DPP v Black

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 31 July 2009
• Neutral Citation: [2009] IECCA 91
• Court: Court of Criminal Appeal
• Date: 31 July 2009

[2009] IECCA 91

THE COURT OF CRIMINAL APPEAL

Murray C.J.

McCarthy J.

O'Keeffe J.

222/2008

DPP v Black

[2009] IECCA 91

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

UNA BLACK

APPLICANT

CRIMINAL JUSTICE ACT 1984 S4

DPP v KELLY (STEPHEN) 2005 2 IR 321 2005 1 ILRM 19 2004/16/3531 2004 IECCA 14

DPP v PRINCS UNREP CCA 31.7.2007 2008/21/4521 2007 IECCA 142

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 248

CRIMINAL LAW

Sentence

Severity - Manslaughter - Mitigation - Early guilty plea - Gravity of offence - Personal circumstances - Absence of premeditation - Remorse - Personality disorder - Pregnant mother - Relevant factors to be considered - Whether adequate consideration given to early plea - Whether distinction between voluntary or involuntary might be considered- DPP v Kelly [2004] IECCA 14, [2005] 2 IR 321, DPP v Princs [2007] IECCA 142 (Unrep, CCA, 31/7/2007) applied - Leave to appeal refused (CCA 2008/222 - CCA - 31/07/2009) [2009] IECCA 91

People (DPP) v Black

Facts: The applicant pleaded guilty to a manslaughter charge and the trial court sentenced the applicant to a term of imprisonment of nine years. He sought to appeal against the sentence on the grounds that it was unduly severe and disproportionate and that the trial judge had claimed to have had regard to the offence as being involuntary manslaughter and that there was a failure to allow for a sufficient reduction in sentence for an early plea, admissions and remorse of the applicant.

Held by the Court of Criminal Appeal per Murray CJ (McCarthy & O’ Keefe JJ. concurring) that there were a range of mitigating factors before the Court that had to be considered and weighed as to the gravity of the offence. The offence was one of manslaughter. The sentence of nine years was not tainted by an error on the part of the trial judge. The decision of the trial judge adequately reflected the weight to be attached to the mitigating factors.

Reporter: E.F.

1 JUDGMENT of the Court delivered by Murray C.J.on the 31st day of July 2009

2 On the 26 ^th day of May 2008 at the Central Criminal Court the applicant pleaded guilty to the manslaughter of Mr. John Malone at Walter Macken Flats, Galway.

3 The trial Court sentenced the applicant to a term of imprisonment of nine years. She has applied for leave to appeal against the imposition of that sentence on the grounds that, in the circumstances of the case, it was unduly severe and disproportionate.

Background Facts

4 At the time of the offence the deceased victim was 42 yeas of age, single and living alone in a ground floor flat at No. 36 Walter Macken Place, Galway. He socialised fairly frequently with the applicant and her partner, who lived at No. 23 in the same flat complex. The applicant's flat was more or less opposite and overlooking that of the deceased. It was on the other side of a very small green between the two buildings on the second floor.

5 At the time of the offence the applicant was aged 24 years. The deceased was in the habit of keeping dogs and at the time was also looking after a puppy dog belonging to theapplicant. An altercation which took place between the applicant and the deceased, and which led to him being inflicted with a fatal stab wound, arose from a row between them which centred on the applicant's dog.

6 At 5.45 a.m. on the morning of 3 ^rd December 2006 an emergency phone call was received at the control centre in Galway Garda Station and a second call one minute later. The first call was from a woman who gave her name as Una but was later identified as the applicant who told the control centre that a man had been in a fight with two young fellows, had been knocked to the ground, and that she, the caller, was afraid to go over to where it happened. An ambulance was requested and the deceased's address given. The second phone call came from a neighbour of the applicant who had been alerted by the disturbance.

7 When the Gardaí arrived at the scene they found the deceased lying in a pool of blood face down. He was taken to hospital and pronounced dead at 6.43 a.m. The post-mortem revealed that he had died from a single stab wound to the upper left chest. There was evidence that there were no defensive wounds to his body and that he had a blood/alcohol reading of 203 milligrams.

8 In the meantime Garda investigations led them to visit the flat resided in by the applicant where both she and her partner denied any knowledge of what had gone on that morning. Both she and her partner were detained pursuant to the provisions of s. 4 of the Criminal Justice Act 1984. Her partner was to be later released without charge.

9 The deceased and the applicant had been friendly neighbours for a number of years in spite of rows which they may have had from time to time. There was evidence that on occasion the deceased would get "narky" and that he and the applicant would have rows when there was drink taken. Some time before the date of the offence the applicant had called the Gardaí on account of an assault on her by the deceased, but she had not pursued the complaint when the Gardaí arrived. The deceased was on a disability allowance and did not work. The applicant and her partner and the deceased would drink together frequently either in their flats or elsewhere. The applicant had acquired a pup and she had asked thedeceased to look after the pup in his flat apparently because the applicant's partner and the latter's daughter, who lived with them, did not like the pup being kept in the flat.

Circumstances Surrounding the Commission of the Crime

10 In the late afternoon of December 2 ^nd the applicant had left her flat to purchase some beer and a bottle of whiskey. On her return she spent the evening drinking with her partner and another person in her flat. The deceased, Mr. Malone, arrived in her flat late that evening and remained there drinking with them into the early hours of the morning. He left the flat not long before approximately 4.30 a.m. Before the deceased left, an argument had broken out between him and the applicant arising out of the circumstances in which he was minding her puppy dog. There was apparently a lot of shouting and verbal abuse but nothing physical in the argument. A short while after the deceased had left the applicant decided to retrieve her own dog from his flat. Before she did so she went into the kitchen and got a knife to bring with her. She told the Gardaí in one of her statements that she brought the knife just to scare him. She also acknowledged that she was upset and in a temper. When she went over to the deceased's flat the door was open. She grabbed her own dog and left. The deceased saw her and ran out, grabbed her by the arm and took the dog off her. She added that he had pulled her down. There was a further argument at this stage and they were shouting at one another. The deceased went back to the flat with the dog and the applicant decided to go back and try to take the dog again. The deceased then came out again and according to the applicant's account he pushed her and "we two started fighting". She told the Gardaí in one of her interviews that "the two of us started wrestling and fighting and ended up on the grass and the two of us started hitting one another and that is probably how it ended up happening".

11 This was a reference to her stabbing him with the knife which she had brought with her and had been carrying in her right hand.

12 According to her account her mind went blank at this point and she does not remember the act of stabbing the deceased She said she could not remember exactly how it happened and while she could not remember the knife "going in" to the deceased, shecould remember it "coming out". She remembered that there was blood on the knife after the stabbing. According to her account the deceased went back into his flat after being stabbed.

13 The account that she gave to the Gardaí (in her third interview on 3 ^rd December 2006) was that she only wanted to scare him and that she never intended to kill him or to stab him.

14 After the stabbing she left the scene bringing the bloodstained knife with her. She returned to her flat. She gave the knife to her partner who got rid of it. He in fact left the applicant's flat to go to the deceased's and came back and told the applicant that the deceased was unconscious on the floor of his flat. It appears that at that point the applicant telephoned the Gardaí and requested an ambulance.

15 When first interviewed by the Gardaí the applicant denied any involvement in the killing of the deceased and at another point claimed that it was the deceased who "pulled a knife on her". Subsequent to her return for trial, she offered to plead to the offence of manslaughter in February 2008. This was not then accepted and she failed to turn up for her trial on a charge of murder when this was listed for Galway on 8 ^th Galway 2008. In fact she had fled to Wales. A European Arrest Warrant was issued but before it could be executed she had come back on a boat through Rosslare where she was arrested.

16 As regards the applicant herself, she was 24 years of age at the time of the offence and had no previous criminal convictions. Evidence was tendered on her behalf that she had been the victim of rape at the age of 10, had suffered psychiatric difficulties giving rise to episodes of self harm and had indulged in substance abuse and in particular significant alcohol abuse. A psychiatric report was tendered to the Court which reviewed her past history including her childhood sexual abuse and concluded that she had a personality disorder as did the psychologist whose report was also furnished to the Court. She was not suffering from any mental disorder.

17 In mitigation at the trial reference was...