DPP v Mackey

• Jurisdiction: Ireland
• Judge: Mrs Justice McGuinness
• Judgment Date: 24 November 2004
• Neutral Citation: [2004] IECCA 45
• Court: Court of Criminal Appeal
• Date: 24 November 2004

[2004] IECCA 45

COURT OF CRIMINAL APPEAL

McGuinness J.

Butler J.

Abbott J.

DPP v. MACKEY

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

and

SEAN MACKEY

APPLICANT

Citations:

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S15

DPP V DUFFY & O'TOOLE 2003 2 IR 192

AG, PEOPLE V POYNING 1972 IR 402

O'MALLEY SENTENCING LAW AND PRACTICE PARA 6.28

O'MALLEY SENTENCING LAW AND PRACTICE PARA 6.30

O'MALLEY SENTENCING LAW AND PRACTICE PARA 6.32

Synopsis:

- [2005] 1 ILRM 481

This was an application for leave to appeal against the severity of the sentence imposed on the applicant. The gounds of appeal were that the trial judge had: failed to have regard to the principle of parity between co-offenders; failed to take into account matters which should have been taken into account; took into account matters which he should not have taken into account; and failed to have regard to non-custodial options.

Held by the Court of Criminal Appeal in treating the application as the substantive appeal and dismissing the appeal that there was evidence before the court which would sufficiently support the differentiation made by the trial judge between the conduct of the applicant and his co-offenders. The trial judge carried out his task of analysing and weighing the aggravating and mitigating factors with great care and he reached a just and fair balance in imposing sentence.

Reporter: R.W.

Mrs Justice McGuinness

1 This is an appeal against the severity of the sentence imposed on the applicant by His Honour Judge Michael White in the Dublin Circuit Criminal Court on the 15^th day of March 2004. Leave to appeal was refused by the trial judge and the applicant now applies to this court for leave to appeal. The application will be treated by this court as the substantive appeal.

2 The applicant, together with three co-accused, was charged on a count of manslaughter of one Brian Murphy and also on a count of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act1994.

3 Following a lengthy and much publicised trial the applicant was convicted by a jury on the 26^th February 2004 on the count of violent disorder. On the following day the jury failed to agree in respect of the count of manslaughter. On the 8^th day of March 2004 the Director of Public Prosecutions indicated that he would not be proceeding with a retrial of the applicant in respect of the count of manslaughter. Following a hearing in regard to sentence the applicant was sentenced by the learned trial judge to two years imprisonment on the count of violent disorder, the term of imprisonment to date from the 15^th March 2004.

4 The applicant's co-accused Dermot Laide, who had been convicted on both counts, received a sentence of four years imprisonment in respect of the count of manslaughter, together with a concurrent sentence of two years on the count of violent disorder.

5 The applicant's other co-accused Desmond Ryan was acquitted by the jury on the count of manslaughter. He was convicted on the count of violent disorder and was sentenced by the learned trial judge to a term of nine months imprisonment, the warrant for such imprisonment not to issue until 31^st May 2004, the date on which Mr Ryan was due to finish his final university examinations. Mr Ryan has since that date been granted bail by this court pending the hearing of his appeal against conviction, which is to be heard by the court at a future date.

6 The charges against the applicant and his co-accused arose from events which occurred outside the Burlington Hotel, Sussex Road, in the City of Dublin, in the early hours of 31^st August 2000, following the closing of the nightclub known as Annabel's, which was attached to the hotel. On leaving the nightclub a crowd of young people had gathered around the entrance to the hotel, some waiting for taxis or other forms of transport either to their homes or to other forms of entertainment. It is clear from the lengthy and detailed evidence at the trial that many of those present had consumed a very considerable amount of alcohol, both at the nightclub and prior to attending there. In the course of a short period of time, amounting to a matter of minutes at most, a dispute broke out and Brian Murphy, an eighteen year old young man, was subjected to a sustained attack by a number of other young men. He suffered injuries as a result of which he lost consciousness. An ambulance was called and Mr Murphy was brought to hospital where, after an unsuccessful attempt at resuscitation, he was subsequently pronounced dead. The evidence of the State Pathologist, Dr. John Harbison, was that the cause of death was cerebral oedema, complicated by inhalation of blood into the lungs, and that this was attributable to multiple facial injuries due to assault. Dr. Harbison also gave evidence of other injuries to Mr Murphy's body and limbs.

7 Section 15 of the Criminal Justice (Public Order) Act1994provides:

"Violent Disorder"

8 (15) - (I) Where —

9 (a) three or more persons who are present together at any place (whether that place is a public place or a private place or both) use or threaten to use unlawful violence, and

10 (b) the conduct of those persons, taken together, is such as would cause a person of reasonable firmness present at that place to fear for his or another person's safety,

11 then, each of the persons using or threatening to use unlawful violence shall be guilty of the offence of violent disorder.

12 (2) For the purposes of this section —

13 (a) it shall be immaterial whether or not the three or more persons use or threaten to use unlawful violence simultaneously;

14 (b) no person of reasonable firmness need actually be, or be likely to be, present at that place.

15 (3) A person shall not be convicted of the offence of violent disorder unless the person intends to use or threaten to use violence or is aware that his conduct may be violent or threatened violence.

16 (4) A person guilty of an offence of violent disorder shall be liable on conviction on indictment to a fine or to imprisonment for a term not exceeding 10 years or to both.

17 (5) A reference, however expressed, in any enactment passed before the commencement of this Act —

18 (a) to the common law offence of riot, or

19 (b) to the common law offence of riot and to tumult,

20 shall be construed as a reference to the offence of violent disorder.

21 (6) The common law offence of rout and the common offence of unlawful assembly are hereby abolished."

22 The applicant's grounds of appeal, which were set out in greater detail in written submissions to this court, are as follows:

23 The learned trial judge erred in law and in principle in that he:

24 2 (1)failed to have regard to the principle of parity between co-offenders.

25 (2) Failed to take into account matters which he should have taken into account.

26 (3) Took into account matters which he should not have taken into account.

27 (4) Failed to have regard to non-custodial options.

28 In introducing his oral submissions to this court senior counsel for the applicant, Mr Sammon, indicated that the applicant, in the light of the fact that he had already served some eight months of his sentence, would not be pursuing the fourth ground of appeal. The court readily accepted the applicant's position in this regard.

29 The learned trial judge in his sentencing judgment dealt with the sentence which he imposed on the applicant as follows:

"I now turn to the conviction of Sean Mackey for violent disorder. In the course of the trial the case was strongly made by Mr Mackey and two of the other accused that the group with Brian Murphy were the initial aggressors. There is no doubt from the evidence that the dispute arose when some one from this group started to jeer Andrew Frame. Mr Frame in his statements in evidence accepted he had approached the group and became aggressively verbal in response. Some pushing and shoving ensued between Andrew Frame and Brian Murphy. At this time Sean Mackey intervened. In the course of trial and in his plea it was submitted that he only responded to an unprovoked assault on him by Mr Murphy. While undoubtedly Brian Murphy threw the first punch, this court does not accept that Mr Mackey became involved either in direct response to an assault on him by Brian Murphy or as a peacemaker. His involvement in this incident directly led to its escalation. There was overwhelming evidence in the course of the trial that from his initial approach to assist Mr Frame up to his journey home in a taxi, his demeanour was that of a person out to cause trouble. He contributed significantly to the seriousness of this incident. The kick delivered to the body of Mr Murphy when he was in a defenceless position on the ground, while not life threatening, was a serious assault.

The aggravating factors are his contribution to the escalation of this incident, in the course of this serious incident of violent disorder a young man lost his life, and his demeanour throughout the incident. The mitigating factors are his previous excellent character, borne out by the character evidence and testimonials presented to the court, his age of nineteen years at the time of the offence, the improbability of future criminal behaviour, the damage to his character due to the widespread publicity, his voluntary admissions and the offence was not planned or premeditated. Having considered all these factors, the court will impose a custodial sentence."

30 As set out above the learned trial judge went on to impose a sentence of two years imprisonment.

31 Given that the applicant's first ground of appeal, deals in essence with a comparison between the sentence imposed on the applicant and that imposed on his co-accused Mr Desmond Ryan, it is...