence first. The Judge also saw CCTV footage of the

assault on Mr. O’Brien, which this Court was also invited to view and which it has viewed

in the course of the appeal hearing. The CCTV footage of the assault itself is difficult to

decipher but clearly shows a man subsequently identified as the Respondent involved in a

scuffle and then immediately leaving the scene of the assault at some speed, in the

company of another man and later shows the Respondent engaging in what appears to be

some form of re-enactment of his assault on Mr O’ Brien.

6. The Judge also heard a victim impact statement read by Mr. O’Brien’s sister, Ms. Sandra

Griffin, which this Court has also seen. Detective Garda Halpin gave evidence that the

Respondent had twenty-four previous convictions, most of those convictions were for

Road Traffic Act offences and the Respondent had not had a custodial sentence imposed

on him for any of those offences. That total of twenty-four previous convictions did not

include the s.3 assault conviction because sentence had not yet been imposed for that

offence.

7. In relation to the section 3 assault, evidence was given by Garda Barrett. Again, there

was CCTV footage which was shown to the Circuit Court and which this Court has also

reviewed in the course of the appeal hearing. The footage initially shows a violent attack

on the victim inside the nightclub, in the course of which the victim was punched and

head-butted. Both parties were then ejected from the nightclub. Footage from a CCTV

camera located at the entrance to the nightclub then records the Respondent striking the

victim with a single punch with his left hand which was struck with sufficient force to

knock Mr Dowling unconscious, resulting in him collapsing to the ground.

8. Mr Dowling chose not to make a victim impact statement.

9. A plea in mitigation was then made on the Respondent’s behalf by counsel, principally by

Ms. Gearty SC. She very frankly acknowledged the seriousness of the offences and made

it clear that the Respondent expected to receive custodial sentences in respect of each.

She referenced her client’s pleas of guilty and also referred to the fact that her client had

written a letter of apology (which this Court has also seen). Ms. Gearty referred to her

client’s education and employment history. In terms of the sentence that the Court might

impose, Ms. Gearty referred to a 6-10 year sentence that had been imposed for

manslaughter where a weapon had been used and/or where there was an element of pre-

meditation. She submitted that neither of these elements (weapons/pre-meditation)

were present in this case. Accepting that other injuries had been caused to the deceased,

Ms. Gearty pointed out that the post mortem report indicated that the immediate cause of

death was the deceased’s head striking against the pavement. It was, she submitted, a

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“result crime” and therefore of a different order to deaths caused by (for instance) a

stabbing or a shooting.

10. On this basis, and having regard to the Probation Report in respect of the Respondent,

the Court was invited to suspend a portion – possibly (so counsel suggested) a significant

portion - of the sentence to be imposed on the Respondent.

11. Toward the conclusion of her submissions, Ms. Gearty made a reference to the “totality

principle”, to which further reference is made later in this judgment.

12. The Probation Report to which Ms. Gearty referred was before this Court. It is dated 22

May 2019 and in it the Probation Officer expressed the view that the Respondent was

aware of the harm he had caused to his victims, especially Mr. O’Brien and had shown a

great deal of remorse about the killing of Mr. O’Brien whom – he said – had no intention

of seriously hurting.

13. The Probation Report went on to describe the Respondent’s family circumstances. The

Respondent is recorded as saying that he had a very supportive extended family. The

Report also refers to the Respondent’s immediate family circumstances, his education and

employment history, a history of substance abuse (in terms of limited cocaine use and

alcohol use) and concludes by expressing the view that applying a risk assessment tool

used by the Probation Service, the Respondent was then “at moderate risk of reoffending

in the next twelve months.”

THE SENTENCE

14. The Judge identified a number of aggravating factors in respect of the section 3 assault,

including the fact that it occurred in a nightclub where young people gather to enjoy

themselves and that it was unprovoked. The assault continued after it was initially

stopped by security staff; the appellant had head-butted the victim and the blow that had

knocked the victim unconscious had been delivered completely without warning and in the

presence of security staff.

15. The Judge referred to the Respondent’s previous convictions, noting that, while they

were for motoring offences, the most recent convictions were of such a serious nature

that the Respondent had received a suspended sentence for one and an order for

Community Service in lieu of a prison sentence for another.

16. Taking those aggravating factors into account, the Judge placed the section 3 assault “at

the upper end of the mid-range on the scale of gravity for s.3 assault” and the

appropriate headline sentence was, in his opinion, one of 3½ years’ imprisonment. The

Judge then referred to the mitigating factors that had been outlined to him, particularly

the Respondent’s early guilty plea and indicated that, taking account of all those factors,

he would reduce the term of imprisonment by one year, resulting in a sentence of 2½

years imprisonment.

17. In relation to the manslaughter offence, the Judge observed that the circumstances were

similar to the circumstances of the section 3 assault. He referred to the powerful victim

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impact statement from Ms. Griffin. Again, the Judge noted, there were a number of

aggravating factors.

18. The first such factor was the nature of the criminal act and the devastating and enduring

effect it had, and would continue to have, on Mr. O’Brien’s family. The Judge referred in

this context to the force and violence of the attack on Mr. O’Brien and the circumstances

in which the attack took place. Such was the violence of the blows that Mr. O’Brien had

suffered depressed and fragmented fractures of his facial bones ever before he hit the

ground. The Judge referred to the evident inability of the Respondent to control himself,

whatever its cause. Another very serious aggravating factor was the fact that, at the time

of the manslaughter offence, the Respondent was on bail on the section 3 assault on Mr.

Dowling. The fact that the Respondent had left the scene of the assault without offering

any assistance to Mr. O’Brien was a further aggravating factor, as was the fact that the

Respondent appeared to have requested the person with him at the time of the assault to

give a false statement to the Gardaí to the effect that he could not identify the

Respondent and did not know who he was.

19. The Judge then cited a statement from Mr Tom O’Malley concerning sentencing for

manslaughter which referred to the wide range of sentences imposed depending on the

circumstances of the offence which concluded by stating that “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.” The Judge went on to place the

offence at the lower to medium range of gravity for manslaughter and identified the

appropriate sentence at 7 years’ imprisonment which he then reduced to 5 years having

regard to the mitigating factors that he identified, principally the Respondent’s early plea

of guilty and his apology, as well as the matters referred to in the Probation Report,

particularly what was said there regarding the Respondent’s remorse.

20. The Judge noted that the manslaughter sentence had to run consecutively to the section

3 sentence, resulting in a total sentence of 7½ years’ imprisonment.

21. However, the Judge went on to consider what he referred to as “[t]he totality principle of

the two sentences combined”. In recognition of that principle, and as an incentive and an

encouragement to the Respondent to rehabilitate himself and to realise his potential to

become a useful member of society on his release, the Judge indicated that he would

suspend the final two years of the combined sentence. He did so by allocating the

suspended portion of two years entirely to the section 3 sentence, explaining that, in that

way, “much of the period of six years will be absorbed while [the Respondent] remains in

custody serving the manslaughter sentence and there should still be a sufficient length of

suspension on his release to serve a meaningful purpose”. The Judge imposed conditions

regarding post-release supervision by the Probation Service and the entering into a bond

to keep the peace and be of good behaviour by the Respondent.

THE DPP’S APPEAL

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22. By notice of application dated 19 June 2019, the DPP seeks a review of the sentences

imposed on the Respondent pursuant to section 2 of the Criminal Justice Act, 1993 (as

amended)

23. The notice of application sets out a number of grounds. In summary, the notice asserts

that the sentence of 2½ years imprisonment with 2 years suspended for the section 3

assault was unduly lenient and did not properly reflect the aggravating factors present.;

that the sentence of 5 years for manslaughter was unduly lenient and did not properly

reflect the aggravating factors present; that the Judge erred as a matter of principle in

placing the manslaughter offence at the lower to mid part of the medium range and

setting a headline sentence of 7 years; that the Judge erred in principle in structuring the

sentences in the manner that he did such that “the effective term of imprisonment”

imposed for the two offences was a term of 5½ years; that the Judge had undue regard

to the principle of proportionality; that the Judge attached undue weight to the mitigating

factors and in particular placed too much emphasis on the pleas of guilty and the personal

circumstances of the Respondent and , finally, that the Judge failed to have regard for the

societal need for a serious deterrent element to the sentences for two serious violent

offences in almost identical circumstances less than a year apart.

24. These grounds were developed in the Director’s written and oral submissions to the Court.

As regards the section 3 assault, no challenge is made to the Judge’s characterisation of

the offence or to the headline sentence of 3½ years. Rather it is said in the Director’s

written submissions that the Judge had undue regard to the mitigating factors and had

given what was said to be a “double discount” to the Respondent by the reduction of the

headline sentence (by one year) and the suspension of the final 2 years, leading to “a

reduction of 85 percent from the headline sentence of three and a half years to an

effective custodial sentence of six months’ imprisonment” which is said to be unduly

lenient in all the circumstances. Emphasis is placed on the fact that the offence was

committed while the Respondent had had the benefit of a suspended sentence and a

Community Service order in lieu of imprisonment.

25. In Mr O’ Doherty’s oral submissions, it was accepted that the decision of the Judge to

reduce the headline sentence for the section 3 assault by a year, while arguably on the

generous side, did not involve any error that might warrant this Court’s intervention.

Instead, the focus of counsel’s submissions was on the decision of the Judge to suspend

the final 2 years of that sentence.

26. As regard the manslaughter offence, the Director contends that the sentence of 5 years

failed to reflect the many aggravating factors said to have been present, particularly the

nature of the earlier section 3 offence and its temporal proximity to the manslaughter

offence, as well as the fact that the manslaughter offence was committed while the

Respondent was on bail in respect of the section 3 offence. As to the headline sentence

of 7 years, this is said to be unduly lenient and inconsistent with the guidance given by

the Supreme Court in DPP v. Mahon [2019] IESC 221. The decision in DPP v. Mahon was

delivered shortly before the sentencing hearing but was not brought to the attention of

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the Judge by either party. The Court shall refer further to it later in this judgment.

Counsel submitted that, having regard to the aggravating factors present, the

manslaughter offence arguably fell within the category of “high culpability” manslaughters

or, in the alternative, that it was at the upper end of the “medium culpability” band. The

DPP’s submissions also reference the decision of this Court in DPP v. Hutchinson

[2017] IECA 154 which is also discussed below.

27. The Director also challenges the reduction of the headline sentence by two years to five

years which is said to have been unwarranted by the mitigating factors present here and

says that a 5 year sentence for an offence of the severity and culpability of the

manslaughter offence here was unduly lenient.

28. In his oral submissions, Mr O’ Doherty for the Director appeared to lay some relaiance on

the fact that the manslaughter offence occurred during a “curfew” that had been imposed

on the Respondent as a condition of bail on the section 3 charge. As Ms Leader SC

observed, however, this does not appear to have been a matter relied on before or by the

sentencing Judge and, accordingly, it is not something to which this Court can properly

have regard in this appeal.

29. Finally, the Director contends that the Judge had undue regard to the principle of

proportionality imposing “an effective cumulative custodial sentence of five and a half

years for two extremely violent assaults committed almost a year apart, in almost

identical circumstances, the second of which directly resulted in the death of the victim

and which were required by law to be consecutive to each other”. According to the

Director, the sentence ultimately imposed on the Respondent failed to have adequate

regard to the societal need for a “very serious deterrent element to the sentences to be

imposed” and the Court gave undue regard to the totality principle and in particular the

issue of rehabilitation, reference being made in this context to the decision of this Court in

People (DPP) v. Coughlan [2019] IECA 173.

30. The Respondent’s written submissions helpfully identify the relevant principles applicable

to leniency appeals by reference to the decision of the Court of Criminal Appeal in People

(DPP) v Stronge [2011] IECCA 79 and Ms Leader submitted that the Director’s appeal

here did not come close to meeting the statutory threshold as explained in that decision.

31. The Respondent also refers in some detail to DPP v Mahon. The manslaughter offence

here – so the Respondent contends - “fell squarely” into the category of “medium

culpability” identified in the judgment of Charleton J for which the appropriate headline

sentence is between 4 and 10 years. Ms Leader brought the Court to Charleton J’s

analysis of “high culpability” cases and urged on the Court that the manslaughter offence

here did not share the characteristic features of cases in that category. She also

submitted that the judgment in Mahon indicates that manslaughter cases of the kind

before the Court were within the “medium culpability” band and that Hutchinson was

clearly regarded by Charleton J as such a case. Furthermore – so it was said - there was

no suggestion in the discussion of Hutchinson that the Supreme Court thought that the

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sentence imposed in that case was unduly low. Accordingly, the Respondent says, the

headline sentence of 7 years identified by the Judge here was appropriate.

32. As regards the reduction of that sentence to 5 years, in the Respondent’s submission that

was within the discretion of the Judge, having regard to the plea of guilty and other

mitigating factors identified by the Judge in his sentencing remarks.

33. The Respondent rejects the suggestion of double discounting, pointing out that the Judge

dealt with both offences separately and set out where each feel in terms of their gravity

and applied reductions to take account of mitigating factors. The combined sentence at

that stage was one of 7½ years. Only then did the Judge suspend part of the cumulative

sentence so as to take account of the totality principle.

34. As regards the decision to suspend 2 years of the overall sentence, the Respondent

argues that the Judge was entitled to take this approach, citing a further recent decision

of the Supreme Court in which the judgment of the Court was given by Charleton J.,

People (DPP) v FE [2019] IESC 85. To impose the sentences urged by the DPP, it is

argued, would result in a sentence that would have a “crushing effect” on the Respondent

and one which would exceed what was necessary “to achieve an appropriate relativity

between the totality of the criminality and the totality of the sentences.” The suspension

of a portion of the sentence was also justified by the contents of the Probation Report and

the desirability of encouraging the Respondent to rehabilitate himself.

35. As for the Director’s complaint that the sentence for the section 3 assault had been

reduced by 85% and the manslaughter sentence by 30%, the Respondent responds by

observing that it is well-established that the process of sentencing is not amenable to a

mathematical approach, citing the decision of this Court in People (DPP) v O’ Brien

[2018] IECA 2. Furthermore, the Respondent says that the Director’s submissions ignore the

nature of a suspended sentence. Such a sentence constitutes real punishment and real

deterrence. In this context, the Respondent relies once again on People (DPP) v Stronge.

DISCUSSION

36. This is a leniency appeal and it is therefore appropriate to identify the principles that

apply to this category of appeal. These are conveniently set out in judgment of the Court

of Criminal Appeal (delivered by McKechnie J) in People (DPP) v Stronge as follows:

“From the cases cited at the end of this paragraph, the following principles can be

said to apply in an application for review under s. 2 of the 1993 Act. These are:-

(i) the onus of proving undue leniency is on the D.P.P.:

(ii) to establish undue leniency it must be proved that the sentence imposed

constituted a substantial or gross departure from what would be the

appropriate sentence in the circumstances. There must be a clear divergence

and discernible difference between the latter and the former:

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(iii) in the absence of guidelines or specified tariffs for individual offences, such

departure will not be established unless the sentence imposed falls outside

the ambit or scope of sentence which is within the judge’s discretion to

impose: sentencing is not capable of mathematical structuring and the trial

judge must have a margin within which to operate:

(iv) this task is not enhanced by the application of principles appropriate to an

appeal against severity of sentence. The test under s. 2 is not the converse

to the test on such appeal:

(v) the fact that the appellate court disagrees with the sentence imposed is not

sufficient to justify intervention. Nor is the fact that if such court was the trial

court a more severe sentence would have been imposed. The function of

each court is quite different: on a s. 2 application it is truly one of review and

not otherwise:

(vi) it is necessary for the divergence between that imposed and that which ought

to have been imposed to amount to an error of principle, before intervention

is justified: and finally

(vii) due and proper regard must be accorded to the trial judge’s reasons for the

imposition of sentence, as it is that judge who receives, evaluates and

considers at first hand the evidence and submissions so made.”

These principles provide the framework by reference to which the Director’s appeal falls to

be determined.

37. It appears to the Court that the following issues require to be addressed in this appeal:

•

Whether the sentence of 2½ years’ imprisonment imposed by the Judge for the s. 3

assault was unduly lenient in all the circumstances

•

Whether the sentencing Judge erred in his assessment of the gravity of the

manslaughter offence so that the sentence of 5 years’ imprisonment imposed by

him was unduly lenient in all the circumstances

•

Whether the Judge erred in his structuring of the sentences and/or had undue

regard to the principle of proportionality and/or to the mitigating factors and/or

failed to have due regard to the need for deterrence in deciding to suspend 2 years

of the total sentence for the section 3 and manslaughter offences.

The Section 3 Sentence

38. The Court has already noted that the DPP has not challenged the Judge’s identification of

3½ years as the appropriate headline sentence for the section 3 assault.

39. The next element of the section 3 sentence involved the reduction of that headline

sentence by a year to reflect the mitigating factors and in particular the fact of the

Respondent’s early guilty plea. Having regard to the approach that this Court is required

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to take in leniency appeals, it does not appear to the Court that there is any basis for

interfering with this aspect of the Judge’s sentencing or any basis on which the Court

could properly conclude that the sentence actually imposed for the section 3 offence

constituted “a substantial or gross departure from what would be the appropriate

sentence in the circumstances.” Counsel for DPP did not, in truth, seriously suggest

otherwise.

40. That leaves the issue of suspension. However, while the Court appreciates that the Judge

allocated the suspended portion of two years entirely to the section 3 sentence, this was

in reality a matter of mechanics and it appears to the Court that the issue of suspension

can properly be addressed only by reference to the aggregate sentence imposed by the

Judge. The final two years of the section 3 sentence were not suspended because the

Judge considered that, absent such suspension, the section 3 sentence would otherwise

have been excessive. No reasonable sentencing judge could have taken that view and

that was not the basis on which the Judge here proceeded. Rather the Judge considered –

rightly or wrongly – that it was appropriate to suspend two years of the aggregate

sentence because otherwise the totality of the sentences imposed on the Respondent

would have been excessive. The critical sentencing decision in this context, therefore, was

the Judge’s decision to suspend two years of the aggregate sentence, rather than his

decision as to how to allocate the suspended portion between the two sentences. That

issue can only be addressed after the Court reaches a view on the manslaughter sentence

imposed by the Judge.

The Manslaughter Sentence

41. It is trite to observe that manslaughter’s protean character presents significant challenges

in a sentencing context. As Charleton J stated in People (DPP) v Mahon:

“Covering as it does a broad band of conduct from intentional killing under

provocation, to excessive force in self-defence, to criminal negligence in the

management of a machine or of a car, to assault without intent to kill or cause

serious injury, manslaughter is a notoriously difficult crime on which to achieve an

appropriate sentence.” (at para 49)

42. Notwithstanding that difficulty, Charleton J’s judgment in Mahon provides very valuable

assistance to sentencing judges by identifying a number of different bands of

manslaughter cases, ranging from the worst cases (where the level of culpability involved

may be so high as to be virtually indistinguishable from that in murder offences) to lower

culpability cases where the level of culpability is low and where aggravating factors are

absent. Between these two poles, Charleton J identifies two intermediate bands, involving

respectively high and medium culpability.

43. As already noted, the Judge was not referred to People (DPP) v Mahon. Given the fact

that the decision had been given only a short while before the sentencing hearing here,

that may be understandable. In any event, it was the subject of considerable discussion

at the hearing of this appeal and it is clear that the Court can and should consider it: see

People (DPP) v FE at para 38.

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44. As already noted, the Respondent points to Mahon and says that it shows that the Judge

was “entirely correct” in fixing a headline sentence of 7 years for the manslaughter

offence, that being “exactly in the middle of ‘medium culpability’ category range” which,

according to Mahon, attracts sentences of between 4 and 10 years. On the other hand,

the Director argues that the seriousness of the offence here is such as arguably to place it

in the “high culpability” band (for which, according to Mahon, a headline sentence of

between 10 and 15 years tends to be given) or, at least, at the upper end of the “medium

culpability” band.

45. The analysis in Mahon is of immense utility to practitioners, judges and the public.

However, it is important to appreciate the limitations inherent in any form of sentencing

guidance such as that provided in respect of manslaughter in Mahon (and in respect of

other offences in other decisions of the Supreme Court and of this Court). The analytical

framework set out in Mahon provides a structure within which manslaughter offences can

usefully be categorised for the purposes of sentencing and offers important guidance as to

the range of headline sentences that will normally be appropriate for offences within

particular categories. But the Mahon guidelines do not obviate the need for a close

analysis of the facts of each individual offence and for a careful identification of the

aggravating factors that arise in relation to that particular offence.

46. As Mahon emphasises, the key differentiating factor as between the different bands of

manslaughter is the culpability of the perpetrator, with significant emphasis on the

relative presence or absence of aggravating factors. These necessarily vary from case to

case and it would not be appropriate, in the Court’s view, to regard the previous decisions

cited in Mahon as anything more than illustrations of where particular manslaughter

offences, considered by reference to the culpability of the particular accused and the

particular aggravating factors that were present, fall along the broad spectrum of

culpability that characterises the offence of manslaughter.

47. Accordingly, the Court cannot accept the submission made by Ms. Leader to the effect

that it necessarily follows from the fact that People (DPP) v Hutchinson is cited in Mahon

as a case in the “medium culpability” category, that all so-called “one-punch”

manslaughter cases must be so regarded. Such an approach would involve an approach

to sentencing based on superficial labelling rather than principle and, in the Court’s view,

would be wholly inconsistent with Mahon. The Court is equally unpersuaded by Ms

Leader’s argument that the reference in Mahon to People (DPP) v Hutchinson should be

read as an implicit endorsement by the Supreme Court of the sentence imposed in

Hutchinson – where the accused was imprisoned for 7 years, with the final year

suspended but on appeal that was reduced to 5 years, with the final year suspended - as

being an appropriate sentence for all so-called one punch manslaughter cases and/or as

indicating where in the medium culpability category such cases are generally to be placed.

48. It appears to the Court that, just as there is a broad spectrum of manslaughter cases,

there is also a spectrum of so-called “one punch” manslaughter cases. In some cases, the

assault/unlawful act involved may be very minor, with the fatality occurring because the

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deceased stumbles/falls or is knocked to the ground and where, if the deceased had not

struck their head, they would not have suffered any or any significant injury. The

judgment in Hutchinson suggests that it was such a case. The judgment records that the

evidence indicated the single punch thrown by the accused “as not being of particular

force”. It also refers to the fact that the deceased had a number of health issues at the

time of the assault, from which it appears reasonable to infer that these health issues

may have been a contributory factor in the deceased’s death (which occurred after the

deceased had been released from hospital after what appears to have been only a brief

stay and where the judgment records that he returned to work for a couple of days before

being taken ill).

49. The Court considers that the facts - and the relevant level of culpability - here are very

significantly different to the facts in Hutchinson. In the first place, this case did not

involve a single punch. The Respondent punched Mr O’ Brien twice, in rapid succession,

first with his right fist and then with his left fist. Secondly, as is evident from the factual

narrative already set out, those punches caused immediate and serious injury to Mr O’

Brien. Even if Mr O’ Brien had not fallen in a way that resulted in him hitting his head and

suffering a fracture to his skull (and the consequential brain injuries that proved fatal),

the Respondent would nonetheless have been guilty of a very serious assault. So, while

the punch delivered in Hutchinson may not have been of “particular force”, the contrary is

the case here: the punches delivered by the Respondent were clearly of tremendous

force, having regard to the evidence of the injuries that Mr O’ Brien suffered before ever

he hit the ground.

50. There is a further aspect of the case before the Court that particularly differentiates it

from Hutchinson, namely the aggravating factor that is the section 3 offence. It is clear

from the judgment in Hutchinson that the accused there also had a previous section 3

assault conviction which was considered to be an aggravating factor both by the

sentencing court and by this Court on appeal (though this Court considered that excessive

weight had been given to this factor by the sentencing court). The section 3 offence in

Hutchinson had been committed some 4 years prior to the manslaughter. Here, the

manslaughter offence was committed less than a year after the section 3 assault. More

significant, however, is the similarity of the offences here and the fact that, in the earlier

section 3 offence, the Respondent had rendered his victim unconscious with a punch or

punches. As is obvious, where victims are knocked unconscious by a punch, they are not

able to take any steps to break their fall and/or to protect their heads and the risk of a

violent impact of head on hard surface is therefore greatly increased. The Respondent

knew how powerfully he could punch – that had been graphically demonstrated in the

course of his assault on Mr Dowling - and cannot plausibly suggest that, when he

assaulted the deceased, he could not have foreseen the consequences, at least to the

extent that Mr O’ Brien was seriously injured, rendered unconscious and fell to the ground

without having an opportunity to break his fall or protect his head. In the circumstances

here, therefore, the prior section 3 assault was a particularly serious aggravating factor in

assessing the gravity of the manslaughter offence and the level of culpability involved in

it. There is no suggestion in Hutchinson that the accused’s previous section 3 offence had

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anything like the same significance in assessing the gravity of the manslaughter offence

as is the case here.

51. In fairness to the Judge, he did identify many if not all of these factors. However, the

Court is of the view that, when proper regard is to had to all the relevant aggravating

factors, the Judge’s characterisation of the manslaughter offence here as “in the lower to

middle of medium range of gravity for manslaughter” is wrong in principle and that the

sentence which the Judge proceeded to impose on the Respondent – seven years reduced

to five years – departs substantially from the appropriate sentence.

52. In the Court’s view, this offence is properly considered to be at the higher end of the

medium culpability category identified by the Supreme Court in Mahon. The Court

considers that, in all the circumstances, the appropriate headline sentence for this offence

is in the range of 8½ - 9 years and the appropriate sentence after allowing for mitigation

is 7 years imprisonment. In the Court’s view, the 5 year sentence imposed by the Judge

failed to reflect the gravity of the offence, the culpability involved and the many

aggravating factors that were present and it was, accordingly, unduly lenient.

53. The Court also gives some weight in this context to the need for sentences for offences of

this kind – particularly offences at the more serious end of the spectrum, as this case is –

to have a deterrent effect.

54. It follows from the analysis above that, in concluding that this offence is properly placed

at the higher end of the medium culpability band, the Court does not intend to suggest

that this is where all “one punch” manslaughter cases should be placed. There will be

many cases where the appropriate sentence will be lower – perhaps significantly lower -

than the sentence the Court considers appropriate here. It is, nonetheless, important that

future offenders should understand very clearly that this category of manslaughter is one

which is regarded very seriously and that, in the event that offenders put themselves in

circumstances where an unlawful death results from the throwing of a punch or punches

by them leading to a fatal head injury being sustained by the victim, then depending on

the circumstances, of the offence, a significant and immediate sentence of imprisonment

may result. Equally, the Court’s assessment of the manslaughter offence here should not

be understood as giving rise to any inference that other such cases may not properly be

regarded as coming at the very highest end of the medium culpability band in Mahon or,

potentially, within the high culpability band. Issues such as that cannot be determined on

an a priori basis.

The Structuring of the Sentence and the Suspension of 2 years of the Section 3

Sentence

55. As already noted, the Judge suspended two years of the total sentence imposed on the

Respondent by reference to (i) the “totality principle” and (ii) the desirability of

incentivising rehabilitation.

56. The totality principle is discussed in detail by Charleton J in his judgment for the Supreme

Court in People (DPP) v FE. It is conveniently encapsulated in the following passage from

a judgment of Street CJ set out at paragraph 35 of FE.

Page 13 ⇓

“The principle of totality is a convenient phrase, descriptive of the significant

practical consideration confronting a sentencing judge when sentencing for two or

more offences. Not infrequently a straightforward arithmetical addition of sentences

appropriate for each individual offence considered separately will arrive at an

ultimate aggregate that exceeds what is called for in the whole of the

circumstances. In such a situation the sentencing judge will evaluate, in a broad

sense, the overall criminality involved in all of the offences and, having done so,

will determine what, if any, downward adjustment is necessary, whether by

telescoping or otherwise, in the aggregate sentences in order to achieve an

appropriate relativity between the totality of the criminality and the totality of the

sentences.”

57. As both this passage and the broader discussion in F.E. make clear, it is not the case that,

where consecutive sentences are being imposed, the aggregate sentence must in every

case be reduced. Rather the sentencing court should ask itself whether that aggregate

sentence “exceeds what is called for in the whole of the circumstances” so that a

downward adjustment is necessary “to achieve an appropriate relativity between the

totality of the criminality and the totality of the sentences.”

58. The Judge does not appear to have asked himself that question here and, if he had, the

Court is of the view that he could not reasonably have concluded that an aggregate

sentence of 7½ years for the offences at issue here “exceed[ed] what is called for in the

whole of the circumstances.” To the contrary, it is the Court’s view that an aggregate

sentence of 5½ imprisonment was manifestly inadequate in all of the circumstances. In

expressing that view, the Court does not overlook the Respondent’s submissions, by

reference to Stronge, as to the status and effect of a suspended sentence. However, it is

the Court’s clear view that, having regard to the nature of the offences at issue here, an

immediate custodial sentence significantly in excess of 5½ years was and is warranted.

59. The aggregate sentence to be imposed on the Respondent has, of course, altered. It is

now 9½ years rather than 7½ years and so the question of the application of the totality

principle presents somewhat differently. In addition, there is the issue of rehabilitation.

The Judge was correct to identify positive material in the Probation Report. Furthermore,

the post-sentence material furnished to this Court is also positive. Mr McGrath has

successfully completed a number of vocational training courses, as well as courses in first

aid, parenting and overdose prevention. The Court has also a Governor’s report that

states that the Respondent has not received any P19s and that he is a well behaved and

good student in school. In all the circumstances, the Court considers that the final 2 years

of the Respondent’s manslaughter sentence should be suspended, for a period of 2 years.

In taking that approach, the Court is predominantly motivated by the desirability of

providing a concrete incentive to rehabilitation but has also had regard to the aggregate

sentence now imposed on the Respondent both as regards the totality principle and the

impact on the Respondent of the fact that the duration of his sentence has been

materially lengthened by reason of the DPP’s appeal.

Page 14 ⇓

60. In conclusion, for the reasons set out above, the Court will:

•

leave unchanged the sentence of 2½ years imprisonment for the section 3 assault

•

substitute a sentence of 7 years imprisonment for the 5 year sentence imposed by

the Circuit Court Judge for the manslaughter offence, that sentence to run

consecutively to the section 3 sentence in accordance with the relevant provisions

of the Criminal Justice Act 1984.

•

in lieu of the order made by the Judge, suspend the final two years of that

manslaughter sentence for a period of two years, subject to the same conditions as

were imposed by the Judge.

Result: Allow and Vary