Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2004/45.html
Cite as: [2004] IECCA 45, [2005] 1 ILRM 481

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Judgment Title: D.P.P.-v- Sean Mackey Neutral Citation: [2004] IECCA 45 Court of Criminal Appeal Record Number: 63/04 Date of Delivery: 24/11/2004 Court: Court of Criminal Appeal Composition of Court: Mc Guinness J., Butler J., Abbott J. Judgment by: Mc Guinness J. Status of Judgment: Approved

Judgments by	Result	Concurring	Dissenting
Mc Guinness J.	Refuse appeal

Outcome: Dismiss

- 26 -

McGuinness J.
Butler J.
Abbott J.


BETWEEN





Judgment of the Court delivered by Mrs Justice McGuinness on the 24th day of November 2004



INTRODUCTION
This is an appeal against the severity of the sentence imposed on the applicant by His Honour Judge Michael White in the Dublin Circuit Criminal Court on the 15th day of March 2004. Leave to appeal was refused by the trial judge and the applicant now applies to this court for leave to appeal. The application will be treated by this court as the substantive appeal.
The applicant, together with three co-accused, was charged on a count of manslaughter of one Brian Murphy and also on a count of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994.
Following a lengthy and much publicised trial the applicant was convicted by a jury on the 26th February 2004 on the count of violent disorder. On the following day the jury failed to agree in respect of the count of manslaughter. On the 8th day of March 2004 the Director of Public Prosecutions indicated that he would not be proceeding with a retrial of the applicant in respect of the count of manslaughter. Following a hearing in regard to sentence the applicant was sentenced by the learned trial judge to two years imprisonment on the count of violent disorder, the term of imprisonment to date from the 15th March 2004.
The applicant’s co-accused Dermot Laide, who had been convicted on both counts, received a sentence of four years imprisonment in respect of the count of manslaughter, together with a concurrent sentence of two years on the count of violent disorder.
The applicant’s other co-accused Desmond Ryan was acquitted by the jury on the count of manslaughter. He was convicted on the count of violent disorder and was sentenced by the learned trial judge to a term of nine months imprisonment, the warrant for such imprisonment not to issue until 31st May 2004, the date on which Mr Ryan was due to finish his final university examinations. Mr Ryan has since that date been granted bail by this court pending the hearing of his appeal against conviction, which is to be heard by the court at a future date.
The charges against the applicant and his co-accused arose from events which occurred outside the Burlington Hotel, Sussex Road, in the City of Dublin, in the early hours of 31st August 2000, following the closing of the nightclub known as Annabel’s, which was attached to the hotel. On leaving the nightclub a crowd of young people had gathered around the entrance to the hotel, some waiting for taxis or other forms of transport either to their homes or to other forms of entertainment. It is clear from the lengthy and detailed evidence at the trial that many of those present had consumed a very considerable amount of alcohol, both at the nightclub and prior to attending there. In the course of a short period of time, amounting to a matter of minutes at most, a dispute broke out and Brian Murphy, an eighteen year old young man, was subjected to a sustained attack by a number of other young men. He suffered injuries as a result of which he lost consciousness. An ambulance was called and Mr Murphy was brought to hospital where, after an unsuccessful attempt at resuscitation, he was subsequently pronounced dead. The evidence of the State Pathologist, Dr. John Harbison, was that the cause of death was cerebral oedema, complicated by inhalation of blood into the lungs, and that this was attributable to multiple facial injuries due to assault. Dr. Harbison also gave evidence of other injuries to Mr Murphy’s body and limbs.

THE STATUTORY PROVISION

Section 15 of the Criminal Justice (Public Order) Act 1994 provides:
“Violent Disorder
(15) - (I) Where –

(a) three or more persons who are present together at any place (whether that place is a public place or a private place or both) use or threaten to use unlawful violence, and
(b) the conduct of those persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or another person’s safety,
then, each of the persons using or threatening to use unlawful violence shall be guilty of the offence of violent disorder.

(2) For the purposes of this section –
(a) it shall be immaterial whether or not the three or more persons use or threaten to use unlawful violence simultaneously;
(b) no person of reasonable firmness need actually be, or be likely to be, present at that place.
(3) A person shall not be convicted of the offence of violent disorder unless the person intends to use or threaten to use violence or is aware that his conduct may be violent or threatened violence.
(4) A person guilty of an offence of violent disorder shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 10 years or to both.
(5) A reference, however expressed, in any enactment passed before the commencement of this Act –
(a) to the common law offence of riot, or
(b) to the common law offence of riot and to tumult,
shall be construed as a reference to the offence of violent disorder.
(6) The common law offence of rout and the common offence of unlawful assembly are hereby abolished.”

GROUNDS OF APPEAL
The applicant’s grounds of appeal, which were set out in greater detail in written submissions to this court, are as follows:
The learned trial judge erred in law and in principle in that he:
(1) failed to have regard to the principle of parity between co-offenders.
(2) Failed to take into account matters which he should have taken into account.
(3) Took into account matters which he should not have taken into account.
(4) Failed to have regard to non-custodial options.

In introducing his oral submissions to this court senior counsel for the applicant, Mr Sammon, indicated that the applicant, in the light of the fact that he had already served some eight months of his sentence, would not be pursuing the fourth ground of appeal. The court readily accepted the applicant’s position in this regard.

THE DECISION OF THE TRIAL JUDGE
The learned trial judge in his sentencing judgment dealt with the sentence which he imposed on the applicant as follows:
“I now turn to the conviction of Sean Mackey for violent disorder. In the course of the trial the case was strongly made by Mr Mackey and two of the other accused that the group with Brian Murphy were the initial aggressors. There is no doubt from the evidence that the dispute arose when some one from this group started to jeer Andrew Frame. Mr Frame in his statements in evidence accepted he had approached the group and became aggressively verbal in response. Some pushing and shoving ensued between Andrew Frame and Brian Murphy. At this time Sean Mackey intervened. In the course of trial and in his plea it was submitted that he only responded to an unprovoked assault on him by Mr Murphy. While undoubtedly Brian Murphy threw the first punch, this court does not accept that Mr Mackey became involved either in direct response to an assault on him by Brian Murphy or as a peacemaker. His involvement in this incident directly led to its escalation. There was overwhelming evidence in the course of the trial that from his initial approach to assist Mr Frame up to his journey home in a taxi, his demeanour was that of a person out to cause trouble. He contributed significantly to the seriousness of this incident. The kick delivered to the body of Mr Murphy when he was in a defenceless position on the ground, while not life threatening, was a serious assault.

The aggravating factors are his contribution to the escalation of this incident, in the course of this serious incident of violent disorder a young man lost his life, and his demeanour throughout the incident. The mitigating factors are his previous excellent character, borne out by the character evidence and testimonials presented to the court, his age of nineteen years at the time of the offence, the improbability of future criminal behaviour, the damage to his character due to the widespread publicity, his voluntary admissions and the offence was not planned or premeditated. Having considered all these factors, the court will impose a custodial sentence.”

As set out above the learned trial judge went on to impose a sentence of two years imprisonment.
Given that the applicant’s first ground of appeal, deals in essence with a comparison between the sentence imposed on the applicant and that imposed on his co-accused Mr Desmond Ryan, it is desirable also to set out here the remarks of the learned trial judge concerning Mr Ryan. They were as follows:
“I now turn to the conviction of Desmond Ryan for violent disorder. On his own admission he delivered two punches to Mr Murphy on his jaw at a time when he was being kicked on the ground and was getting up. He immediately withdrew because the assault was getting out of control. He did not contribute to the earlier escalation of the incident. It is very difficult to understand how a young man who was obviously caring, as evidenced by his immediate assistance to Mr Murphy after the incident could have acted in such a fashion. I would have expected someone of his disposition to intervene to protect Mr Murphy.

The aggravating factors in Mr Ryan’s case are that the assault was perpetrated to Mr Murphy’s head at a time when he was surrounded and defenceless. It was an unprovoked serious assault.

The mitigating factors are his previous excellent character, as evidenced by the character evidence and testimonials, his young age of nineteen years at the time of the offence, the improbability of future criminal behaviour, the damage to his character due to widespread publicity, his voluntary admissions, the offence was not planned or premeditated, the conduct of his defence as he did not put in issue the character and disposition of Mr Brian Murphy deceased, and his active assistance to Mr Murphy shortly after these assaults occurred.

Because of the very serious nature of the intervention when Mr Murphy was being kicked on the ground, I will impose a custodial sentence, but there are substantial mitigating circumstances which I will take into account in passing sentence.”

The learned trial judge went on to take into account the fact that Mr Ryan was shortly to undertake his final university examinations and he then imposed a sentence of nine months imprisonment in the terms already set out above.

THE FIRST GROUND OF APPEAL – THE PRINCIPLE OF PARITY
Both in written and in oral submissions to this court it was argued on behalf of the applicant that the learned trial judge had erred in principle in differentiating between the sentence imposed on the applicant and that imposed on his co-offender Desmond Ryan. Senior counsel for the applicant, Mr Sammon, referred to the assaults on Brian Murphy committed by the two men as described by the learned trial judge in his sentencing judgment. The trial judge had identified Desmond Ryan’s assault as consisting of two punches to Brian Murphy’s head at a time when the deceased was being kicked on the ground and was getting up. It was an unprovoked serious assault. The assault perpetrated by the applicant was identified as a kick delivered to the back. While not life threatening it was a serious assault. Given that the cause of Mr Murphy’s death was identified as resulting from injuries to his head, Mr Sammon submitted, Mr Ryan’s assault may well have been the more serious of the two.
Counsel also referred to what he described as a concession made by counsel for the prosecution in his closing address to the jury at the trial. It was, he said, conceded that the applicant was struck by the deceased and that the applicant struck back at him. At Book 26 page 87 of the transcript it was stated by the prosecution:
“Up to this point in time…the prosecution do not make any case against any of the accused of either violent disorder or in effect of any other offence”.

Again at Book 27 page 34 the prosecution had stated:
“Insofar as it can be seen as a concession, the prosecution do not make any case that Mr Mackey was guilty of any offence until others joined the assault on Mr Murphy”.

Given that this concession had been made, counsel argued that it was incorrect to refer to the applicant’s involvement at the beginning of the incident as having led directly to its escalation or to state that his demeanour from his initial approach had been that of a person out to cause trouble. Since the prosecution itself conceded that Mr Mackey was not guilty of any offence until others joined the assault on Mr Murphy, the trial judge in sentencing should not have taken this preliminary period into account. It was clear that Mr Mackey’s contribution to the joint assault on Mr Murphy was the kick delivered to his body. There was clear evidence before the jury that prior to the delivery of this kick Mr Mackey had stood back from the fray. There was also evidence that following the delivery of the kick he had ceased to participate in the assault and had spent some considerable time in two mobile telephone calls to his girlfriend.
As far as the judge’s assessment of the applicant’s demeanour following the assault on Mr Mackey was concerned, this was largely based on the evidence of the taxi driver, Mr Quigley, which evidence was hotly contested. Further reference was made to this aspect of the evidence in connection with the second and third grounds of appeal which will be dealt with later.
In regard to the principle of parity of sentence between co-offenders, Mr Sammon relied on the decision of this court in The People (Director of Public Prosecutions) v Duffy [2003] 2 I.R. 192. Delivering the judgment of the court, Keane C.J. stated (at page 200):
“There appear to be two reasons underlying the principle that an appellate court will interfere where there is a significant and unjustifiable disparity between the sentences imposed on two or more persons involved in the same criminal offence. The first, identified by Finlay C.J. in The People (D.P.P. v Conroy) (No. 2) [1989] I.R. 160 is the substantial sense of grievance at unfair treatment which may be caused by apparently unequal sentences. It could be added that the appellate court should only take into account a grievance which, objectively viewed, could be reasonably entertained by the accused person: a person who has received what appears to him/her to be a severe sentence may be unable or unwilling to recognise that the disparity between that sentence and a lighter sentence imposed on his/her co-accused, is, in the particular circumstances, justifiable. The second reason is the harmful effect on public confidence in the administration of justice resulting from a significant disparity in the sentences which seems incapable of being justified: see R v Fawcett (1983) Cr. App. R. (S) 158.”

Mr Sammon also referred to the decision of this court in The People (Director of Public Prosecutions) v Poyning [1972] I.R. 402 at page 408 where Walsh J. stated:
“…in any particular case, the court must examine the disparity of sentences where, if all other things were equal, the sentence would be the same; it must examine whether the differentiation in treatment is justified. The court, in considering the principle which should inform a judge’s mind when imposing sentence and having regard to the differences in the characters and antecedents of the convicted persons, will seek to discover whether the discrimination was based on those differences.”

Senior counsel for the Director, Mr Comyn, drew attention to the seriousness of the offence of violent disorder. This seriousness was marked by the Oireachtas in the imposition of a maximum sentence of ten years and/or an unlimited fine. He drew attention to the fact that under the section the offence of violent disorder could be committed by the threat to use unlawful violence as well as by the actual use of unlawful violence. In the present case serious unlawful violence had actually been used and that violence had culminated in the death of a young man. In passing sentence the learned trial judge had taken into account all mitigating factors on behalf of the applicant and in the circumstances Mr Comyn submitted, the sentence imposed could not be described as excessive.
As regards parity of sentence with that imposed on Mr Ryan, Mr Comyn submitted that in dealing with the offence of violent disorder the trial judge was not comparing the contribution of the differing assaults to the cause of Mr Murphy’s death; that aspect of the matter was related to the manslaughter charge. Actual participation was the key to the offence of violent disorder and the jury had accepted the evidence of the applicant’s participation in that disorder.
With regard to the submission on behalf of the applicant concerning the concession made by prosecution counsel in his closing speech, Mr Comyn submitted that the concession referred solely to the fact that the applicant had not committed an actual criminal offence up to the noted point. This did not mean that it was not open to the learned trial judge to consider the general behaviour and demeanour of the applicant throughout the entire incident; this was a separate issue.
Mr Comyn referred to a passage in Professor O’Malley’s work on Sentencing Law and Practice, where (at page 149) the author dealt with the issue of parity between co-defendants and expressed the view that not all participants in joint crimes are equally culpable and that the law does not require that all co-defendants receive the same punishment. Mr Comyn submitted that in passing sentence the trial judge had made careful distinctions between the conduct of Mr Ryan and that of the applicant and he was justified in so doing. The disparity in sentencing was in accordance with the principles set out by Walsh J. and by Keane C.J. in the passages relied on by Mr Sammon.

THE FIRST GROUND OF APPEAL – CONCLUSIONS
This court has been referred by senior counsel for the Director to a passage in Professor O’Malley’s work Sentencing Law and Practice (commencing at page 149) which is of assistance in considering this ground of appeal. The relevant passages are, the court considers, as follows:
“6.28..In theory, parity means that similarly situated offenders should receive similar sentences: in practice, it applies mainly to the sentencing of co-offenders. Many offences are the product of joint enterprise, but not all participants in such enterprises are equally culpable. Consequently, the law has never required that all co-offenders receive the same punishment. Such a rule would, in fact, offend against the parity principle by treating different cases as if they were alike. The common law approach to sentencing parity was well expressed recently by Kirby J. of the Australian High Court: ‘the problem of disparity will ordinarily arise not so much out of a suggested departure from the requirements to punish equally like offenders convicted of like offences, as out of the disparate punishment of co-offenders or offenders in a situation demanding comparison or contrast.’”

The author continues at paragraph 6.30:
“Other things being equal, however, the appellate courts are prepared to intervene if co-offenders have received markedly different sentences. Strict principle would not always warrant such intervention. Judicial discretion remains the lynchpin of our sentencing system. It is well recognised that sentencing cannot be reduced to a mathematical formula and therefore variations in punishment are to be expected and, within limits, tolerated. Furthermore some disparities in the treatment of co-offenders might be more justly cured by increasing the lenient sentences rather than reducing the heavier ones. In fact, a just deserts or proportionality policy would often favour this approach. In recognition of these factors, appellate courts in most jurisdictions intervene to reduce the heavier sentence only when they find or detect a justifiable sense of grievance which gives the appearance that justice has not been done. As McMullin J. (of the New Zealand Court of Appeal) said in R. v Lawson: ‘but a marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly.’”

At paragraph 6.32 the author comments further:
“The Irish Supreme Court has likewise held that one of the principles underlying the parity principle (although it did not use that expression) ‘is the substantial sense of grievance at unfair treatment which may be caused by apparently unequal sentences’. They too have stressed that the court will not necessarily interfere with the sentence just because a co-defendant has received a more lenient one.”

The author goes on to refer to the case of D.P.P. v Poyning, which was relied upon by Mr Sammon, and says:
“This emphasis on the need for a justified sense of grievance has been the hallmark of English and Northern Ireland jurisprudence on sentencing co-offenders. They have held that a grievance might be real but not justifiable and would not therefore provide a basis for interfering with the sentence. The Northern Ireland Court has said that the general public and the victims might have a justifiable sense of grievance if an otherwise appropriate sentence were reduced on account of disparity.”

This emphasis on the need for a justified sense of grievance is reflected in the passage from the judgment of this court (Keane C.J.) in D.P.P. v Duffy on which Mr Sammon relies; the court speaks of “a grievance, which objectively viewed, could be reasonably entertained by the accused person” and recognises that in particular circumstances disparity of sentence may be justifiable.
In the present case, therefore, the issue before the court is whether the applicant’s sentence of grievance at the disparity between the sentences is objectively justified.
The trial of the four co-accused in the present case was very lengthy. Many witnesses gave evidence not alone of the particular actions of the four accused but also of their demeanour and of the general atmosphere and surroundings of the violent but comparatively brief incident which led to the tragic death of Mr Murphy. The findings of the jury have been set out at the beginning if this judgment.
In his sentencing judgment the learned trial judge set out with great care the factors which led him to impose differing sentences on the applicant and on Mr Ryan. He referred in particular to Mr Mackey’s contribution to the escalation of the incident and to his demeanour throughout it. In the view of this court counsel for the Director is correct in his submission that it was open to the trial judge to take into account the entire of the applicant’s participation despite the fact that it was accepted by the prosecution that he had not committed an actual criminal offence prior to the involvement of others in the assaults on Mr Murphy. In sentencing Mr Ryan the trial judge differentiated his case from that of the applicant in that Mr Ryan did not, as was clear from the evidence, contribute to the earlier escalation of the incident. In
addition Mr Ryan gave immediate assistance to Mr Murphy after the incident. The trial judge also pointed out that Mr Ryan did not put Mr Murphy’s character and disposition in issue at the trial.
There was evidence before the court and jury in the course of the trial which would sufficiently support the differentiation made by the trial judge between the conduct of the applicant and that of Mr Ryan. This court is of the view that the considerations enumerated by Judge White adequately justified the disparity in the sentences and that the applicant’s complaint concerning this disparity, objectively viewed, cannot be reasonably entertained. The court believes that the learned trial judge did not err against the principle of parity in imposing the sentences which he did. This ground of appeal therefore fails.

THE SECOND AND THIRD GROUNDS OF APPEAL
These two grounds of appeal may conveniently be taken together since both deal with the matters which were, or were not, taken into account by the learned trial judge in imposing sentence.
On behalf of the applicant Mr Sammon submitted that in his description of the applicant’s role in the incident the learned trial judge failed to take into account the fact that the applicant was struck twice by the deceased before he struck him in return. He also failed to take account evidence of the eye witnesses John Wall and Paul Mooney to the effect that the applicant did not react to being punched by Mr Murphy. Mr John Wall worked in a supervisory role at the nightclub/disco. In the course of his evidence he described the group of people at the gate of the hotel. He stated (Book 29 page 94):
“I was not looking at the bunch. It was at the side of my eye I saw somebody have a swipe at another person in the bunch, which I was very surprised. It is because I heard a noise as well. I did not believe it actually happened because it happened so quickly and when it did happen there was no reaction whatsoever. The person who actually got the punch did not actually react immediately to this action. It appeared that everybody seemed to be around in a group and they knew each other as well. It was very surprising to see this.”

Mr Paul Mooney was an independent witness who had not attended the nightclub but who had been dropped off in Sussex Road in or about 3 a.m. He described the initial stages of the incident. (The person described as wearing a red top was Mr Murphy; the person described as wearing a creamy jacket was Mr Mackey.) Mr Mooney said:-
“Some of them were behind the bus and some of them were on the footpath leaning against the rail just up against the wall. To be honest, they were the nearest group to me and they caught my attention. They were just general behaviour after coming out of a nightclub, having a laugh and messing. What drew my attention was that I saw two guys face up to each other. It did not look like anything at the start and then I could not actually hear them but the next thing I noticed was one guy hit the other guy. Yes, the guy that hit the other guy, I remember he had a red top on and he was about 5ft-10…The other person, I would say seemed to be of similar height, slightly taller than the first person. As far as I remember he had a white creamy jacket on and a light trousers and he had light brown hair…Yes, the guy in the red top threw a punch at the other chap and caught him on the back of the ear, he hit him on the back of the ear. The guy did not hit him back anyway and the guy in the red top went to hit this person again, went to hit him twice more but he missed on both occasions and the guy that he was trying to hit still did not do anything but he was, he seemed to be quite confident or smug in himself.”

Mr Mooney went on to say at a later stage that: “the guy that had got hit originally left the group” but later returned, kicked Mr Murphy, and then ran back out again.
Mr Sammon also drew attention to the evidence of a number of other witnesses who described Mr Mackey as having withdrawn from the fight after kicking Mr Murphy. These included Mary Kate Finn and Paul Cahill, who had said (Book 30 page 11): “I did, I saw at one stage I saw a guy run in from outside the group that was around him and kick him in the back and then he retreated outside the group again.” There was also evidence that the applicant then involved himself in two lengthy telephone calls to his girlfriend, Liz O’Mahony, who had already gone home. Ms O’Mahony bore this out in her evidence (Book 30 page 154) where she estimated that the telephone calls lasted some forty minutes. Other witnesses had also described the applicant making these telephone calls.
All of this evidence, counsel submitted, was inconsistent with the description of the applicant’s demeanour as given by the trial judge who had failed to take this evidence into account.
In regard to the third ground of appeal counsel for the applicant submitted that the learned trial judge had taken into account, and given considerable weight to, the evidence of the taxi driver, Mr William Quigley. Mr Quigley had testified that he brought the applicant to an address in Clonskeagh on the night in question, that the applicant’s conduct in his taxi was hyper and that he had overheard the applicant allegedly making specific assertions that he had kicked the deceased Mr Murphy in the head. The evidence of Mr Quigley had been strongly contested at the trial. In cross-examination it had been demonstrated that he was mistaken as to the exact route he had taken, that he had been concentrating on the road and listening to the car radio and that he had heard only bits and pieces of the conversation in the taxi. Mr Quigley’s account of the conversation had not been corroborated by any of the other passengers in the taxi.
Mr Sammon submitted that the jury clearly had not accepted Mr Quigley’s evidence of the applicant’s description of kicking Mr Murphy in the head. If they had accepted this evidence they would have convicted the applicant of manslaughter.
Mr Sammon pointed out that the trial judge had stated in regard to the offence of violent disorder (at Book 36 page 6): “When conviction ensues, the court can determine sentence on the evidence adduced, provided this evidence has been established beyond a reasonable doubt.” Counsel submitted that the evidence of Mr Quigley had not been established beyond reasonable doubt and that in taking this evidence into account the learned trial judge failed to have regard to this correct statement of sentencing principle in dealing with the applicant.
Counsel for the Director submitted that the learned trial judge had heard ample evidence during the course of the trial to enable him to assess the behaviour and demeanour of the applicant in the way he did. The witnesses to whom Mr Sammon had referred, together with other witnesses, had described the applicant’s involvement in the exchange of words at the outset, had stated that the applicant had “squared up to” Mr Murphy, and had described the applicant’s attitude as “smug”. Mr Comyn drew attention to the applicant’s own voluntary statements to the Gardai. In the applicant’s statement of 1st September 2000 he himself described how, at an early stage, he hit Mr Murphy in the head and knocked him backwards. This was, he said, immediately before Dermot Laide joined in the fight. A similar and more detailed description was given by the applicant in his statement of 26th September 2000. This evidence was quite sufficient to ground the learned trial judge’s decision that the applicant contributed to the escalation of the incident. It was fully open to the trial judge to rely on the material contained in these voluntary statements which formed an integral part of the evidence before the court and the jury.
With regard to the evidence of Mr William Quigley, Mr Comyn submitted that the trial judge had no need to rely on the exact wording of Mr Quigley’s report of the pieces of conversation which he said he had heard. The important evidence which was given by Mr Quigley was that the applicant’s demeanour during the taxi ride was “hyper” and aggressive. It was put to him in cross-examination that the applicant was merely drunk but he remained unshaken in his original description.
Counsel for the Director went on to stress the very great care which the learned trial judge had taken in analysing and weighing the aggravating and mitigating factors which applied in the case of each of the co-offenders. He referred to the factors involved in a judge arriving at a proportionate sentence – the gravity of the offence and the personal circumstances of the offender. In the case of the applicant the learned trial judge in this case had taken all the proper factors into account and had imposed a just and proportionate sentence.



SECOND AND THIRD GROUNDS OF APPREAL – CONCLUSIONS
As has been stated earlier, these grounds of appeal concern the matters which the learned trial judge took into account, or did not take into account, when reaching his conclusions regarding the role of the applicant in the events which led to the tragic death of Brian Murphy. This court has carefully considered the matters of evidence to which both counsel have drawn our attention.
While a wide range of witnesses gave evidence at the trial, a considerable amount of this evidence is lacking in clarity. This is understandable given the number of persons involved, the speed at which the fight occurred, the frightening nature of the incident, and, indeed, the fact that many of those involved and many of the onlookers had been drinking alcohol during the course of the night. The witness Paul Mooney, however, was an independent witness who arrived on the scene by chance and who had consumed a very minor amount of alcohol. His account of what he saw is detailed, cogent and clear. Part of Mr Mooney’s evidence has already been noted above. The first thing that he saw, the thing that drew his attention to the scene, what was he described as two guys facing up to each other. It is accepted that these were Mr Murphy and the applicant. Mrt Murphy then strikes the applicant once and endeavours, but fails, to strike him again. The applicant does not at this stage strike back, but his demeanour is described as “quite confident and smug in himself”. Mr Mooney then describes the immediate joining of three or four others in the fight, and the general attack on Mr Murphy who at that stage had fallen to the ground. He then goes on to describe the kicking of Mr Murphy as follows:
“Question: what part of the body were they kicking him on?
Answer: it was generally from the chest upwards. Those three guys did not kick any lower than that. It was generally just from the chest upwards. At that point he was just lying on his back but he could not do anything to stop that. It was quite intense. He could not really do anything to protect himself. No, as I said, the original guy who got hit first, he had left, but he came back in, he came running back in in what I would describe as a flying kick. He came running in between the group that was there and he kicked the man in the red shirt on the ground and he ran straight back out again. So he just ran in and ran straight back out again…When he ran back out, he ran back over to the group that were standing behind the bus and on the footpath. I heard him say that this is great craic as he ran back to his friends, or presumably they were his friends.”

In reply to cross-examination Mr Mooney accepted that this “flying kick” was directed at the body of Mr Murphy, not at his head.
Mr Mooney’s description of the incident tallies in many ways with the fuller account given by the applicant himself in his voluntary statements to the Gardai, to which counsel for the Director has drawn the attention of the court. The applicant made two full cautioned statements on 1st September 2000 and 26th September 2000 and in addition there was before the court a memorandum of interview carried out with the applicant on the 26th September 2000. In the second and fuller cautioned statement the applicant describes the beginning of the fight:
“At around 3.20 a.m. (I am not sure of the time, I do not wear a watch. This is the time that I heard afterwards), there was about fifteen to twenty people standing around the main entrance and to the left of the entrance as one of leaving the Burlington Hotel. It was at this time I that I heard a few fellas mouthing off to Andrew Frame, a fella that I went to school with. There was about five or six of them in this group. They were ‘dissing him’, basically ‘ripping the piss out of him’. I did not think that this was on. So I went over to them and asked them what they were at and what was going on. There was a fella in the middle of this group wearing a red shirt. He was about the same age as myself and he had dark hair. He was the person that was ‘ripping out’ Frame, slagging him off. The rest of them were laughing. I walked into the middle of this group. I was ‘at faces’ with them. By that I mean I was trying to intimidate them in this way into laying off Frame, because there was no point in the way that they were going on with him. I was face to face with the fella with the red shirt, who I now know to be Brian Murphy. I had my left hand out gesturing towards to Frame, asking Brian Murphy what it was all about. Then Brian Murphy hit me smack in the face. Punched me. I was stunned for a second. I said to Murphy ‘what was the reason for that’. I do not remember exactly what he said back to me but there may have been some smart answer. I said to him ‘what are you going to do next’ and one of his mates said ‘he is going to deck you again’. I think this fella was wearing whitish gear but I am not sure. At this stage I moved out a few feet on to the road. Murphy was still at me and I pushed me away from me. He fell on his ass on the roadway. He got straight back up and came at me. I knew that he was going to hit me as he walked towards me with intent. I asked him not to hit me but he kept coming. I put out my left hand and put it to his chest to keep him at arms length. I also turned my head away, to my right side, to avoid getting a smack to the face. He hit me rather hard just behind my left ear. I remember noticing the back of a bus that was parked there, when I had my head down and turned to the right. That was the bus that had been parked there outside the Burlington Hotel. After Murphy smacked me, I then came back at him and tried to hit him. I punched him with my closed fist in the head area knocking him backwards. I did not see him fall to the ground from that blow because at this stage Dermot Laide joined in the fight.”

The applicant then goes on to describe how he kicked Brian Murphy “into the mid section”. He states that he kicked Mr Murphy hard but then walked away at that stage.
In the memo of interview with the applicant it is recorded that the applicant was asked (at page 4):
“Question: who did you feel after you kicked Brian Murphy?
Answer: At the time I was hyper, I remember I clenched my fist and put my hands in the air and I said something like ‘this is mad’ but afterwards I felt sorry.”

It appears that it is at this point that the applicant withdrew from the fight and was engaged in telephone conversations with his girlfriend.
This court was then referred to the evidence of the taxi driver, Mr William Quigley. The court accepts that there are certain difficulties in the evidence given by Mr Quigley regarding the actual conversation which he claims to have overheard. However, Mr Quigley’s description of the applicant as being “hyper” is in accordance with the applicant’s own description of his mood following his kicking of Mr Murphy. In cross-examination Mr Quigley firmly resisted any suggestion that the applicant was merely drunk.
It appears to this court that it was open to the trial judge to take all of this evidence into account in reaching the conclusions that he did in regard to the applicant’s demeanour and in holding that the applicant from the beginning contributed to the escalation of the incident. From the beginning the applicant was fully involved.
At an early stage in his sentencing judgment the learned trial judge referred to the sentencing policy and principles which should govern his decisions. At day 36 page 4 to 5 he stated:
“I now turn to sentencing policy and principles. When passing sentence the court takes account of sentencing policy and is guided by sentencing principles laid down by the Superior Courts. Sentencing policy is the penal objectives which the criminal justice seeks to achieve. The major aims are punishment, general deterrence, individual deterrence and rehabilitation.

On sentencing principle, there is a duty on the court to impose a proportional sentence. The punishment should be appropriate not only to the offence committed, but to the particular offender. A judge has discretion to impose a sentence which meets all the particular circumstances of the case. The court in assessing the sentence in respect of each individual accused has a duty to set out the aggravating factors of the offence and the mitigating circumstances. If a plea of guilty is entered, the court is entitled to substantially mitigate sentence. In some circumstances when a trial is contested, a defendant is still entitled to have his sentence mitigated because of the manner of conduct of the defence. Naturally a court takes seriously any type of offence where death arises. Excessive consumption of alcohol is not a defence to a criminal charge, nor is it an excuse for criminal behaviour and may, on occasions, be an aggravating factor. The court must take into consideration the previous good character of an accused and also their young age at the time of the offence. It can also consider the impact on the accused of widespread publicity arising from trial and conviction. An accused person should not be penalised as a result of their background.”

In accordance with these principles the learned trial judge went on to consider the evidence relevant to each of the co-offenders. He then analysed and weighed the aggravating and mitigating factors in regard to each offender before imposing sentence.
It seems to this court that the learned trial judge correctly set out the principles and policies which governed the imposing of a proportionate sentence on the offenders who were before the court. In the case of the applicant the learned trial judge carried out his task of analysing and weighing the aggravating and mitigating factors with great care and, in the view of this court, he reached a just and fair balance in imposing sentence. In the opinion of this court the learned trial judge did not err in principle in the sentence which he imposed and this court will not interfere with it. The second and third grounds of appeal therefore fail.
The applicant’s appeal will therefore be dismissed.


DPP v Sean Mackey