DPP v Mahon

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Birmingham
• Judgment Date: 07 December 2017
• Neutral Citation: [2017] IECA 320
• Date: 07 December 2017
• Docket Number: [178/16]

[2017] IECA 320

THE COURT OF APPEAL

Birmingham J.

Peart J.

Birmingham J.

Mahon J.

[178/16]

The People at the Suit of the Director of Public Prosecutions

Respondent

V

David Mahon

Appellant

Crime & sentencing – Manslaughter – Murder trial – Appellant found not guilty of murder but guilty of manslaughter – Appeal against severity of sentence

Facts: The appellant had stood trial for murder of his step-son. He had been found not guilty of a count of murder but had been found guilty of manslaughter. He contended his sentence was severe and alleged the judge had sentenced him in a manner inconsistent with the verdict of the jury.

Held by the Court that the appeal would be dismissed. The Court was satisfied that the sentence handed down was consistent with sentences in earlier cases with broadly similar facts, notwithstanding the trial judge not specifically addressing submissions before her.

JUDGMENT of the Court delivered on the 7th day of December 2017 by Mr. Justice Birmingham

1 This is an appeal against severity of sentence. The sentence under appeal is one of seven years imprisonment in respect of the offence of manslaughter that was imposed in the Central Criminal Court on 13th June, 2016. The sentence was imposed in circumstances where the appellant had stood trial for murder but had been found not guilty of murder, but guilty of manslaughter by the jury.

2 As sentence appeals go, this one is somewhat unusual. Most sentence appeals are based around the argument that the sentencing judge picked a starting point that was too high and/or failed to give sufficient credit for mitigating factors present. Applications to review on grounds of undue leniency are normally a mirror image of this. Unusually, the case made here is that the judge when sentencing did not sentence in accordance with the verdict of the jury. It is said that the jury's verdict must mean that they formed a particular view of the facts of the case but that the judge passed sentence on an altogether different basis. The defence says that this was a trial at which two starkly different accounts of the events leading to the death of the deceased were put before the jury. The prosecution sought a verdict of murder, contending that the appellant had deliberately stabbed the deceased causing his death, whereas the defence contended that the case was one of self-impalement by the deceased onto a knife that was being held by the appellant. The issue raised on the sentence appeal makes it necessary to consider the contents of the judge's charge to the jury and even to some extent, what was said by counsel on either side in their closing speeches.

3 Before considering the issues raised on the appeal it is necessary by way of background to explain that the trial was concerned with events that occurred on 26th May, 2013 which resulted in the death of Dean Fitzpatrick, who is the step-son of the appellant. There was evidence in the trial that the relationship between the deceased and the appellant was not an easy one. In the days leading up to the incident, the appellant had asked for his step-son to be barred from the gym where they were both members for interfering with his bicycle and stealing a bottle of water from it. On the day of the offence, the appellant had been drinking and wanted to see his step-son. At about 9 p.m., the appellant rang the partner of Mr Fitzpatrick, Ms Sarah O'Rourke, looking for him and he told her to tell him to come up to the apartment. Her evidence was that the appellant sounded drunk. When she informed him that she did not know where her partner was, the appellant became aggressive and said that if she did not tell her partner to ring him, he would get a knife and stick it in her head. At about 10 p.m. that evening, the appellant made contact with a friend of his, a taxi driver Carl O'Toole, and asked him to come to his apartment. Mr O'Toole said that the appellant told him that he had split up with his partner, the mother of the deceased. When he met the appellant, it seemed to him that the appellant was drunk and agitated. They initially went to Mr O'Toole's house before returning to the appellant's apartment. When they arrived back there, they were joined by another friend of the appellant, John McCormack. Mr O'Toole said that the appellant rang the deceased asking where he was and asked him to come to the apartment. Mr Fitzpatrick did so. Mr O'Toole's evidence was that when Mr Fitzpatrick arrived, that the appellant confronted him over him taking his water bottle from the gym, and that they both became agitated. After they had calmed down, Mr McCormack took Mr Fitzpatrick out of the apartment and the appellant followed them out. Mr O'Toole did not see what happened outside the apartment, but after approximately a minute, the appellant returned into the apartment holding a large knife, saying ‘you have to get me out of here.’ This was the first point at which Mr O'Toole had seen the appellant with a knife. The appellant fled the scene with Mr O'Toole, who had his taxi right outside the building. As they were driving, the appellant told Mr. O'Toole that he thought Mr Fitzpatrick was dead, and that the knife had gone right through him. They went for a drink in the Balrothery Inn, and Mr O'Toole advised the appellant at this stage to go to the Gardaí. Shortly after they left the pub, Mr O'Toole had to fill his car with diesel, and the appellant got out of the taxi before they drove into a garage, as he did not want to be seen on CCTV. The appellant told Mr O'Toole to stay off the motorway. Eventually Mr O'Toole drove the appellant to the home of his father.

4 On the following morning the appellant presented himself at Coolock Garda Station at 9.45 a.m. where it was noted that he was very emotional and extremely upset. He declined the offer of a solicitor and made a number of admissions in a cautioned voluntary interview and then, when arrested and detained, made further admissions in four subsequent interviews. In these interviews the appellant accepted that it was his fault that Dean Fitzpatrick was dead. He said that they had been fighting for years and that he had asked him to come to the apartment to sort out things. Mr Mahon said that as they were arguing in the kitchen, the deceased pulled a knife on him which came from the kitchen and was waving it around, saying he would stab the appellant. The appellant said he took the knife off the deceased and put it in the back pocket of his jeans. Subsequently at trial there was evidence that the pocket was damaged beyond normal wear and tear.

5 When Mr Fitzpatrick left the apartment, the appellant followed him out and took the knife out of his pocket to show it to him, to ask him why he was after pulling that knife on him. The appellant said that when he did that, that the deceased walked into the knife. He said that he knew that he had cut him but that he thought it was just a graze, and that Mr Fitzpatrick had run down the stairs. He said that he did not see blood at the time but saw some blood on the knife when he was in Mr O'Toole's car and that he threw it out the window. Specifically, the appellant said that he did not mean to kill his son-in-law but that the deceased had walked onto the knife when he took it out to show it to him. He made reference to the fact that the deceased had previously tried to self-harm.

6 The appellant was charged with murder. In advance of trial, he offered a plea of guilty to manslaughter. This was not accepted by the Director of Public Prosecutions and the matter proceeded to trial. At trial, a major issue in the case was whether the deceased had sustained injury as a result of a deliberate stabbing by the appellant, involving the thrusting of a large knife deep into the abdomen of the deceased, or had the deceased suffered injuries which proved fatal as a result of his self-impalement onto the knife held by the appellant. The judge dealt, as is usual, with the possibility of a manslaughter verdict. She had this to say:

...