DPP v Aherne

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 05 July 2004
• Neutral Citation: [2004] IECCA 13
• Court: Court of Criminal Appeal
• Date: 05 July 2004

[2004] IECCA 13

THE COURT OF CRIMINAL APPEAL

Hardiman J.

Laffoy J.

Quirke J.

198/03

DPP v. AHERNE

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor

v.

STEPHEN AHERNE

Defendant/Appellant

Citations:

DPP V KELLY UNREP CCA 5.7.2004

Abstract:

Criminal law - Manslaughter - Appeal against sentence - Error in principle - Whether the trial judge erred in principle in imposing the appellant’s sentence.

Facts: The applicant was charged on 11 March, 2000 with murder, assault, producing a weapon capable of inflicting serious injury in a manner likely to intimidate, assault with intent to rob and producing an article capable of inflicting serious injury likely to intimidate. The applicant was subsequently acquitted of murder but was convicted of manslaughter and sentenced to ten years imprisonment. The charges arose out of a number of incidents that occurred on 11 March 2000 when the applicant was returning from a party with some friends. The applicant was just under sixteen years of age when he committed the crimes and he had consumed a substantial amount of alcohol on the night in question. The applicant was arrested on 11 March, 2000 and he provided the Gardai with an account of the night that was apparently substantially truthful. When sentencing the applicant the trial judge indicated that he considered where an innocent life was taken the appropriate sentence was twenty years however the judge took into account the fact that the applicant was previously of good character, was of tender age, had certain learning difficulties, co-operated with the Gardai and was not the ring leader and/or prime mover on the particular night. The trial judge also considered a report, which stated that the applicant was of borderline ability and a psychological report, which outlined the fact that the applicant had frequently described the amount of alcohol he had consumed.

Held by the Supreme Court (Hardiman, Laffoy, Quirke JJ) in setting aside the conviction and imposing the appropriate sentence, which was one of ten years imprisonment:

1. That the decision by this court in the case of DPP v Stephen Kelly applied to the present case. The approach to sentencing in this case displayed the same error in principle as that identified in the decision of the appeal of Stephen Kelly, accordingly the principles set out in the judgment of DPP v Kelly applied to this case.

2. That the correct approach was to consider the background of the applicant, the nature of the crime committed and the mitigating factors. The offence should be regarded as being in the most serious category of manslaughter because a weapon was used and the attack was brutal. However, the weapon had not been carried by the applicant, he did not play the leading role in the attack and the appellant did not have an intention to kill or cause serious injury. The mitigating factors included the appellant’s youth, the fact that he had no previous convictions and the fact that he had offered a plea to manslaughter.

3. That the mitigating factors were very weighty. But for those factors the appropriate sentence would have been fourteen years imprisonment. However, in the circumstances the appropriate sentence was one of ten years.

Reporter: L.O’S.

Hardiman J.

1 The appellant's application for leave to appeal came before the Court on the 26^th May, 2004. On the same day the Court had heard an application in another manslaughter case, that of DPP v. Stephen Kelly, in which we have delivered judgment today.

2 On the hearing of this application for leave to appeal, it transpired that the applicant had been sentenced to ten years imprisonment for manslaughter in the Central Criminal Court (White J.) on the 13^th October, 2003. In imposing this sentence the learned trial judge said:-

"I have previously stated that I consider where an innocent life is taken the appropriate sentence is 20 years imprisonment. However that is not the sentence that I am intending to pass in relation to you. I have to take into account in the first place the fact that previously you were of good character. I must take into account your tender age at this time, not being sixteen years of age and I must take into account what I find in the reports before which would indicate that you had certain learning difficulties. I must take into account your co-operation with Sergeant Molloy and the other members of the Garda Síochána in this particular investigation and I must take into account that you are not the ring leader and and/or the prime mover on this particular night.

Taking these matters into account I propose to pass a sentence of ten years in respect of the unlawful killing of Brian Mulvanney and I will backdate that sentence to the date of your conviction".

3 In those circumstances it appeared to the Court that the approach to sentencing in this case displayed the same error in principle as that identified in our decision of the appeal of Stephen Kelly. We therefore indicated that we would set aside the conviction and proceed to impose the appropriate sentence.

Cross-reference to DPP v. Stephen Kelly.

4 In a judgment inDPP v. Stephen Kelly, which we have just delivered, we have set out the statutory provisions which apply when the Court has found that the sentence imposed on an appellant was wrong in principle. We have also taken the opportunity to set out certain information about the offence of manslaughter as it has presented in the Central Criminal Court in recent years. Likewise, we have restated the general principles applying to sentencing in our courts. It would obviously be redundant to set out the same material in this judgment. However we wish to emphasise the applicability of the material set out in the judgment in Kelly and the fact that we have been guided by the principles summarised in that case. We have applied these to the evidence considered and submissions made on 26^th May, 2004 and 11^th June, 2004.

The charges.

5 The appellant was charged, together with two others, with the murder of the late Mr. Mulvanney in the Templeogue area of Dublin on the 11^th March, 2000. He was also charged with assault on Matthew O'Dowd on the same day, with producing a weapon capable of inflicting serious injury in a manner likely to intimidate, with assault with intent to rob one Karl Dunne and with producing an article capable of inflicting serious injury likely to intimidate the same person. All offences took place on the 11^th March, 2000. The article referred to in two of the charges was a drinking glass.

6 After a trial lasting seventeen days the appellant was found not guilty of murder but guilty of the manslaughter of Brian Mulvanney. Subsequently, the accused pleaded guilty to the count of assaulting Matthew O'Dowd (count 2 in the indictment) and to the count of producing an article capable of inflicting serious injury to Karl Dunne (count 5). He was eventually sentenced to ten years detention on count 1, to date from the 2^nd April, 2003 and three years detention on each of the other counts to run concurrently with each other and with the first sentence and to date from the 13^th October, 2003.

7 It should be noted that the accused had offered to plead guilty to manslaughter before the trial and, of course, that he was acquitted on the count of murder. Of the co-accused, one was convicted of murdering Mr. Mulvanney and the other was acquitted entirely on the murder charge.

The facts of the case

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