DPP v McGrath
|Mr. Justice Collins
|18 February 2020
| IECA 41
|Court of Appeal (Ireland)
|Record Numbers: CCA CJ 0134/2019
|18 February 2020
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
 IECA 41
Record Numbers: CCA CJ 0134/2019
THE COURT OF APPEAL
Sentencing – Manslaughter – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient
Facts: Following the prosecution and conviction of the respondent, Mr McGrath, on a plea of guilty for assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and a separate prosecution and conviction for manslaughter, again on a plea of guilty, a sentence was imposed on the respondent in the Circuit Court (South Eastern Circuit, County of Waterford) on 24 May 2019. By notice of application dated 19 June 2019, the applicant, the Director of Public Prosecutions (DPP), sought a review of the sentences imposed on the respondent pursuant to s. 2 of the Criminal Justice Act 1993 (as amended). The notice of application set out a number of grounds. In summary, the notice asserted that the sentence of 2½ years imprisonment with 2 years suspended for the s. 3 assault was unduly lenient and did not properly reflect the aggravating factors present, that the sentence of 5 years for manslaughter was unduly lenient and did not properly reflect the aggravating factors present, that the Judge erred as a matter of principle in placing the manslaughter offence at the lower to mid part of the medium range and setting a headline sentence of 7 years, that the Judge erred in principle in structuring the sentences in the manner that he did such that “the effective term of imprisonment” imposed for the two offences was a term of 5½ years, that the Judge had undue regard to the principle of proportionality, that the Judge attached undue weight to the mitigating factors and in particular placed too much emphasis on the pleas of guilty and the personal circumstances of the respondent and, finally, that the Judge failed to have regard for the societal need for a serious deterrent element to the sentences for two serious violent offences in almost identical circumstances less than a year apart.
Held by the Court of Appeal that it did not appear that there was any basis on which the Court could properly conclude that the sentence actually imposed for the s. 3 offence constituted “a substantial or gross departure from what would be the appropriate sentence in the circumstances”. In the Court’s view, the manslaughter offence was properly considered to be at the higher end of the medium culpability category identified by the Supreme Court in DPP v Mahon  IESC 221. The Court considered that, in all the circumstances, the appropriate headline sentence for this offence was in the range of 8½ - 9 years and the appropriate sentence after allowing for mitigation was 7 years imprisonment. In the Court’s view, the 5 year sentence imposed by the Judge failed to reflect the gravity of the offence, the culpability involved and the many aggravating factors that were present and it was, accordingly, unduly lenient. In all the circumstances, the Court considered that the final 2 years of the respondent’s manslaughter sentence should be suspended, for a period of 2 years. In taking that approach, the Court was predominantly motivated by the desirability of providing a concrete incentive to rehabilitation but had also had regard to the aggregate sentence imposed on the respondent both as regards the totality principle and the impact on the respondent of the fact that the duration of his sentence had been materially lengthened by reason of the DPP’s appeal.
The Court held that it would leave unchanged the sentence of 2½ years imprisonment for the s. 3 assault, substitute a sentence of 7 years imprisonment for the 5 year sentence imposed by the Circuit Court Judge for the manslaughter offence, that sentence to run consecutively to the s. 3 sentence in accordance with the relevant provisions of the Criminal Justice Act 1984, and in lieu of the order made by the Judge, suspend the final two years of that manslaughter sentence for a period of two years, subject to the same conditions as were imposed by the Judge.
This is a leniency appeal brought by the Director of Public Prosecutions (hereafter “the DPP” or “the Director“) arising from a sentence imposed on the Respondent by His Honour Judge Eugene O'Kelly in the Circuit Court (South Eastern Circuit, County of Waterford) on 24 May 2019 following his prosecution and conviction on a plea of guilty for assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997 (hereafter “section 3“) and a separate prosecution and conviction for manslaughter, again on a plea of guilty.
The first in time of these offences (Bill 43/2018) – the section 3 assault causing harm – involved an unprovoked assault on a Kiefer Dowling on 18 August 2017, first within and then immediately outside a nightclub in Waterford which resulted in the victim being knocked unconscious. The Respondent pleaded guilty to this count on 7 November 2018. At the time of the offence, the Respondent was subject to a three months suspended sentence which had been imposed in the Circuit Court (on appeal) on 16 June 2017.
The second of the offences (Bill 70/2018) involved the unlawful killing of Damien O'Brien, arising from another unprovoked assault during which the Respondent punched the deceased in the face with sufficient force to knock him to the ground, resulting in him sustaining a fractured skull and consequential brain injuries that proved fatal. The postmortem report indicates that Mr O' Brien had suffered a broken nose, broken eye sockets and a broken jaw as a result of the assault on him by the Respondent, in addition to the skull fracture that was the immediate cause of his death. The Court was told that it was accepted before the Circuit Court that Mr O' Brien was knocked unconscious by the force of the punches, that is to say that he was unconscious before his head impacted against the ground. The Court was also told that it had been accepted that the facial injuries suffered by Mr O' Brien were caused by the punches, not by the impact of Mr O' Brien striking the ground.
This second assault occurred on 7 July 2017 at a time when the Respondent was on bail on the section 3 assault charge. Mr O'Brien died on 13 July 2017 which therefore was the date of the manslaughter offence. The Respondent pleaded guilty to this offence on 26 February 2019.
For logistical reasons, the Judge heard the evidence of Detective Garda Seamus Halpin in relation to the manslaughter offence first. The Judge also saw CCTV footage of the assault on Mr. O'Brien, which this Court was also invited to view and which it has viewed in the course of the appeal hearing. The CCTV footage of the assault itself is difficult to decipher but clearly shows a man subsequently identified as the Respondent involved in a scuffle and then immediately leaving the scene of the assault at some speed, in the company of another man and later shows the Respondent engaging in what appears to be some form of re-enactment of his assault on Mr O' Brien.
The Judge also heard a victim impact statement read by Mr. O'Brien's sister, Ms. Sandra Griffin, which this Court has also seen. Detective Garda Halpin gave evidence that the Respondent had twenty-four previous convictions, most of those convictions were for Road Traffic Act offences and the Respondent had not had a custodial sentence imposed on him for any of those offences. That total of twenty-four previous convictions did not include the s.3 assault conviction because sentence had not yet been imposed for that offence.
In relation to the section 3 assault, evidence was given by Garda Barrett. Again, there was CCTV footage which was shown to the Circuit Court and which this Court has also reviewed in the course of the appeal hearing. The footage initially shows a violent attack on the victim inside the nightclub, in the course of which the victim was punched and head-butted. Both parties were then ejected from the nightclub. Footage from a CCTV camera located at the entrance to the nightclub then records the Respondent striking the victim with a single punch with his left hand which was struck with sufficient force to knock Mr Dowling unconscious, resulting in him collapsing to the ground.
Mr Dowling chose not to make a victim impact statement.
A plea in mitigation was then made on the Respondent's behalf by counsel, principally by Ms. Gearty SC. She very frankly acknowledged the seriousness of the offences and made it clear that the Respondent expected to receive custodial sentences in respect of each. She referenced her client's pleas of guilty and also referred to the fact that her client had written a letter of apology (which this Court has also seen). Ms. Gearty referred to her client's education and employment history. In terms of the sentence that the Court might impose, Ms. Gearty referred to a 6-10 year sentence that had been imposed for manslaughter where a weapon had been used and/or where there was an element of pre-meditation. She submitted that neither of these elements (weapons/pre-meditation) were present in this case. Accepting that other injuries had been caused to the deceased, Ms. Gearty pointed out that the post mortem report indicated that the immediate cause of death was the deceased's head striking against the pavement. It was, she submitted, a “result crime” and therefore of a different order to deaths caused by (for instance) a stabbing or a shooting.
On this basis, and having regard to the Probation...
To continue readingRequest your trial
The Atttorney General v Claude Lawson Gray
...Moss and Keith Lotmore v R SCCrApp. Nos. 11 & 14 of 2004 considered Donnell Rolle v R  3 BHS J No 25 considered DPP v McGrath  IECA 41 considered Forrester Bowe and Trono Davis v The Queen  UKPC 10 mentioned Kenneth Samuel v The Queen Criminal Appeal No. 7 of 2005 conside......
The People (At the Suit of the DPP) v Jeffrey Crowley
...judge said she was fortified in her approach by the decision of this Court in The People (Director of Public Prosecutions) v. McGrath  IECA 41. 52 Nevertheless, the sentencing judge was mindful that the appellant was relatively young and, notwithstanding that he had shown neither appe......