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  IECCC 3
THE HIGH COURT
CENTRAL CRIMINAL COURT
[2010 No. 69 CC]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment of Mr. Justice Garrett Sheehan delivered on the 29th July 2011
 Factual background
[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.
 Facts arising from the sentencing hearing
[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.
 Determining appropriate sentences in manslaughter cases
[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  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  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."