DPP v Da Silva
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] IECA 222 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 271/2017 |
| Date | 30 July 2019 |
[2019] IECA 222
THE COURT OF APPEAL
Edwards J.
Birmingham P.
Edwards J.
Baker J.
Record No: 271/2017
Sentencing – Manslaughter – Severity of sentences – Appellant seeking to appeal against sentences – Whether sentences were unduly severe
Facts: The appellant, Mr da Silva, was charged with murder, with assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, and with producing an article, i.e. a knife, in the course of a dispute or a fight, in a manner likely unlawfully to intimidate another person, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. He was tried before a jury in the Central Criminal Court. The jury returned with verdicts of not guilty of murder but guilty of manslaughter, not guilty of assault causing harm, and guilty of the s. 11 offence. The appellant was sentenced to a term of imprisonment of eight years in respect of the manslaughter, and to a term of imprisonment of five years in respect of the s. 11 offence. Both sentences were to be concurrent and to run from 8 October 2016. The appellant appealed to the Court of Appeal against the severity of his sentences, complaining that the trial judge erred in law and in fact in: (i) imposing a custodial sentence which was excessive in all the circumstances of the case; (ii) placing the index offence in the highest category as the starting point for the construction of his sentence; (iii) failing to suspend any portion of the ultimate sentence; (iv) failing to treat the original plea of guilty to manslaughter, prior to the trial, as an effective plea of guilty when considering his sentence; (v) failing to give any or any adequate weight to certain of the mitigating factors advanced on behalf of the appellant; and (vi) attaching disproportionate weight to purported aggravating factors and/or in characterizing certain factors as aggravating.
Held by the Court that it had not been disposed to uphold any of the appellant’s grounds of complaint.
The Court held that the appeal would be dismissed.
Appeal dismissed.
The appellant in this case was charged with murder, with assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997, and with producing an article, i.e. a knife, in the course of a dispute or a fight, in a manner likely unlawfully to intimidate another person, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. He was tried before a jury in the Central Criminal Court. The jury returned with verdicts of not guilty of murder but guilty of manslaughter, not guilty of assault causing harm, and guilty of the s.11 offence.
The appellant was sentenced to a term of imprisonment of eight years in respect of the manslaughter, and to a term of imprisonment of five years in respect of the section 11 offence. Both sentences were to be concurrent and to run from 8 October 2016.
The appellant now appeals against the severity of his sentences.
The sentencing court heard evidence that in the early hours of the morning of the 8thof October 2016 the appellant, who is a Brazilian national working as a butcher at the Dawn Meats plant in Waterford, was socializing in the city of Waterford with a number of friends and co-workers. They had been drinking in various licensed premises and playing pool. Just before 3am on that date the appellant left his companions to go home. He lived at the time on John's Lane which was just off John's Street. While making his way home he encountered Mr. James Banville and Mr. Conor Hogan on Cross Lane. The appellant was quite inebriated, and later contended that he was subjected to racist taunts by Mr. Banville and Mr. Hogan following which they then proceeded to assault him by kicking and punching him. The incident on Cross Lane was captured on CCTV, and it was also independently witnessed, and both the recording and the witness's testimony made it clear that the appellant was not the aggressor on this occasion. The CCTV also captured Mr. Banville and Mr. Hogan ingesting drugs, later shown to be cocaine, just before they engaged in harassing and assaulting the appellant.
Following this initial harassment and assault, the appellant continued in the direction of his home and on arrival at his apartment met with one of his flatmates, a Mr da Cruz. Mr da Cruz testified that the appellant enquired about his friends from whom he had become separated. While in the apartment the appellant changed his clothes and having done so armed himself with a kitchen knife and took it with him as he left the apartment. At this point he was accompanied by Mr. da Cruz. When interviewed after the incident giving rise to the charges that were later preferred against him, he contended that he had gone out again to look for two of his friends with whom he had been earlier, and he had brought the knife with him because he was concerned about the safety of those friends.
Upon leaving the apartment with Mr. da Cruz they proceeded from John's Lane onto John Street and walked around for a few minutes before returning to John's Lane and separating. Mr. da Cruz went back home but the appellant stopped to speak to a couple of young women who were sitting on the steps outside his apartment building. As he was doing so Mr. Banville and Mr. Hogan passed by. They again taunted the appellant, this time with sexual innuendos, and again assaulted him. This was only an estimated 15 minutes after the first assault. As on the previous occasion, the second assault was also captured by a CCTV camera on an adjacent building. Once again it was clear that the appellant was not the aggressor.
After the second attack had ceased, Mr. Banville and Mr. Hogan continued from John's Lane onto John Street and proceeded in the direction of New Street. The appellant initially hesitated momentarily but then followed them. Mr. Banville and Mr. Hogan walked around the corner into New Street and a further altercation ensued between them and the appellant on New Street. This altercation was not captured on camera, however there were a number of eye witnesses who were in a position to give some evidence as to how matters unfolded. These witnesses indicated that when the appellant reached the top of the hill and turned on to New Street, Mr Banville and Mr Hogan were some distance further along that street. There was evidence that a considerable amount of shouting ensued emanating from all protagonists. Mr Banville and Mr Hogan then proceeded back along New Street in the direction from which they had come, towards the appellant. The appellant stood his ground and did not retreat. Shouting continued and when Mr Banville and Mr Hogan reached him there was a confrontation and an ensuing altercation. We were told during the appeal hearing that there was evidence at the trial from eye witnesses to the effect that, at one point during this altercation, the appellant was being held by Mr Banville and Mr Hogan, and seemingly it was at this point that the appellant produced the kitchen knife with which he had armed himself and stabbed both Mr. Banville and Mr. Hogan.
Mr. Hogan sustained only superficial wounds but sadly Mr. Banville sustained mortal wounds. After he had been stabbed Mr. Banville managed to walk just a short distance before collapsing and falling to the ground. He was assisted first by Mr. Hogan and then by several people who came upon the scene. He was bleeding quite severely and although he was removed to hospital all attempts to resuscitate him were unsuccessful and he was pronounced dead.
Gardai arrived at the scene shortly after the incident, and the appellant was quickly identified as the principal suspect in connection with the suspicious death of Mr. Banville. Gardai then went to the appellant's apartment and he was arrested there. He was taken to a Garda station where he was detained and found unfit to be interviewed immediately due to being intoxicated. He later complained of headaches and dizziness and was seen while in custody by a doctor.
When he had recovered sufficiently to be interviewed he was questioned about the incident and he initially denied assaulting or stabbing either Mr. Banville or Mr. Hogan. As previously indicated he was later charged with the murder of Mr Banville, with assaulting Mr Hogan causing him harm, and with the s.11 offence involving possession of a knife. Insofar as the murder charge was concerned, he offered a plea to manslaughter in advance of his trial, but this was not acceptable to the Director of Public Prosecutions and in those circumstances the trial proceeded as a murder trial. The case was defended based on provocation and in the alternative as a case of excessive self-defence. While it is not clear on what basis the jury decided to return a verdict of not guilty of murder but guilty of manslaughter, the appellant was sentenced on the basis that he had been subjected to substantial provocation involving being physically assaulted and subjected to taunts of a racist and sexual kind on two separate occasions just a short time before the incident in which Mr. Banville and Mr. Hogan were stabbed.
The sentencing court received poignant victim impact statements from Mr. Banville's partner, Kelly Leonard, as well as from his brother Aidan, and these were read into the record. In addition, his sister, Ms Anne-Marie Banville, gave victim impact evidence herself in court. It was manifest from these testimonials that Mr. Banville was dearly loved by his large family and that they are all distraught to have lost him. It is particularly tragic that Mr. Banville had three very young children, Carly, aged 3,...
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