Court of Appeal dismisses appeal against manslaughter and weapons offence sentences for producing a knife during a confrontation.

THE COURT OF APPEAL

Birmingham P

Edwards J.

Baker J.

Record No: 271/2017

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

JURACI da SILVA.

Appellant

JUDGMENT of the Court delivered on the 30th day of July, 2019 by Mr. Justice Edwards

Introduction

1. The appellant in this case was charged with murder, with assault causing harm contrary to s.3 of the Non-Fatal Offences Against

the Person Act 1997, and with producing an article, i.e. a knife, in the course of a dispute or a fight, in a manner likely unlawfully to

intimidate another person, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. He was tried before a jury in the

Central Criminal Court. The jury returned with verdicts of not guilty of murder but guilty of manslaughter, not guilty of assault causing

harm, and guilty of the s.11 offence.

2. The appellant was sentenced to a term of imprisonment of eight years in respect of the manslaughter, and to a term of

imprisonment of five years in respect of the section 11 offence. Both sentences were to be concurrent and to run from 8 October

2016.

3. The appellant now appeals against the severity of his sentences.

Background to the matter

4. The sentencing court heard evidence that in the early hours of the morning of the 8thof October 2016 the appellant, who is a

Brazilian national working as a butcher at the Dawn Meats plant in Waterford, was socializing in the city of Waterford with a number

of friends and co-workers. They had been drinking in various licensed premises and playing pool. Just before 3am on that date the

appellant left his companions to go home. He lived at the time on John’s Lane which was just off John’s Street. While making his way

home he encountered Mr. James Banville and Mr. Conor Hogan on Cross Lane. The appellant was quite inebriated, and later contended

that he was subjected to racist taunts by Mr. Banville and Mr. Hogan following which they then proceeded to assault him by kicking

and punching him. The incident on Cross Lane was captured on CCTV, and it was also independently witnessed, and both the

recording and the witness’s testimony made it clear that the appellant was not the aggressor on this occasion. The CCTV also

captured Mr. Banville and Mr. Hogan ingesting drugs, later shown to be cocaine, just before they engaged in harassing and assaulting

the appellant.

5. Following this initial harassment and assault, the appellant continued in the direction of his home and on arrival at his apartment

met with one of his flatmates, a Mr da Cruz. Mr da Cruz testified that the appellant enquired about his friends from whom he had

become separated. While in the apartment the appellant changed his clothes and having done so armed himself with a kitchen knife

and took it with him as he left the apartment. At this point he was accompanied by Mr. da Cruz. When interviewed after the incident

giving rise to the charges that were later preferred against him, he contended that he had gone out again to look for two of his

friends with whom he had been earlier, and he had brought the knife with him because he was concerned about the safety of those

friends.

6. Upon leaving the apartment with Mr. da Cruz they proceeded from John’s Lane onto John Street and walked around for a few

minutes before returning to John’s Lane and separating. Mr. da Cruz went back home but the appellant stopped to speak to a couple

of young women who were sitting on the steps outside his apartment building. As he was doing so Mr. Banville and Mr. Hogan passed

by. They again taunted the appellant, this time with sexual innuendos, and again assaulted him. This was only an estimated 15

minutes after the first assault. As on the previous occasion, the second assault was also captured by a CCTV camera on an adjacent

building. Once again it was clear that the appellant was not the aggressor.

7. After the second attack had ceased, Mr. Banville and Mr. Hogan continued from John’s Lane onto John Street and proceeded in the

direction of New Street. The appellant initially hesitated momentarily but then followed them. Mr. Banville and Mr. Hogan walked

around the corner into New Street and a further altercation ensued between them and the appellant on New Street. This altercation

was not captured on camera, however there were a number of eye witnesses who were in a position to give some evidence as to how

matters unfolded. These witnesses indicated that when the appellant reached the top of the hill and turned on to New Street, Mr

Banville and Mr Hogan were some distance further along that street. There was evidence that a considerable amount of shouting

ensued emanating from all protagonists. Mr Banville and Mr Hogan then proceeded back along New Street in the direction from which

they had come, towards the appellant. The appellant stood his ground and did not retreat. Shouting continued and when Mr Banville

and Mr Hogan reached him there was a confrontation and an ensuing altercation. We were told during the appeal hearing that there

was evidence at the trial from eye witnesses to the effect that, at one point during this altercation, the appellant was being held by

Mr Banville and Mr Hogan, and seemingly it was at this point that the appellant produced the kitchen knife with which he had armed

himself and stabbed both Mr. Banville and Mr. Hogan.

8. Mr. Hogan sustained only superficial wounds but sadly Mr. Banville sustained mortal wounds. After he had been stabbed Mr. Banville

managed to walk just a short distance before collapsing and falling to the ground. He was assisted first by Mr. Hogan and then by

several people who came upon the scene. He was bleeding quite severely and although he was removed to hospital all attempts to

resuscitate him were unsuccessful and he was pronounced dead.

9. Gardai arrived at the scene shortly after the incident, and the appellant was quickly identified as the principal suspect in

connection with the suspicious death of Mr. Banville. Gardai then went to the appellant’s apartment and he was arrested there. He

was taken to a Garda station where he was detained and found unfit to be interviewed immediately due to being intoxicated. He later

complained of headaches and dizziness and was seen while in custody by a doctor.

10. When he had recovered sufficiently to be interviewed he was questioned about the incident and he initially denied assaulting or

stabbing either Mr. Banville or Mr. Hogan. As previously indicated he was later charged with the murder of Mr Banville, with assaulting

Mr Hogan causing him harm, and with the s.11 offence involving possession of a knife. Insofar as the murder charge was concerned,

he offered a plea to manslaughter in advance of his trial, but this was not acceptable to the Director of Public Prosecutions and in

those circumstances the trial proceeded as a murder trial. The case was defended based on provocation and in the alternative as a

case of excessive self-defence. While it is not clear on what basis the jury decided to return a verdict of not guilty of murder but

guilty of manslaughter, the appellant was sentenced on the basis that he had been subjected to substantial provocation involving

being physically assaulted and subjected to taunts of a racist and sexual kind on two separate occasions just a short time before the

incident in which Mr. Banville and Mr. Hogan were stabbed.

The impact on the victims

11. The sentencing court received poignant victim impact statements from Mr. Banville’s partner, Kelly Leonard, as well as from his

brother Aidan, and these were read into the record. In addition, his sister, Ms Anne-Marie Banville, gave victim impact evidence

herself in court. It was manifest from these testimonials that Mr. Banville was dearly loved by his large family and that they are all

distraught to have lost him. It is particularly tragic that Mr. Banville had three very young children, Carly, aged 3, Cian, aged two and

Kelsey, aged just six weeks, at the date of sentencing and that they will grow up without knowing their father. Further, Ms. Leonard

and her young children were entirely dependent on Mr. Banville and they have lost their home and their means of support due to his

untimely death.

12. There was no victim impact evidence from Mr. Hogan, perhaps because the appellant was acquitted of the charge of assaulting

Mr Hogan causing him harm. Mr Hogan was nonetheless a victim in respect of the s.11 offence of producing an article, i.e. a knife, in

the course of a dispute or a fight, in a manner likely unlawfully to intimidate another person.

The appellant’s personal circumstances

13. The sentencing court heard that the appellant had been working in Ireland only for a short time before the incident. He is a

Brazilian national who had trained as a butcher in his home country and who had been recruited in August of the previous year by

Dawn Meats in Waterford to come to Ireland and work for them. The court heard that he has no previous convictions of any

description either in Brazil or in Ireland.

14. At the sentencing hearing the court received a letter in Portuguese from the appellant, which was translated by a court

interpreter and read into the record. It was in the following terms:

“Today I am writing this letter for the Mr. Judge to talk about myself and my life and how I got here to Ireland. My full

name is Juraci da Silva. I am a Brazilian citizen. I’m from a very humble and poor family of eight brothers, including me. All

my family is in Brazil at the moment. I am married, I have a wife, two kids, a daughter and a stepdaughter, both in Brazil. I

am 36 years of age. I had to leave school very early because I had to work to provide for my family. When I was 12 years

old until the present moment I am working, even in prison. I have to start working early to help my parents, my mum and

my dad which are in Brazil. My mum is very ill at the moment. She has been ill for seven years because she had a stroke

and she never got better after that. My dad is also very old and he has some troubles to walk. I miss them very much and

my whole family, my wife, my kids. Now, my wife has to work very hard to support my two kids, it has been really difficult

for her and also mind my sick parents. The Irish company went to Brazil, they made a selection process for a butcher and

they hired me and they brought me here with a few other Brazilian nationals. I’ve been here working to support my family

back there because to have a better life for them. Now I find myself in this situation, I do not understand why these two

men assaulted me, maybe because I’m a foreign, dark skin, I say I never understood that, I never sought any of these

troubles. This company selected me, they hired me, I came here legally with a visa to work, a visa which the Irish

government gave me. I’ve been paying my bills and my taxes and sending money to my family and I never had any

troubles. My mind is not the same at the moment with all these things, I can’t think straight anymore. I’ve been spending

this time in prison without speaking to no one, no family, no one that I know. I never thought these things would happen

in my life. I pray for my wife and for my kids. I miss them, I’m here in Ireland without them. I just wanted them to have a

better future. There is one thing that I want to tell you, Mr. Judge, is that I just want to provide a better life for my

families. I don’t know what happened that night, I do not understand why I was surrounded by these violent people. I

came to Ireland with the intention to have a better life. I didn’t want to do any harm to anyone at any time. I’m not a

criminal, I never had any trouble, I was never arrested. I’ve never seen a police station inside. That’s what happened and

now my family misses me. I want forgiveness. I miss them a lot. I know that Mr. Banville’s family miss him a lot, but I also

want to say that I miss my family a lot and I would like that someone could put themselves in my shoes and see what I

am feeling as well. I still keep thinking about that night and I don’t want to keep thinking of that again and I don’t

understand why these men assaulted me without no reason.”

The sentencing judge’s remarks

15. The sentencing judge’s remarks were reasonably lengthy but in the circumstances of this case it seems to us appropriate to set

out several substantial extracts. He commenced by rehearsing the procedural history including the charges in respect of which the

appellant had been tried, the verdicts, and the fact that there had been an offer to plead to manslaughter in advance of the trial. He

referred to what he accurately described as “a very eloquent plea on behalf of Mr da Silva” by his counsel which was both a plea in

mitigation and a submission with respect to the law on sentencing in manslaughter cases. He also referred to the “very eloquent

statements” of Kelly Leonard and from the late Mr Banville’s brother, Aidan, as well as to the evidence received from Mr Banville’s

sister, Anne Marie, all of which motivated him to describe what had occurred as being a “tragedy of epic proportions”.

16. The sentencing judge commented, accurately, that a court, when sentencing for manslaughter, has a range of potential penalties

that it can apply. Accordingly, the available options range from the imposition of a very substantial custodial sentence, to a

somewhat lesser custodial sentence, perhaps suspended in part, and on down to, in exceptional cases, a wholly suspended sentence,

or even a fine. What might be considered to be the appropriate sentence in any particular case will entirely depend on the

circumstances of the case. As the sentencing judge put it: “In simple terms, unlawful killing at the lower end of the spectrum can be

close to accidental or reckless and at the higher end of the spectrum, can be very close to murder and that is the difficulty in

sentencing for the crime, because of the range.”

17. The sentencing judge recorded that counsel for the appellant had opened in extenso the judgment of the Court of Criminal Appeal

in The People (Director of Public Prosecutions) v Kelly [2005] 2 IR 321, and noted that that case was authority, inter alia, for the

position that an accused who had offered to plead guilty to manslaughter, and who had gone on to successfully defend a charge of

murder, should be treated at sentencing as though he had pleaded guilty to manslaughter at the outset.

18. The sentencing judge noted that in the Kelly case, which had also involved a stabbing in the course of a dispute, that in the

circumstances of that case, which are described in the reported judgment, the Court of Criminal Appeal (CCA) had concluded that it

was:

"… not possible to consider it in the most aggravated category of manslaughter cases". "This was a killing without any

context of premeditated criminality. An aggravating feature was the use of a knife. There was, however, no sense that

the knife was carried with a view to being used as a weapon."

19. He further noted that in the Kelly case the CCA had stated that a sentencing court had to give considerable weight to the

absence of previous convictions. It had then added: "However, the death of an innocent young man as a result of being stabbed by

the accused clearly required a substantial custodial sentence." In the Kelly case, the CCA’s assessment had been that it fell “the

upper part of the middle range of gravity in offences of manslaughter”, while emphasising that “current Irish sentencing principles

required an individuated approach”.

20. The error of principle that had been made at first instance in the Kelly case was that the sentencing judge had made no attempt

to identify where on the range or spectrum of penalties the case fell to be located in terms of its gravity, before the application of

mitigating circumstances. The CCA in the Kelly case, having dealt “with specific statistics” as the trial judge in the present case put

it, ultimately quashed a sentence of fourteen years imposed at first instance, and substituted a sentence of eight years instead.

21. The sentencing judge in the present case considered that the Kelly case, although “an important precedent”, was by no means

on all fours with this case and he expressed the view that he was prepared to distinguish it on several grounds.

22. He went on say:

“Just to deal with one issue in particular, the Court accepts Mr Cody's submission that in relation to the possession of

the knife, the Court has to accept that it occurred between the first and second assault. In other words, after the

assault was committed on Mr da Silva for the first time, he went back to his apartment and at that stage, took

possession of a kitchen knife. Because, for two reasons, the Court can come to this conclusion; there is no doubt that

after the second assault, he couldn't have come into possession of the knife, because he didn't return to his apartment

and it would be unfair to Mr da Silva, on the basis of two interpretations of the evidence, to say that he went out earlier

in the evening armed with a knife. So the logical inference that the Court must adduce is that Mr da Silva armed himself

with a knife between the first and second assault. The next issue, which Mr Cody is correct about; the Court cannot

come to the conclusion that the taking possession of that knife was at a time when he was intent on specifically using it,

because of the evidence of his apartment flatmate that he was concerned about the safety of two other members of

the company.

23. The sentencing judge records that defence counsel had contended in his plea in mitigation that the case fell to be located

towards the lower end of the spectrum of available penalties, and that the prosecution had disagreed strongly with this submission.

The sentencing judge commented:

“This was a case where the Director of Public Prosecutions decided to prosecute murder in the Central Criminal Court.

There are clearly exceptional cases in the Central Criminal Court which are of a very exceptional nature, where the

Court will contemplate either a suspended sentence or a fine, or a very low custodial sentence and those can occur in

exceptional circumstances and that is certainly not one of these.

Now, the position the Court finds itself in is obviously there were two contradictory defences put forward by the

defence, which they were entitled to do and the Court had a duty to present those to the jury, but the specific facts,

which are overwhelming and not in dispute in this matter, is that Mr da Silva was the subject of two very serious

assaults. He was a man of no previous convictions. The first assault was very serious and it was accompanied by racist

comments and the second assault was very serious and accompanied by sexual comments of a damaging nature to Mr

da Silva. Mr da Silva, after the second assault, having hesitated for some little time to speak to his colleagues in his

apartment or shout up to them, then decided to go after these two men.

Now, at that point in time, there is no doubt that Mr da Silva was no longer under threat of serious injury to him. He had

been seriously assaulted. These two men had moved on. They had moved up to the top of the street and had turned

right and had come down another street and at that point in time, Mr da Silva was under no threat whatsoever from

these two men. So the undoubted factual situation is that he had armed himself with a knife between the first and

second assault; he had been a victim of two unprovoked, very serious assaults, but at that point in time, after the

second assault, he decided to chase after these two men. The evidence is also clear from both Mr Evan Russell and

Keith Wall, the two men that had the best view of the incident, that in relation to the fatal connection between these

two men, that Mr da Silva did not try to run away. At best, he could be said to have stood still until these men

approached him, or either advanced to them and on the basis of that, it's also clear that this interchange between Mr

da Silva and Mr Banville and Mr Hogan was over in seconds. So from that point of view, the Court has to take the view

that this is a very serious offence. So what has happened is that in reaction to two very serious offences committed on

him, Mr da Silva committed an even more serious offence. There was no need for Mr Banville to die on the night in

question. It's totally unacceptable what he did, but we are dealing with a situation where a young man has lost his life

and in the very eloquent comments from his sister, has left a grieving family, partner, children, brothers, sisters,

parents behind him.

Now, in relation to the letter of Mr da Silva which has been read out to the Court, I fully understand it. He has been

trying to explain his background to it. He is a hard-working man with no previous convictions. He has come to this

country to work and feels very aggrieved that he was not showing any initial aggression to anyone. He was out having a

good time. Mr O'Kelly has rightly pointed out that there was no genuine remorse in this letter. He, in his interview with

An Garda Síochána, he didn't deal with the issue why he had the knife or why he did what he did. In the letter, he hasn’t

done that either. I don't consider that an aggravating or a mitigating factor at all. It's just a factual situation that there

has been no deep remorse displayed by Mr da Silva. He says he doesn't understand what happened and unfortunately

what is clear as to what happened is that he was a man who was -- in his profession, had a knowledge of the danger of

knives. He armed himself with a knife. He was prepared to use it and did use it in a lethal manner.”

24. At this point the sentencing judge determined the appropriate headline or pre-mitigation sentence to be one of fourteen years

imprisonment, in circumstances where he was of the view that there were substantial aggravating factors, principally the fact that

the appellant had armed himself with a knife and was prepared to use it, and the fact that he had gone after Mr Banville and Mr

Hogan after he had been assaulted the second time and had failed to leave the area although he had had the opportunity to do so.

25. That having been said, the sentencing judge went on to note that there were also “very substantial mitigating circumstances in

this case.” He identified these as:

“the two previous very serious assaults on him, accompanied by racist language and sexual language; the fact that he is

of previous good character and also the fact that he is a Brazilian man with no English, who has come to Ireland to work

hard and that any prison sentence imposed on him will be much harder away from his family and also, his time within

prison, not having English, will be difficult for him.”

26. Ultimately, the sentencing judge discounted by six years from the headline sentence of fourteen years that he had set for the

manslaughter offence, leaving a post-mitigation sentence of eight years. He also imposed a concurrent five-year sentence for the s.

11 offence.

The Grounds of Appeal

27. There are six substantive complaints listed in the appellant’s Notice of Appeal. These are:

(i). that the trial judge erred in law and in fact in imposing a custodial sentence which was excessive in all the

circumstances of the case;

(ii). that the trial judge erred in law and in fact in placing the index offence in the highest category as the starting point

for the construction of his sentence.

(iii). that, notwithstanding the reduction in the presumptive sentence from 14 years to eight years, the trial judge erred in

law and in fact in failing to suspend any portion of the ultimate sentence;

(iv). that the trial judge erred in law and in fact in failing to treat the original plea of guilty to manslaughter, prior to the

trial, as an effective plea of guilty when considering his sentence;

(v). that the trial judge erred in law and in fact in failing to give any or any adequate weight to certain of the mitigating

factors advanced on behalf of the appellant;

(vi). that the trial judge erred in law and in fact in attaching disproportionate weight to purported aggravating factors

and/or in characterizing certain factors as aggravating.

Discussion and Decision

28. It is proposed to address these grounds in the order in which they are listed. In ground of appeal no (i) the appellant complains

that his sentence was excessive and in ground of appeal no (ii) it is complained that the sentencing judge placed the offending

conduct “in the highest category”. In substance both grounds suggest that the sentencing judge over assessed the gravity of the

case. We do not believe that to be the case. As was pointed out in exchanges between the President and counsel for the appellant

at the oral hearing, the sentence imposed was by no means untypical of sentences imposed in similar cases. This is true both as to

the headline sentence, and as to the ultimate sentence in a situation where the accused could avail of substantial mitigation. The

headline sentence that was selected was the result of very careful consideration by the sentencing judge. We consider his

assessment to have been rigorous and entirely correct. It was consistent with the approach commended in The People (Director of

Public Prosecutions) v Kelly [2005] 2 IR 321; and as the President pointed out at the oral hearing also with the approach of this court

in The People (Director of Public Prosecutions) v Mahon [2017] IECA 320.

29. Following the oral hearing in this case, and during the period in which judgment has been reserved, the Supreme Court has given

judgment on an appeal against our judgment in the Mahon case. That appeal was dismissed, and the Supreme Court’s judgment has

the neutral citation The People (Director of Public Prosecutions) v Mahon [2019] IESC 24. Several important issues had been raised in

that appeal, not least an issue concerning how the sentencing judge should approach sentencing an accused in a manslaughter case

in circumstances where there were several possible routes by means of which the jury could have arrived at a manslaughter verdict.

The Supreme Court held that where there is an ambiguity in the factual implications of the jury’s verdict, the judge is entitled to come

to an independent conclusion as to the relevant facts upon a consideration of all the evidence presented before the jury. Although in

the present case the jury could have arrived at their manslaughter verdict on the basis of provocation, alternatively on the basis of

excessive self-defence, alternatively on the basis that the jury simply had a reasonable doubt as to whether the appellant had the

intention to kill or cause serious injury, the sentencing judge sentenced the appellant ostensibly on the basis that provocation was

the most likely explanation, and there has been no suggestion that he was wrong to do so.

30. Of more significance to this appeal, is the fact that when determining to accept the appeal in the Mahon case, the Supreme Court

also certified that it would consider as a point of law of general public importance the question:

“How does a trial judge approach setting a proper sentence which is valid in the context of the gravity of the crime of

manslaughter, widely variable as such sentence is primarily based on the individual facts of the crime, but perhaps

aggravated or mitigated by other factors?”

31. In giving judgment on behalf of the Supreme Court, and in addressing this question, Charleton J availed of the opportunity to offer

some welcome additional guidance on sentencing in manslaughter cases.

32. At paragraph 48 of his judgment in the Mahon case Charleton J refers to the Analysis of Manslaughter Sentencing 2007 – 2002,

updated in 2017, by the Judicial Researchers Office and notes that both parties to the appeal had accepted this to be a valuable

source of information. That analysis was availed of, together with relevant precedents furnished by the prosecution and information

from the annual report of the Irish Prison Service for 2017, for the purpose of formulating guidance on sentencing bands. It indicated,

as might be expected, a very wide variation in the sentences imposed for manslaughter offences. Arising from this Charleton J went

on to observe:

“49. Covering, as it does, a broad band of conduct from intentional killing under provocation, to excessive force in self-

defence, to criminal negligence in the management of a machine or of a car, to assault without intent to kill or cause

serious injury, manslaughter is a notoriously difficult crime on which to achieve an appropriate sentence. Hence, this

judgment now seeks to assist in pointing out sentencing bands. All sentencing exercises are, essentially, assessments of

harm and culpability. With manslaughter, the harm is the inescapable and final one of extinguishing the life of a person. Of

itself, that constitutes bringing about harm at a very high level. But the culpability to be attached to manslaughter can

range from conduct only short of that required for murder down to conduct which is partly accidental; such as the fight

between two friends which, while not seriously aggressive, brings about death from a fall against a wall or pavement.

Hence, as the statistical analysis has shown, sentences for manslaughter can range from life sentences or very long

determinate sentences to, in the most exceptional circumstances, a non-custodial option.”

33. The judgment in the Mahon case proceeds to categorize manslaughter cases under four headings, namely “worst cases”, “high

culpability”, “medium culpability” and “lower culpability”.

34. It was stated that in worst cases the unlawful killings in question “are close to indistinguishable in culpability from murder. Cases

involving the highest level of culpability attract an appropriate sentence of between 15 to 20 years and a life sentence is also

possible. Relevant to the level of culpability are matters such as the circumstances in which the victim died, and the conduct of the

accused.” The judgment cites as examples falling into this category cases such as The People (DPP) v Conroy (No 2) [1989] IR 160;

The People (DPP) v McManus (aka Dunbar) [2011] IECCA 68; The People (DPP) v Egan [2017] IECA 95; The People (DPP) v McAuley

and Walsh [2001] 4 IR 160; The People (DPP) v Crowe [2010] 1 IR 129; The People (DPP) v Ward [2015] IECA 18 and The People (DPP)

v Hall [2016] IECA 11 and The People (DPP) v Griffin [2018] IECA 257.

35. The judgment in the Mahon case goes on to state, at paragraph 59 et seq, that cases of high culpability tend to attract a

punishment of between 10 and 15 years as a headline sentence and tend to involve aggravating factors, which may include previous

convictions of the accused for assault or other relevant convictions, history of violence between the accused and the victim,

callousness towards the victim, confrontation involving a potentially lethal weapon, and death resulting from an unlawful act carrying

a high risk of serious injury of which the accused was aware or ought to have been aware. Examples given of cases falling within this

category were The People (DPP) v Horgan [2007] 3 IR 568; The People (DPP) v Kelly [2005] 2 IR 321; The People (DPP) v Thornton

[2015] IECA 202; The People (DPP) v Princs [2007] IECCA 142, and The People (DPP) v DD [2011] IECCC 3. Many of these cases

involve stabbings and fell into this category because the death resulted from a confrontation involving a potentially lethal weapon

and/or an unlawful act carrying a high risk of serious injury of which the accused was aware or ought to have been aware.

36. In this context, Charleton J observes separately at paragraph 74 of the judgment, and under the heading “Aggravating factors”:

“74. It is appropriate to note, in the aftermath of that analysis, that attacks by men on women should be regarded with

particular seriousness. In addition, while the introduction of a knife into an argument is often argued to result in some kind

of accidental death, to introduce a lethal instrument into an emotional situation is unjustifiable. Absent a deadly attack,

or an apprehension of such an attack on reasonable grounds, rarely can the introduction of a deadly weapon be regarded

as anything other than a substantial aggravating factor.”

37. Insofar as the category labelled medium culpability is concerned, the Mahon judgment indicates that headline sentences in this

category tend to be between four and ten years, imposed where there is a high level of culpability but where aggravating factors are

either absent or are considerably lesser than in the higher range. Examples given of cases falling into this category included The

People (DPP) v O’Donoghue [2007] 2 IR 336; The People (DPP) v Millea [2016] IECA 137; The People (DPP) v Hutchinson [2017] IECA

154; The People (DPP) v Shanley [2017] IECA 340; The People (DPP) v Rice [2018] IECA 61; The People (DPP) v Black [2009] IECCA 91

and The People (DPP) v Colclough [2010] IECCA 15.

38. Finally, the judgment stated that manslaughter cases falling into the lower culpability bracket “generally result in the imposition of

a sentence of up to four years’ imprisonment. The lowest sentences within this range tend to be handed down where culpability is not

especially high, but where the accused is nonetheless at fault, although the case is one without the aggravating circumstances which

may be found in cases falling into the higher ranges of culpability. Fully suspended sentences have been imposed in what may be

regarded as indeed very exceptional cases.”

39. In our view this was a case that fell within the high culpability category in terms of its gravity, albeit towards the low end of the

indicative range. We consider that the sentencing judge’s decision to nominate a headline sentence of 14 years imprisonment was

entirely appropriate to the circumstances of the case. As he pointed out the incident resulted in the unnecessary taking of the life of

a young man, and it has left three young children without a father and has devastated the victim’s wider family. It was wholly

unnecessary and resulted from a confrontation involving a potentially lethal weapon and an unlawful act carrying a high risk of serious

injury of which the appellant ought to have been aware. We find no error principle in the assessment of gravity.

40. This brings us to ground of appeal no (iii) in which the appellant complains that it was an error on the part of the sentencing

judge not to consider suspending any part of his sentence. We find no fault in the sentencing judge’s failure to do so. This was not a

case in which the appellant required to be rehabilitated and incentivised to continue along a path on which he had begun. There was

no requirement to hold the metaphorical “sword of Damocles” over his head. Apart from this incident he was previously of good

character and no substantial grounds existed for concern about a likelihood of reoffending. He was entitled to substantial mitigation in

the circumstances of the case and the best, and entirely appropriate, way to reflect this was to afford him a straight discount from

the headline sentence, rather than resorting to a part suspension which would have served no purpose. That was what the

sentencing judge did in the exercise of his discretion. We find no error of principle on that account.

41. In our estimation ground of appeal no (iv) is entirely without substance. The transcript makes clear that the sentencing judge was

completely alive to the need to treat the appellant as though he had pleaded guilty at the outset. In the very first paragraph of his

sentencing remarks the sentencing judge expressly alludes to the fact that a plea to manslaughter/unlawful killing was tendered at

the outset. Moreover, later in his sentencing remarks the sentencing judge referred specifically to the headnote accompanying the

report of the Kelly case in the Irish reports, and quoted expressly from it where it states the proposition, at point number two, that

“as the accused had offered to plead to manslaughter and then had successfully defended himself against the charge of murder, the

accused should be treated as having pleaded guilty to manslaughter at the outset.” The suggestion is that notwithstanding his

acknowledgment that a plea to manslaughter/unlawful killing had been tendered, and notwithstanding his quotation of the passage

just cited, the sentencing judge in fact overlooked this factor because he did not refer specifically to treating the appellant as having

pleaded guilty in the portion of his sentencing remarks in which he identifies, what he characterised as, “the substantial mitigating

circumstances” in the case. We are satisfied that the failure to specifically name check yet again the offer to plead guilty in this

portion of his judgment does not justify an inference that he overlooked that factor, particularly in circumstances where he had

expressly acknowledged its relevance at an earlier stage in the same judgment. Indeed, the appellant was afforded a very substantial

overall discount on the headline sentence that was nominated, amounting to approximately 43%, and it is clearly to be inferred from

the overall level of discount afforded that he was treated as though he had pleaded guilty at the outset. We are not prepared to

uphold this complaint.

42. Ground of appeal no (v) involves a complaint that that the trial judge failed to give any or any adequate weight to certain of the

mitigating factors advanced on behalf of the appellant. The written submissions filed on behalf of the appellant identify six matters

which it is said the sentencing judge failed to consider either adequately or at all. These are:

i. The appellant’s acceptance of responsibility before trial;

ii. The appellant’s vulnerable position on the night of the crime being a foreign worker with no English, intoxicated to some

extent, and subjected to terrifying and confusing assaults;

iii. The appellant’s concern for the safety of his friends at the time of the offence;

iv. The absence of any premeditation;

v. The low likelihood of reoffending;

vi. Remorse demonstrated by the Applicant;

43. The first item on this list has already been dealt with in addressing ground of appeal number (iv). As regards the remainder of the

items on this list, it is manifest on any reasonable consideration of the transcript of the sentencing judge’s remarks that all of these

factors were taken into account by the sentencing judge. It is not necessary for a sentencing judge to name check in a formulaic

way each nuance of a case made in mitigation. The transcript reveals that this judge, who had also been the trial judge, was

intimately familiar with the facts of the case and fully alive to all its nuances. He specifically referenced the fact that the appellant

was a foreign national and could not have failed to appreciate that he has little or no English (as pointed out earlier in this judgment

the appellant’s letter had to be translated in the course the sentencing hearing by a court interpreter). The sentencing judge readily

accepted that the appellant had been harassed and taunted in a racist and/or xenophobic, and indeed sexually insulting, way on the

night. Whether it was racism or xenophobia, there can be no doubt but that the harassing conduct of Mr Banville and Mr Hogan,

received full consideration. The sentencing judge further specifically referenced the appellant’s contention that he had been

concerned for the safety of his friends and gave the appellant the benefit of the doubt in regard to that. While there is no specific

reference to his low likelihood of reoffending, it is manifest from the entire tone of the sentencing judgment that the sentencing judge

did not consider that he was likely to reoffend. The sentencing judge expressed very considerable empathy for the situation in which

the appellant had found himself and stated that he fully understood the letter that had been written, and the context in which it was

written. This is also relevant in the context of the final complaint under this heading, namely that the trial judge failed to have regard

to remorse demonstrated by the appellant. Again, that is simply not the case. While in responding to the appellant’s letter the

sentencing judge stated that “no deep remorse” had been displayed by the appellant, he was at pains to state that he didn’t

consider this to be either an aggravating or mitigating factor. On the contrary he said, “it’s just a factual situation”, and we consider

that it was a finding of fact that the sentencing judge was entitled to make on the evidence. However, notwithstanding this, the trial

judge had quite separately demonstrated that he was fully alive to the fact that there had been a taking of responsibility by the

respondent to having perpetrated an unlawful killing. It bears reiterating that at the very start of his sentencing remarks he had

referenced specifically the fact that a plea to manslaughter/unlawful killing had been tendered at the outset of the trial. In conclusion

on this issue, we are entirely unpersuaded that the trial judge erred in any way in how he addressed the mitigation to which the

appellant was entitled. We consider that the quite generous level of overall discount that was afforded for mitigation was appropriate

to the circumstances of the case.

44. The final complaint, which is the subject of ground of appeal no (vi), suggests that the trial judge erred in law and in fact in

attaching disproportionate weight to purported aggravating factors and/or in characterising certain factors as aggravating. The focus

of the submission in this respect was the trial judge’s comment that it was clear that the appellant was a man who, in his profession,

had a knowledge of the danger of knives, that he had armed himself with a knife, that he was prepared to use it and that he did use

it in a lethal manner. It was contended that there was no specific evidence that the appellant had a knowledge of the danger of

knives. We dismiss this complaint in limine. In our determination the trial judge’s remarks were entirely apposite. The trial judge was in

no way unfair to the appellant on that score. As has been seen earlier in this judgment, the Supreme Court’s judgment in the Mahon

case suggests that for the appellant to have produced a knife in the circumstances in which he did, was properly to be regarded as

an aggravating circumstance. It comes under the heading of producing a potentially lethal weapon during a confrontation. The

sentencing judge’s point was that it was reasonably to be inferred that an accused who was a butcher and who use knives daily

could not have failed to appreciate the potential lethality of a kitchen knife when used as a weapon. There is no evidence that the

trial judge afforded this factor undue weight, but he was entitled to take it into account as an aggravating circumstance. We find no

error of principle.

Conclusion

45. In circumstances where we have not been disposed to uphold any of the appellant’s grounds of complaint, we must dismiss the

appeal.