Neutral Citation No:  NICC 7
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"The defendant (Patrick McGinley) states that he forcibly removed the pipe-gun from an associate of the deceased. Whilst the prosecution case is that the pipe-gun was brought to the incident by one or other of the defendants, it is accepted that there is reliable information which indicates that this was not the case. The prosecution accepts that it is likely that the court will be unable to definitively resolve this issue and that in such circumstances the court should sentence on the factual basis which is most advantageous to the accused. The gun was a homemade weapon of rudimentary and crude construction with which he was not familiar. The weapon contained a shotgun cartridge. The accused states that he was struck by the deceased and his son and a general melee ensued involving all of the defendants. In the course of the ongoing struggle the weapon was discharged by the defendant causing the fatal injury to the deceased. The defendant accepts that this was a deliberate (as opposed to accidental) act on his part carried out in the "heat" of the moment. The defendant accepts that this was a dangerous act which was done with the intention of harming the deceased or with the realisation that it was likely to harm the deceased (see Gray v Barr  2 QB 554 as set out in Blackstone at B1.56). The defendant (Patrick McGinley) maintains that given the nature of the weapon and ammunition and the pertaining circumstances that he did not and had not formed an intention to cause really serious harm to the deceased at the relevant time."
"On 11 February 2015 at St Mary's Church, Newtownbutler, an incident developed between the defendant's family members and the deceased's family and friends. The prosecution describes this as a "general melee" the defendant (Bernard McGinley Jnr) accepts that given the overall violent nature of the incident this was sufficient to constitute an affray and that by his conduct of running towards this melee in support of his family he contributed to the incident and is thereby guilty of an affray. The defendant was not armed at any stage. While the defendant's actions were sufficient to threaten violence against others, no actual violence was perpetrated by him against anyone."
The appropriate sentences
" Because of the infinitely varying circumstances in which affray may occur and the wide diversity of possible participation of those engaged in it, comprehensive rules as to the level of sentencing are impossible to devise. Certain general principles can be recognised, however. Active, central participation will normally attract more condign punishment than peripheral or passive support for the affray. The use of weapons will generally merit the imposition of greater penalties. The extent to which members of the public have been put in fear will also be a factor that will influence the level of sentence and a distinction should be drawn between an affray that has ignited spontaneously and one which has been planned – see R v Anderson and others  7 Cr App R (S) 210. Heavier sentences should in general be passed where, as in this case, the affray consists of a number of incidents rather than a single self-contained episode."
(a) securing the rehabilitation of the offender or
(b) protecting the public from harm from him or preventing the commission by him of further offences the court may make a probation order, that is to say, an order requiring him to be under the supervision of a probation officer for a period specified in the order of not less than 6 months or more than 3 years.
Patrick McGinley Jnr
(a) if the offence is an isolated incident not likely to be repeated;
(b) stable home and family stability;
(c) if in employment and little or no criminal record;
(d) if generally of good character and efforts made to avoid offending; and
(e) if the offence is in the nature of a crime against public order or the community.
Victim Impact Statements
" In dealing with the general principles to be observed when considering cases of manslaughter Kerr LCJ, in the course of giving judgment in R v Magee  NICA 21, confirmed at paragraph  that:
" It is not surprising that there are relatively few decisions in this jurisdiction which could properly be described as guideline cases for sentencing for manslaughter. Offences of manslaughter typically cover a very wide factual spectrum. It is not easy in these circumstances to prescribe a sentencing range that will be meaningful."
After referring to the apparent increase in prevalence of offences of wanton violence among young males, typically committed when the perpetrators were under the influence of drink or drugs or both, the learned Lord Chief Justice went on to say at paragraphs  and :
' We consider that the time has now arrived where, in the case of manslaughter where the charge has been preferred or a plea has been accepted on the basis that it cannot be proved that the offender intended to kill or cause really serious harm to the victim and where deliberate, substantial injury has been inflicted, the range of sentence after a not guilty plea should be between eight and fifteen years' imprisonment. This is, perforce, the most general of guidelines. Because of the potentially limitless variety of factual situations where manslaughter is committed, it is necessary to recognise that some deviation from this range may be required. Indeed, in some cases an indeterminate sentence will be appropriate. Notwithstanding the difficulty in arriving at a precise range for sentencing in this area, we have concluded that some guidance is now required for sentencers and, particularly because of the prevalence of this type of offence, a more substantial range of penalty than was perhaps hitherto applied is now required.
 Aggravating and mitigating features will be instrumental in fixing the chosen sentence within or – in exceptional cases – beyond this range. Aggravating factors may include –
(i) the use of a weapon;
(ii) that the attack was unprovoked;
(iii) that the offender evinced an indifference to the seriousness of the likely injury;
(iv) that there is a substantial criminal record for offences of violence; and
(v) more than one blow or stabbing has occurred.'
 In his carefully researched and informative paper on "Sentencing in Cases of Manslaughter, Attempted Murder and Wounding with Intent" delivered to the Judicial Studies Board for Northern Ireland on 13 September 2013 Sir Anthony Hart confirmed that manslaughter was often described as one of the most difficult categories of case in which to sentence because of the wide factual spectrum. After analysing a wide number of guideline decisions both of this court and at first instance, he identified seven broad sub-categories, the first of which is probably the most relevant for the purpose of this application and which provides as follows:
'(i) Cases involving substantial violence to the victim. While sentences range from 6 years on a plea to 14 on a contest, pleas in cases at the upper end of the spectrum attract sentences of 10 to 12 years with sentences of 12 years being common. Sentences of 6 to 8 years tend to be reserved for cases where there are strong mitigating personal factors, or the defendant was not a principal offender'."
"The consultation document suggests that for this offence the important factors are the culpability of the offender and the degree of harm caused. Where culpability and harm caused are high the suggested range is 9 to 16 years custody if convicted after a not guilty plea. A range of 5 to 9 years custody is suggested where there is either high culpability or a higher degree of harm caused with a range of 3 to 5 years custody being reserved for cases of low culpability and lower harm. The emphasis on culpability and harm is consistent with the approach of the courts in this jurisdiction to the determination of the appropriate sentence."