DPP v Whelan

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 27 May 2003
• Neutral Citation: 2003 WJSC-CCA 4638
• Date: 27 May 2003
• Docket Number: [C.C.A. No. 4 of 2003]
• Court: Court of Criminal Appeal

2003 WJSC-CCA 4638

THE COURT OF CRIMINAL APPEAL

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No. 4/02

DPP v. WHELAN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

v.

PETER WHELAN

Applicant

Citations:

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 3

DPP V MCKENNA 2002 2 IR 345 2002/9/2194

Synopsis:

CRIMINAL LAW

Appeal

Conviction - Sentencing - Murder and attempted murder - Mandatory life and 15 years to run consecutively - Whether sentence was indefinite and lacked certainty (4/2002 - Court of Criminal Appeal - 27/05/2003)

People (DPP) v Whelan - [2003] 4 IR 355

Facts: The applicant had been convicted of murder and attempted murder and received mandatory life and 15 years respectively to run consecutively. He appealed on the basis that the prison sentence was indefinite and lacked certainty; not certain when the consecutive sentence commences and it deferred the applicant's entitlement to parole.

Held by the Court of Criminal Appeal (Hardiman J; Quirke and McKechnie JJ) in affirming the sentence but altering the trial judge's order to causing the 15 year sentence for attempted murder to run first and the life sentence to follow on the lawful expiry of the sentence.

Reporter: BD

1 27th day of May, 2003 by Hardiman J.

Hardiman J.

2 This is of course a notorious case. The defendant pleaded guilty to the murder of Nicola Sweeney on the 27 ^th April, 2002. He pleaded guilty to the attempted murder of another young lady, Sinéad O'Leary, on the same date. Sentence was imposed on the 20 ^thDecember, 2002. He received, as was mandatory, a life sentence in respect of the murder, and *???query?????? of the attempted murder he received a consecutive sentence of *???query??????years.

3 On the 8 ^th January, 2003, a few weeks after the sentence, the defendant appealed the sentences on four grounds. The learned trial judge he said, had erred firstly in sentencing the applicant to a term of imprisonment which was indeterminate or lacked certainty, or is defective for ambiguity in that the sentence does not specify when the consecutive sentence is to begin. Secondly it was said that the learned trial judge erred in sentencing the applicant in the form which he did on the basis, it is alleged, that it debarred the applicant from being considered for parole. Thirdly the learned trial judge erred it was said in imposing a sentence which offends against the rules governing proportionality in sentencing and fourthly, and this was not urged at all, that he erred in imposing a sentence which is contrary to Article 3 of the European Convention on Human Rights. Fifthly it was urged that he erred in failing to take account of the applicant's early guilty plea when imposing the consecutive sentences.

4 The unfortunate deceased girl Nicola Sweeney lived with her family in a house in Rochestown, Co. Cork. It appears that the defendant lived in the next house but one and knew Nicola Sweeney to see. On the 27 ^th April, 2002 it appears that the rest of the family, which consisted of her parents and two younger brothers were away, and she was in the house with a friend, the other victim in the case, Sinéad O'Leary. These girls were 20 years of age and 19 years respectively. It appears from the transcript that they were getting ready to go out when the applicant confronted them in or near Nicola's bedroom. He stabbed in the first instance Sinéad O'Leary. He stabbed her on many occasions, and it is clear from the evidence given in the Central Criminal Court that many of these wounds were defensive wounds to the arm and wrists, both right and left. She was also stabbed twice in the chest and three times in the abdomen. One of the wounds to the arm led to significant disability affecting the triceps muscle and another wound led to a significant loss of function in relation to her wrist. Despite these injuries this girl, Sinéad O'Leary who survived the attack, managed to escape from the applicant and to take refuge in a bathroom on the ground floor of the house. She managed this because the other girl, Nicola Sweeney, emerged from an en-suite bathroom and the attacker, the applicant here, turned his attention to her. She attempted to retreat into the bathroom and secure it but she was unable to do that because (it appears from the forensic evidence of a mark of the applicant's footwear on the door) he either kicked through, or partially kicked through the door, and forced it in on top of her. When he diverted to attack Nicola the other girl had an opportunity to remove herself from his immediate power and hid herself in a downstairs bathroom, bleeding profusely and thinking, as was understandable, that she was dying. After some period of time she left where she was because she thought that the attacker had gone and she went upstairs and found the other girl Nicola Sweeney lying on the floor. She made phone calls from Nicola's mobile and by coincidence actually received a call from Nicola's mother as she was...