Director of Public Prosecutions v Smith

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 04 July 2024
• Neutral Citation: [2024] IECA 184
• Docket Number: Appeal No: 21/2023

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Garrett Smith

Appellant

[2024] IECA 184

Birmingham P.

Edwards J.

McCarthy J.

Appeal No: 21/2023

THE COURT OF APPEAL

Sentencing – Manslaughter – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Smith, on the 28th of October 2022, was found not guilty by a jury of murder but guilty of manslaughter, and was further found guilty of one count of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994. On the 19th of December 2022, the Central Criminal Court sentenced him to a global custodial term of 14 ½ years to date from the 11th of October 2022, and further suspended the final 12 months thereof for a period of one year following release. He appealed to the Court of Appeal against the severity of the said sentence and advanced seven grounds in his Notice of Appeal dated the 19th of January 2023 in support of his appeal. Those grounds complained: (i) that the sentencing judge erred in law and in fact in his assessment of the headline sentence (ground 1), and complaint was particularly made of the sentencing judge’s placement of the appellant’s offending within the “worst” category of offences under People (DPP) v Mahon [2019] IESC 24 (ground 4), and the undue weight which was said to have been attached by the sentencing judge to the aggravating factors in the appellant’s case (ground 5); (ii) that the sentencing judge erred in law and in fact in his assessment of the weight to be attached to the mitigating factors at play in the case (ground 2), most particularly his condition of “extreme intoxication” at the time of the offending (ground 3), and also the pre-trial offer of a plea to manslaughter (ground 6); and (iii) that the sentencing judge imposed a sentence which was disproportionate in all the circumstances (ground 7).

Held by the Court that the sentencing judge did not err in regarding the case as belonging in the category of “worst cases” or in nominating sixteen years as being the appropriate headline sentence; the case could be located anywhere in the penumbra on either side of the dividing line between the upper end of the “higher culpability” range and the lower end of the “worst cases” range, and starting at sixteen years (i.e., just slightly above the dividing line) was within the sentencing judge’s legitimate margin of appreciation. The Court considered that the trial judge was right in approaching the matter on the basis that the appellant’s state of self-induced intoxication, while it may have enabled him to escape criminal liability for murder, provided no mitigation of his moral culpability for his involvement in the manslaughter and violent disorder offences of which he was found guilty, and could not be further taken into the reckoning. Applying The People (DPP) v. F.E. [2021] 1 I.R. 217, the Court was satisfied that the trial judge was right not to sentence for the manslaughter in isolation but to regard the participation by the appellant in the associated incident of violent disorder as relevant, as informing the seriousness of the offence of manslaughter which occurred in close temporal proximity to it, and as an aggravating circumstance. Taking into account cumulatively all of the mitigating factors in the appellant’s case, the Court did not believe that the sentencing judge erred in discounting from the headline sentence of 16 years by 18 months and then suspending a further 12 months. The Court was satisfied that the discount granted was within the sentencing judge’s legitimate range of discretion.

The Court dismissed the appellant’s appeal against the severity of his sentence.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 4 ^th of July 2024.

Introduction

1 . Before this Court is an appeal brought by Mr. Garrett Smith (i.e., “the appellant”) against the severity of the sentence imposed on him by the Central Criminal Court on the 19 ^th of December 2022. On the 28 ^th of October 2022, a jury found the appellant not guilty of murder but guilty of manslaughter (count no. 1 on Bill No. CCDP0077/2020), and further found the appellant guilty of one count (count no. 2) of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994. Following a sentencing hearing held on the 21 ^st of November 2022, the Central Criminal Court sentenced the appellant to a global custodial term of 14 ¹/₂ years to date from the 11 ^th of October 2022, and further suspended the final 12 months thereof for a period of one year following release.

2 . The appellant appeals against the severity of the said sentence and has advanced seven grounds in his Notice of Appeal dated the 19 ^th of January 2023 in support of his appeal. In essence, those grounds complain:

• I. That the sentencing judge erred in law and in fact in his assessment of the headline sentence (ground no. 1), and complaint is particularly made of the sentencing judge's placement of the appellant's offending within the “ worst” category of offences under People (DPP) v. Mahon [2019] IESC 24 (ground no. 4), and the undue weight which is said to have been attached by the sentencing judge to the aggravating factors in the appellant's case (ground no. 5);

• II. That the sentencing judge erred in law and in fact in his assessment of the weight to be attached to the mitigating factors at play in the case (ground no. 2), most particularly his condition of “ extreme intoxication” at the time of the offending (ground no. 3), and also the pre-trial offer of a plea to manslaughter (ground no. 6);

• III. That the sentencing judge imposed a sentence which was disproportionate in all the circumstances (ground no. 7).

Factual Background

3 . At the sentencing hearing of the 21 ^st of November 2022, a Garda Inspector James O'Brien (otherwise “G/Insp. O'Brien”) gave evidence in relation to the factual background to the appellant's offending and further detailed some of the investigative history of the case.

Discovery of the deceased

4 . G/Insp. O'Brien described that following an emergency service call made shortly before 4:30am on the 6 ^th of February 2020, members of the regional Armed Support Unit of An Garda Síochána, including a Garda Sergeant Curry (otherwise “G/Sgt. Curry”) attended at an residential apartment at 18 High Hayes Terrace, situated in Castlecomer, County Kilkenny. There, G/Sgt. Curry noticed a Mr. Edward O'Sullivan, otherwise known as “Liam” or “Lem” O'Sullivan, (i.e., “the deceased”) lying in “ a pool of blood” just inside the door to his apartment. Paramedics attended at the scene shortly thereafter, and they found Mr. O'Sullivan with very serious head and facial injuries. While efforts were made to treat Mr. O'Sullivan at the scene, his condition deteriorated very rapidly and he stopped breathing, which necessitated the administration of CPR and his removal by ambulance to St. Luke's General Hospital where he would later be pronounced dead.

5 . The deceased was aged 46 years at the time of his death. He was then living alone in the apartment at 18 High Hayes Terrace but was in a relationship with a Ms. Pauline Farrell with whom he had had five children. The deceased was known to a Ms. Rebekah Walsh, who was in a relationship with the appellant at the time. It was said that it was through this connection to Ms. Walsh that the appellant came to be in the home of the deceased on the night of the offending.

The fracas inside the deceased's apartment

6 . Mr. O'Sullivan had been drinking the evening before the offence with a number of people including the appellant and Ms. Walsh. During the course of this evening, several people including the deceased's son had attended at the premises at different times. There was evidence of alcohol consumption on the part of all who had attended at the property that night, and there were different, and to some extent, inconsistent accounts of the events that had taken place there. As a consequence, it was difficult for the Garda investigation to establish with any certainty the timing of the events and also the precise order in which people arrived at and left the premises. Notwithstanding this difficulty, there appeared to have been a measure of agreement that at some point during the course of the evening, and at a remove relatively proximate in time to the events leading to Mr. O'Sullivan's death, there was “ a row” in the apartment that was said to have culminated in a physical altercation.

7 . It was G/Insp. O'Brien's evidence that the initial focus of this fracas was between the appellant and the deceased, and the deceased's son and a fourth male, a Mr. Connor Martin. Mr. Martin would go on to give evidence at the trial of the appellant, in which testimony he stated that during the course of this incident he had struck the appellant over the head with a saucepan. There was also evidence of some punching that had occurred, and reference was made to “ wrestling” that took place between the bedroom and the kitchen of the apartment. The initial fracas “ quietened” after a time but this reprieve from violence was short lived, as will be described shortly.

CCTV footage from the Circle K petrol station

8 . At this juncture in G/Insp. O'Brien's evidence, the sentencing judge, who had also presided over the trial of the appellant, asked the prosecution for some insight into the timing of the events, particularly with reference to CCTV evidence which was harvested from a Circle K petrol station on the Castlecomer Road. This footage, which was taken at around 3:00am on the 6 ^th of February 2020, showed the appellant and the deceased walking to the petrol station together. The sentencing judge remarked on the significance of this footage:

“ JUDGE: And there was no evidence of animosity, in fact,...