Irish Central Criminal Court

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Cite as: [2011] IECCC 3

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Judgment Title: DPP -v- DD

Neutral Citation: 2011 IECCC 3

High Court Record Number: 2010 69CC

Date of Delivery: 29/07/2011

Court: Central Criminal Court

Composition of Court:

Judgment by: Sheehan J.

Status of Judgment: Approved

NEUTRAL CITATION [2011] IECCC 3

THE HIGH COURT

CENTRAL CRIMINAL COURT

[2010 No. 69 CC]

Between

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Prosecutor

D.D.

Accused

Judgment of Mr. Justice Garrett Sheehan delivered on the 29th July 2011

[1] Overview
[1.1] The accused was convicted by an eleven to one majority verdict of the jury on the 2nd June 2011 of the manslaughter of C.S. The deceased died as a result of receiving a number of blows to the head with a hurley. The deceased was a friend of the accused and in whose home he had been living for some time.

[2] Factual background
[2.1] The accused in this case was charged with the murder of C.S. on the 12th May 2010. The factual circumstances of the case were as follows. At about 4.15am on the morning of the 4th April 2010, the deceased made a call to the gardaí to say that she was locked out of her house and that the accused was in the house and would not let her in. Two members of An Garda Síochána, Garda McGarry and Garda O'Connell, responded to this call and met the deceased outside her house. Garda McGarry eventually gained entry through a window in the front and Garda O'Connell and the deceased gained entry via a door that was, in fact, open at the back. They met the accused in the sitting room and he was in a very intoxicated and agitated state and threatened Garda McGarry. He had consumed a considerable amount of alcohol at the time and had been drinking for some days. When the gardaí left, they were satisfied that the deceased was fine and that everything was alright in the house.

[2.2] The deceased subsequently rang a taxi man who she would have been in contact with previously over the phone. The deceased called him on three occasions with the last call being made at approximately 7.30am and all he could glean from the phone call was that the deceased said something about being on the floor and to get her out of there. That was the last known contact the deceased made with anyone.

[2.3] At 9.24am the accused called the gardaí and explained that he had come back from the supermarket and that he could not get into the sitting room but that he could see the legs of a person and believed the person was dead. The gardaí arrived at the scene at approximately 9.36am and met the accused at the front door of the house. The gardaí had to use force to gain entry to the kitchen cum sitting room as the deceased's body was blocking the door.

[2.4] The deceased was pronounced dead at 9.55am and was subsequently examined by the State pathologist and found to be a female aged fifty-eight, who was five foot nine inches tall, of obese build, fully clothed and was face down. There were ten lacerations to the top of the scalp but no damage to the skull apart from subdural haemorrhage and numerous cuts and bruises. A hurley was found at the scene which was believed to be the weapon that was used and forensic tests showed that the deceased's blood was found on it. When Garda McGarry and Garda O'Connell had attended at the house in response to the deceased's call in the early hours of the morning, there was a hurley in the kitchen cum sitting room. Subsequently, this same hurley was found in two pieces on the ground in the kitchen cum sitting room where the deceased was found.

[2.5] There was subsequently a search of the house. A pair of men's jeans with both blood spattering and paint on them was found under a bundle of women's clothing in the deceased's bedroom. The accused had been seen wearing them earlier in the day by an independent witness who lived around the corner from the deceased and this witness identified those jeans as being possibly the ones that the accused was wearing when he called to her house. In other evidence, there was quite an amount of blood on the fridge and a thumb mark made in the deceased's blood on the fridge which matched the profile of the accused's fingerprints. Furthermore, the thumb print was in a position on the fridge that it could not have been put while the fridge was upright. The accused maintained that he never entered the kitchen cum sitting room but due to the location of the finger mark in blood, it was deemed to be "nigh on impossible to do it from outside of the room" by a Garda witness at the trial and at the sentencing hearing.

[2.6] Subsequently, on the 5th April, the accused was arrested. The accused maintained that he believed the deceased had been alive when he went out in the morning and that when he came back she was dead. He denied that he had anything to do with her death.

[3] Facts arising from the sentencing hearing
[3.1] The Court was told that the accused was a separated man and unemployed at the time of the manslaughter of C.S. He had worked in a variety of jobs and did not appear to have worked since 2006 when he suffered an accident on a building site which resulted in serious back injuries. The Court was also told that the accused had twenty previous convictions in Ireland and three in England. The most recent of these was a conviction on the 26th February 2009 when he received a twelve month suspended sentence for an assault contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The injured party and the two accused had all been drinking heavily. The Court was told of two further convictions for assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997, one of which involved the accused striking a member of An Garda Síochána when he was intoxicated. The Court was also told that, on the 11th December 2006, he was convicted of assaulting his then partner by kicking her and two counts of malicious damage: one in respect of breaking his partner's fire alarm, and the second for throwing her handbag into the fire. He was convicted of common assault on two occasions in England and one of these assaults was accompanied by a criminal damage conviction. The Court was told of the remaining convictions in this jurisdiction; two convictions for drunken driving, three for driving without a driving licence, two for driving without insurance, one for theft and four for public order offences. While a number of these previous offences involved violence by the accused and are indicative of a propensity for violent behaviour, they are clearly not of the same seriousness as the offence in this case and this Court thereby deems that they do not amount to a progressive loss of mitigation.

[3.2] Counsel for the prosecution read a victim impact statement prepared by the deceased's sister, M.K. The Court notes the grievous loss and suffering endured by M.K., the deceased's children and her siblings. The Court has considered the submissions made on behalf of the Director of Public Prosecutions which simply amounts to a submission that this offence falls within the upper range of sentences for manslaughter. The Court has also considered the submissions of counsel for the accused and the evidence of the accused himself at the sentencing hearing; the relevant part being his acceptance of responsibility for the death of the deceased and his remorse and apology to the deceased's family and friends.

[4] Determining appropriate sentences in manslaughter cases
[4.1] In considering a sentence of imprisonment, the Court is conscious of what Judge Michael Reilly, the Inspector of Prisons, has said about the present state of Irish prisons, in which he speaks about the risks to a prisoner's mental health and physical health over and above what one would normally expect with imprisonment, as well as what he has said about overcrowding, its effects on prisoners and the lack of proper rehabilitative facilities in a number of prisons. The Court, however, must approach this case on the basis that any sentence imposed on the accused will be served in humane conditions with proper sanitation facilities and a proper opportunity for him to engage in rehabilitative activity which he told the Court he has already begun but which will clearly take a considerable time.

[4.2] In determining the appropriate sentence, the Court has been guided by the judgment of the Court of Criminal Appeal in the Director of Public Prosecutions v. Kelly [2005] 2 IR 321. Hardiman J. delivered the judgement in that case in which the Court quoted with approval the observations of Professor Thomas O'Malley in his work entitled, Sentencing Law and Practice (Roundhall Sweet and Maxwell, Dublin 2000), where he stated at p. 403 that: - "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 ....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. "

[4.3] In the case of the Director of Public Prosecutions v. Kelly, Hardiman J. reviewed sentences in fifty cases in which an accused person originally charged with murder was found guilty of manslaughter either by a jury or having a plea to manslaughter accepted by the Director of Public Prosecutions. While the Court stressed that this information was of limited value, it noted that of the sixteen cases in which there were pleas of guilty, three attracted sentences of over ten years and thirteen attracted sentences under ten years of which nine were under five years and in two cases the sentences were wholly suspended. Of the thirty-four cases of convictions for manslaughter, ten attracted sentences in excess of ten years, twenty-four attracted sentences of less than ten years and of which fifteen sentences were less than five years. The Court of Criminal Appeal in the Director of Public Prosecutions v. Kelly also quoted with approval the remarks of Denham J. in the Director of Public Prosecution v. M [1994] 3 I.R. 306, in which she stated at p. 318 that: - "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 reduces the sentence." The Court of Criminal Appeal further quoted with approval the remarks of Egan J. who stated at p. 315 of the judgment in the Director of Public Prosecutions v. M that:- "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."

[5] Decision
[5.1] In this case, there are three mitigating factors on which the accused can rely. First, the fact that the accused offered to plead guilty to manslaughter prior to his trial demands that the Court treat him as having pleaded guilty. Secondly, his remorse and apology go towards mitigation. Thirdly, the issue of rehabilitation. It is clear that alcohol abuse has been an issue in the accused's life and has had a negative impact on him; this sentence must offer sufficient scope for his rehabilitation as was acknowledged to be a relevant factor in the recent judgment of the Court of Criminal Appeal in the Director of Public Prosecutions v. McGinley (Unreported, Court of Criminal Appeal, McKechnie J., 11th July 2011). Adopting the approach recommended by Egan J., it appears that the appropriate starting point in this case is a sentence of thirteen years imprisonment. Given the remorse expressed by the accused and the mitigating factors that the Court has already outlined, the sentence is mitigated to one of ten years imprisonment which this Court considers to be the appropriate penalty and now imposes that sentence on the accused.