Court refuses appeal against life sentence for manslaughter, upholding severity despite prior convictions and lack of remorse.

THE COURT OF CRIMINAL APPEAL

[Record No. 208/09]

Macken, J.

Budd, J.

O’Keeffe, J.

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

RONALD McMANUS (AND RONALD DUNBAR)

APPLICANT

Judgment of the Court delivered on the 19th October 2011 by Macken, J.

This is an application on the part of the applicant for leave to appeal against the severity of a sentence imposed on him. The

applicant was charged with the murder of a teenager called Melissa Mahon, which had occurred between the 14th September, 2006

and the 30th September, 2006, at premises in Sligo. A lengthy trial took place in April and May 2009. The applicant was found not

guilty of murder, but guilty of manslaughter. The learned trial judge sentenced the applicant to imprisonment for life in respect of the

conviction.

The applicant’s application for leave to appeal against the conviction was earlier heard by this Court, and was refused pursuant to

judgment delivered on the 12th April 2011. This judgment now deals with the outstanding application for leave to appeal against the

severity of the life sentence.

The Argument of the Parties

The basic and fundamental arguments made on the part of the applicant is first, that having been convicted of manslaughter when

the prosecution had charged him with murder, the jury having returned a verdict of manslaughter, the sentence of life, which is

mandatory in respect of a murder conviction, was too severe, and the learned trial judge had misdirected himself in law in imposing

such a sentence. Secondly, it is contended that the learned trial judge’s comments on passing sentence demonstrated “bias”, were

beyond such level and scale as is appropriate for a trial judge, and rendered the entire process unbalanced. Such bias was reflected

in the sentence imposed. In that regard, senior counsel for the applicant cites the following extract from the sentence judgment:

“Throughout the trial, I had reason to observe you closely. You came across to me as being disdainful and scornful, if

not bordering on contemptuous of your surroundings and of the evidence that was being given to the Court. From my

observations, I have little doubt that that Mr. Grehan found you a most difficult client.”

Thirdly, counsel argues that the learned trial judge erred in placing excessive weight on the applicant’s prior convictions which were of

antiquity and were in respect of summary cases, by their nature. In particular counsel argues that the learned trial did so in the

following statement:

“I am satisfied that there are no mitigating factors in your favour in this case. You are a man of previous bad character,

albeit in the main your convictions date back to the 1980’s and 1990’s. You did not cooperate with the Garda Siochana,

or assist them in their inquiries. A plea of manslaughter was never offered, and you have not expressed remorse or

apologised for your behaviour.”

Fourthly, the trial judge erred in law in placing excessive weight on the issue of the disposal of the deceased’s body, evidenced by

the numerous references made regarding the same. Next, it is contended that the learned trial judge erred in law in the manner in

which he treated the State’s inability to establish the cause of death, as a result of which it was submitted that he reversed the

presumption of innocence. Finally, counsel argues that the learned trial judge erred in law in agreeing with the submissions made by

the prosecution that the offence was at the high end of the scale, when the prosecution had adduced no evidence of the infliction of

any kind of serious violence on the deceased, nor were there any signs of injuries to her.

On the other hand, the prosecution rejects the above grounds presented in support of the application for leave to appeal against

sentence. Counsel argues first that the learned trial judge considered the matter fully, including all of the applicable principles of law,

and set about carefully imposing a sentence in accordance with these principles. He was, it is argued, at pains to ensure that the

applicant be sentenced only for the offence in respect of which he was convicted and not for extraneous matters. He cited

appropriate authority in the case of sentences for manslaughter, and upon which he was entitled to rely, and relevant authority for

the imposition of sentences which must depend on the peculiar circumstances of particular cases, and including all the surrounding

circumstances, as established in DPP v. Gilligan [2004] 3 I.R. 87. It is further argued that the case of People (DPP) v. Conroy [1989]

I.R. 160, which will be discussed below, is a more apt authority on the issues arising on this application than the case of DPP v.

O’Donoghue [2007] 2 I.R. 336, relied on by the applicant, in light of the significant differences in the factual evidence surrounding the

respective decisions. Finally, the prosecution contends that the learned sentencing judge was fully entitled to come to a view about

the surrounding circumstances, both those involved in the commission of the offence, and its aftermath, and also those reflecting the

approach or demeanour of the applicant in the course of the trial. In consequence, it is said, he was entitled to find in favour of the

prosecution contention that the offence was at the higher end of the scale and that there were no mitigating circumstances. He had

imposed an appropriate sentence in the circumstances.

Conclusion

In reality, the principles applicable to sentencing are not in serious issue between the parties in this application. There are certain

cases upon which one or other party relies, or places greater emphasis, on the basis that the principles enunciated in these cases, or

their particular facts, are of greater relevance or are more apt in the context of the factors arising in relation to the sentence in this

case.

The sentencing principles are clear at this stage. Sentences must be imposed, as is well established in law, which are appropriate to

the crime of which an accused has been convicted, or to which offence he or she has pleaded guilty, on the basis that the crime was

committed by the person being sentenced. This is so well established that it is scarcely necessary to repeat it, or to cite the

significant amount of authority to that effect. In the present case, the possible sentence – being one for manslaughter – ranges from

one extreme to the other, in that a court may be justified in imposing a suspended sentence at one end of the spectrum, or a life

sentence at the other end of the spectrum. Equally, a sentence at any point along the line between one and the other may be

imposed. It is not surprising, therefore, that the possible sentence for manslaughter has been described as being “elastic”. Whereas a

sentence for murder is a mandatory life sentence, the Oireachtas – in line with many other legislatures - has nevertheless retained

the possibility of a life sentence as a maximum sentence for manslaughter. This is a valid policy decision, and is legally and

constitutionally sound. It is also logical, because it is well recognised that the range of circumstances in which a person is unlawfully

killed is very wide indeed, and the range of possible sentences must be sufficiently broad and flexible to facilitate the construction of

an appropriate sentence to cover that wide range of circumstances.

It seems to the Court that the issue which arises in this case is precisely the same as that arising in all cases where a sentence is

challenged, namely, whether, in sentencing the applicant in this case, the accepted, and at this stage well established, principles of

law were applied, or whether instead the learned sentencing judge erred in law in failing to apply those principles, such that the

sentence imposed was not in law an appropriate one.

The Facts

In the present case, the events which gave rise to the conviction were extremely serious indeed. In this Court’s judgment on the

application for leave to appeal against conviction, the material events are set out and they make for very grim reading. It is,

however, necessary to set out in brief detail the same facts, because it is only in light of these that the sentence actually imposed

can be properly assessed in this case. Melissa Mahon, the young girl who died was only 14 at the time she was killed. She was

exceptionally vulnerable and fragile. The applicant was, at that time, 42 years of age, a strong man with an interest in keeping fit,

and the father of several children. Miss Mahon had left home repeatedly in the period before her death. She came to know the

applicant because she was a friend of, and almost of the same age, as two of the applicant’s daughters, Samantha and Heidi, who

were 15 and 13 (almost 14) at the time. They had another sister, Shirley, who also featured in the trial, but Miss Mahon was more

friendly with the other two girls. She therefore spent quite an amount of time in the home of the applicant. The applicant had set

himself up as a type of adult or father figure to Ms. Mahon. Miss Mahon went missing from her home on one occasion in August, 2006.

She was found in a shed at the back of the applicant’s house, but went missing again the next day, and stayed missing for three

weeks, although this unacceptable situation had been reported to the gardai. Miss Mahon spent those three weeks staying in the

applicant’s home, during which time the applicant did not tell the social workers involved, or the gardai, of her whereabouts. He

enabled the girl to continue to evade the Care Order(s) made, and avoid her social workers, so as to remain in close contact with him

and one of his daughters. He took elaborate steps to ensure the finger of suspicion was not pointed at him, feigning not to know her

whereabouts but rather pretending to endeavour to procure her reuniting with her care officer, while all the time she was in fact

residing in his house and in another house over which he had control. She was placed in foster care in County Leitrim but left as soon

as she got there, and was found and taken to meet her care worker, who bought her clothes. She secretly left while changing her

clothes at another premises, and had no further contact with social services after that date, prior to the date of her death a short

time later in September, 2006.

Evidence was also given by both Samantha and Heidi the two young daughters of the applicant. Their evidence, given by video link,

extended over a number of days. In general the evidence of these two daughters was to the effect that on the day Melissa Mahon

died, the elder daughter came home from a Youthreach programme around 5 p.m., the younger daughter being already in the house.

They went upstairs where they saw the applicant and Melissa Mahon lying on a bed. They agreed that, at some point during this

period, Melissa Mahon was breathing or that her chest was moving up and down. Subsequently, while still in the bed, she was not

breathing. Their evidence was also that she was placed, head first, in a sleeping bag; and was brought downstairs, placed in the boot

of the applicant’s car, and he drove the car with these two girls to a remote location. There, the applicant, with assistance from one

or both of his daughters, threw the sleeping bag, with the deceased in it, into the River Bonet. A considerable time later, in 2008, on

the shores of Lough Gill, into which the River Bonet flows, and about 850 metres from the point of entry identified by the applicant’s

daughters, a body, together with the cloths she had been wearing, were found in a sleeping bag. The cause of death could not be

medically established, having regard to the state of the body when it was recovered. The applicant had made sure that both

daughters, at the time only 13 or 15, became involved in bundling up the body into a sleeping bag, in moving it into his car and in

assisting him dispose of the body. He then returned to his house and went to a sporting event. Some time later he compelled one of

his daughters to travel with him to the river, during darkness, to check the location. There were several other matters of evidence,

equally disturbing, which do not require to be repeated in this judgment. A final particularly appalling action of the applicant was his

attempt at one point to blame one of his own daughters for the events which occurred.

On the general argument that the learned trial judge erred in law in imposing a sentence of life imprisonment when the jury had

acquitted the applicant of murder, this cannot succeed, at least not in the bald manner in which it is posited. Otherwise it would be

the case that wherever a person has been charged with murder, but was found guilty of manslaughter, a life sentence could never be

imposed. This is not the law. When properly and lawfully imposed, however, it is possible to see that such sentences arise in cases

which are extremely serious and even then they are rarely imposed. But they are not in any way prohibited. In principle, therefore,

there can be no case for holding that the imposition of a life sentence on a person found not guilty of murder is, by reason of that

fact alone, impermissible. This Court therefore embarks on a consideration of the sentence on the basis that, in principle, a life

sentence may be imposed for a conviction for manslaughter, and it is for this Court to assess whether, in imposing such a sentence,

the learned sentencing judge erred in law in the particular circumstances of this case.

While it is true that a convicted person should not be sentenced for extraneous events, and should not either be sentenced for

offences for which he could be, but has not been, charged, the court is satisfied that in assessing whether events may be taken into

account as part of the overall circumstances for sentencing purposes, the closer and more directly connected those events are to

the unlawful killing, whether before, during or after the death, the more a sentencing judge is entitled to look to such surrounding

events as a part of the circumstances to be properly considered in constructing the appropriate sentence (see: DPP v. Mulhall [2010]

IECCA 72). The sequence of events giving rise to the death, and the manner in which, after her death Melissa Mahon was wrapped up

in a sleeping bag and her body disposed of in the river, all in one seamless continuum, made it perfectly legitimate for the learned

sentencing judge to take into account not just the fact of the killing but the awesome events immediately beforehand, during and

immediately following, including involving his daughters in the transporting and disposal of the young girl’s body.

The case of DPP v. O’Donoghue, supra., invoked by the applicant is not one which assists him. That was an application by the

prosecution for a review of the leniency of sentence, pursuant to s.2 of the Criminal Justice Act, 1993 to which different principles

relate. In particular, it was suggested on behalf of the prosecution in that case that, the sentence was unduly lenient because there

had been a “violent assault” a matter the prosecution had always contended for in support of the murder charge. This Court found,

however, that that argument mistook a “dangerous” manoeuvre for a “violent assault”. The jury was fully entitled to accept the

forensic evidence on that point and had, it seems, returned a verdict of manslaughter in light of that evidence. The prosecution could

not, in such circumstances, seek to continue to rely on the “violent assault” argument in support of its contention that the offence

was at the highest end of the scale and the sentence imposed, therefore, unduly lenient, as this might lead to the verdict of the jury

being undermined in that case. It is not, however, a circumstance which arises here. The application in this case is against severity of

sentence, and there is no evidence that the prosecution or the learned sentencing judge had adopted an approach which was in any

way suggestive of the jury’s verdict being undermined by reason of any wrong interpretation of the evidence.

In this case, the learned sentencing judge approached the question of sentence in a considered and principled fashion, indeed in a

very measured manner, and eliminated from his consideration material which suggested, but had not established, an alleged sexual

relationship between the applicant and the young girl, and an alleged pregnancy. He invoked and considered relevant case law on the

matter, including People (DPP) v. Conroy, supra., which he considered in detail. In particular, he paid heed to that part of the

judgment which pronounced that merely because a person has pleaded guilty to a lesser offence, that event does not of itself

preclude a sentencing court from imposing a sentence which might also have been imposed for the other more serious offence. He

also cited People (DPP) v. McCormack [2000] 4 I.R. 356 which makes it clear that in constructing an appropriate sentence, that is an

exercise which must take account of and depend on its own special circumstances, which includes all the surrounding circumstances,

and he cited and took into account other case law which it is not necessary to detail further in this judgment.

This Court considers that the decision of the Supreme Court in People (DPP) v. Conroy, supra., is a more useful guide to the

appropriate sentence in this case than some of the alternative case law invoked on behalf of the applicant. Although it is clear from

the transcript that the applicant relied upon the decision of this Court in DPP v. O’Donoghue, supra., it is sufficient to add to what has

already been stated above, that that was a case in which the accused was a young man aged 17 at the time of the offence; he had

offered to plead guilty to manslaughter, which offer had been rejected; he had no previous convictions whatsoever; he made a full

statement to the gardai well prior to trial (admittedly not early in the course of the investigation and he wrongly endeavoured to

conceal the offence); he was, subsequent to his statement, of considerable assistance to the gardai, making a seven hour confession

without a break; and from the time he admitted to his own father that he had caused the death of his young neighbour, he displayed

very considerable remorse. Further, although the killing was tragic and of great trauma to the young boy’s family, the evidence

established that the accused in that case had grabbed hold of the young neighbour and held him in such an armlock that he died as a

result of pressure on his neck, in what was called a dangerous manoeuvre, but which was not well known to be dangerous. None of

the mitigating factors arising in that case are found in the present case.

Moreover, even if mitigating factors are present, a sentencing judge must still begin by placing the offence at the appropriate level in

the scale of seriousness. It is true that because of the actions of the applicant, the possibility of holding a post mortem and of

determining the actual cause of death were frustrated. The body was so well hidden in water for such a long time that it was not

discovered for well over a year, by which time forensic analysis could not determine the precise cause of death. However, there was

forensic evidence which eliminated certain possible causes of death, including that which had led to the death of the young boy in

the case of DPP v. O’Donoghue, supra.

The learned trial judge was entitled to find that the unlawful killing, including having a young extremely vulnerable and fragile girl in his

bed in unsuitable circumstances, having his arms around her neck; the girl dying while in his bed, could be considered. So, also, the

immediate aftermath of the bundling up of the body and the disposal of the body in a river by the applicant, ensuring it was attached

to weights as to avoid detection. Furthermore, he had coerced his own young daughters, who had found him in bed with the young

girl, into assisting in this. All of this was done in a continuous and seamless series of actions, which the sentencing judge was entitled

to find placed the offence at the highest and most grave end of the spectrum. Moreover, the applicant had several prior convictions,

details of which were given in evidence, although some of these were from the past. The applicant’s submissions suggest that the

learned trial judge was wrong in finding that the offence was to be considered “at the higher end” of the spectrum, because it is said:

“… in the instant case no weapon was used and the evidence adduced by the Prosecution did not disclose the infliction of any of

serious violence on the person of Melissa Mahon, nor were there any signs of injuries to the person of Melissa Mahon.” This is true,

but does not support the submission that, in their absence, the events cannot be characterised as being at the very serious end of

the spectrum. In the first place, as is stated above, the forensic evidence could not, in light of, and because of, the actions of the

applicant, determine the precise cause of death. But even it could have, and the above physical factors were absent, it is not the

case that an offence can only be considered as falling at the “higher end” of the scale of gravity, if there is evidence of use of a

weapon or evidence of serious physical violence. There are reported cases where the particular physical violence inflicted on a victim

has justified the imposition of a life sentence. The severity of an offence can, however, be measured by reference to other factors

also. Here, as is clear from the factual description of the events set out earlier in this judgment, that combination of factors makes it

extremely difficult indeed to categorise the offence as other than at the extremely serious end of the spectrum, such as to merit the

most serious sentence available for manslaughter.

Apart from the events themselves, the learned trial judge was also entitled to have regard to the following matters. In the present

case there was no plea of guilty, and no offer to plead guilty to a lesser offence than murder, such as manslaughter. Every accused is

fully entitled to opt for a trial and to continue to assert his innocence, and for that reason, no disadvantage can be visited on him if

he does so, in the sense of treating this as an aggravating factor. In the present application, there is no suggestion that the absence

of a plea was in any way taken into account by the sentencing judge. Equally, however, the benefit which might have been available

to the applicant as a mitigating factor in the form of a reduction for an early plea, or even for a plea before or during trial, did not

arise. A reduction in sentence might also be made in the case of an accused assisting the gardai in a material way. No such

assistance was given in this case, and therefore no question of mitigation arose on that point either. Further, it is clear from the

transcript that the applicant showed no remorse whatsoever, and continued to evince no remorse during trial, nor did he apologise at

all for what he had done, nor suggest any desire to engage in any form of rehabilitation. The learned trial judge noted, as he was

entitled to do, the very unsympathetic and inappropriate demeanour of the applicant during the course of the trial itself, which he had

the opportunity to observe over an extended period of time, and which he assessed as negative and bordering on contemptuous. This

constituted evidence of a continuing absence of remorse by the applicant and not evidence of bias on the part of the sentencing

judge, as alleged. Of further significance also was the fact that the applicant had taken upon himself to act as a type of adult or

father figure to an extremely vulnerable child, and purported to act as a person she could trust, but breached that trust in a shocking

manner. There was a significant disparity in age, he being 42 and a father of several children at the time, and she a naïve and fragile

14 year old girl with a disturbed history. This latter matter was an aggravating factor which could properly be taken into account by

the learned sentencing judge in approaching the matter from the point of view of concluding where, on the scale, the offence should

be placed.

Once the learned trial judge carried out this exercise, which he properly did in this Court’s view, he was obliged then to consider the

position of the applicant, and to assess whether there were any mitigating factors which ought to be taken into account in

structuring the appropriate sentence, including mitigating factors either surrounding the death itself, or indeed concerning the

applicant and his characteristics, traits, background, education, history and so forth, which if they existed, must be taken into

account. In the present case, as is clear from the above description, there were none.

The learned trial judge was alert to the fact that the imposition of a life sentence in the case of manslaughter is only appropriate in

exceptional and rare cases. This is indeed true, as he stressed on several occasions. This does not, on the law, preclude such a

sentence if the offence is at the very serious end of the scale and the circumstances are both rare and exceptional. The Court is

satisfied that the learned trial judge was entitled, in the present case, having regard to what were indeed both exceptional and rare

matters arising, and in the absence of any mitigating circumstances, to impose a life sentence on the applicant.

In all of the foregoing circumstances, this Court concludes that the learned sentencing judge did not commit any error in principle in

structuring a sentence which was the maximum available in respect of the manslaughter. The application for leave to appeal on

grounds of severity of sentence is refused.