Court of Criminal Appeal sets aside manslaughter sentence for error in principle and remits for correct sentencing.

[2004] IECCA 13

THE COURT OF CRIMINAL APPEAL

198/03

Hardiman J

Laffoy J.

Quirke J.

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

v.

STEPHEN AHERNE

Defendant/Appellant

JUDGMENT of the Court delivered the 5th day of July, 2004 by Hardiman J.

1. The appellant’s application for leave to appeal came before the Court on the 26th May, 2004. On the same day the Court had

heard an application in another manslaughter case, that of DPP v. Stephen Kelly, in which we have delivered judgment today.

2. On the hearing of this application for leave to appeal, it transpired that the applicant had been sentenced to ten years

imprisonment for manslaughter in the Central Criminal Court (White J.) on the 13th October, 2003. In imposing this sentence the

learned trial judge said:-

“I have previously stated that I consider where an innocent life is taken the appropriate sentence is 20 years

imprisonment. However that is not the sentence that I am intending to pass in relation to you. I have to take into

account in the first place the fact that previously you were of good character. I must take into account your tender age

at this time, not being sixteen years of age and I must take into account what I find in the reports before which would

indicate that you had certain learning difficulties. I must take into account your co-operation with Sergeant Molloy and

the other members of the Garda Síochána in this particular investigation and I must take into account that you are not

the ring leader and and/or the prime mover on this particular night.

Taking these matters into account I propose to pass a sentence of ten years in respect of the unlawful killing of Brian

Mulvanney and I will backdate that sentence to the date of your conviction”.

3. In those circumstances it appeared to the Court that the approach to sentencing in this case displayed the same error in principle

as that identified in our decision of the appeal of Stephen Kelly. We therefore indicated that we would set aside the conviction and

proceed to impose the appropriate sentence.

Cross-reference to DPP v. Stephen Kelly.

4. In a judgment in DPP v. Stephen Kelly, which we have just delivered, we have set out the statutory provisions which apply when

the Court has found that the sentence imposed on an appellant was wrong in principle. We have also taken the opportunity to set out

certain information about the offence of manslaughter as it has presented in the Central Criminal Court in recent years. Likewise, we

have restated the general principles applying to sentencing in our courts. It would obviously be redundant to set out the same

material in this judgment. However we wish to emphasise the applicability of the material set out in the judgment in Kelly and the fact

that we have been guided by the principles summarised in that case. We have applied these to the evidence considered and

submissions made on 26th May, 2004 and 11th June, 2004.

The charges.

5. The appellant was charged, together with two others, with the murder of the late Mr. Mulvanney in the Templeogue area of Dublin

on the 11th March, 2000. He was also charged with assault on Matthew O’Dowd on the same day, with producing a weapon capable

of inflicting serious injury in a manner likely to intimidate, with assault with intent to rob one Karl Dunne and with producing an article

capable of inflicting serious injury likely to intimidate the same person. All offences took place on the 11th March, 2000. The article

referred to in two of the charges was a drinking glass.

6. After a trial lasting seventeen days the appellant was found not guilty of murder but guilty of the manslaughter of Brian Mulvanney.

Subsequently, the accused pleaded guilty to the count of assaulting Matthew O’Dowd (count 2 in the indictment) and to the count of

producing an article capable of inflicting serious injury to Karl Dunne (count 5). He was eventually sentenced to ten years detention

on count 1, to date from the 2nd April, 2003 and three years detention on each of the other counts to run concurrently with each

other and with the first sentence and to date from the 13th October, 2003.

7. It should be noted that the accused had offered to plead guilty to manslaughter before the trial and, of course, that he was

acquitted on the count of murder. Of the co-accused, one was convicted of murdering Mr. Mulvanney and the other was acquitted

entirely on the murder charge.

The facts of the case

8. The appellant was born on the 18th April, 1984 and was, at the time of the offences, between five and six weeks short of his 16th

birthday. It appears that on Friday the 10th March, 2000 he left his family home in Templeogue about 7pm and went first to where

some friends were drinking behind a local Church. He then went to a friend’s house, back to the Church and back to the friend’s house

where he met a group of three further companions. This group went to a 21st birthday party in Terenure at which the appellant on his

own account drank about ten pints of Budweiser and a Zambuca. They left when the bar closed. He and one of his friends, ultimately

a co-accused, set out to walk back to Templeogue. The appellant said he was very drunk and stumbling. They got a lift and were

dropped at the shops in Templeogue village.

9. The victim of the first incident, Matthew O’Dowd, was walking by himself at Templeogue village having left his friends in a takeaway

restaurant. Two men crossed the road towards him, with pint glasses in their hands. One told Mr. O’Dowd that the other (who is the

appellant), was going to smash a glass on his head. He kept on walking and the appellant hit him into the face with a pint glass. He

turned away and was struck on the left hand side of his head, behind his ear. The glass shattered and he received a centimetre long

laceration just behind the ear. He had minor injuries to his nose and chin. There was a struggle and a Mr. O’Dowd hit the appellant

and ran off seeking the protection of his friends in the takeaway.

10. Some fifteen or twenty minutes after that episode, the appellant and the person with him were still in Templeogue village. They

met three persons who had come out of a local public house and were walking towards Terenure. One of these was Karl Dunne. They

approached the three men and asked them did they want to buy drugs and whether they were from Knocklyon. A scuffle developed in

which the person with the appellant produced a pint glass and put it to the face of Mr. Dunne. Mr. Dunne’s friends resisted them and

one was pushed away. The appellant then struck Mr. Dunne in the face knocking of his glasses. His accomplice held the glass to Mr.

Dunne’s face and the appellant rummaged through his pockets looking for cash. Mr. Dunne and his group made off and were followed

by the appellant and his accomplice. There was a further minor confrontation before the three escaped.

11. Shortly after this episode, the appellant and his associate went to an adjacent area where there was a small row of shops. The

person eventually convicted of the murder of Mr. Mulvanney arrived with Mr. Mulvanney to that area. They had apparently come from

a party at a nearby house. It appears that the person convicted of murder, Brian Willoughby, had lured Mr. Mulvanney from the party

on a pretext, but actually with the intention of assaulting him. He asked the appellant to join him in attacking Mr. Mulvanney and he

agreed to do so.

12. Mr. Mulvanney was lured around the side of the shops, where he was struck by Willoughby. Mr. Mulvanney attempted to run away

but was brought to the ground by the appellant’s accomplice and was then attacked by the appellant and Brian Willoughby. The

appellant picked up a stick or plank and struck Mr. Mulvanney on a number of occasions. A ghoulish scene then developed in which

Willoughby repeatedly jumped on the unfortunate victim’s head, shouting gleefully.

13. The appellant and Willoughby (the third man had made off) then presented themselves at another party, where the blood on their

clothes attracted attention. The appellant was arrested later that day and gave accounts to the Gardaí which are apparently

substantially truthful. He denied initially using the stick to strike the deceased but eventually admitted it saying that he struck him

perhaps three times. The weapon was subsequently found, and it had the deceased man’s blood on it.

Personal background.

14. The age of the appellant has already been mentioned: he was just under sixteen at the relevant time. He lived at home with his

parents and was attending a local school. He was described in the reports as a person of borderline ability. He had the attention of a

remedial teacher in primary school and impressed his teacher as being a dependent, rather than independent, person. He had good

references from a person who gave him a part time job, neighbours, and other persons of undoubted respectability and judgement.

15. There was also produced on behalf of the appellant a psychological report. This is not always easy to understand. However it

states of the appellant that:-

“He admits responsibility for engaging in such deviant behaviour and does not minimise his role in the crime. However [he]

frequently describes the amount of alcohol he had consumed and, therefore, does attempt to justify actions that he

would not have perceived himself capable of when no such substance has been ingested”.

16. I take it this means that he believes that he would not have committed the crime without the influence of drink.

17. The psychologist also says:-

“When [the appellant] was returning to home at the end of the night’s celebrations he attempted to and, indeed,

assaulted a number of youths. Upon arrival in at the location of the victim’s ultimate demise, [he] describes a number of

erratic and unplanned movements that seem consistent with an individual who was heavily intoxicated and not attending

at the normal level of concentration and logic. While his story is disjointed, as a result of what is probably a memory loss

owing to the intoxication of that night, a picture emerges of a young man who was then displaying extreme inconsistent

patterns of aggression, emotions of grandeur and lack of ability to reason. This presentation is consistent with someone

who is experiencing the effects of ingested chemical substances and/or manic depression and/or schizophrenia”.

18. One cannot help feeling this could have been put in a simpler and more straightforward way. However, in answer to express

questions, counsel for the appellant, Ms. Mary Ellen Ring S.C., confirmed that there was no suggestion that the appellant actually

suffered from manic depression or schizophrenia or any mental illness. This being so it is hard to see why these conditions were

mentioned. The “effects of ingested chemical substances” is apparently a reference to the fact that the appellant had at least ten

pints and one Zambuca on the night in question.

19. The psychologist also comments:-

“Devastatingly, it seems as if Stephen’s choice of peer leader was ill advised at the time when this violent act occurred”.

20. The psychologist’s report goes on to say that the appellant, despite his age, had been drinking a good deal for five or six years

prior to the incident. The appellant also admitted to regularly using cannabis cocaine and ecstasy. He was also “inappropriately

promiscuous”. Some emphasis was placed on his position in the family:

“While the youngest as well as the eldest is usually dominant within the family and often receives a disproportionate

amount of attention, the middle years lack some of the parental attachment and enhances security”.

21. The psychologist also expressed the opinion that the appellant was genuinely remorseful for what has happened. He himself gave

evidence in the course of which he read a written statement to the same effect. The psychologist however attributed what had

occurred to “peer influence, preponderance of, momentarily, innate aggressive behaviour and the effect of alcohol”. Having said this

he declared that the appellant “presents with a moderate risk of re-offending in a similar manner” he hoped that psychological

treatment might reduce this to a “moderate to low risk”.

Nature of the crime.

22. One must first acknowledge that the death of Mr. Brian Mulvanney as a result of a criminal attack on him was an unmitigated

tragedy and an appalling affliction to his parents and his sister. The Court has had regard to the evidence of his father Mr. Lawrence

Mulvanney in this regard. Brian Mulvanney was a young man whose life was just beginning: he was born on the 28th February, 1981

and at the time of his death was awaiting his Leaving Cert results with a view to taking up a college place. He was a keen sportsman

and had played for the Irish under sixteen basketball team. He was widely known and universally respected. The grief of his family has

been aggravated by the severity of the deceased boy’s injuries and the fact that he was left to die when his assailants ran away

without notifying the emergency services or anyone else of his whereabouts.

23. There are a considerable number of aggravating and indeed seriously alarming aspects to this crime. It appears utterly gratuitous.

The appellant joined in the lethal attack on the unfortunate deceased person at the suggestion of Willoughby, but quite willingly and

without being in any way overborne. It is significant that Willoughby was not present when the appellant and his accomplice attacked

two other completely innocent young men in the near vicinity a very short time before. The appellant does not suffer from a

psychiatric illness and the learning difficulties he apparently has provide no sort of excuse. According to his own psychological witness

he has innate aggressive tendencies and he fuelled these by drinking a very considerable amount of alcohol. On the basis of the

history given by the same expert his lifestyle generally was chaotic, particularly in regard to drink and drugs. In all the circumstances,

the offence disclosed here would have to be regarded as being in the most serious category of manslaughter, perhaps in the lower

reaches of this category. A weapon was used but it had not been carried by the appellant. The attack was brutal, but the appellant

did not play the leading role in it. From the verdict of the jury we must acknowledge that the appellant did not have an intention to

kill or cause serious injury.

24. Having thus located the offence in the very wide range of actions which can constitute manslaughter, we turn to the mitigating

factors. There are really only three of these, the appellant’s youth, the fact that he has no previous convictions and the fact that he

had offered a plea to manslaughter. The significance of these matters has been discussed in our judgment of today’s date in Kelly.

They are very weighty factors. But for them, we would feel obliged to impose a sentence of fourteen years imprisonment for so

vicious and gratuitous an attack. The presence of these powerful mitigating factors, allow us to mitigate this sentence to one of ten

years. This, of course, is the length of the sentence determined on by the learned High Court Judge and set aside by us for the error

of principle mentioned above. It will no doubt be explained to the appellant that the fact that we have, on a proper approach, arrived

at the same duration of sentence is in no way illogical.