DPP v Kelly
 IECCA 14
THE COURT OF CRIMINAL APPEAL
DPP V DILLON UNREP CCA 17.12.2003 2003/15/3271
DPP V M
DPP V CUNNINGHAM 2002 2 1R 712
COURTS OF JUSTICE ACT 1924 S34
CRIMINAL JUSTICE ACT 1964 S4
O'MALLEY SENTENCING LAW AND PRACTICE 2000 ED
DPP V BOTHA UNREP CCA 19.1.2004
HEALY, STATE V DONOGHUE
AG, PEOPLE V O'DRISCOLL 1972 1 FREWEN 351
DPP V M
DPP V MCAULEY & WALSH
This is the applicant's application for leave to appeal against a sentence of fourteen years imprisonment imposed on him for manslaughter. The application is somewhat unusual in the sense that it features what is alleged to be a pure error of principle, that is to say the explicit expounding of an approach to sentencing which is admirably clear and transparent but which Mr. McEntee says is wrong and unwarranted in law. Both sides are agreed that that approach is set out at pages 34 and 35 of the transcript of the sentencing hearing of the 18th February, 2003. There the learned trial judge is recorded as saying the following:-
"… there now appears to be a somewhat total lack of regard or value placed on human life and far too many in our society seem all too ready to resort to the use of knives or other sharp instruments in the course of disputes with their fellow man. I am not taking into account newspaper reports that one might see on this but one only has to look at the cases coming before this Court and other courts to see that that is the position. A halt must be called to this type of conduct and deterrent sentences must be imposed in cases involving death and serious injury on the use of knives in the hope that such a halt will be effected. The penalty permissible for manslaughter is life imprisonment and in a case such as this one I consider that a sentence of not less than twenty years is appropriate. That however is not the end of the matter, I must evenly balance the rights of society and your rights and having determined what I consider to be the appropriate sentence for the particular offence or crime I must look to your personal circumstances and see what mitigating factors if any there are that would render it inappropriate for me to impose a sentence of twenty years and would render it appropriate for me to impose a lesser sentence upon you".
The mitigating factors are then discussed.
Mr. McEntee says that this approach is quite wrong in principle. He says that it amounts to the positing of a minimum sentence for this offence where none has been laid down by the Legislature. He refers us to the case of theDPP v. John Dillon (unreported Court of Criminal Appeal, 17th December, 2003) a judgment of this Court on the 17th December, 2003 where the trial judge (as Mr. O'Connell points out, the same learned trial judge) said:-
"The maximum permissible sentence for manslaughter is life but I do not consider life to be the appropriate sentence. In my view however where a knife is used and life is taken the minimum sentence upon trial and conviction by a jury is twenty years and that would seem to be the appropriate sentence without having regard to your particular circumstances".
"The trial judge did then go on and take into account in an exemplary judgment the various matters which constituted the particular circumstances of Mr. Dillon's case. However it seems to this Court that he erred seriously in principle. First of all by saying that there was a minimum sentence of twenty years which seems totally wrong in principle no matter what the offence or what the circumstance".
Mr. O'Connell concedes that if we are to follow theDillon case that this sentence must be regarded as wrong in principle. He urges however on behalf of the Director that the approach which was taken is mandated by the decision of the Supreme Court in The DPP v. M  3 IR at 306. He quotes from that judgment a passage which is the penultimate sentence in the judgment of Mr. Justice Egan. The paragraph reads as follows :-
"It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence applicable. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made".
The Court has very seriously considered that paragraph since it is effectively the whole of the case put forward by the Director on this issue. We are quite unable to see how the passage supports the approach which was taken on this case and we are quite unable to see the basis on which the Director might consider that it did. Mr. Justice Egan is saying a number of things. He is saying first of all that one does not simply apply the mitigating factors to the maximum sentence and come up as a result with the appropriate sentence. On the contrary, he says, one looks first at the range of penalties and locates where on the range the particular case should lie and onethen applies the mitigating factors after having performed that exercise. Now the exercise described there seems to us quite clearly to be inconsistent with the approach which was taken in this case. In this case no attempt was made, logically having regard to what the learned trial judge considered the right approach, to find the whereabouts on the range of penalties this particular case lay before applying the mitigating circumstances. On the contrary the learned trial judge very transparently declared that the minimum sentence for a type of offence involving a fatality caused by a knife or other sharp instrument was twenty years. He then went on to say in a passage conspicuous for its clarity that the role of the mitigating circumstances would be to render it appropriate for him to impose a lesser sentence, that is to say a sentence less than twenty years.
We have to say therefore that the approach to sentencing in the present case, although conspicuous for its straightforwardness and its clarity, and although plainly based on the very laudable motive of deterring offences such as this, was wrong in principle and represented a departure without any supporting authority from the established principles of sentencing. We therefore find that there is an error of principle in the sentence in the present case and we will therefore, following the procedures required under the authority ofDPP v. Cunningham, proceed now to hear submissions and to consider what is the appropriate sentence.
The Court has already found, in its judgment of 26th May, 2004 that the sentence of fourteen years imprisonment imposed on the applicant was wrong in principle. The reasons for this conclusion are set out above.
Accordingly, by reason of section 34 of the Courts of Justice of Act1924, substituted by section 3 of the Criminal Procedure Act1993, it becomes the duty of the Court to "impose such sentence or make such order as it considers appropriate, being a sentence or order which could have been imposed on the convicted person for the offence at the Court of Trial……" This sentence will then apply "in place of" the original sentence. We have heard submissions on the question of the appropriate sentence.
InD.P.P. v Cunningham, the Supreme Court held that this court is normally precluded from considering "evidence in relation to events or facts subsequently occurring relating to the behaviour of the applicant, his state of health or otherwise which might be relevant to the Court were itself deciding on the correct sentence". The Supreme Court continued, however:
"The position would be different if a stage is reached where the Court has allowed an appeal against sentence, and quashed the sentence originally imposed. It may then proceed, in the exercise of its statutory power, to substitute an appropriate sentence of its own. In doing so the Court is entitled to consider all relevant factors then existing and properly before it, including matters arising subsequent to the original sentence. This is precisely because the Court is then “is self deciding on the correct sentence”, in the words of the certified question. This will not arise unless and until the original sentence has been found to be wrong in principle. In this context, the approach of the Court in imposing an appropriate sentence is similar to that adopted at the same stage of a D.P.P. 's application for review on the ground of undue leniency. A prisoner can never be regarded as more constrained in the matters he can urge in relation to sentence than the Director."
The appellant was charged with the murder of Mr Jonathan Guy. After a fifteen day trial he was found not guilty of murder but guilty of manslaughter. This occurred on the 17 December 2002. On the 18th February 2003 evidence and submissions in relation to sentence were heard and the appellant received the fourteen year sentence mentioned above.
As part of the sentencing process, counsel on behalf of the Director summarised the case as follows for the learned trial judge:
"The Court is aware that Mr Kelly was found guilty of manslaughter by the...
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