Supreme Court allows sentence appeal where trial judge failed to provide a clear narrative of facts accepted after manslaughter conviction.

An Chúirt Uachtarach

The Supreme Court

Clarke CJ

McKechnie J

Dunne J

Charleton J

O’Malley J

Supreme Court appeal number: S:AP:IE: 2018: 000023

[2019] IESC 0000

Court of Appeal record number: 2016 no 178

[2017] IECA 320

Central Criminal Court bill number CCCP0038/2014

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Appellant

- and -

David Mahon

Accused/Respondent

Judgment of Mr Justice Peter Charleton of Thursday 11th of April 2019

1. This appeal arises from a judgment of the Court of Appeal, given on 7 December 2017, refusing a sentence appeal by the accused

David Mahon. Having been tried in the Central Criminal Court for the murder of Dean Fitzpatrick on 26 May 2013 in the hallway of a

block of flats near Darndale in Dublin, the accused was convicted of manslaughter by a jury on 6 May 2016 and sentenced by

Heneghan J on 13 June 2016 to a term of seven years’ imprisonment. Before that trial, a formal offer of a plea to manslaughter had

been made on behalf of the accused. The precise circumstances underpinning the sentence are argued on behalf of the accused,

firstly, to be unclear and, secondly, to require such unclarity to be construed in his favour, thus, it is claimed, reducing the term of

imprisonment. This Court, in granting leave to appeal from the refusal of the accused’s sentence appeal in its determination dated 10

July 2018, certified three points of law as being of general public importance:

• Where a jury acquit a person accused of murder but convict that person of manslaughter, what facts are before the

trial judge in sentencing for that crime and is there any further form of enquiry necessitated in order to find such facts

and, if so, by what procedure?

• 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?

• Was the approach of the trial judge in this case as to the facts before the court on the jury acquittal for murder but

conviction for manslaughter correct and was the sentence appropriate?

Background facts

2. There was apparently a close relationship between the victim Dean Fitzpatrick, the father of one young child, and the accused.

That it seems arose, in turn, due to the accused’s relationship with the victim’s mother, so that he was sometimes thought of as a

step-father. Both victim and accused regularly trained in the same neighbourhood gym. The accused had a bicycle. He came to

believe, whether correctly or not, that the victim had taken a water bottle from it while it was parked there. An email was received at

the gym on 24 May 2013 from the accused claiming that “someone robbed something from my bike today”, stating that the “staff

have him on CCTV and know who he is” and going on to demand that the victim be “barred from the gym immediately” because the

accused and his friends “paid over 2,000 for our bikes.” The accused tried to get in contact with the victim through his girlfriend. On

the night on which the victim met his death by manslaughter, she was telephoned by the accused and was told to find the victim and

tell him to call on the accused because otherwise the accused would drive up to where she was and stick a knife in her head or her

neck. The accused, according to the victim’s girlfriend, seemed drunk during the call.

3. The victim called over to the accused’s flat late that night, perhaps at around 22.30 hours. Two other people were initially present.

A row about the bicycle water bottle broke out. This was a verbal altercation. No one produced any weapon at this stage and no

blows were struck. Then matters seemed to calm down. The victim and another man went out into the communal landing. That other

man seems to have departed. After a short while, the accused followed the victim out. Within minutes, the accused returned. He was

noticed by the only other person then present, a taxi driver by occupation, to be carrying a large, long knife. The accused said to the

taxi driver: “You have to get me out of here, I have to get out.” He put the knife into his back trouser pocket. Not knowing what had

happened, the taxi driver brought the accused in his car on an excursion northwards. While moving towards Balbriggan, the accused

told him that he thought the victim was dead and that the “knife went through him.” At some stage, the knife was thrown out of the

taxi by the accused. In a state of considerable confusion, the taxi driver got petrol, the accused getting out of the car before

entering the filling station plaza for the stated reason of avoiding being captured on any video system. The taxi driver was then was

directed go to a public house for a drink. Eventually, the taxi driver left the accused off and drove to his father’s residence, with

whom he enjoyed close confidence. There, in the early hours of 26 May 2013, the taxi driver spoke to his father about the trouble he

had stumbled into. His father advised him to tell the truth and to immediately go to Coolock Garda Station. That is what he did.

4. Meanwhile, at around 23.10 hours, some customers left a Chinese restaurant and shortly afterwards came upon the victim on the

pavement near the flat where the accused lived. He was breathing fitfully and was semi-conscious. At 23.20 hours, the gardaí

received an emergency call, responding by being at the location four minutes later. A paramedic was by then with the victim. He was

seriously wounded by a stab wound to the abdomen, with evisceration and with failing vital signs. The emergency team at Beaumont

Hospital were alerted, but despite arriving at 00.10 hours on 27 May 2013 he was found on treatment to have no heart output.

Multiple infusions of adrenalin had no effect. The victim was pronounced dead at 00.50 hours.

5. The accused went to Coolock Garda Station shortly after dawn that day. In interviews recorded by gardaí, the accused claimed

that the victim had impaled himself on a knife in his hand and that the death was some kind of an unfortunate accident:

We are always having arguments and I tried to put him on the straight and narrow. He took a knife out on me. He pulled a

knife on me before, a gun before. Last night he pulled a knife on me. I took it off him. He walked into the knife. I took the

knife off him. I put it in my back right pocket. We continued to argue and so did John. There was no violence or anything.

We were outside in the hallway. It wasn’t a big screaming match. I remember saying, ‘I’m here to help you’. I took the

knife out and showed it, holding it, saying ‘What … are you doing pulling a knife on your father’, and he walked into the

knife. He ran down the stairs and out.

6. The forensic pathology findings were of a 7 cm wide and 14.5 cm deep stab wound to the abdomen, which traversed the skin and

the left rectus abdominis muscle, cut through the intestines and partially severed the aorta, terminating by leaving a 3cm groove on

the first lumbar vertebra. Because of contraction and compression, stab wound measurements can be slightly variable. The track of

this stab wound, however, went from the front abdomen right through to the spine. In angle, the wound track was 20° above the

horizontal; in other words slightly upwards. The victim was lightly dressed. In giving evidence, the pathologist sought to explain that

moderate to severe force had been used.

Directions to the jury and sentencing judgment

7. It was for the jury to assess these injuries, the account of the events and all of the other evidence and then come to a verdict.

The verdicts open were guilty of murder; guilty of manslaughter if the mental element of that offence had not been proven beyond

reasonable doubt; and not guilty if a theory of non-culpable accident put forward by the accused had not been disproved. The

accused had made a statement to the gardaí but, as was his right, he did not give evidence at the trial. Confusion can arise in the

context of violence and sexual violence cases as to the status of answers by the accused to the gardaí or of a prepared statement

handed in by an accused, perhaps drafted with the assistance of a solicitor. Such statements are evidence. Since, however, the jury

do not hear from the witness in terms of examination in chief and do not have the benefit of hearing relevant questions put in cross-

examination to test such evidence, and since such statements are not sworn, the trial judge should tell the jury that while the

credence to be attached to such a statement is a matter for them, whatever weight they give to these statements, they should be

assessed in that light. Other witnesses’ evidence is subject to oath or affirmation and to cross-examination before the jury; such

statements are not.

8. The trial judge correctly instructed the jury that for them to convict the accused of murder, it was for the prosecution to prove

beyond reasonable doubt that he had unlawfully killed the victim while intending to kill him or to cause him serious injury. While a

person is presumed to intend the natural and probable consequences of their actions, it was for the prosecution to demonstrate that

this presumption had not been rebutted. The trial judge told the jury that in the event that they were not satisfied that the

prosecution had proved an intent to kill or cause serious injury, then the verdict was properly one recording that the accused was not

guilty of murder but guilty of manslaughter. The prosecution were required to prove causation, the trial judge instructed the jury; that

is, that the accused had killed the victim.

9. Since the statement by the accused to the gardaí had effectively claimed that the victim had died in consequence of an accident,

by walking into the knife, the trial judge instructed the jury that manslaughter could be committed by an unlawful and dangerous act.

This, she instructed the jury, could include producing a knife and brandishing it with intent to make the victim apprehend an assault,

which led to his death, and was thus a basis for a manslaughter conviction. It was also open, on the evidence she said, for the jury

to find that the accused had killed the victim by stabbing him but that the prosecution had not proved an intent to kill or cause

serious injury in that action. The trial judge addressed the jury thus:

You might take a view that an instantaneous type action was performed by the accused man, but without the necessary

intention for murder and I said to you that you might take the view that David Mahon may have intended to frighten Dean

Fitzpatrick. You might take the view that David Mahon had intended to cause Dean Fitzpatrick some physical injury, but

that he didn’t have any intention to kill him or cause serious injury. And I said to you that, nonetheless, you might take

the view that David Mahon performed an unlawful and dangerous act in producing the knife, as a result of which Dean

Fitzpatrick died. And I said to you that if that was your conclusion on the facts, then you must convict David Mahon of

manslaughter but not of murder…

10. That direction was standard to stabbing cases and was correct. On appeal, however, it was argued on behalf of the accused that

there were only two possible conclusions to the trial. The argument put forward was that the jury were constricted to either fully

accepting the prosecution case or, in the event of a reasonable doubt, instead falling back on whatever theory was put forward by

the accused in his statement to gardaí. That is clearly incorrect. Many murder prosecutions which are correctly taken by the Director

of Public Prosecutions result in a manslaughter finding; the same verdict as this case. If there is a doubt that the purpose of the

accused in causing an injury to the deceased in the course of an unlawful killing was to kill or to seriously injure that victim, then an

element of the proof of murder is absent. That does not necessarily mean that the jury accept the defence case or are in some way

confined to it. Rather, such a verdict is an expression of doubt as to the proof of the necessary mental element in murder. It follows

that there are many manslaughter convictions where murder is tried. The constitutional function of a jury under Article 38.4 of the

Constitution has been fulfilled. The trial judge’s function is then to proceed to sentence. That is, however, a particularly difficult task

in the context of the widely variable circumstances that can constitute manslaughter. Properly interpreting the jury’s verdict in terms

of ascertaining the true level of the culpability of an accused found guilty of manslaughter on a murder charge is a challenge.

11. What was absent, however, in the careful sentencing remarks of the trial judge was any statement by her as to what set of facts

on which the accused was to be punished resulted from the jury’s verdict.

Judgment of the Court of Appeal

12. On the face of it, the appeal to the Court of Appeal did not raise the important issues of the construction of a jury’s verdict, or of

asking a jury as to the meaning of their verdict, which are also raised on this appeal together with the issue of the correctness of the

sentence in the context of sentencing ranges. The view expressed by Birmingham J at paragraph 10 on the issue of the construction

of the jury’s verdict was as follows:

it is going too far to say that the verdict returned by the jury must definitively mean that the jury concluded that the

knife had been produced by Mr Mahon in order to frighten. This was but one of a number of possible routes by which the

jury could arrive at a manslaughter verdict.

13. At issue was the correct interpretation of the circumstances of fault and the appropriate sentence. Birmingham J upheld the

sentence, stating:

14. In this case, the Judge did not specifically address or rule on the submissions made to her. However, taking an overview of the

case, it is the situation that the sentence imposed by her was quite typical of knife manslaughters. Eight years, a sentence a little

higher than the sentence she imposed, was the sentence imposed by the Court of Criminal Appeal when resentencing in The People v.

Dillon (unreported, Court of Appeal, 17th December, 2003), The People v. Kelly [2005] 2 I.R. 231 and The People v. Cooney

(unreported, Court of Appeal, 27th July, 2004). These were all cases where a plea of guilty to manslaughter had been offered.

15. In this case there were aggravating factors, the deceased was followed from the apartment, a large knife was produced during

the course of the altercation, Mr Mahon left the scene, medical assistance was not sought. The relationship between the accused

and the deceased was of relevance. On the other hand, it was a case where a plea to manslaughter was offered in advance of the

trial, and where the appellant came before the Court without any previous convictions of any real relevance. The sentence decided

upon by the sentencing judge was not out of line with previous sentences in cases that might be regarded as broadly similar. It was

in the Court’s view a sentence that fell within the available range and so the Court must dismiss the appeal.

Questions to a jury

14. A jury verdict convicts the accused by pronouncing guilt. Thereupon it is the function of the trial judge to sentence the accused.

The narrative of the prosecution case accepted by the jury will, in the great bulk of cases, be clear. The prosecution must present a

set of circumstances upon which an argument is based that the accused is guilty. By confirming that through their verdict, the jury is

taken to have accepted the prosecution case beyond reasonable doubt. Often the accused will put forward an alternative scenario of

events to assert innocence which, by rejection of the jury when delivering the verdict of guilty, has become irrelevant to the task of

sentencing. Examples may help. The prosecution in a case may allege that the victim was attacked, but the accused claims that the

force he used was justified by self-defence and was reasonably proportionate. If the accused is found guilty, that defence fails and

ceases to be a factor in sentencing. In a case where a man is charged with fraudulently altering a will wherein he is a beneficiary, but

defends the charge with a claim that the testator in the presence of witnesses dictated a codicil, he may call testimony to that

effect. If the jury finding is guilty, that means that the jury found the elements of the prosecution case proven; thus necessarily

involving the rejection of any defence case and any defence witnesses.

15. Very difficult cases may arise as to the true meaning of the verdict of the jury, but fortunately that is extremely rare. A woman

may allege that the man she was living with raped her in the middle of the night and describe being forced to submit by threats at

gun or knife point. Such a set of facts would tend to place the offence, carrying as does manslaughter an indeterminate sentence of

up to life imprisonment, at the very highest point of any sentencing range. The accused, in the same case, may admit sexual

intercourse in a statement to gardaí but assert that sexual intercourse happened while the victim was asleep in the context of a

warm relationship where he may claim to have had unlimited consent. Sexual intercourse during sleep is, of course, rape. The facts,

while serious and attracting a condign sentence, are different to the prosecution scenario. By rejecting that defence through a

verdict of guilty, an issue may arise as to which scenario the jury were certain of; the extremely serious case of submission under

threat of deadly force or the very serious taking advantage of the sleeping victim?

16. There should rarely be any confusion as to the meaning of a jury’s verdict. There is a burden of adducing evidence on the

accused in relation to any potential answer to the charge. Defences to a criminal charge are not to be randomly put to a jury.

Defences come from the accused’s instructions. Defences are not made up by lawyers. Such defences must arise on the prosecution

case or on the basis of a statement made by the accused or in consequence of his evidence. Unless there is some evidence to

support a defence, it should not be put forward for the consideration of the jury; see in that regard the judgment of Walsh J in The

People (AG) v Quinn [1965] IR 366 at 382, DPP v Clarke [1994] 3 IR 289 and The People (DPP) v Gleeson [2018] IESC 53 at paragraphs

19 and 20. At pages 382 to 383 of Quinn, Walsh J explained that before a “possible defence can be left to the jury as an issue there

must be some evidence from which the jury would be entitled to find that issue in favour of the appellant.” That means that if “the

evidence for the prosecution does not disclose this possible defence then the necessary evidence will fall to be given by the

defence.” Where that is so, for instance where there is no evidence of provocation on the prosecution case, then “it falls to the

defence to give the necessary evidence”. That does not mean that the defence, in such a case, has a burden of proof as “there is a

distinction, fine though it may appear, between adducing the evidence and the burden of proof and that there is no onus whatever

upon the accused to establish any degree of doubt in their mind.” Save, however, in such rare cases as a reversed burden of proof,

as for instance as awareness of the contents of a package under the Misuse of Drugs Acts 1984-1977, or insanity or diminished

responsibility where there is a requirement that the defence be demonstrated as a probability, this burden is of putting enough

evidence before the jury to enable them, if they consider that appropriate, to potentially act on it. It follows, consequently, that

criminal cases in which there are two possible means to the same verdict seldom occur. One such case was R v Larkin [1943] KB 174,

[1943] 1 All ER 217. The accused was tried on a murder charge for cutting his girlfriend’s throat with a razor. On arrest, he gave an

account of provocation through her alleged sexual infidelity with two other men and of being shooed away from her company in a

basement for that purpose. His statement to the police was that on returning: “I said to Bessie: “You are making a fool out of me

properly”; I pulled the razor out of my pocket and cut her throat. I ran out of the house and along the street after [her suspected

lover] Nielsen, but I did not catch him.” At his trial, he denied this statement but claimed that upon learning of her supposed infidelity,

and after being told to go away, he had taken a razor with him. He said that on returning to the basement, he had waved the razor

to terrify Nielsen, but his girlfriend had fallen on it and cut her throat by sheer misadventure. On being found guilty of the lesser

charge of manslaughter, the judge asked the jury if it had “come to the conclusion that this woman accidentally fell upon the razor”.

That was answered in the affirmative. But the judge then went on to recharge the jury on intent and its relationship to the defence

of provocation, whereupon the jury apparently changed its mind and reduced murder to manslaughter by reason of provocation.

Humphreys J for the Court of Criminal Appeal at page 221 regarded it as wrong that such a dialogue should take place, leading as it

did to the jury apparently coming to the same verdict by two inconsistent routes:

But it must be understood that this court deprecates questions being put to a jury upon the meaning of the verdict which

they have returned. If the verdict appears to be inconsistent, proper questions may be put by a judge to invite the jury

to explain what they mean but where a verdict has been returned which is perfectly plain and unambiguous, it is most

undesirable that the jury should be asked any further questions about it at all.

17. Rightly, a jury’s verdict is protected against intrusion into the reasoning behind it. Jury confidentiality has been recognised by the

European Court of Human Rights in Gregory v United Kingdom (1998) 25 EHRR 577 at paragraph 44 as being “a crucial and legitimate

feature of English trial law which serves to reinforce the jury’s role as the ultimate arbiter of fact and to guarantee open and frank

deliberations among jurors on the evidence which they have heard.” There can be no interrogation of a verdict as to the reasoning

whereby a decision was reached. This, according to Lord Denning in Boston v WS Bagshaw [1966] 1 WLR 1135 at 1136, is to uphold

the finality of decisions and to protect the jury so as to prevent any individual juror being exposed “to pressure or inducement to

explain or alter their views.” Thus, the verdict of a jury cannot be impeached, even if the allegation is that the decision has been

reached not by a consideration of the evidence but by a random tossing of a coin by two of their number; Vaise v Delaval (1785) 1

TR 11, see also Harvey v Hewitt (1840) 8 Dowl 598 where it alleged that the jurors had drawn lots to decide their verdict. An affidavit

from the jury bailiff who had witnessed this take place was admitted as evidence. In O’Callaghan v The Attorney General [1993] 2 IR

17 at 26, O’Flaherty J dismissed a claim that legislation providing for majority verdicts offended the Constitution in its guarantee of

jury trial in Article 38.4 and trial in due course of law in Article 38.1, but reiterated the unimpeachable nature of jury deliberations:

The Court would wish to reiterate that the deliberations of a jury should always be regarded as completely confidential.

The course of the deliberations of a jury should not be published after a trial. As was said by Haugh J. in delivering the

judgment of the Court of Criminal Appeal in The People (Attorney General) v. Longe [1967] I.R. 369 (at p. 377):-

“In our opinion the principle is well established that the nature of the deliberations of a jury in a criminal case should not

be revealed or inquired into.”

18. In R v Mirza, R v Connor and Rollock [2004] 1 AC 1118, the allegation in relation to the first case was of racial bias based on an

accused using an interpreter, and in relation to the second, allegations of some jurors not being too bothered about the trial and

wanting to come to a quick verdict, with one member allegedly raising the idea of a coin toss. The House of Lords commented that a

mere allegation was not enough, since what was asserted by one person might not represent the reality. To get to the bottom of

such a situation would require an enquiry, an undesirable reality that would undermine the certainty of jury verdicts. External

evidence, as opposed to internal allegations of jury misbehaviour, such as consulting an occult instrument in R v Young [1995] QB

234, or of bribery may open a verdict to scrutiny. In Mirza, Lord Slynn at paragraph 47 explained the rationale for the rule thus:

How far this rule is justified has been examined in a number of cases. The courts have indicated a number of

considerations to show that it is justified. Thus the need to encourage jurors to speak frankly without fear of being

quoted or criticised has been very much relied on. Jurors need to be protected from pressures to explain their reasons and

it is important to avoid an examination of conflicting accounts by different jurors as to what occurred during the

deliberation. It has also been said on a number of occasions that the need for finality once a verdict has been given

justifies the rule being applied strictly. On the other hand it has to be observed that in the Canadian Supreme Court case

of Pan [2001] 2 SCR 344 finality was thought to be an unsatisfactory basis for the rule. On the other hand it seems plain

that discussion and disagreement in public as to what happened in the jury room is likely to undermine public confidence in

the jury system: R v Armstrong [1922] 2 KB 555, 568.

19. These principles, however, do not prevent a trial judge, where there are two routes to the same verdict, asking a jury a question

and allowing them time to give an answer to it. Any question as to the continued validity of special verdicts is not before the court.

In special verdicts, the judge, instead of leaving the ultimate verdict to the jury, asks them factual questions and reserves to the

court the entitlement to pronounce on the guilt of the accused; see Archbold - Criminal Pleading, Evidence and Practice (26th edition,

London, 1922) at pages 216-217 and the criticism of the practice in Glanville Williams - The Proof of Guilt: A Study of the English

Criminal Trial (London, 1963) at pages 308-324. In the rare cases that a question may be asked of a jury, the trial judge, at his or her

discretion, may, either as part of their verdict or immediately after, pose a question as to which of two or more scenarios of fact the

jury hold as proven in order to convict the accused. According to the England and Wales Court of Appeal decision in R v King

(Dwayne) [2017] 4 WLR 95 at paragraph 36, that power continues. In that case, it was within the trial judge’s discretion “as to

whether the instant case was one of the rare ones in which, as part of the summing up, it was necessary to pose a question(s) to

the jury which might make clear the factual basis of any verdict.” Sandes - Criminal Law and Procedure in the Republic of Ireland (3rd

edition, Dublin, 1951) at page 159 expresses the rule thus:

Proper questions may be put by the Judge to invite the jury to explain what they mean by their verdict, but where the

verdict is plain and unambiguous it is most undesirable that the Judge should ask the jury any further questions about it.

R. v Howell, 27 C. A. R. 5; R v Lester, 27 C. A. R. 8; R v Larkin, 29 C. A. R. 18; [1943] 1 All E. R. 217.

20. A recent example is The People (DPP) v Piotrowski [2014] IECCA 17, where the accused broke into the house of his former

girlfriend and raped her in front of her new boyfriend having first assaulted him in his sleep and trussed him up. Limited admissions

were made during the trial on behalf of the accused, through a formal procedure under section 22 of the Criminal Justice Act 1984.

These were to the effect that “he inflicted some but not all of the wounds on” the boyfriend and that “he did issue some threats in

the house, but not any threats to a daughter of” the boyfriend. The evidence was strongly to the contrary, that there was a serious

assault and that the relevant threats were made. The trial judge asked the jury for answers to those issues, as well as a not guilty or

guilty verdict on the relevant specific charges. In the Court of Criminal Appeal, Clarke J at paragraph 5.10 approved the practice, but

stated that it was desirable that the parties have notice of the proposed questions and a chance to make submissions beforehand:

So far as the questions addressed to the jury are concerned, this Court is satisfied that, at the level of principle, there

may be cases where it is appropriate for a trial judge to add questions to the issues which the jury are asked to decide.

This Court would emphasise that such a practice should very much be the exception rather than the rule. In the vast

majority of cases, the appropriate course of action to adopt is simply to allow the jury to find the accused guilty or not

guilty in respect of each count which goes to the jury for determination. However, there may be cases where some

additional questions are considered to be necessary not least where there may be a number of different ways in which a

jury might, on the evidence, find the accused guilty on one or more counts and where answers to questions posed might,

thus, clarify for the trial judge the true basis on which the jury were persuaded beyond reasonable doubt that the

accused was guilty. Additional questions may be particularly useful where it would be likely, in such circumstances, that

the answers to the relevant questions would be of particular assistance to the trial judge in imposing sentence in the

event that the accused was convicted. While not relevant on the facts of this case, there may also be circumstances

where discrete legal issues were raised at the trial and where it might be reasonable to anticipate that there was a

significant possibility that those issues might arise again on appeal. If there were questions whose answers might assist

an appeal court in dealing with issues likely to arise on such an appeal, then it may be appropriate to add such questions.

21. All of the relevant authorities make two principles clear. Firstly, it is not within the province of the trial judge, or of anyone, to

interrogate a jury as to their reasoning. That should always be avoided. But, in very rare cases, where there is a clear choice

between two or more avenues of fact to a verdict, or where a jury’s verdict will be ambiguous without a question being answered as

part of the verdict, it is, secondly, within the discretion of the trial judge to pose a question. That question is limited to which

scenario the jury accepts. In answering a question, the same majority should, if the verdict is by a majority, pronounce the answer to

the question. On this appeal, since asking a question of a jury is a matter of discretion, any suggestion on behalf of the accused that

the trial judge ought to have interrogated the jury’s verdict cannot therefore be upheld.

Interpreting a jury’s verdict

22. Since, subject to the exceptions of summary trial, special courts and military tribunals, Article 38.4 of the Constitution provides

that “no person shall be tried on any criminal charge without a jury”, it is for the jury to find such facts as will be the basis of any

subsequent sentencing exercise by the trial judge. Deference must be adopted to such findings even though the trial judge may

disagree with a verdict. That requires the trial judge both to not criticise a finding, even by implication, and to scrupulously adopt the

verdict as accurate. In many cases, a lesser included offence may be found instead of the charge proffered; theft instead of robbery,

sexual assault instead of rape, or manslaughter instead of murder. Often, an indictment may charge these separately. The judge is

then tasked with sentencing on the basis of the verdict. The judge cannot sentence on the basis of the charge. Hence, the

implications of a lesser verdict will be that while the accused stole, he did not use violence or threats of violence to effect his

purpose for otherwise the verdict would be robbery, or that while he was sexually violent towards the victim, there was no

penetration for otherwise the verdict would be rape, or that while he unlawfully killed the victim, an intent to kill or cause serious

injury was absent because if it was found to be present, then the verdict would be murder.

23. The interpretation of the jury’s verdict will rarely cause any difficulty. What is required, however, is that the trial judge’s remarks

at sentencing make clear the facts upon which the sentence is to be based. Regrettably, absent from the sentencing remarks of the

trial judge in this case is any statement of what she accepted the facts to be. Correctly, she had posited that an unlawful killing

without intent to kill or cause serious injury was manslaughter. That is a basic principle upon which many manslaughter verdicts are

returned by a jury on a murder charge. Among the means of committing manslaughter on which she instructed the jury were “a

spontaneous type action” and an assault through the production of the knife intending to put the victim in apprehension of an

immediate attack; both causing his death. Also open was an interpretation of the jury’s verdict which is among the most common

causes of a manslaughter verdict being returned on a murder charge, that of a deliberate stabbing or other violence but where the

jury had a reasonable doubt as to whether the purpose of the accused had been proven as having been to kill or cause serious injury;

King being a similar case. On the defence assertion in police interviews in this case, what happened was a mere accident in

circumstances which justified an acquittal. Clearly, that option had been rejected by the jury. Had that case, the defence case, been

accepted, there would have been an acquittal. The jury were charged by the trial judge that they must acquit if not satisfied that

the death was not accidental. Hence, it was inescapable from the jury’s verdict that the death was not merely accidental. It was

then for the trial judge to assess the basis upon which the verdict had been reached. The principles in that regard are set out below

and summarised in paragraphs 32-34.

24. Since execution by sentence of the law was abolished by Article 15.5.2° of the Constitution, absent a blameless accident, a

person can only lawfully be killed through actions using force in necessary and proportionate self-defence to a deadly attack.

Accident may not be a defence to manslaughter, even though it was put forward in this case on behalf of the accused as justifying a

complete acquittal. The circumstances of an accident can mean that the person responsible was highly culpable. For instance, a

fairground ride that is allowed to rust away and which collapses killing children is an accident but is not without culpability in criminal

or tort law. More than perhaps any other offence, the modality of manslaughter may require the judge to interpret the jury’s verdict.

Manslaughter can occur in the following ways: where the accused kills the victim, intending to kill or cause serious injury but

completely lacking any self-control due to provocation by the deceased; where deadly force is used in self-defence but where the

degree of force, while honestly deployed, is more than is objectively necessary; through a criminally negligent act or omission that

causes an accident; by an assault which is not accompanied by an intention to kill or cause serious injury; or by a criminal and

dangerous act. While the parameters of each species of manslaughter are beyond what is necessary for judgment on this appeal, and

are in any event well-described in the text books, Larkin is an authority for the proposition put to the jury by the trial judge that the

production of a dangerous weapon, with intent to make the victim apprehensive of an assault, suffices for manslaughter where death

is thereby caused.

25. As already stated, there is a burden on the accused of adducing sufficient evidence to enable a defence to be properly left to the

jury. Hence, the notion that several defences may randomly arise within a criminal trial is wrong; see The People (AG) v Quinn [1965]

IR 366 at 382. It follows that the case of the prosecution and the case of the defence will almost invariably be clear. The trial judge

should state those cases for the benefit of the jury in charging them as to their verdict. In the rare cases where there is more than

one route to the jury’s verdict, the trial judge must state in his or her sentencing remarks on which scenario the penalty is based.

That may require the judge to interpret the jury’s verdict. For the accused, it has been urged that no interpretation is required where

the import of the jury’s verdict is obvious, meaning that in case of any ambiguity, the trial judge is obliged to interpret the verdict in a

way that most favours the accused. For the Director of Public Prosecutions, it is argued that the entitlement of a judge to interpret

the verdict is a common law power encapsulated in section 724(2) of the Canadian Criminal Code, thus:

Where the court is composed of a judge and jury, the court:

(a) shall accept as proven all facts, express or implied, that are essential to the jury’s verdict of guilty;

(b) may find any other relevant fact that was disclosed by evidence at the trial to be proven, or hear evidence presented

by either party with respect to that fact.

26. The principle in the neighbouring kingdom is urged by the prosecution to be as stated in similar terms to the law in Canada in

Thomas - Establishing a Factual Basis for Sentencing [1970] Crim LR 80. Thus, it is claimed that provided the judge sentences for the

crime on which the jury finds the accused guilty, it is for the judge to state and apply such facts as emerge on the judge’s

interpretation of the evidence beyond a reasonable doubt and which are not inconsistent with the jury’s finding.

27. That principle appears to have been consistently applied in common law jurisdictions. A recent example suffices. In King, the

accused killed the victim, with whom he was in dispute over either the parking of a car blocking a garage or the supply of cannabis,

by stabbing him in the chest with a 19cm kitchen knife. In the course of an escalating row, the victim had produced a small penknife

as part of a multi-tool implement. The accused then stabbed him. Though charged with murder, the accused was convicted of

manslaughter. In his sentencing remarks, the trial judge held that the accused “was not scared”, that the victim had not attacked

him, that this was not a case of excessive force in self-protection, and that anger had provoked the attack. On appeal, it was argued

that the most favourable scenario open on the facts should have been applied and that, consequently, the trial judge had no warrant

for his interpretation of the jury’s verdict. That was rejected by the Court of Appeal at paragraphs 31 to 35, Sweeney J delivering the

court’s finding:

In our view the correct approach by the judge, after a trial, to the determination of the factual basis upon which to pass

sentence, is clear. If there is only one possible interpretation of a jury's verdict(s) then the judge must sentence on that

basis. When there is more than one possible interpretation, then the judge must make up his own mind, to the criminal

standard, as to the factual basis upon which to pass sentence. If there is more than one possible interpretation, and he is

not sure of any of them, then (in accordance with basic fairness) he is obliged to pass sentence on the basis of the

interpretation (whether in whole or in relevant part) most favourable to the defendant.

There is abundant authority, in addition to R v Boyer and R v Griffin (both above), for this approach. The cases include R

v Ekwuyasi [1981] Crim LR 574 , R v Solomon (1984) 6 Cr App R (S) 120; [1984] Crim LR 433 , R v McGlade (1990) 12 Cr

App R (S) 105; [1990] Crim LR 527 , R v Cawthorne [1996] 2 Cr App R (S) 445; [1996] Crim LR 526 , R v Cloud [2001]

EWCA Crim 510; [2001] 2 Cr App R (S) 97 , R v Martin [2001] EWCA Crim 2761; [2002] 2 Cr App R (S) 34 , R v Spedding

[2001] EWCA Crim 2190; [2002] 1 Cr App R (S) 119 , R v Bertram [2003] EWCA Crim 2026; [2004] 1 Cr App R (S) 27 ,

and R v Mills [2003] EWCA Crim 2397; [2004] 1 Cr App R (S) 57.It is equally clear that, to any extent that the R v Stosiek

line of authority, even as limited by R v Fleury (above), has in the past been treated as being a freestanding principle,

that is no longer the case.

Instead, the R v Stosiek line has clearly been subsumed within the correct approach that we have identified above – as

explained by Fulford J (as he then was) in giving the judgment of the Court in R v Bertram (above) when, at paras 20-21,

he said:

"20. Where, for instance, one or more plausible alternatives are left to the jury, as the foundation of their verdict 'in those

circumstances, the court has to be extremely astute to give the benefit of any doubt to a defendant about the basis on

which a jury convicted' per Watkins LJ in R v Stosiek….

21. Put otherwise, where a jury's verdict is consistent with more than one version of the facts, it is for the judge,

carefully applying the criminal standard of proof, to determine which version is correct. Accordingly, when the basis of the

jury's verdict is not clear, where there is uncertainty as to what the jury concluded, the judge is under a positive duty to

decide the factual basis for the sentence (see R v Cloud….). When discharging that duty, where there is genuine

confusion or obscurity, such as to make it impossible for a judge to make a positive finding to the criminal standard, then

the sentence should be on the basis most favourable to the defendant (see R v Tovey….)…."

Nor, we would add, does R v Effionayi (1995) 16 Cr App R (S) 380; [1994] Crim LR 870 provide any support for a contrary

view—although sometimes suggested to do so. It was confined to its own very particular facts in R v Wang Lin Hai

(unreported) 8 November 2000 , R v Martin (above), and R v Hopton [2005] EWCA Crim 794 —in which, at para 11, the

two judge court underlined that it involved no point of principle, and that the approach in R v Boyer, R v Solomon and R v

McGlade (all above) should be followed instead. It was a matter for the judge's discretion as to whether the instant case

was one of the rare ones in which, as part of the summing up, it was necessary to pose a question(s) to the jury which

might make clear the factual basis of any verdict—see eg R v Hopkinson [2013] EWCA Crim 795; [2014] 1 Cr App R 3.

Having chosen not to do so, it is obvious that he was fully aware that it fell to him to decide the factual basis upon which

to pass sentence. It is equally evident from his sentencing remarks that he approached the task with considerable care.

He explained both the factual aspects about which he was not clear, and the factual aspects about which he was either

“clear” or “satisfied” (which include the findings of fact complained of). We have no doubt that, in relation to all those

various findings, this very experienced judge was applying the criminal standard. Equally, for the reasons advanced on

behalf of the Crown, there was evidence upon which a properly directed jury could have reached each of the disputed

findings. Thus, in our view, it is not appropriate for this court to interfere with them.

28. It can happen that an accused is charged with a crime involving a series of events; accountancy fraud and a series of events of

sexual violence on a child may be examples. In this jurisdiction, in order to prevent confusion as to which of multiple events the

accused has been acquitted of, or found guilty of, it has been the practice for some years to particularise individual acts. Hence, the

jury verdict on a count in an indictment as to a particular time period, a particular event or a particular accounting statement, is likely

to be clear. The situation which emerged in Chiro v The Queen [2017] HCA 37 at paragraph 77 is thus not likely to occur in this

jurisdiction. Nonetheless, the statement of principle by the High Court of Australia in that case is instructive. There, the offence on

which the accused was convicted was the sexual exploitation of a child. Under the relevant statute, this was defined so that a guilty

verdict required at least two acts of sexual violence over a three day time span. In that case, six actions were alleged. The argument

from the accused upon conviction was that the sentencing judge was required to take the mildest view of the circumstances; which

varied from kissing on the lips up to more serious conduct. In the particular circumstances, it was open that the judge, and in this

case, required that the judge, add to the issue paper a question as to which of the six different sexual acts the jury found to be

proven. The judgment of Kiefel CJ, Keane and Nettle JJ at paragraphs 46-47 states:

In this case, the judge was right not to direct the jury to bring in a special verdict, and the jury's general verdict of guilty

of the offence charged was not uncertain. This was a case, however, in which, after the jury had returned the general

verdict, the judge should have exercised her discretion to ask the jury to specify which of the particularised acts of

sexual exploitation they were agreed had been proved. For the reasons stated, the considerations which the Court of

Criminal Appeal identified as weighing against the exercise of that discretion were inapposite in the context of an offence

under s 50(1) of the CLCA.

There was also nothing to prevent the judge directing the jury before they retired to consider their verdict that, if they

reached a verdict, they would be asked whether they found the accused guilty or not guilty of the offence charged and,

if their verdict was guilty, they would be asked to state which of the alleged acts of sexual exploitation they were

unanimously agreed (or agreed by statutory majority) had been proved. It would have been appropriate for her Honour to

do so. Such an instruction would also have been aided by listing each of the acts of sexual exploitation particularised in

the information on the aide memoire of the elements of the offence that was issued to the jury, so as to enable the jury,

as it were, to tick off each of the alleged acts of sexual exploitation that they were agreed had been committed.

29. It is unlikely that such a circumstance would arise in this jurisdiction. The principle of the entitlement of the trial judge to interpret

the jury’s verdict remains valid; provided that the trial judge does not act in a way that is inconsistent with that verdict and the

facts as found for the purpose of sentence are those which arise on the trial judge’s view of the evidence beyond any reasonable

doubt. Such respect for the jury’s decision is reflected in the decision of the Supreme Court of Canada in R v Brown [1991] 2 SCR

518. There, the accused had been charged with dangerous driving causing death but the jury had returned a verdict of dangerous

driving, a lesser included offence. That verdict had to be respected. According to the judgment of the court delivered by Stevenson

J, there was no principle that the trial judge had to interpret a jury’s verdict on the basis of the mildest view that might be posited.

That proposition was rejected at pages 521-523:

The majority referred to an apparent divergence between English and Australian courts on the position to be taken

regarding findings of fact by a sentencer when the determination of guilt has been made by a jury. Ruby, Sentencing (3rd

ed. 1987), at pp. 6162, Thomas, Principles of Sentencing (2nd ed. 1979) at p. 367, and Tremblay v. The Queen (1969), 7

C.R.N.S. 315 (Que. C.A.), were cited.

The divergence to which the majority of the Court of Appeal referred centres on the question of whether the judge is

bound to assume that the jury took the most lenient view of the facts which would support the verdict. That issue does

not arise here because the only factual question relates to the consequences and on that factual question the jury's

decision is not in doubt. Thomas makes it clear that subject to the jury's express and implied factual findings the judge

must make the necessary sentencing findings. He or she must, of course, make those findings in keeping with the law

relating to the finding of facts on sentencing set out in R. v. Gardiner, [1982] 2 S.C.R. 368, which establishes that while

all credible and trustworthy evidence may be accepted, disputed facts relied upon by the Crown in aggravation must be

established beyond a reasonable doubt.

In Tremblay, the trial judge in sentencing for a manslaughter conviction expressed his opinion that the accused was guilty

of deliberate murder. The majority of the Court of Appeal decided not to interfere with the sentence on the basis that rid

of references or expressions of opinion to give the accused's acts the character of murder, the acts were sufficiently

grave to justify the sentence (a maximum). The dissenting judge found that the sentence was not fit and that it was

influenced by the conclusion that the acts were murder. The majority thus found the sentence was "fit", untainted by

impermissible considerations.

Before us, the parties were agreed that there is no relevant difference between the English and Australian positions. In its

factum filed here the Crown set out the English position, again quoting Thomas from an article, "Establishing a Factual

Basis for Sentencing", [1970] Crim. L.R. 80, at p. 82, where he says:

. . . the Court of Appeal has developed the principle that where the factual implication of the jury's verdict is clear,

the sentencer is bound to accept it and a sentence which is excessive in the light of the facts implied in the verdict

will be reduced . . . . This principle can only apply however where the factual implication of the jury's verdict is

clear; where . . . the factual implication is ambiguous, the court has held that the sentencer should not attempt to

follow the logical process of the jury, but may come to his own independent determination of the relevant facts.

This statement reflects the correct principle, namely that the sentencer is bound by the express and implied factual

implications of the jury's verdict. There are other authorities to the same effect: R. v. Speid (1985), 46 C.R. (3d) 22, at p.

47; Boyle and Allen, Sentencing Law and Practice (1985), at pp. 225, 227 and 229; Fox and Freiberg, Sentencing: State

and Federal Law in Victoria (1985), at p. 48; Stockdale and Devlin, Stockdale and Devlin on Sentencing (1987), at p. 62.

30. This was followed in R v Ferguson [2008] 1 SCR 96 where, although charged with murder in the second degree, the accused had

been convicted of manslaughter. There, a police officer had killed the victim by shooting him during an altercation in a police station.

According to McLachlin CJ, the “appropriateness of a sentence” depended on “what the jury concluded about Constable Ferguson’s

conduct.” He continued:

[16] This poses a difficulty in case such as this, since, unlike a judge sitting alone, who has a duty to give reasons, the

jury gives only its ultimate verdict. The sentencing judge must therefore do his or her best to determine the facts

necessary for sentencing from the issues before the jury and from the jury’s verdict. This may not require a judge to

arrive at a complete theory of the facts; the sentencing judge is required to make only those factual determinations

necessary for deciding the appropriate sentence in the case at hand.

[17] Two principles govern the sentencing judge in this endeavour. First, the sentencing judge ‘is bound by the express

and implied implications of the jury’s verdict’: R v Brown [1991] 2 S.C.R. 518 at 523. The sentencing judge ‘shall accept

as proven all facts, express or implied, that are essential to a jury’s verdict of guilty” (Criminal Code, s. 724(2)(a)) and

must not accept as fact any evidence consistent only with a verdict rejected by the jury: Brown; R v Braun (1995) 95

C.C.C. (3d) 443 (Man. C.A.).

[18] Second, when the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt

to follow the logical process of the jury, but should come to his or her own independent determination of the relevant

facts: Brown; R v Figia (1994) 162 A.R. 117 (C.A.). In so doing, the sentencing judge “may find any other relevant fact

that was disclosed by evidence at the trial to be proven” (s. 724(2)(b)). To rely upon an aggravating fact or previous

conviction, the sentencing judge must be convinced of that fact or conviction beyond reasonable doubt; to rely upon any

other relevant fact, the sentencing judge must be persuaded on the balance of probabilities: ss 724(3)(d) and 724(3)(e).

See also R v Gardiner [1982] 2 S.C.R. 368; R v Lawrence (1987) 58 C.R.(3d) 71 (Ont. H.C.). It follows from the purpose

of the exercise that the sentencing judge should find only those facts necessary to permit the proper sentence to be

imposed in the case at hand. The judge should first ask what the issues on sentencing are, and then find such facts as

are necessary to deal with those issues.

31. A concise summary of these principles may assist trial judges in future cases where they have to deal with these difficult issues.

Summary on interpretation of a verdict

32. If at all possible, counts in an indictment may usefully be framed in such a way as to make it clear what the accused is to be

convicted of or to be acquitted of. This considerably lessens the chance that there might be some ambiguity in a jury’s verdict. Since

the prosecution have a duty to present their case, and the accused has the duty to adduce evidence as to any defence that may

properly be put to the jury, with the trial judge having the role of deciding if sufficient evidence to potentially support such a defence

may be put to the jury, in the very large majority of cases the choice of the jury in finding the accused guilty will be clear. In a very

tiny proportion of cases, two paths of fact to the same verdict may be possible. A trial judge has a discretion to add a question to an

issue paper. In such a case, the same majority who find the accused guilty should answer the question on the basis of the path to

guilt which they accept. Those would be very rare instances. Because of the way a case runs, for instance as in Piotrowski by the

accused making admissions to conduct which, while criminal and while meeting the statement of facts in the indictment, constitutes a

much less culpable case than that alleged by the prosecution, the trial judge may as a matter of discretion add a question to an issue

paper as to which case the jury accepts. The burden of proving the case being on the prosecution, that same burden applies as to

the more serious version of the contested facts. Since a jury may decide guilt by a majority, that same majority should answer such a

question negatively or positively on any individual count. The entitlement to ask a question can also be exercised by the trial judge

when the jury brings in a verdict. Once a verdict is pronounced, in very rare cases, the trial judge may ask the jury a question on the

facts accepted by them as part of their verdict. That should only happen very seldom. Ideally, any brief relevant submission as to the

form of the question should be heard before such a question is put to the jury and in the absence of the jury. It would be entirely

wrong to embark on such a course as a matter of routine. All of the decided cases are, furthermore, to the same effect that a jury

should never be interrogated as to the reasoning behind the verdict. Thus, the proper course, in those rare cases where two paths to

the same verdict as pronounced by the jury have emerged on the case, is for the trial judge to, firstly, ask the jury whether 10 or

more of them have agreed on the factual path which led to their verdict. If the answer is affirmative, the judge may proceed to ask

as to which of the two paths constitute the basis for the verdict. If the answer is negative, no further question should be asked. It is

then it is for the trial judge to interpret the verdict on the basis of the trial judge’s own narrative of the case, provided that narrative

is accepted by the judge as having been proven beyond reasonable doubt and is not inconsistent with the verdict.

33. In any verdict, the jury’s finding must be respected. The judge is bound by all express and necessary implications of the jury’s

verdict. Hence, if the verdict is of sexual assault on a count of rape, the sentence must proceed on the basis that penetration did

not occur. If a verdict is of simple possession of drugs, either as a lesser included offence on a charge of drug dealing or if there is an

acquittal on that charge, the accused cannot be sentenced as a drug dealer. 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 of

the evidence presented before the jury. Any such fact must be found only if the trial judge considers that it has been proven beyond

reasonable doubt during the course of the trial.

34. It is proper both from the obligation to give reasons, and also to facilitate any appeal, that the trial judge give a brief narrative of

the facts accepted as proven beyond reasonable doubt by the court for the purposes of imposing penalty. Necessarily, it follows that

the trial judge should make clear in any sentencing judgment the factual narrative as accepted by the court for the purpose of the

sentencing process.

Sentencing and guidelines

35. It has always been a judicial ideal to achieve consistency in sentencing; see Scott - Developments in Irish Sentencing 2017 IJSJ

vol 1, also at www.ijsj.ie and Charleton and Scott - Throw Away the Key: Public and Judicial Approaches to Sentencing - Towards

Reconciliation [2013] 10 Irish Probation Law Journal 7. In The People (DPP) v Tiernan [1988] IR 250, the Supreme Court was asked to

consider promulgating guidelines as an aid to judges in sentencing for rape. Such an exercise had been conducted in New Zealand in

the case of R v Puru [1984] 2 NZLR 248 and in England and Wales in R v Billam [1986] 1 WLR 349 following on the earlier exercise in R

v Willis [1975] 1 WLR 292. Finlay CJ declined, stating at page 254:

Having regard to the absence of any statistics or information before this Court in this appeal concerning any general

pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would

not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of

criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the

case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt

that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.

36. Since that time, sentencing research has been conducted on several major offences by the Judicial Researchers’ Office and other

judgments have drawn on existing information on sentencing with a view to providing such precedents of sentencing as will aid judges

in determining the appropriate range of sentence into which an offence fits. Since the judgment in Tiernan, the practice of guardedly

gathering information from diverse sources has been approved by the Court of Criminal Appeal in The People (DPP) v Adam Keane

[2008] 3 IR 177. A number of sentencing analyses have been made available on www.irishsentencing.ie, including: Rape Sentencing

Analysis: The WD Case & Beyond; Analysis of Manslaughter Sentencing 2007-2012; Analysis of Sentencing in Robbery; and Analysis of

Sentencing for Possession or Importation of Drugs for Sale or Supply. In The People (DPP) v PH [2007] IEHC 335 and The People (DPP)

v WD [2008] 1 IR 308, cases on rape sentencing and on the sentencing of elderly offenders for sexual violence where much time had

passed since the commission of the offence, the Central Criminal Court had collated and organised sentences into relevant bands. In

the Adam Keane case, Murray CJ endorsed the careful review of previous sentencing decisions for the purpose of determining the

factors to be considered in sentencing a person for committing a particular offence. He stated at paragraph 80 that while some of the

existing research had its origin in media reports, the exercise was of real value:

In [WD], the Central Criminal Court reserved judgment in order to ascertain the features or factors which tended to place

those convicted for the offence of rape into particular ranges of sentencing from lenient, to ordinary, to serious to

meriting condign punishment. In doing so reliance was placed on reported decisions of our Courts and these are the only

relevant precedents for sentencing purposes. Assistance was also obtained from cases as reported in the media.

Reference to the latter group of cases was, quite properly, qualified because as they did not report all the facts and

circumstances of the case and they cannot be regarded as a source of legal precedent. Nonetheless, with that

qualification in mind, they did provide some useful indicators for the purpose of the broad exercise involved in that case.

The judgment did not purport to set standard sentences or tariffs but is a valuable reference point in ascertaining the

wide variety of factors, as mentioned above, which can influence sentencing in rape cases. The incidents of aggravation

and mitigation of offences can be so variable that no Court should consider itself bound by precedent on a rigid basis and

due weight should be given to considerations that at times can be unique to the features of a particular case.

37. In The People (DPP) v Fitzgibbon [2014] 2 ILRM 116 and The People (DPP) v Ryan [2014] IECCA 11, the Court of Criminal Appeal

set out indicative bands in respect of assault causing serious harm and firearms offences respectively. In The People (DPP) v Z [2014]

1 IR 613, the focus was on the role of counsel for the prosecution in sentencing since the passing of section 2 of the Criminal Justice

Act 1993, enabling a prosecution appeal of a lenient sentence. In The People (DPP) v Fitzgibbon (No 2) [2014] 1 IR 627, the Court of

Criminal Appeal emphasised the role of the prosecution in offering assistance as to an appropriate sentence, as opposed to demanding

a particular sentence. In this regard precedent sentences are key, as are analyses of relevant bands within which it may be

suggested a case might appropriately be placed. In the Ryan case, through Clarke J at paragraphs 3.1 and 3.2, the Court of Criminal

Appeal offered the following guidance as to the proper approach of the parties at sentencing:

[A] sentencing judge, having assessed the gravity of the offence and the culpability of the accused, may seek to place

the offence itself at an appropriate point on the spectrum of offences of that type. Offences can typically be divided into

lower, middle and upper parts of the range … [t]here is, of course, no necessary formula of words which must be used. It

should also be emphasised … that there may always be exceptional or unusual cases which do not readily fit into any such

range or ranges and where the sentencing judge will have to engage in a somewhat novel analysis to come to an

appropriate determination as to sentence. However, in most cases, an offence can, by reason of its gravity and the

culpability of the accused, be placed somewhere along the appropriate range in the manner just identified. One possible

means of converting such an analysis into an actual sentence involves, as a first step, the sentencing judge determining

the appropriate sentence for the offence itself having regard to where the offence lies along that range. The sentencing

judge is then required, in accordance with the established jurisprudence, to take into account the circumstances of the

individual accused and make such adjustment (if any) as may be appropriate to reflect the individual circumstances of

that accused. Where, for example, there are significant mitigating and other personal factors, then a specified reduction

in sentence and/or a suspension of sentence in whole or in part may be appropriate to meet those factors.

38. The general principles as to how to approach sentencing were set out by the Supreme Court in The People (DPP) v M [1994] 3 IR

306 through Denham J. She pointed out that the “nature of the crime, and the personal circumstances of the appellant, are the kernel

issues to be considered and applied in accordance with the principles of sentencing”. This approach she described as “the essence of

the discretionary nature of sentencing”. Thereafter, at pages 316-318, the following are the principles to be taken into account:

Sentences should be proportionate. Firstly, they should be proportionate to the crime. Thus, a grave offence is reflected

by a severe sentence. … However, sentences must also be proportionate to the personal circumstances of the appellant.

… the general impact on victims is a factor to be considered by the court in sentencing. … 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 reduce the

sentence. … In contemplating the sentences it is appropriate to consider the offences and their nature and their

circumstances, but this is not done for the purpose of determining whether the appellant should be incarcerated for the

future so as to prevent him committing further offences: he is sentenced solely for the offences before the court.

Life sentences and long determinate sentences

39. An argument often made, where a lengthy determinate sentence is under appellate consideration, is that some condign terms are

equivalent to a life sentence. There are differences, however. Murder, alone, carries a mandatory life sentence, save for those

perpetrators aged under 18. The term of such a sentence is indeterminate from the outset. Hence, prisoners commencing such a term

do not have their presumed release date, taking account of remission, calculated. Such an exercise is impossible since release on a

life sentence is at the discretion of the Executive, perhaps with input from the Parole Board. While it is possible to find a mean length

of sentence before conditional release on a life sentence, no prisoner can predict that result. Furthermore, both the longest term

served, and the mean length of time before release, have increased over the last two decades. An analysis of existing and past

statistics is instructive in that regard. Charleton, McDermott and Bolger - Criminal Law (Dublin, Butterworths, 1999) set out the

following statistics in relation to prisoners serving life sentences for homicide at pages 541-542:

In March 1999, there were 103 people serving life sentences.

The longest serving prisoner had been imprisoned for 35 years, the next 29, 27, 25 and 22 years. All of these were men.

The longest serving woman had served 11 years.

A total of 59 people serving life sentences had not yet served 10 years.

40. Statistics in relation to prisoners released from life sentences were also provided from the same source:

A total of 66 people serving life sentences for homicide had been released up to March 1999.

The longest term served was 31 years.

The shortest term served was 4 years (this was a female prisoner).

14 had served 15 years or more.

18 had served 10 years or under.

7 had served 7 years or under.

45 had served 2 years or under.

41. From the above figures, the authors calculated that 37 out of 66 prisoners had served between eight to 12 years before being

released on licence, which was thus the mean. This has now moved on. The latest statistics are from the report of the Irish Prison

Service - Examination of the Sentence Management of People Serving Life Sentences, from April 2017. The relevant figures

demonstrates that, as of 31 January 2017, a total of 349 people, of which 339 were male and 10 were female, were serving life

sentences. A further 87 individuals of which 5 were female and 82 were male, were out of prison on reviewable temporary release,

with 82 of these under the supervision of the Probation Service. Of the 349 persons then serving life sentences, two had so far

served more than 40 years, 12 between 30 and 40 years, seven between 25 and 30 years, 13 between 20 and 25 years, 57 between

15 and 20 years, 100 between 10 and 15 years, 96 between five and 10 years, 61 of between one and five years, and one of less

than one year. Of that total number of 349 persons serving a life sentence as of 31 January 2017, almost all were for homicide

offences. There were 331 prisoners serving life for murder, 321 of whom were male and 10 were female. There were, in addition to

that 331, three serving life for attempted murder, all male, and three further prisoners serving a life sentence for manslaughter. People

serving life sentences account for 7.7% of Ireland’s prison population. See www.irishprisons.ie and search for publications section.

42. Useful statistics were helpfully provided by John Twaddle of the Irish Prison Service. As of 31 January 2019, there were 348

prisoners serving a life sentence for murder and four prisoners serving a life sentence for manslaughter. Prisoners serving a life

sentence for murder had served the following sentences thus far:

Total

40 Years+ 1

35 to < 40 years 7

30 to < 35 Years 9

25 to < 30 Years 9

20 to < 25 Years 19

15 to < 20 Years 66

10 to < 15 Years 92

05 to < 10 Years 88

01 to < 5 Years 52

Less than 1 Year 5

Total 348

43. Statistics as to the average length of time served by those serving a life sentence who were released were also provided by the

Irish Prison Service. It is noted that as only a small number of individuals are released each year, the average can be raised

significantly by the fact of one of those individuals being released after serving a sentence of, for example, over 30 years for murder.

Figures were provided for between 2001 and 2016 as to the average time spent in custody by prisoners sentenced to life:

Average time

Year Lifers released spent in custody

before release in

years

2001 5 15

2002 3 11

2003 1 14

2004 1 19.5

2005 2 14.5

2006 0 n/a

2007 6 15.5

2008 2 15.5

2009 5 17.5

2010 6 18.25

2011 5 20

2012 4 22

2013 4 17.5

2014 4 20

2015 6 17.5

2016 7 22

44. There has been an increase in the time served, on average, by those sentenced to life imprisonment over the two decades.

According to Diarmaid Griffin - The Release and Recall of Life Sentence Prisoners: Policy, Practice and Politics, (2015) 53(1) Irish Jurist

1 at page 2, the average time served on a life sentence before release had been 7.5 years between 1975 and 1984; 12 years

between 1985 and 1994; 14 years between 1995 and 2004; 17 years between 2004 and 2009; and 19.5 years between 2010 and

2013. The Irish Parole Board’s 2017 annual report stated that of the 14 prisoners serving a life sentence who had subsequently

received parole that year, the average sentence served was 18 years. Such figures for release are sentences without any remission.

Thus, release after 15 years would be equivalent in normal circumstances to a determinate sentence of 20 year imprisonment.

Manslaughter sentencing bands

45. The authorities in this jurisdiction emphasise the importance of identifying a headline sentence within the available range of

sentence, based on the gravity of the offence and aggravating factors, and then to take mitigating factors into account before

coming to a proportionate sentence. The Supreme Court in the M case emphasised at page 315 of [1994] 3 IR:

It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum

sentence available. 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.

46. In The People (Director of Public Prosecutions) v Farrell [2010] IECCA 116, Finnegan J reiterated that:

A sentencing court must first establish the range of penalties available for the type of offence and then the gravity of the

particular offence, where on the range of penalties it would lie, and thus the level of the punishment to be imposed in

principle. Then, having assessed what is the appropriate notional sentence for the particular offence, it is the duty of the

sentencing court to consider the circumstances particular to the convicted person. It is within that ambit that the

mitigating factors fall to be considered.

47. Since its establishment in 2014, the Court of Appeal has been critical of any failure by trial judges to not set out a headline

sentence, see The People (DPP) v Flynn [2015] IECA 290 where Edwards J stated at paragraphs 14-18:

[B]est practice involves in the first instance identifying the appropriate headline sentence having regard to the available

range, based on an assessment of the seriousness of the offence taking into account aggravating factors (where

seriousness is measured with reference to the offender’s moral culpability and the harm done), and then in the second

instance taking account of mitigating factors so as to ultimately arrive at the proportionate sentence which is mandated

by the Constitution … Since its establishment this Court has repeatedly and consistently sought to emphasise that this

approach is regarded by it as best practice and we have sought to commend to trial judges that they explain the

rationale for their sentences in that structured way, not least because a sentence is much more likely to be upheld if the

rationale behind it is properly explained.

48. The Analysis of Manslaughter Sentencing 2007-2012, updated in 2017, by the Judicial Researchers’ Office was on this appeal

accepted by the prosecution and by counsel on behalf of the accused to be a valuable source of information. In addition, the

prosecution have furnished relevant precedents with a view to giving guidance on sentencing bands. The annual report of the Irish

Prison Service from 2017, the latest available, indicates 51 committals to prison for homicide during that year. Of these, 22 carried life

sentences, with perhaps one of those a maximum sentence of life for manslaughter. The remaining 30 manslaughter sentences were

organised so that there were two sentences of up to 12 months’ imprisonment, one from one to two years, one from two to three

years, nine from three to five years, 15 from five to 10 years, and one of over 10 years. As of 30 November 2017, the report on

managing life sentences, having been published earlier,, there were 420 people serving homicide sentences, of which 344 were life

sentences. There were no sentences for manslaughter then being served of under two years. There were four prisoners serving

sentences of between two to three years, 14 of between three to five years, 41 of between five and 10 years and 17 over 10 years,

of which an indeterminate number, perhaps one or two, were serving life sentences for manslaughter.

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. See also Burnett CJ in R v

Hobbs [2018] EWCA Crim 1003 at paragraph 23.

50. In the WD case, the classification of sentencing bands in rape adopted by the Central Criminal Court was for categories of lenient,

ordinary, severe and condign. In PH, where the issue was sentencing older men for offences reported after a gap of decades, the

Central Criminal Court adopted a classification of lenient, ordinary and serious. In the Ryan case, the Court of Criminal Appeal similarly

judged that there were three bands of sentence for possession of a firearm in suspicious circumstances. In the Fitzgibbon case, the

Court of Criminal Appeal also regarded three bands as sufficiently helpful for offences of assault causing serious harm contrary to

section 4 of the Non-Fatal Offences Against the Person Act 1997. In The People (DPP) v Casey and Casey [2018] IECA 121, the Court

of Appeal indicated appropriate sentence ranges for residential burglary on the basis of three bands. This was again the approach of

the Court of Criminal Appeal in The People (DPP) v Byrne [2018] IECA 120 as to appropriate sentence ranges for robbery and

aggravated burglary. In all of these analyses, the work already done by the Judicial Researchers’ Office on manslaughter was of great

assistance; as it is here. For manslaughter, it is appropriate to offer guidance on the basis of four bands.

Worst cases

51. Some unlawful killings 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. In The People (DPP) v Conroy (No 2)

[1989] IR 160 at 163, Finlay CJ rejected the proposition that a sentence for manslaughter could never be one of life imprisonment:

Having regard to the multiple factors which enter into consideration of sentence in the case of a homicide, there would

not appear to me to be any grounds for a general presumption that the crime of manslaughter may not, having regard to

its individual facts and particular circumstances be in many instances, from a sentencing point of view, as serious as, or

more serious than, the crime of murder.

52. Consequently, sentences of life imprisonment have been imposed in this jurisdiction for manslaughter. In The People (DPP) v

McManus (aka Dunbar) [2011] IECCA 68, the Court of Criminal Appeal upheld a life sentence in a case where the accused was found

guilty of the manslaughter of a 14 year old girl. He had hid and disposed of the victim’s body with the assistance of family members,

who had been coerced into assisting him. The Court found that there were no mitigating factors present in the case. Likewise, in The

People (DPP) v Egan [2017] IECA 95, the accused was found not guilty of the murder of his prison cellmate in a vicious attack, but

convicted of manslaughter by reason of diminished responsibility. The trial judge handed down a life sentence. Quoting from an ex

tempore judgment given in 2010 by Hardiman J, for the Court of Criminal Appeal, The Court of Appeal rejected the accused’s appeal

against the life sentence, finding that this was “a type of sanction to be imposed on this applicant which is very much in his interest

as well as the interest of the community as a whole.” A further appeal was brought by the accused on foot of potentially new

evidence, which it was hoped would lead to the quashing of the conviction or a reduction in sentence. However, this new evidence

was held to not be materially relevant and the Court of Appeal upheld the life sentence.

53. In Conroy (No 2), the accused was a member of a gang which embarked on a scheme of residential burglaries in a rural part of the

west of Ireland in 1981. They entered an isolated house occupied by an elderly woman, assaulted her and tied her up. Their next

crime was in the home of two old men, who were seriously assaulted, one dying shortly afterwards and the other in hospital within

months. Tried for murder twice, eventually the accused pleaded guilty to manslaughter in respect of one of the elderly men. At page

166 of the report, Finlay CJ referred to “the extreme brutality used in carrying out that crime.” While the accused had been

sentenced to life imprisonment by the trial judge, the Supreme Court considered this sentence to be excessive and found that 17

years would have been appropriate. However, as the accused had already spent four years in prison by that stage, a 14 year

sentence was instead imposed.

54. In The People (DPP) v McAuley and Walsh [2001] 4 IR 160, the defendants were tried for murder of Detective Garda McCabe, who

was shot on duty in Adare in the course of cash delivery protection duties. During the trial, they pleaded guilty to manslaughter and

they were sentenced to 14 years’ imprisonment to be served from the date of sentence. The DPP brought an appeal on the basis that

the sentence had been unduly lenient. This was dismissed by the Court of Criminal Appeal as it had not been demonstrated that the

sentence imposed was “a substantial departure from what would be regarded as the appropriate sentence”. However, Keane CJ

stated at page 164:

Although the facts of [Conroy (No 2)] were particularly harrowing, the instant case was also characterised by a callous

disregard for human life. Had a sentence of seventeen years been imposed in the present case, it is unlikely that it would

have been interfered with on appeal. … It is clear that a long custodial sentence was appropriate for a crime which the

court regarded as being at the more serious end of the scale of manslaughter offences.

55. Another example is The People (DPP) v Crowe [2010] 1 IR 129. There the accused and another man had entered a house wearing

disguises and carrying guns. They shot one man in the face, killing him, and another in the arm. The accused pleaded guilty to

manslaughter, by reason of diminished responsibility on a charge of murder, attempted murder and assault causing harm. He was

sentenced to life imprisonment for manslaughter and to 15 years for attempted murder. On appeal to the Court of Criminal Appeal

against both sentences, his appeal was dismissed in respect of the 15 year sentence for attempted murder, but the life sentence for

manslaughter was substituted with 20 years’ imprisonment. The Court observed that this case differed from a charge of manslaughter

simpliciter as the accused had been sentenced following a plea of manslaughter by reason of diminished responsibility. This had to be

taken into account at sentencing stage. At paragraph 36, it was acknowledged that the offence was “at the absolute upper end of

the scale”. At paragraphs 32 and 36, Kearns J stated:

This court has no difficulty in accepting that the facts of this case looked at objectively, are such as to put the case into

the category of the most serious and of the worst kind imaginable. The killing [of the deceased victim] was nothing less

than a premeditated execution involving the use of lethal weapons in a dwelling house. … The court is therefore of the

view that the proper approach to sentencing in this case was one which would involve the imposition of a substantial but

finite sentence, being one which recognised that the offence was at the absolute upper end of the scale, but recognising

also that some measure of mitigation necessarily had to be incorporated in the sentence by reason of the early plea, the

psychiatric history and the other factors relied upon by the accused in advancing his submissions in this case.

56. In The People (DPP) v Ward [2015] IECA 18, the accused was charged with murder but pleaded guilty to manslaughter, and was

sentenced to 16 years’ imprisonment with the final three years suspended. The victim died as a result of an assault from the accused,

described on appeal as involving violence of “the most severe kind”. This happened during a fight between two groups of people. The

Court of Appeal reduced the sentence to 13 years’ imprisonment with the final three years suspended on the basis that the trial judge

had not given sufficient consideration to what were regarded as considerable mitigating factors in the case. Mahon J stated at

paragraph 17:

It is the sheer viciousness of the attack on the deceased which rightly places the case high on the gravity scale in

manslaughter cases, and rightly should attract a lengthy prison sentence. It is however the view of this court that the

sentence … was excessive, and that the learned trial judge did not, in particular, sufficiently take account of the lack of

premeditation, the absence of serious previous convictions and the very positive signs for rehabilitation in relation to the

appellant’s efforts to deal with his addiction problems, when formulating the sentence.

57. In The People (DPP) v Hall [2016] IECA 11, the accused pleaded guilty to the manslaughter of a 16 year old girl who had been

shot while sitting with friends in a parked car. The accused had not actually fired the shot which killed the victim, however due to his

involvement he was sentenced to 20 years’ imprisonment. This was found to be the appropriate headline sentence on appeal.

However the final two and a half years were suspended due to mitigating factors including the accused’s guilty plea. The Court of

Appeal also stated at paragraph 17 that the offence was “a very serious example of manslaughter [requiring] the imposition of a

lengthy sentence” and would have been “serious enough as to have potentially attracted a life sentence” if the facts had been

slightly different. In The People (DPP) v Griffin [2018] IECA 257, the accused was convicted of the manslaughter of a 12 year old boy

which resulted from the accused setting fire to a den. No headline sentence was identified although mitigating factors were

considered by the trial judge, including the accused’s age at the time of the offence. He was sentenced to 15 years’ imprisonment

which was upheld on appeal. In the Court of Appeal, Birmingham P observed at paragraph 9 that “[i]n terms of harm done, the killing

of a 12-year-old child means that it must rate very high indeed on the scale of gravity. The moral culpability also was very high. It

involved recklessness of a very extreme level indeed.”

58. In other common law jurisdictions, such as Canada, the Albert Court of Appeal in R v Laberge (1995) 165 AR 375 found at

paragraph 8 that the nature of the unlawful act itself which results in the death of the victim is a relevant factor in a manslaughter

case. Fraser CJA stated that “[t]he nature and quality of the unlawful act itself, the method by which it was committed and the

manner in which it was committed in terms of the degree of planning and deliberation are all relevant to this inquiry.” The New

Zealand case of Shailer v R [2017] NZCA 38 involved another manslaughter at the top end of any potential scale. The accused

pleaded guilty to the manslaughter of a three-year-old child. The child had been the victim of serious violence on part of the accused

persons who had care temporarily of the child. They were sentenced to 17 years’ imprisonment, with a minimum period of nine years

to be served. The sentences were upheld on appeal, the Court stating at paragraph 87:

The duration, cruelty and physical depravity of this offending by adults acting together against a defenceless three-year-

old child placed it within the most serious of cases for which the penalty of life imprisonment is available. The legal

classification of murder or manslaughter does not affect our analysis of its scale. All the recognised sentencing principles

called for a term of imprisonment which reflected society’s denunciation. [The accused] can count themselves fortunate

that they were not sentenced to life imprisonment.

High culpability

59. 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.

60. In The People (DPP) v Horgan [2007] 3 IR 568, the accused raped and killed the victim. She had been walking in a park. The trial

judge imposed a sentence of eight years, the fact that the accused was 16 years old at the time of committing the offences being a

very significant mitigating factor. This sentence was increased to 12 years on appeal following an application based on undue leniency

on behalf of the Director of Public Prosecutions. The Court of Criminal Appeal found there had been an error in principle at sentencing,

Kearns J stating at paragraph 38:

[T]he unlawful and dangerous act which resulted in the death of [the victim] took place during the course of a rape,

which equally elevates that particular offence into the most serious category. The court is of the view that there are

strong public policy considerations which demand that a rape accompanied by violence which carries an appreciable risk of

death, must be seen as being in a most serious category and must attract a sentence at the higher range. … The truth of

the matter is that each offence was aggravated by the other.

61. In The People (DPP) v Kelly [2005] 2 IR 321, the accused was charged with murder but found guilty of manslaughter. The victim

had been stabbed with a knife by the accused during an argument outside a home in which a party was taking place. The accused

was sentenced to 14 years by the trial judge. On appeal, it was argued that the sentence was disproportionate in the circumstances,

and the sentence was reduced to eight years by the Court of Criminal Appeal. Hardiman J stated at paragraph 42:

The very wide range of facts which a manslaughter case may feature make it difficult to establish any precise range of

sentencing. Nevertheless, we are of the opinion that the present case is in the upper part of the middle range of gravity

in offences of manslaughter.

62. The Court took into account a number of mitigating factors such as the young age of the accused, who was 20 years old at the

time of the offence, the fact that he had no previous convictions, had shown remorse and had offered to plead guilty to manslaughter

prior to the trial. In The People (DPP) v Thornton [2015] IECA 202, the accused was acquitted of murder but convicted of

manslaughter and sentenced to ten years’ imprisonment with the final three years suspended. The accused had stabbed the victim,

her ex-boyfriend, 18 times in a confrontation. This, along with the accused’s previous conviction for an offence involving a knife were

aggravating factors. Mitigating factors such as the accused’s offer to plead guilty to manslaughter and her genuine remorse were

taken into account by the trial judge. The sentence was appealed by the accused, arguing that it was excessive in the

circumstances, but was upheld by the Court of Appeal. This case may be an outlier.

63. In The People (DPP) v Princs [2007] IECCA 142, the accused was charged with murder but convicted of manslaughter for the fatal

stabbing of the victim, it being argued successfully that there was provocation involved. A sentence of four years and nine months

was imposed, with mitigating factors such as the accused’s offer to plead guilty to manslaughter prior to the trial, his genuine

remorse, his lack of previous convictions and the fact that he was a foreign national, taken into account. However, the Director of

Public Prosecutions appealed the sentence, arguing that the level of violence was not adequately considered by the trial judge. The

Court of Criminal Appeal substituted the sentence with a sentence of ten years’ imprisonment, with the final three years suspended.

This case was described as one which fell into the “upper part of the middle range of gravity.” In The People (DPP) v DD [2011] IECCC

3, the accused was charged with murder but convicted of the manslaughter of a woman with whom he had been staying. She died

from numerous blows to the head with a camán. Sheehan J identified a headline sentence of 13 years, with 10 years being imposed in

light of the mitigating factors which included the accused’s offer to plead guilty to manslaughter before the trial and his remorse.

Medium culpability

64. 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.

65. Cases which fall into this middle category include those where the offence involves an unlawful act which would not normally be

expected to result in death and where the act was not premeditated but where there was still a degree of culpability. In The People

(DPP) v O’Donoghue [2007] 2 IR 336, the accused was tried for murder but was convicted of the manslaughter of an 11-year-old boy.

The death appeared to have been caused by the accused holding the victim in a type of arm-lock, as the Court of Criminal Appeal

described, “rather than a deliberate violent or prolonged assault on the young boy.” A four year sentence was imposed, considering

mitigating factors such as the accused’s offer to plead guilty to manslaughter prior to being charged with murder. The Director of

Public Prosecutions appealed this sentence on the grounds of undue leniency, however the sentence was upheld by the Court of

Criminal Appeal.

66. In The People (DPP) v Millea [2016] IECA 137, the accused had stabbed the victim in circumstances where the accused said that

the victim had been threatening the accused with an axe. He was sentenced to ten years’ imprisonment with two years suspended

following a plea of guilty to manslaughter. Considering that significant mitigating factors had not been taken into account by the trial

judge, the Court of Appeal set a headline sentence of eight years, with the final three years suspended. Finlay Geoghegan J stated at

paragraph 29:

In so far as the sentencing judge placed this offence at the upper end of the mid-range of manslaughter offences, on the

above facts this Court considered that he erred in principle. This Court considered that it is correctly at the mid-range of

such offences, bearing in mind the circumstances in which the knife came to be used and the element of self-defence

which attended the circumstances of the offence and that excessive force is intrinsic to the offence of manslaughter.

67. The People (DPP) v Hutchinson [2017] IECA 154 involved what is sometimes called a “one punch” manslaughter. The victim died

after the accused punched him once in the head, described by an eyewitness as “not being of particular force.” The accused was

sentenced to seven years’ imprisonment, with the final year suspended. His previous conviction for section 3 assault was a significant

aggravating factor which resulted in the headline sentence being set at seven years. The sentence was appealed, and while the

Court of Appeal agreed that the assault conviction was an aggravating factor which would operate to increase a headline sentence, it

considered that the headline sentence had been increased excessively by the trial judge. The headline sentence was instead set at

five years, with the final year suspended. In The People (DPP) v Shanley [2017] IECA 340, the accused was initially charged with

murder, but pleaded guilty to manslaughter. The death of the victim resulted from a stabbing during a struggle between the accused

and the victim, the accused having brought a knife to the victim’s residence. A superficial wound was inflicted to the victim’s lower

leg but resulted in death because it lacerated a varicose vein. Hence, culpability was perhaps around the same level as that of an

assault resulting in death. The trial judge imposed a sentence of five years with two and a half years suspended. The Director of

Public Prosecutions made an undue leniency application which was successful, the Court of Appeal setting a headline sentence of six

and a half years with the final three years suspended taking account of mitigating factors, including the guilty plea and absence of

any previous convictions.

68. In The People (DPP) v Rice [2018] IECA 61, the accused pleaded guilty to the manslaughter of his friend following a drunken

argument. The victim was punched and kicked in the head, suffering a fractured skull and severe brain injuries. This case was

considered by the trial judge to be “in the middle range, perhaps towards the bottom of the middle range” of the scale. A seven year

sentence was imposed, with the final two years suspended. While the accused had multiple previous convictions, his genuine remorse,

along with the fact that the killing was not pre-meditated, were considered as mitigation. The Court of Appeal upheld this sentence,

Mahon J however observing at paragraphs 23-24:

The learned sentencing judge placed the offence, in terms of its gravity, “in the middle range, perhaps towards the

bottom of the middle range”. ... The fact that the appellant took the knife from his pocket, wielded it in the fashion

described in the evidence before the court, makes the case relatively serious, and places it in that frightening category of

offending sometimes referred to as “knife crime”, and which is of particular concern to the general public in recent years.

69. Other cases falling within this medium range include The People (DPP) v Black [2009] IECCA 91 and The People (DPP) v Colclough

[2010] IECCA 15.

Lower culpability

70. Manslaughter cases which fall into this category 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. In Princs, Murray CJ noted the “vast variety of circumstances” in which manslaughter offences occur, observing:

[T]he offence of manslaughter, particularly voluntary manslaughter where an unlawful act of violence is involved, should

normally involve a substantial term of imprisonment because a person has been killed. Only where there are special

circumstances and context will a moderate sentence or in wholly exceptional circumstances a non-custodial sentence be

warranted.

71. Diminished responsibility or extreme provocation cases may also come within this category of low culpability manslaughter. In The

People (DPP) v Burke (unreported, Central Criminal Court, McCarthy J, 24 March 2010), the accused was acquitted of the murder of

her husband by reason of diminished responsibility but found guilty of manslaughter. The accused killed the victim by hitting him on

the head 23 times with a hammer while he slept. The trial judge suspended in full the five year sentence, due to evidence of domestic

violence suffered by the accused, the accused’s mental condition at the time of the offence, as well as the pleas of the four children

who did not want a custodial sentence imposed on their mother.

72. In The People (DPP) v Craig [2010] IECCA 27, a sixteen year old girl made a formal complaint of sexual assault. She subsequently

travelled by car with a friend and a third party and identified the alleged perpetrator’s residence, resulting in one of the occupants of

that residence, the victim, being fatally shot by the third party. Following a plea of guilty, the accused was given a three and a half

year suspended sentence for manslaughter, with her age and level of maturity considered as mitigating factors. On appeal, on the

grounds of undue leniency, the Court of Criminal Appeal considered that that the sentencing judge had not attached adequate weight

to the fact that a gun had been involved and that the accused was aware of its presence in the vehicle, and therefore concluded

that the sentence should not have been suspended in its entirety. The sentence was substituted with a sentence of three and a half

years, and the final two and a half years suspended. In The People (DPP) v McInerney (unreported, Court of Criminal Appeal, Finnegan

J, 30 January 2012), the accused was found not guilty of murder but guilty of manslaughter in a case where a fight had broken out

between the accused and the victim. The victim attempted to gain entry into the home, banging on a door with a spade and breaking

a window in the accused’s van. The accused came outside and claimed that the victim attempted to strike him with the spade, which

resulted in the accused taking the spade from him and using it to strike the victim multiple times. The Director of Public Prosecutions

appealed on the grounds that the sentence was unduly lenient, the trial judge having imposed a sentence of one and half years. The

Court of Criminal Appeal upheld this sentence.

73. The People (DPP) v Brett [2014] IECA 48 was a case involving vehicular manslaughter, where the accused had knocked the victim

down while drunk driving. His guilty plea and genuine remorse, as well as a lack of previous convictions, were mitigating factors. The

accused also suffered from health issues. The trial judge sentenced him to two years’ imprisonment. On appeal, Ryan P was of the

view that accused’s health issues were not given adequate weight at sentencing by the trial judge. Referring to the “quite

extraordinarily unusual circumstances”, the Court of Appeal was of the view that the accused had served sufficient time in prison and

suspended the remaining 18 months of the sentence. In The People (DPP) v Connors (unreported, Circuit Criminal Court, Judge

Hickson, 21 October 2014), the accused pleaded guilty to the manslaughter of his brother. The accused had intervened in an

argument in the family home. The trial judge imposed a sentence of three years with the final year suspended.

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

This case

75. The accused came after the victim with a knife. On the jury’s verdict, he did not intend to kill or cause serious injury. His

introduction of a knife and, furthermore, his admitted brandishing of a knife is an aggravating circumstance. After the death, he made

no effort to secure any possibility of assistance to a man very seriously injured by him. Instead, he fled the scene and disposed of the

weapon. It is not possible for the Court on appeal to now state what facts were open to the trial judge to find as to the narrative

which led to the victim’s death. That was a matter for the judge at trial. No analysis, however, was offered by the trial judge as to

the facts which she accepted beyond reasonable doubt following on the jury’s verdict. Thus, the case may be regarded as an

exception from what ought to occur: which is that the sentencing judge should pronounce a clear narrative as to the facts accepted.

Here, the best analysis possible on the remarks made by the trial judge was of culpability based on the introduction of a weapon and

what the trial judge called a “spontaneous type action”. That may be interpreted only on the basis of what the trial judge said.

Hence, in the absence of a sentencing narrative, this Court, not having sat through the trial, and thus not having the capacity to

interpret the jury’s verdict, cannot take a different view of the sentencing facts than the trial judge. On her analysis, it would appear

that a lenient view was taken amounting to the production of a knife as part of a psychic assault and either an unfortunate

spontaneous action or collision. That view of culpability places the appropriate band in the medium culpability end of the spectrum. On

that basis, and the Court will not comment as to whether a more serious view could have been taken by the trial judge as that

responsibility is for the sentencing judge, the sentence should not be disturbed.

76. Absent an attack with deadly force and an action in self-defence to extreme circumstances, there can never be an excuse for

the production of a knife. A lenient view was taken of the circumstances by the trial judge. Since the emphasis in this judgment is on

the function of the judge who has heard the trial interpreting the jury’s verdict, it would not be appropriate to interfere.