Irish Court of Criminal Appeal

Judgment Title: DPP -v- Una Black

Neutral Citation: [2009] IECCA 91


Court of Criminal Appeal Record Number: 222/08

Date of Delivery: 31 July 2009

Court: Court of Criminal Appeal

THE COURT OF CRIMINAL APPEAL

Murray C.J. 222/2008
McCarthy J.
O’Keeffe J.

BETWEEN

THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS

The trial Court sentenced the applicant to a term of imprisonment of nine years. She has applied for leave to appeal against the imposition of that sentence on the grounds that, in the circumstances of the case, it was unduly severe and disproportionate.

Background Facts

At the time of the offence the deceased victim was 42 yeas of age, single and living alone in a ground floor flat at No. 36 Walter Macken Place, Galway. He socialised fairly frequently with the applicant and her partner, who lived at No. 23 in the same flat complex. The applicant’s flat was more or less opposite and overlooking that of the deceased. It was on the other side of a very small green between the two buildings on the second floor.

At the time of the offence the applicant was aged 24 years. The deceased was in the habit of keeping dogs and at the time was also looking after a puppy dog belonging to the applicant. An altercation which took place between the applicant and the deceased, and which led to him being inflicted with a fatal stab wound, arose from a row between them which centred on the applicant’s dog.

At 5.45 a.m. on the morning of 3rd December 2006 an emergency phone call was received at the control centre in Galway Garda Station and a second call one minute later. The first call was from a woman who gave her name as Una but was later identified as the applicant who told the control centre that a man had been in a fight with two young fellows, had been knocked to the ground, and that she, the caller, was afraid to go over to where it happened. An ambulance was requested and the deceased’s address given. The second phone call came from a neighbour of the applicant who had been alerted by the disturbance.

When the Gardaí arrived at the scene they found the deceased lying in a pool of blood face down. He was taken to hospital and pronounced dead at 6.43 a.m. The post-mortem revealed that he had died from a single stab wound to the upper left chest. There was evidence that there were no defensive wounds to his body and that he had a blood/alcohol reading of 203 milligrams.

In the meantime Garda investigations led them to visit the flat resided in by the applicant where both she and her partner denied any knowledge of what had gone on that morning. Both she and her partner were detained pursuant to the provisions of s. 4 of the Criminal Justice Act 1984. Her partner was to be later released without charge.

The deceased and the applicant had been friendly neighbours for a number of years in spite of rows which they may have had from time to time. There was evidence that on occasion the deceased would get “narky” and that he and the applicant would have rows when there was drink taken. Some time before the date of the offence the applicant had called the Gardaí on account of an assault on her by the deceased, but she had not pursued the complaint when the Gardaí arrived. The deceased was on a disability allowance and did not work. The applicant and her partner and the deceased would drink together frequently either in their flats or elsewhere. The applicant had acquired a pup and she had asked the deceased to look after the pup in his flat apparently because the applicant’s partner and the latter’s daughter, who lived with them, did not like the pup being kept in the flat.

Circumstances Surrounding the Commission of the Crime

In the late afternoon of December 2nd the applicant had left her flat to purchase some beer and a bottle of whiskey. On her return she spent the evening drinking with her partner and another person in her flat. The deceased, Mr. Malone, arrived in her flat late that evening and remained there drinking with them into the early hours of the morning. He left the flat not long before approximately 4.30 a.m. Before the deceased left, an argument had broken out between him and the applicant arising out of the circumstances in which he was minding her puppy dog. There was apparently a lot of shouting and verbal abuse but nothing physical in the argument. A short while after the deceased had left the applicant decided to retrieve her own dog from his flat. Before she did so she went into the kitchen and got a knife to bring with her. She told the Gardaí in one of her statements that she brought the knife just to scare him. She also acknowledged that she was upset and in a temper. When she went over to the deceased’s flat the door was open. She grabbed her own dog and left. The deceased saw her and ran out, grabbed her by the arm and took the dog off her. She added that he had pulled her down. There was a further argument at this stage and they were shouting at one another. The deceased went back to the flat with the dog and the applicant decided to go back and try to take the dog again. The deceased then came out again and according to the applicant’s account he pushed her and “we two started fighting”. She told the Gardaí in one of her interviews that “the two of us started wrestling and fighting and ended up on the grass and the two of us started hitting one another and that is probably how it ended up happening”.

This was a reference to her stabbing him with the knife which she had brought with her and had been carrying in her right hand.

According to her account her mind went blank at this point and she does not remember the act of stabbing the deceased She said she could not remember exactly how it happened and while she could not remember the knife “going in” to the deceased, she could remember it “coming out”. She remembered that there was blood on the knife after the stabbing. According to her account the deceased went back into his flat after being stabbed.

The account that she gave to the Gardaí (in her third interview on 3rd December 2006) was that she only wanted to scare him and that she never intended to kill him or to stab him.

After the stabbing she left the scene bringing the bloodstained knife with her. She returned to her flat. She gave the knife to her partner who got rid of it. He in fact left the applicant’s flat to go to the deceased’s and came back and told the applicant that the deceased was unconscious on the floor of his flat. It appears that at that point the applicant telephoned the Gardaí and requested an ambulance.

When first interviewed by the Gardaí the applicant denied any involvement in the killing of the deceased and at another point claimed that it was the deceased who “pulled a knife on her”. Subsequent to her return for trial, she offered to plead to the offence of manslaughter in February 2008. This was not then accepted and she failed to turn up for her trial on a charge of murder when this was listed for Galway on 8th Galway 2008. In fact she had fled to Wales. A European Arrest Warrant was issued but before it could be executed she had come back on a boat through Rosslare where she was arrested.

As regards the applicant herself, she was 24 years of age at the time of the offence and had no previous criminal convictions. Evidence was tendered on her behalf that she had been the victim of rape at the age of 10, had suffered psychiatric difficulties giving rise to episodes of self harm and had indulged in substance abuse and in particular significant alcohol abuse. A psychiatric report was tendered to the Court which reviewed her past history including her childhood sexual abuse and concluded that she had a personality disorder as did the psychologist whose report was also furnished to the Court. She was not suffering from any mental disorder.

In mitigation at the trial reference was made to the early plea offered by the applicant to the offence of manslaughter and the full admissions made by her when she was in custody in her third interview with the Gardaí. At the hearing regret was expressed on her behalf for what had befallen the deceased and an apology written by her was read to the Court. This was also addressed to the deceased’s family who were in court. Her counsel stated that there was no premeditation involved in the act which led to the death of the deceased. The fact that the applicant was pregnant and would be giving birth in prison was also drawn to the attention of the Court. It was pointed out that this would result in hardship for the applicant who would have her child taken from her in prison when it was 18 months old. The intention was that the applicant’s mother would take over looking after the child at that point.

Grounds of Application

There were four broad grounds being relied upon by the applicant in this application which constituted, it was submitted, errors of principle with regard to the sentence imposed by the learned trial judge. These grounds were:

(a) The sentence imposed was disproportionate to the circumstances. The determination of an appropriate sentence of 12 years is comparatively disproportionate to the sentence imposed by this Court in relation to similar offences.

(b) The learned trial judge claimed to have regard to the fact that the offence in question was one of involuntary manslaughter.

(c) Insufficient weight was given to the mitigating factors advanced on behalf of the applicant.

(d) There was a failure to allow for a sufficient reduction in sentence for the early plea, admissions and remorse of the applicant.

Submissions on behalf of the Applicant

Counsel on behalf of the applicant drew the attention of the Court to several matters which were relied on, and had been relied upon in the court of trial, in mitigation of the offence committed by her. These were:

· A psychiatric report of Dr. Wright which set out details of childhood sexual abuse and self harm suffered by the applicant who he diagnosed as having an emotionally unstable personality disorder.
· The psychological report of Dr. Ferguson who also diagnosed a personality disorder.
· The very early plea offered by the applicant and the free and full admissions by her in custody.
· The regret that the applicant felt and the apology written by her and read in court.
· Her unfortunate background to the effect of her personal life history which had given rise to alcohol abuse and self harm.
· The absence of premeditation for the act.
· That the applicant will be giving birth in prison and would suffer the hardship of having her child taken from her when the infant was 18 months old.

With regard to the sentence of nine years imposed by the trial judge it was submitted that this was disproportionate in itself when compared to sentences imposed by this Court in relation to similar offences. Furthermore it was submitted that the trial judge failed to have regard to the fact that the offence was one of involuntary manslaughter and in failing to give adequate weight to the mitigating factors.

Counsel also focused on the statement of the learned trial judge that the offence “must be placed at the top end of the scale of gravity by reason of the fact that the accused equipped herself with a knife and went to the scene of the row armed”. It was submitted that the learned trial judge was incorrect in classifying the case as being at the top end of the scale of gravity and in that respect the applicant relied on D.P.P. v. Kelly [2005] 2 IR 321 and D.P.P. v. Princs [2007] IE CCA 142.

In the light of those cases counsel submitted that the offence fell in the lower end of the mid range of manslaughter cases and that the learned trial judge was incorrect in concluding that the offence merited the sentence of 12 years imprisonment subject to the reduction to 9 years when mitigating factors are taken into account.

Decision

The maximum penalty for manslaughter is life imprisonment. As this Court pointed out in D.P.P. v. Princs. “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 may range from, in exceptional cases a suspended sentence to a long term of imprisonment.” The Court went on to cite with approval the statement of Mr. Thomas O’Malley in his Second Edition of Sentencing Law and Practice (at page 248): “Manslaughter can vary greatly in context and gravity. Some killings resulting in manslaughter convictions may have been little more than accidental, while others may be close to murder. …Courts in several common law jurisdictions have said that the sentence for manslaughter must depend largely on the context in which the crime was committed.”

Again as pointed out in the Princs case the crime of manslaughter should normally involve a substantial term of imprisonment because a person has been unlawfully killed. “Only where there are special circumstances and context will a moderate sentence or in wholly exceptional circumstances, a non custodial sentence be warranted.”

Accordingly the gravity of a particular case has to be assessed having regard to all the circumstances including the nature of the violence used which resulted in the death of the victim.

This is a case which fits into a long sequence of cases that are now coming before the Court which are homicides committed using the knife as a weapon. It is evident from cases of murder, manslaughter and serious assault coming before the Courts that it is an all too common occurrence for people, usually, but by no means exclusively young people, to go out and about with knives in their possession. In the gravest of cases they carry it with the specific intent to use the knife in an assault. In other cases it has often been claimed that they are carried “just in case” – that is to say just in case they need to defend themselves for some reason. This is not always a credible claim but one typical type of case is where young persons who routinely carry around a knife with them get into a row with somebody, even a friend, as a result of drink, drugs or some other reason. Then, when they are not getting the better of their opponent, the knife is taken out and used. The result is frequently fatal. The initial cause of the row may have been about very little but the result is that one person has needlessly lost his or her life and the victim’s family are devastated. The perpetrator, as indeed is the case of the perpetrator in this case, may have no previous convictions. They may not have set out with the knife with the intention to kill but nonetheless when in a confrontational situation or a fight use it and kill or seriously injure the victim. In doing so the perpetrator of the killing, often by all accounts a law abiding citizen or one with convictions for minor infractions of the law, has changed his or her own life unalterably and is usually destined to serve a long term of imprisonment. This in turn brings a sense of devastation to their own parents or their own family. Many of these offences would not occur if the perpetrator did not routinely have a knife on his or her person.

The fact is that a knife, as a weapon, is not a weapon of defence it is a weapon of attack. Whenever a knife is used in an assault it is likely to cause grievous harm or death. When a person is convicted of a serious assault or causing death by manslaughter consequent on an assault with a knife or other dangerous weapon, they cannot expect anything other than a severe sentence from the Courts (of course when it is murder the sentence must be life imprisonment). There is no separate offence of assault or homicide with a knife. The essence of these offences is causing bodily harm or death whatever the means or weapon used. Bringing to the scene of an offence or carrying a weapon like a gun, a knife or a hammer the use of which is always dangerous, to say the least, underscores the culpability of the perpetrator and will in general be an aggravating factor.

It is of course an offence in certain circumstances to carry or be in possession of a knife, as it is of other dangerous weapons, and the growth in the crimes of violence of the kind referred to means that the offence of carrying a knife even where there has been no assault involved must be treated as a serious offence with a likelihood of imprisonment or detention, so that there is a real deterrent to persons possessing or carrying knives in the first place. Carrying a knife means that it is too readily available and used to commit a more serious offence with all the devastating consequences referred to.

Counsel for the applicant sought to emphasise that this was a case of voluntary as opposed to involuntary manslaughter.

The applicant left her own premises to go to those of the victim armed with a knife for the purpose of confronting the victim. Without any justification, such as self defence, she stabbed him and he died. Other than the deceased, she was the only person present and in her account to the Gardaí she asserts that her mind went blank, she could not remember the knife “going in” but could remember it “coming out”. The precise basis on which the applicant pleaded guilty to the crime of manslaughter was not made entirely clear at the trial. Counsel for the applicant told the trial court that an offer of a plea to manslaughter was renewed by the defence on foot of a newly transcribed account of the accused’s third interview with the Gardaí in conjunction with Dr. Wright’s psychiatric report and it was in the light of that that the D.P.P. decided that it was appropriate to accept the plea in the circumstances. This would suggest that the plea may have been accepted on the basis of a degree of diminished responsibility. Even if the precise basis on which the applicant pleaded guilty to manslaughter is not entirely clear it is difficult to characterise this case as other than one of involuntary manslaughter. As counsel for the D.P.P. correctly pointed out the characterisation of manslaughter as voluntary or involuntary is more of academic rather than practical importance. In any event whether a particular case of manslaughter can be characterised as involuntary or voluntary, although it may reflect or be indicative of the circumstances of the case, it is the factual circumstances and the act leading to the death of the victim which are of primary importance. It is those circumstances in conjunction with others, such as mitigating factors, that determine the sentence. That is what the learned trial judge did in this case.

In D.P.P. v. Kelly this Court treated the offence in that case as falling “in the upper range of the middle range of gravity in the offences of manslaughter”. Among the factors which the Court in that case emphasised as important in determining sentence was the fact that the accused had not brought or carried the knife to the scene of the crime. A cold retrospective examination of the transcript in this case would suggest some ambiguity in the words used by the trial judge when he referred to this case as being placed “at the top end of the scale of gravity” since it might be said to be unclear as to whether he was referring to the top end of a particular, unspecified, scale of gravity or the most aggravated or grave category of manslaughter cases. When reviewing a sentence imposed by a trial Court, which is usually imposed in an ex-tempore manner this Court does not parse every word or examine particular phrases in isolation from the trial judge’s decision on sentencing, as counsel for the applicant has in effect sought to do. The Court looks at the sentencing decision in its entirety and in its context for the purpose of determining whether it contains an error in principle raised in the appeal.

In this case there was no evidence that the victim at any stage that evening posed any physical threat to the applicant and when he was back safely and peacefully in his own flat she was the one that set out from hers armed with a knife to confront him. She bears full criminal responsibility for the serious crime of manslaughter aggravated by the death being caused by stabbing with the knife in those circumstances. The Court considers that this case is very much in the upper part of the middle range of gravity. The fact that the applicant set out from her own home to confront the victim armed with a knife which led to the fatal stabbing is an aggravating factor which was not present in D.P.P. v. Kelly. In that case the Court in its judgment, delivered by Hardiman J., imposed, after taking into account factors in mitigation, a sentence of eight years. Here the sentence imposed is nine years. That is not to say that sentencing is to be reviewed by this Court by means of an over precise or mathematical reference to other cases or the categories of gravity into which they may have been considered to fall. As Hardiman J. pointed out in D.P.P. v. Kelly “The very wide range of facts which a manslaughter case may feature make it difficult to establish any very precise range of sentencing”. Self evidently every case has its own particular features and any one of them or a combination of them may affect the actual sentence to be imposed.

The Courts also have to have regard to the fact that the number of cases coming before the Courts which involve gratuitous violence and the use of dangerous weapons of all kinds, but particularly knives, in all manner of assaults has grown enormously in recent times. This is true at all levels of courts with the more serious offences coming before the Circuit Court and the Central Criminal Court. Sentences generally do reflect the severity of the offence taking into account its gravity including the effect on the victim, or in a homicide, the effect on his or her family as well as the circumstances of the offender. Deterrence is just one but an important element in determining the appropriate sentence in any case. Given the continuous growth in the number of offences referred to, namely, gratuitous violence and the use of dangerous weapons for assault the more historical levels of sentencing for such offences may be less valuable as a guide in determining the appropriate sentence for these kind of cases today. This affects all courts. The sentences imposed by the Courts and upheld by this Court indicate that severe and substantial sentences are being imposed where the gravity and circumstances of the case so warrant.

Having regard to the circumstances of the case as outlined above the Court is satisfied that the applicant has failed to establish that the learned trial judge erred in principle in determining that, before considering any mitigating factors, the appropriate sentence in this case was 12 years. In doing so it is clear that the trial Court had not placed it in the most grave category of offences.

In mitigation it was argued on behalf of the applicant that insufficient weight was given to the psychiatrist’s report and the psychologist’s report including the applicant’s personality disorder. It is also convenient to take into account at this point the reliance by counsel for the applicant on the fact that the act was unpremeditated. As regards the latter consideration if the applicant had set out from a flat or had stabbed the victim in giving effect to a premeditated intent to inflict serious injury or death she was open to conviction for murder. Similarly, as the court of trial was told, the psychiatric reports and the fact that she had a personality disorder, in contrast to a mental disorder, was material to the decision to accept a plea of manslaughter. In these circumstances the applicant was sentenced for the offence of manslaughter. Of course these are also material factors to the sentencing of the applicant on that lesser charge of manslaughter. As previously pointed out the applicant bears criminal responsibility for the death of Mr. Malone. While the factors referred to and relied upon by counsel for the applicant may and obviously did serve to determine that the offence in this case is not the gravest offence of manslaughter it is one which still requires a severe and substantial term of imprisonment. The applicant was fully aware at the time of what she had done. In the immediate aftermath she endeavoured to conceal her involvement and the knife used in the stabbing was hidden. She first claimed that the victim had been attacked by others and then claimed that it was the victim who produced the knife before eventually admitting responsibility for the offence. In the Court’s view the approach adopted by the trial judge in this case properly reflected the gravity of the case taking into account all those matters.

Counsel also submitted that the learned trial judge failed to take sufficiently into account the early plea offered by the applicant and the “free and full admissions” by her in custody. These were eventually made as the Garda investigation progressed, after her earlier denials, and can only in this case be considered of marginal importance. Subsequent to the applicant’s return for trial she offered to plead to the offence of manslaughter in February 2008. This was not then accepted and she failed to turn up for her trial on a charge of murder on 8th April 2008. According to the evidence of Det. Garda Ready before the trial court she was given every opportunity to come back but failed to do so and the European Arrest Warrant was issued for her return from the United Kingdom to Ireland. Before it could be executed she came back on a boat to Rosslare where she was then arrested. It seems to the Court that the offer to plea to manslaughter is somewhat diluted by the failure to be present at the trial when it was listed since one of the merits attached to an early plea is that it facilitates the better and more efficient administration of justice. Moreover her failure to turn up can only have prolonged any strain and distress on the victim’s family for whom the finality of a trial could only have been important. Nonetheless the Court accepts that the willingness to plead guilty to the offence of manslaughter after the return for trial in February 2008 is a material factor in mitigation but it is clear that the learned trial judge took that fully into account when deciding on the sentence to impose. Counsel also submitted that the trial judge failed to give sufficient weight or take into account the fact that the applicant was pregnant at the time of sentencing. Obviously, she had become pregnant subsequent to the commission of the offence. It was submitted that this was a particular hardship for the applicant particularly when one took into account the fact that she would only be able to keep the child with her in prison until it reached 18 months of age. This particular aspect of the case is a most unfortunate consequence. It is a consequence which counsel for the applicant fairly acknowledged could not be overcome. It is beyond contemplation that for an offence as grave as this one that the sentence of imprisonment be imposed could be remotely close to the period of 18 months.

The learned trial judge also had before him the statement read out on behalf of the applicant in court at the time of sentence in which she expressed remorse for the killing and apologised to the family of the deceased. Such a statement by a convicted person is always to be welcomed but it is a matter really for the trial judge to weigh the sincerity and importance to be attached to such a statement made before, and only just before, sentence is imposed.

In summary there were a range of mitigating factors placed before the court of trial but these fall to be considered and weighed in relation to the gravity of the offence. Here the offence was one of manslaughter unlawfully causing the death of another accompanied by aggravating factors. In imposing a sentence of imprisonment of nine years the Court is satisfied that the learned trial judge did not err in principle having regard to those circumstances. The Court is of the view that his decision on sentencing and the length of the term of imprisonment imposed adequately and sufficiently reflects the weight to be attached to the mitigating factors.

Accordingly the application must be refused.