DPP v Horgan

JudgeMr. Justice Kearns
Judgment Date03 May 2007
Neutral Citation[2007] IECCA 29
CourtCourt of Criminal Appeal
Docket Number[CCA No. 64 of 2006]
Date03 May 2007

[2007] IECCA 29


Kearns J.

Murphy J.

MacMenamin J.

CCA No: 64CJA/06
In the matter of section 2 of the Criminal Justice Act, 1993

JUDGMENT of Mr. Justice Kearns delivered on the 3rd day of May, 2007 .


This is an application brought by the applicant pursuant to s. 2 of the Criminal Justice Act, 1993 for a review of certain sentences of imprisonment imposed on the respondent on 10th March, 2006, following his conviction on that date in the Central Criminal Court for the rape and manslaughter of Rachel Kiely on 26th October, 2000, at the Regional Park in Ballincollig, Cork.


The respondent had been arraigned on two counts on 29th April, 2002, as follows:-


(a) Murder of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.


(b) Rape of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.


A trial lasting 26 days took place in May, 2002 in the course of which the respondent gave evidence denying that he had anything to do with the death or rape of Rachel Kiely. However, at the conclusion of the trial, the respondent was convicted of the said offences and was thereupon sentenced to a term of imprisonment for life on the count of murder and to a term of imprisonment of ten years for rape, the same to run concurrently with the life sentence, but to date from the 6th November, 2000.


Because of an error in the summing up to the jury by the trial judge, both convictions were quashed by this Court on 6th December, 2004, and a retrial ordered, which said trial commenced on 21st February, 2006. On that date the respondent was re-arraigned and, in relation to the count of murder, he pleaded "not guilty of murder but guilty of manslaughter." The respondent at all times maintained his plea of "not guilty" in relation to the count of rape.


The evidence at the second trial was to the effect that Rachel Kiely left her home in Inishmore Square, Ballincollig in Cork with her two dogs to go walking in the nearby regional park at about 5pm on 26th October, 2000. She was then 22 years old and worked as a beautician. While she was seen in the park at around 5.15pm, the dogs returned home without her at about 5.40pm, at which point her mother became concerned as to Rachel's whereabouts and safety. Both the gardaí and friends were contacted and an extensive search was undertaken. Her body was found concealed in undergrowth near some old ruins located in the park. She had been raped and there was further evidence that she had suffered compression to her neck, probably as a result of an armlock, which precipitated her death by causing cardiac arrest. She also had extensive bruising along the left jaw line and some other scratches and superficial injuries.


Evidence as to cause of death was given in the first trial by former State Pathologist Dr. John Harbison. Unfortunately, due to his illness, he was unable to testify in the second trial. His successor, Dr. Marie Cassidy, gave evidence in relation to cause of death which was based on photographs only. She concluded that Rachel was caught and held in an armlock which compressed her neck and precipitated cardiac arrest and death. Semen found on the deceased matched a DNA sample from the respondent, who at the time was a sixteen year old neighbour of Rachel Kiely. The respondent did not give evidence at this second trial.


At the conclusion of the trial, the respondent was ultimately found not guilty of murder by the jury but guilty of manslaughter. He was also found guilty of rape by the jury.


On the same date, the respondent was sentenced to terms of imprisonment of eight years on each count, the same to run concurrently, but as and from the 10th day of March, 2006, with six years of the said sentences being suspended. In formulating the sentences, the learned trial judge noted that the respondent had already spent four and a half years in jail since 2002, the bulk of which was time spent in custody whilst awaiting trial, but some of which followed his conviction in the aftermath of his first trial. The learned trial judge had regard to the fact that the time spent in jail amounted to the equivalent of a six year sentence when remission for good behaviour was taken into account. The sentence of eight years then imposed effectively added a further two years to that six year sentence. The learned trial judge treated the respondent as a person with no previous convictions although that was not strictly the case as of the sentencing date, the respondent having been convicted of certain other offences in 2005, during the period when he was at liberty following the setting aside of his original convictions by this Court. As was noted in evidence given by Sergeant Denis Cahill in the course of the sentencing hearing, the respondent was charged with the main offences on 10th November, 2000. He went into custody on that occasion and remained in custody until 31st January, 2005. At that time he was granted bail by the High Court. However, he later went back into custody on 7th December, 2005, having been convicted at Macroom District Court in County Cork of three offences. These offences consisted of a s. 2 assault, possession of stolen property and burglary, all perpetrated while the respondent was on bail following the quashing of his convictions in the first trial. It appears he received a very light sentence of 30 days in respect of these offences. In passing sentence the learned trial judge treated the respondent as a person who had no previous convictions. He did so on the basis that the three offences dealt with in the District Court were committed subsequent to the main offences of which he was convicted at the trial. He did however state that these later convictions cast some doubt upon the genuineness of the respondent's efforts at rehabilitation while in custody.

The Jurisdiction of the Court

Section 2(1) of the Criminal Justice Act, 1993, provides, inter alia:-

"If it appears to the Director of Public Prosecutions that a sentence imposed by a court... on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence"


The test to be applied on the hearing of such an application was laid down by this Court in Director of Public Prosecutions v Byrne [1995] 1 I.L.R.M. 279, where the following passage occurs at p.287:-

".... since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court."


In People (DPP) v Redmond [2001] 3 I.R. 390 this Court reaffirmed the basic principle that a sentence should not be disturbed just because members of the court, had they been dealing with the matter at first instance, might have imposed a different one. Absent exceptional circumstances, an error of principle must be demonstrated. Where, however, an error of principle is established, this Court should proceed to consider what is the appropriate sentence, following for that purpose the procedures required under the authority of The People (Director of Public Prosecutions) v Cunningham [2002] 2 I.R. 712.

The Application

The grounds upon which the applicant moves in the present case are as follows:-


(a) The learned trial judge failed to have due regard to the fact that the respondent had pleaded not guilty to the offences upon which he was tried until the 21st February, 2006.


(b) The respondent's denials included sworn testimony denying the said offences during the course of his first trial.


(c) The learned trial judge gave undue weight to the age of the respondent as a mitigating factor when imposing a sentence.


(d) The learned trial judge erred in finding that the respondent had rehabilitated himself in whole or in part by virtue of educational opportunities taken by him whilst in custody when he had been convicted for other offences whilst on bail on the said charges, or, alternatively, giving undue weight to that consideration in the particular circumstances having regard to the absence of any contrition in respect of the offences until 21st February, 2006.


(e) The learned trial judge failed to have due regard to the fact that the particular offence of manslaughter was that of assault manslaughter committed in the course of or for the purposes of rape.


(f) that, having regard to the particular facts, the offence of manslaughter on this occasion had to be regarded as being in the most serious class of offences, being a category or class of greater seriousness than manslaughter where the evidence disclosed there was provocation or the use of excessive force in self - defence.

Submissions made on the application

In the course of the application before this Court, Mr. Patrick McCarthy, S.C., counsel for the applicant, contended that the aggravating factors of the offences far outweighed the mitigating factors. He submitted that the evidence in case showed that the respondent had "ambushed" Rachel Kiely while she was out for a walk in the park which was close to her home. The level of violence involved in the course of the rape of Rachel Kiely had led to her death, and was thus to be seen as being in the worst category, or at least in the same category, as those cases where a rape is accompanied by sustained or gross physical assault. Thirdly, he submitted that the value of any plea offered by the respondent at the outset of a second trial was negligible having regard to the history of the case.


Mr. Brendan Grehan, S.C., counsel for the...

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3 cases
  • DPP v Mahon
    • Ireland
    • Supreme Court
    • 11 April 2019
    ...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 ......
  • DPP v W.D.
    • Ireland
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    • 4 May 2007
    ...Prosecutions) v. Holland (Unreported, Court of Criminal Appeal, 15th June, 1998). The People (Director of Public Prosecutions) v. Horgan [2007] IECCA 29, (Unreported, Court of Criminal Appeal, 3rd May, 2007). The People (Director of Public Prosecutions) v. G. McC. [2003] 3 I.R. 609. The Peo......
  • DPP v Da Silva
    • Ireland
    • Court of Appeal (Ireland)
    • 30 July 2019
    ...the accused was aware or ought to have been aware. Examples given of cases falling within this category were The People (DPP) v Horgan [2007] 3 IR 568; The People (DPP) v Kelly [2005] 2 IR 321; The People (DPP) v Thornton [2015] IECA 202; The People (DPP) v Princs [2007] IECCA 142, and The ......

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