DPP v Princs

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 31 July 2007
• Neutral Citation: [2007] IECCA 142
• Docket Number: No. 230CJA/2006
• Court: Court of Criminal Appeal
• Date: 31 July 2007

[2007] IECCA 142

THE COURT OF CRIMINAL APPEAL

Murray C.J.

Hanna J.

Irvine J.

No. 230CJA/2006

DPP v Princs

BETWEEN

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

APPLICANT

-v-

JURIJS PRINCS

RESPONDENT

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL JUSTICE ACT 1984 S4

O'MALLEY SENTENCING LAW & PRACTICE 2ED 2006 248

DPP v KELLY 2005 1 ILRM 19

DPP v DILLON UNREP CCA MCCRACKEN 17.12.2003 2003/15/3271

DPP v COONEY UNREP CCA MCGUINNESS 27.7.2004 2004/15/3367

DPP v TIERNAN 1988 IR 250

JUDGMENT of the Court delivered by

Murray C.J.

on the 31st day of July, 2007

1 This is an application on behalf of the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act1993 for a review of the sentence imposed on the Respondent on the grounds that the said sentence was unduly lenient. The Applicant seeks an Order quashing the sentence and the imposition in lieu thereof a sentence which the Court deems appropriate.

2 The sentence in question is one of four years and nine months imprisonment imposed on the Respondent by the Central Criminal Court on the 15^th November 2006 for the offence of manslaughter of Mr. Robertas Stravinsks a Latvian national. The sentence imposed was backdated to the 23^rd May 2005, the date of the Respondent's arrest.

3 The Respondent was charged and tried for the crime of murder. He had offered a plea to manslaughter but this was not accepted by the D.P.P. At the trial the Respondent relied on the defence of provocation. He was acquitted of the offence of murder and convicted of manslaughter.

4 At the hearing of this application the facts and circumstances surrounding the unlawful killing of the deceased by the Respondent although sketchy in parts were not in controversy and were agreed. These were as follows:

5 Early on the 23^rd May 2005 the Respondent and the deceased were among a group of persons drinking in a friend's house. A considerable quantity of alcohol was consumed there and, later on, elsewhere on the same day. Some disagreement arose between the Respondent and the deceased concerning a spare room which the Respondent had in his flat but which he did not wish the deceased to occupy. However no violence arose on account of this.

6 At a certain point on the 23^rd May the Respondent, the deceased and another man left the house in which they were drinking and eventually, later in the afternoon, arrived at the Respondent's flat at Cromwellsfort Road, Dublin where drinking continued.

7 At some stage during this latter drinking session, the Respondent took up a kitchen knife which had been lying on a nearby table and stabbed the deceased three times while he was sitting in an armchair. One of the stab wounds was to the neck and shoulder area which damaged the corotid artery. It also pierced a lung. That stab wound proved fatal. The other two stab wounds were to the legs and were not fatal.

8 The third man who had returned to the flat with the Respondent and the deceased had fallen asleep. He awoke to find the deceased in the armchair covered in blood and the Respondent attempting to stem the blood with bandages. The Respondent told this man he had killed the deceased. He was also expressing remorse at the effect that this would have on the deceased's child who was then only six months old. The Respondent then phoned another friend who arrived later and assisted the Respondent to carry the body of the deceased into an adjoining bedroom. The three men then left the flat and the Respondent was arrested later that evening when stopped by the Gardaí. In fact the Respondent had driven to a shop where he purchased flowers and some drink. His manner of driving to the shop was so erratic and dangerous that it had been reported to the Gardaí. On foot of this complaint the Gardaí went to investigate and arrested him outside the shop where he had made his purchases. He was still wearing the same clothes as he had worn in the flat when he had stabbed the deceased and there was much evidence of blood on them. In the meantime the death of the deceased had been reported to the Gardaí by persons who had returned to the flat and found the body. The Gardaí having made a connection between the stabbing of the deceased and the Respondent arrested him on suspicion of the killing.

9 He was duly detained under s. 4 of the Criminal Justice Act of1984 and interviewed. During the course of these interviews he admitted stabbing the deceased but gave as a reason for doing so aggressive and insulting behaviour on the part of the deceased. He told the Gardaí that the deceased had been shouting at him, insulting him and was of the belief that the deceased would become more aggressive although at no stage was there any evidence of actual violence being used by the deceased. In evidence to the Court at his trial he added to the foregoing by saying that the deceased had insulted a former girlfriend and referred to her as a "Lithuanian bitch" who slept with a Russian. The deceased was being offensive towards Russians. The Respondent is himself Latvian but of Russian extraction. At his trial the Respondent said that he lost control and grabbed the kitchen knife which happened to be on the table and stabbed the deceased. There was no evidence that the deceased had attacked or attempted to attack the Accused.

10 In the first instance the learned trial Judge acknowledged the gravity of the offence and stated "First of all a young mart is dead, and that person had a partner and a child… Secondly, it is a fact that in this case, the deceased person was drunk, unarmed and was sitting on a chair so the Court must regard this as being a very serious matter indeed." The learned Trial Judge then went on to address the factors which he felt operated in mitigation of the culpability of the Respondent. The following mitigating factors were taken into account by him:

11 · He co-operated with the Gardaí in the investigation and admitted to them his part in the offence.

12 · He indicated at an early stage his willingness to plead guilty to the crime of manslaughter which in fact was the crime on which the Jury found him guilty.

13 · He showed immediate genuine remorse for the crime. He tried to save the deceased by the application of bandages which in any event could not be successful as immediate skilled medical attention would have been required.

14 · The Respondent was a person of good character with no previous convictions in this country or his home country.

15 · The offence was not "in any sense a premeditated act, but it was something which erupted spontaneously against a background of drink on both sides".

16 · The extra burden which imprisonment in a foreign environment imposes on a foreign national including the increased sense of isolation which such persons may suffer due to limited English language skills and the fact that the Respondent has no family in this country who can give him some support by visiting him in prison.

17 Before imposing sentence the learned trial Judge also made reference to "The Victim Impact Report, showing the sadness, and devastation caused to the partner of the deceased and to his young child." Finally, he emphasised once again the "inherent gravity" of the offence and "the fact that it was a voluntary act, if you like, as opposed to an accident."

18 The law recognises two offences of homicide one of which is murder and the other manslaughter. The Respondent was tried for murder, acquitted on that charge and convicted of manslaughter. Murder arises where a person kills another person unlawfully with intent, that is to say the intent defined in s. 4 of the Criminal Justice Act1964 where an accused "intended to kill, or cause serious injury to, whether the person actually killed or not." Manslaughter is any other unlawful killing. It is usually defined by reference to two categories, voluntary and involuntary manslaughter.

19 The Law Reform Commission has summed up the various categories of voluntary manslaughter in the following terms "Voluntary manslaughter currently comprises a number of sub categories. First, where all the elements of murder are established or the Jury is satisfied that the Accused acted under provocation when he or she killed the other person. Second, where all the elements of murder established but the Jury is satisfied that excessive force was used by the Accused in self defence. Third, where - pursuant to the Criminal Law (Insanity) Act 2006 - a plea of diminished responsibility is established in answer to a charge of murder or infanticide." (Law Reform Commission, Consultation Paper, Involuntary Manslaughter, 2007).

20 This is a case of voluntary manslaughter by a violent and unlawful act. That the Respondent fatally stabbed the deceased victim was not in issue at the trial. It was common case in this appeal that the defence of the Respondent at his trial for murder was one of provocation which the Jury accepted in bringing in a verdict of manslaughter and a not guilty verdict on the charge of murder. In doing so the Jury may be taken to have concluded, on the basis of the evidence before it, that the provocation caused the Respondent to loose control of himself or at least that the Prosecution failed to prove beyond reasonable doubt that the provocation did not result in the Respondent losing such control. However, provocation can never exonerate an accused from criminal responsibility it can only reduce murder to manslaughter.

21 The maximum penalty for manslaughter is life imprisonment. Nonetheless, because of the nature of the offence, including the variety of categories of manslaughter, there is a vast variety of circumstances in which such an offence may arise. Accordingly the appropriate penalty which should be imposed in the particular circumstances of the case also varies and...