DPP v Mahon

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 11 April 2019
• Neutral Citation: [2019] IESC 24
• Court: Supreme Court
• Docket Number: [S.C. No. 23 of 2018],Supreme Court appeal number: S:AP:IE: 2018: 000023 Court of Appeal record number: 2016 no 178 [2017] IECA 320 Central Criminal Court bill number CCCP0038/2014
• Date: 11 April 2019

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Appellant

- and -

David Mahon

Accused/Respondent

[2019] IESC 24

Charleton J.

Clarke C.J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley Iseult J.

Supreme Court appeal number: S:AP:IE: 2018: 000023

[2019] IESC 0000

Court of Appeal record number: 2016 no 178

[2017] IECA 320

Central Criminal Court bill number CCCP0038/2014

An Chúirt Uachtarach

The Supreme Court

Sentencing – Manslaughter – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The accused, Mr Mahon, having been tried in the Central Criminal Court for the murder of Mr Fitzpatrick on 26 May 2013 in the hallway of a block of flats near Darndale in Dublin, was convicted of manslaughter by a jury on 6 May 2016 and sentenced by Heneghan J on 13 June 2016 to a term of seven years’ imprisonment. Before that trial, a formal offer of a plea to manslaughter had been made on behalf of the accused. The precise circumstances underpinning the sentence were argued on behalf of the accused, firstly, to be unclear and, secondly, to require such unclarity to be construed in his favour, thus, it was claimed, reducing the term of imprisonment. The Court of Appeal, on 7 December 2017, refused the accused’s sentence appeal. The Supreme Court, in granting leave to appeal from that refusal in its determination dated 10 July 2018, certified three points of law as being of general public importance: (i) Where a jury acquit a person accused of murder but convict that person of manslaughter, what facts are before the trial judge in sentencing for that crime and is there any further form of enquiry necessitated in order to find such facts and, if so, by what procedure? (ii) How does a trial judge approach setting a proper sentence which is valid in the context of the gravity of the crime of manslaughter, widely variable as such sentence is primarily based on the individual facts of the crime, but perhaps aggravated or mitigated by other factors? (iii) Was the approach of the trial judge in this case as to the facts before the court on the jury acquittal for murder but conviction for manslaughter correct and was the sentence appropriate?

Held by the Court that, in the absence of a sentencing narrative, the Court not having sat through the trial, and thus not having the capacity to interpret the jury’s verdict, it could not take a different view of the sentencing facts than the trial judge.

The Court held that it would not comment as to whether a more serious view could have been taken by the trial judge as that responsibility was for the sentencing judge.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton of Thursday 11th of April 2019

1 This appeal arises from a judgment of the Court of Appeal, given on 7 December 2017, refusing a sentence appeal by the accused David Mahon. Having been tried in the Central Criminal Court for the murder of Dean Fitzpatrick on 26 May 2013 in the hallway of a block of flats near Darndale in Dublin, the accused was convicted of manslaughter by a jury on 6 May 2016 and sentenced by Heneghan J on 13 June 2016 to a term of seven years” imprisonment. Before that trial, a formal offer of a plea to manslaughter had been made on behalf of the accused. The precise circumstances underpinning the sentence are argued on behalf of the accused, firstly, to be unclear and, secondly, to require such unclarity to be construed in his favour, thus, it is claimed, reducing the term of imprisonment. This Court, in granting leave to appeal from the refusal of the accused's sentence appeal in its determination dated 10 July 2018, certified three points of law as being of general public importance:

• Where a jury acquit a person accused of murder but convict that person of manslaughter, what facts are before the trial judge in sentencing for that crime and is there any further form of enquiry necessitated in order to find such facts and, if so, by what procedure?

• How does a trial judge approach setting a proper sentence which is valid in the context of the gravity of the crime of manslaughter, widely variable as such sentence is primarily based on the individual facts of the crime, but perhaps aggravated or mitigated by other factors?

• Was the approach of the trial judge in this case as to the facts before the court on the jury acquittal for murder but conviction for manslaughter correct and was the sentence appropriate?

Background facts

2 There was apparently a close relationship between the victim Dean Fitzpatrick, the father of one young child, and the accused. That it seems arose, in turn, due to the accused's relationship with the victim's mother, so that he was sometimes thought of as a step-father. Both victim and accused regularly trained in the same neighbourhood gym. The accused had a bicycle. He came to believe, whether correctly or not, that the victim had taken a water bottle from it while it was parked there. An email was received at the gym on 24 May 2013 from the accused claiming that ‘someone robbed something from my bike today’, stating that the ‘staff have him on CCTV and know who he is’ and going on to demand that the victim be ‘barred from the gym immediately’ because the accused and his friends ‘paid over 2,000 for our bikes.’ The accused tried to get in contact with the victim through his girlfriend. On the night on which the victim met his death by manslaughter, she was telephoned by the accused and was told to find the victim and tell him to call on the accused because otherwise the accused would drive up to where she was and stick a knife in her head or her neck. The accused, according to the victim's girlfriend, seemed drunk during the call.

3 The victim called over to the accused's flat late that night, perhaps at around 22.30 hours. Two other people were initially present. A row about the bicycle water bottle broke out. This was a verbal altercation. No one produced any weapon at this stage and no blows were struck. Then matters seemed to calm down. The victim and another man went out into the communal landing. That other man seems to have departed. After a short while, the accused followed the victim out. Within minutes, the accused returned. He was noticed by the only other person then present, a taxi driver by occupation, to be carrying a large, long knife. The accused said to the taxi driver: ‘You have to get me out of here, I have to get out.’ He put the knife into his back trouser pocket. Not knowing what had happened, the taxi driver brought the accused in his car on an excursion northwards. While moving towards Balbriggan, the accused told him that he thought the victim was dead and that the ‘knife went through him.’ At some stage, the knife was thrown out of the taxi by the accused. In a state of considerable confusion, the taxi driver got petrol, the accused getting out of the car before entering the filling station plaza for the stated reason of avoiding being captured on any video system. The taxi driver was then was directed go to a public house for a drink. Eventually, the taxi driver left the accused off and drove to his father's residence, with whom he enjoyed close confidence. There, in the early hours of 26 May 2013, the taxi driver spoke to his father about the trouble he had stumbled into. His father advised him to tell the truth and to immediately go to Coolock Garda Station. That is what he did.

4 Meanwhile, at around 23.10 hours, some customers left a Chinese restaurant and shortly afterwards came upon the victim on the pavement near the flat where the accused lived. He was breathing fitfully and was semi-conscious. At 23.20 hours, the gardaí received an emergency call, responding by being at the location four minutes later. A paramedic was by then with the victim. He was seriously wounded by a stab wound to the abdomen, with evisceration and with failing vital signs. The emergency team at Beaumont Hospital were alerted, but despite arriving at 00.10 hours on 27 May 2013 he was found on treatment to have no heart output. Multiple infusions of adrenalin had no effect. The victim was pronounced dead at 00.50 hours.

5 The accused went to Coolock Garda Station shortly after dawn that day. In interviews recorded by gardaí, the accused claimed that the victim had impaled himself on a knife in his hand and that the death was some kind of an unfortunate accident:

We are always having arguments and I tried to put him on the straight and narrow. He took a knife out on me. He pulled a knife on me before, a gun before. Last night he pulled a knife on me. I took it off him. He walked into the knife. I took the knife off him. I put it in my back right pocket. We continued to argue and so did John. There was no violence or anything. We were outside in the hallway. It wasn't a big screaming match. I remember saying, “I'm here to help you”. I took the knife out and showed it, holding it, saying “What … are you doing pulling a knife on your father”, and he walked into the knife. He ran down the stairs and out.

6 The forensic pathology findings were of a 7 cm wide and 14.5 cm deep stab wound to the abdomen, which traversed the skin and the left rectus abdominis muscle, cut through the intestines and partially severed the aorta, terminating by leaving a 3cm groove on the first lumbar vertebra. Because of contraction and compression, stab wound measurements can be slightly variable. The track of this stab wound, however, went from the front abdomen right through to the spine. In angle, the wound track was 20° above the horizontal; in other words slightly upwards. The victim was lightly dressed. In giving evidence, the pathologist sought to explain that moderate to severe force had been used.

Directions to the jury and sentencing judgment

7 It was for the jury to assess these injuries, the account of the events...