Court of Criminal Appeal reduces life sentence to 12 years for aggravated rape and manslaughter due to error of principle.

COURT OF CRIMINAL APPEAL

In the matter of section 2 of the Criminal Justice Act, 1993

Kearns J.

Murphy J.

MacMenamin J.

CCA No: 64CJA/06

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT/APPELLANT

V

IAN HORGAN

RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered on the 3rd day of May, 2007.

This is an application brought by the applicant pursuant to s. 2 of the Criminal Justice Act, 1993 for a review of certain sentences of

imprisonment imposed on the respondent on 10th March, 2006, following his conviction on that date in the Central Criminal Court for

the rape and manslaughter of Rachel Kiely on 26th October, 2000, at the Regional Park in Ballincollig, Cork.

The respondent had been arraigned on two counts on 29th April, 2002, as follows:-

(a) Murder of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.

(b) Rape of Rachel Kiely on 26th October, 2000, at Ballincollig Community Park, Ballincollig in the County of Cork.

A trial lasting 26 days took place in May, 2002 in the course of which the respondent gave evidence denying that he had anything to

do with the death or rape of Rachel Kiely. However, at the conclusion of the trial, the respondent was convicted of the said offences

and was thereupon sentenced to a term of imprisonment for life on the count of murder and to a term of imprisonment of ten years

for rape, the same to run concurrently with the life sentence, but to date from the 6th November, 2000.

Because of an error in the summing up to the jury by the trial judge, both convictions were quashed by this Court on 6th December,

2004, and a retrial ordered, which said trial commenced on 21st February, 2006. On that date the respondent was re-arraigned and,

in relation to the count of murder, he pleaded “not guilty of murder but guilty of manslaughter.” The respondent at all times

maintained his plea of “not guilty” in relation to the count of rape.

The evidence at the second trial was to the effect that Rachel Kiely left her home in Inishmore Square, Ballincollig in Cork with her

two dogs to go walking in the nearby regional park at about 5pm on 26th October, 2000. She was then 22 years old and worked as a

beautician. While she was seen in the park at around 5.15pm, the dogs returned home without her at about 5.40pm, at which point

her mother became concerned as to Rachel’s whereabouts and safety. Both the gardaí and friends were contacted and an extensive

search was undertaken. Her body was found concealed in undergrowth near some old ruins located in the park. She had been raped

and there was further evidence that she had suffered compression to her neck, probably as a result of an armlock, which precipitated

her death by causing cardiac arrest. She also had extensive bruising along the left jaw line and some other scratches and superficial

injuries.

Evidence as to cause of death was given in the first trial by former State Pathologist Dr. John Harbison. Unfortunately, due to his

illness, he was unable to testify in the second trial. His successor, Dr. Marie Cassidy, gave evidence in relation to cause of death

which was based on photographs only. She concluded that Rachel was caught and held in an armlock which compressed her neck and

precipitated cardiac arrest and death. Semen found on the deceased matched a DNA sample from the respondent, who at the time

was a sixteen year old neighbour of Rachel Kiely. The respondent did not give evidence at this second trial.

At the conclusion of the trial, the respondent was ultimately found not guilty of murder by the jury but guilty of manslaughter. He was

also found guilty of rape by the jury.

On the same date, the respondent was sentenced to terms of imprisonment of eight years on each count, the same to run

concurrently, but as and from the 10th day of March, 2006, with six years of the said sentences being suspended. In formulating the

sentences, the learned trial judge noted that the respondent had already spent four and a half years in jail since 2002, the bulk of

which was time spent in custody whilst awaiting trial, but some of which followed his conviction in the aftermath of his first trial. The

learned trial judge had regard to the fact that the time spent in jail amounted to the equivalent of a six year sentence when remission

for good behaviour was taken into account. The sentence of eight years then imposed effectively added a further two years to that

six year sentence. The learned trial judge treated the respondent as a person with no previous convictions although that was not

strictly the case as of the sentencing date, the respondent having been convicted of certain other offences in 2005, during the

period when he was at liberty following the setting aside of his original convictions by this Court. As was noted in evidence given by

Sergeant Denis Cahill in the course of the sentencing hearing, the respondent was charged with the main offences on 10th November,

2000. He went into custody on that occasion and remained in custody until 31st January, 2005. At that time he was granted bail by

the High Court. However, he later went back into custody on 7th December, 2005, having been convicted at Macroom District Court

in County Cork of three offences. These offences consisted of a s. 2 assault, possession of stolen property and burglary, all

perpetrated while the respondent was on bail following the quashing of his convictions in the first trial. It appears he received a very

light sentence of 30 days in respect of these offences. In passing sentence the learned trial judge treated the respondent as a

person who had no previous convictions. He did so on the basis that the three offences dealt with in the District Court were

committed subsequent to the main offences of which he was convicted at the trial. He did however state that these later convictions

cast some doubt upon the genuineness of the respondent’s efforts at rehabilitation while in custody.

The Jurisdiction of the Court

Section 2(1) of the Criminal Justice Act, 1993, provides, inter alia:-

“If it appears to the Director of Public Prosecutions that a sentence imposed by a court… on conviction of a person on

indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence”

The test to be applied on the hearing of such an application was laid down by this Court in Director of Public Prosecutions v Byrne

[1995] 1 I.L.R.M. 279, where the following passage occurs at p.287:-

“…. since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as

the appropriate sentence would justify the intervention of this Court.”

In People (DPP) v Redmond [2001] 3 I.R. 390 this Court reaffirmed the basic principle that a sentence should not be disturbed just

because members of the court, had they been dealing with the matter at first instance, might have imposed a different one. Absent

exceptional circumstances, an error of principle must be demonstrated. Where, however, an error of principle is established, this Court

should proceed to consider what is the appropriate sentence, following for that purpose the procedures required under the authority

of The People (Director of Public Prosecutions) v Cunningham [2002] 2 I.R. 712.

The Application

The grounds upon which the applicant moves in the present case are as follows:-

(a) The learned trial judge failed to have due regard to the fact that the respondent had pleaded not guilty to the

offences upon which he was tried until the 21st February, 2006.

(b) The respondent’s denials included sworn testimony denying the said offences during the course of his first trial.

(c) The learned trial judge gave undue weight to the age of the respondent as a mitigating factor when imposing a

sentence.

(d) The learned trial judge erred in finding that the respondent had rehabilitated himself in whole or in part by virtue of

educational opportunities taken by him whilst in custody when he had been convicted for other offences whilst on bail on

the said charges, or, alternatively, giving undue weight to that consideration in the particular circumstances having

regard to the absence of any contrition in respect of the offences until 21st February, 2006.

(e) The learned trial judge failed to have due regard to the fact that the particular offence of manslaughter was that of

assault manslaughter committed in the course of or for the purposes of rape.

(f) that, having regard to the particular facts, the offence of manslaughter on this occasion had to be regarded as being

in the most serious class of offences, being a category or class of greater seriousness than manslaughter where the

evidence disclosed there was provocation or the use of excessive force in self - defence.

Submissions made on the application

In the course of the application before this Court, Mr. Patrick McCarthy, S.C., counsel for the applicant, contended that the

aggravating factors of the offences far outweighed the mitigating factors. He submitted that the evidence in case showed that the

respondent had “ambushed” Rachel Kiely while she was out for a walk in the park which was close to her home. The level of violence

involved in the course of the rape of Rachel Kiely had led to her death, and was thus to be seen as being in the worst category, or at

least in the same category, as those cases where a rape is accompanied by sustained or gross physical assault. Thirdly, he submitted

that the value of any plea offered by the respondent at the outset of a second trial was negligible having regard to the history of the

case.

Mr. Brendan Grehan, S.C., counsel for the respondent, urged that the original sentence should not be disturbed. He submitted that

the characterisation of what had happened as an “ambush” of Ms. Kiely was unsupported by evidence and indeed there was no

evidence that what had happened was premeditated. The respondent had made an amateurish attempt to cover his tracks and the

jury had acquitted the respondent of murdering Ms. Kiely. He had offered a plea of guilty to her manslaughter at the outset of the

second trial. He was aged only sixteen years when he killed Ms. Kiely and had no convictions prior to the date of the killing. The

respondent had also apologised for his actions after the verdict was returned by the jury. He had not appealed against his conviction

for rape. He was now a registered sex offender and was serving his sentence on a special wing in the midlands prison, Portlaoise, Co.

Laois. He had been the subject matter of some quite vicious media reporting since the date of his conviction. All of this had added

greatly to his suffering. Mr. Grehan urged that the respondent be permitted to continue his excellent progress on various educational

courses and to be put on a treatment programme for sex offenders.

In relation to the offence of manslaughter, Mr. Grehan urged the court to take the view that this was a case of “involuntary

manslaughter” where little violence had been inflicted on the victim. There was no evidence to suggest there had been any sustained

or violent attack upon Rachel Kiely. The evidence of State Pathologist, Dr. Cassidy, indicated that some relatively short term

compression of the neck could have precipitated cardiac arrest and caused of death of Rachel Kiely.

The Law

Manslaughter is an offence punishable with a maximum sentence of life imprisonment. Manslaughter consists of an unlawful killing and

is currently defined by reference to two categories, voluntary and involuntary manslaughter. Voluntary manslaughter is, essentially,

mitigated murder where the accused killed under provocation, or used excessive force in self-defence or could show diminished

responsibility on a charge of murder or infanticide. Involuntary manslaughter is, as pointed out by O’Malley in Sentencing Law and

Practice, 2nd Ed.,at p. 249:-

“...a somewhat misleading term in so far as it might suggest that the accused was acting involuntarily at the time, which

is not, of course, the case.”

Involuntary manslaughter currently comprises two subcategories, being (a) manslaughter by an unlawful and dangerous act and (b)

manslaughter by gross negligence. We are only here concerned with the former.

In Ireland, a conviction for unlawful and dangerous act manslaughter (where the unlawful act is an assault) arises where:-

(a) the act which causes death constitutes a criminal offence and poses the risk of bodily harm to another;

(b) the act is one which an ordinary reasonable person would consider to be dangerous, that is, likely to cause bodily

harm.

(c) in this regard ‘dangerousness’ is to be judged objectively.

As pointed out in the recent Law Reform Commission Consultation Paper on Involuntary Manslaughter (published March, 2007) at p.

27:-

“The fact that an accused did not foresee, or indeed that a reasonable person in his or her position would not have

foreseen death as a likely outcome of the unlawful conduct is irrelevant to a finding of guilt. Liability is constructive in

that an accused’s intention to inflict some trivial injury to another person would make it justifiable for the law to hold him

accountable for the unexpected result of his behaviour, that is, death.”

The requirement that the act must be both unlawful and dangerous to ground a manslaughter conviction was confirmed by this court

in The People (AG) v. Crosbie and Meehan [1966]1 I.R. 490.

It almost goes without saying that manslaughter by assault may involve varying degrees of culpability due to the varying degrees of

violence which may be employed. The Law Reform Commission Paper states:-

“The more brutal the assault (for instance if several punches or kicks are applied to the head or if the accused brandishes

a knife), the more foreseeable death or serious injury are and the more reprehensible the criminal conduct.”

Different levels of culpability are reflected in sentencing decisions. In the first edition of his book on the topic Mr. O’ Malley states at

p. 403:-

‘Of those imprisoned for manslaughter in 1993 and 1994, exactly 50 percent got five years or less and 50 percent got five

to 10 years. Sentences in excess of 10 years are rare, though not unknown, and are generally reserved for manslaughters

which, in terms of gravity, are bordering on murder. The general trend seems to be that the more deliberate and

gratuitous the assault or violence leading to the victim’s death, the heavier the punishment that is deserved.”

In the second edition of Sentencing Law and Practice, Mr. O’ Malley notes at pp. 249 to 250:-

“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 …. it is clear that the amount of violence intended or inflicted is a crucial

factor.”

Indeed, in The People (DPP) v Conroy (No.2) [1989] 1 I.R. 160, the Supreme Court noted that there was no presumption that a

particular instance of the crime of manslaughter could not, from a sentencing point of view, be as serious as, or more serious than, an

instance of the crime of murder and further that there was no sentencing principle which would inhibit a court from imposing the

maximum permissible sentence for manslaughter merely on the grounds that such a sentence had not been imposed in recent times.

As was noted by this Court in People (DPP) v Kelly [2005] 1 I.L.R.M. 19, the court must in every case examine the range of penalties

applicable. It must then ascertain the location within that range of the case under consideration. It is only after this examination has

been completed that the court should consider any mitigating circumstances. Current Irish sentencing principles require an

individuated approach.

That such an approach can yield widely varying outcomes is apparent from various decisions of this Court. In Conroy’s case, the

appellant was one of four men who forcibly entered the home of an elderly woman, tied her to a chair and ransacked the house. They

then entered another house occupied by two elderly men, each of whom was severely beaten. One of them died shortly afterwards as

a result of his injuries, while the other died in hospital some weeks later. While the appellant pleaded guilty to burglary and

manslaughter and had no previous convictions of significance, this Court imposed an effective sentence of 17 years in lieu of the

sentence of life imprisonment imposed by the Central Criminal Court for the manslaughter offence.

A very different view was taken in People (Director of Public Prosecutions) v. O’ Donoghue [2006] IE CCA 134. In that case the

defendant was an adult male in his 20’s who had forcefully griped an eleven year old boy, a neighbour who he knew very well, in a

headlock during a form of ‘horseplay’. He was charged with murder, and he pleaded not guilty to murder but guilty of manslaughter. In

a statement to the gardaí, he claimed that he grabbed the boy after the boy had thrown stones at his car, and that the death had

been an accident. At his trial he was acquitted of murder but was found guilty of manslaughter and was sentenced to four years

imprisonment. The prosecution appealed against the sentence imposed on the grounds of undue leniency.

In the course of dismissing the appeal, this court noted that the death arose out of the catching of the young boy in a headlock and,

even with the additional forcible grasping of the neck, this could not be described as “a deliberate, violent or prolonged assault” on

the deceased. However, the court also noted that that conclusion by the trial judge that this might be described as being at the

“horseplay end of things” was not inconsistent with its description of being “dangerous”.

Significantly, and in marked contrast to the present case, the O’ Donoghue case was bereft of any aggravating feature in the sense

that the unlawful and dangerous act which resulted in the death was not, on the facts as found by the court, linked with any other

offence, serious or otherwise.

Insofar as sentencing for rape is concerned, the Court is aware of a number of cases where in recent years this Court has upheld life

sentences imposed by the Central Criminal Court for that offence, including The People (DPP) v. D (Unreported, Court of Criminal

Appeal, 21st May, 2004), The People DPP v. RMcC (Unreported, Court of Criminal Appeal, 12th May, 2005), The People (DPP) v. Adams

(Unreported, Court of Criminal Appeal, 21st December, 2004) and The People (Director of Public Prosecutions) v. King (Unreported,

Court of Criminal Appeal, 7th April, 2005). Some of these cases involved multiple rapes and involved children, but in no case was the

victim killed. In The People (DPP) v. Barry (Unreported, Court of Criminal Appeal, 16th Oct, 2006) a sentence of 21 years was upheld

by this Court in circumstances where a young woman was assaulted and gang-raped by four assailants while her boyfriend was locked

in the boot of a car. There is thus ample precedent for a sentence at the highest range when the particular facts and circumstances

so demand.

As to the status and importance of previous convictions in the context of mitigation, the Court notes that in People (DPP) v Dwyer

[2007] IECCA 3, February 2nd, 2007, it was held that it was wrong and an error in principle for the trial court to hold that convictions

and sentences imposed subsequent to the date of the main offences but prior to sentencing for the main offences “can be effectively

ignored”, particularly where they illustrate a propensity or where they relate to similar crimes, and that they must be taken into

account – at least to some degree.

The Judgment

In passing sentence, the learned trial judge pointed out that the untimely death of Rachel Kiely had “undoubtedly devastated” the

entire of the Kiely family. The Kiely family and the respondent’s family had been obliged to move away from the locality where they

had been living. He noted that the respondent had, like the Kiely family, undergone the stress of having to face a second trial. He

further noted that in the intervening period the former State Pathologist, Dr. Harbison, had become ill. He observed that Dr. Harbison’s

illness had operated to the respondent’s benefit, “insofar as it seems that the evidence given by Dr. Cassidy was perhaps less forceful

from the prosecution’s point of view in relation to the charge of murder.” He noted that “in the circumstances” the jury were

constrained to return a verdict of manslaughter and “because of that, perhaps the rape was the more heinous of the offences you

committed.”

He then detailed the factors he would take into account in imposing sentence. Firstly, he took into consideration the age of the

respondent at the time when the offences were committed. The learned trial judge also dealt with the matter on the basis that, at

the time when the offences were committed, the respondent was a person of good character with no previous convictions. The

learned trial judge qualified that finding by adding: “but it does concern me, that within a relatively short period of being released from

custody, you got yourself into trouble and it does give me concern as to whether or not you will in fact rehabilitate yourself and that

was one of the reasons why I asked Mr. Grehan after lunch how you spent your time in prison and whether you had sought to avail of

the educational opportunities that were going to be open to you.”

The response to that inquiry revealed that the respondent had completed both his junior and leaving certificates while in prison and

this seems to have allayed the concerns of the trial judge on the issue of rehabilitation. The learned trial judge then proceeded to

determine that concurrent sentences were appropriate in respect of the convictions for manslaughter and rape and that a sentence

of eight years in respect of each of the counts was appropriate.

Having regard to the period spent in custody on remand, the learned trial judge assessed that this was the “equivalent of a six year

sentence”. He then proceeded to impose the eight year sentence in respect of the two offences, but suspended six years of the

eight year sentence in respect of each offence, the said sentence to operate from 10th March, 2006.

Decision

The court is satisfied that there was a basic error of principle in this case in the formulation of the sentence in that the aggravating

nature of each offence upon the other was not adequately addressed. The learned trial judge made no reference to this consideration

in the course of the sentencing hearing. In the view of this Court, this particular consideration is the distinguishing feature which

places the offences in the category of the most severe.

In considering the conviction for rape, the court cannot ignore the fact that this offence was aggravated to the greatest possible

degree by the dangerous manner in which it was perpetrated. This involved restraining the victim by her neck in an armlock or

headlock, a manoeuvre which, as was frankly conceded in the course of the cross-examination of Dr. Cassidy, involved a high degree

of danger to the victim. The learned trial judge, while undoubtedly mindful of the background facts, did not advert to them in any

detail. The victim, who was known to the respondent, had gone for a brisk walk in a nearby park with her dogs. The court does not

consider as unreasonable the characterisation of the rape and fatal assault on Rachel Kiely as a form of ambush in the particular

circumstances. It was perpetrated in sobriety in the late afternoon. There was evidence that the body had been moved to a

concealed position by the perpetrator. There was also evidence before the court that the respondent had attempted to run away or

leave home at an early stage of the garda investigation. Sergeant Cahill testified that on the evening when the respondent was first

interviewed at home by members of the gardaí, he thereafter left home with his bags packed and was subsequently picked up by the

gardaí in Cork city.

The court is also of the view that the plea of guilty to manslaughter which was offered at the outset of the second trial must be seen

as a relatively small value in the particular circumstances that the respondent gave sworn testimony that he had absolutely nothing

to do with this matter when first tried. On any version of events, the lateness of the plea, coming as it did some five years after the

events, greatly lessens its value. For much the same reasons, the value of the apology offered by the respondent in the aftermath of

his convictions must be seen in the same light.

Insofar as the manslaughter offence is concerned, the unlawful and dangerous act which resulted in the death of Rachel Kiely took

place during the course of a rape, which equally elevates that particular offence into the most serious category. The Court is of the

view that there are strong public policy considerations which demand that a rape accompanied by violence which carries an

appreciable risk of death, must be seen as being in a most serious category and must attract a sentence at the higher range. It is not

in controversy in the instant case that the neck of the deceased victim, Rachel Kiely, was compressed, either prior to or during the

course of the rape offence, and by any objective or reasonable standard this must be seen as a highly dangerous form of assault.

At the end of the day, it is perhaps unhelpful to characterise the case either as one of aggravated manslaughter or aggravated rape.

The truth of the matter is that each offence was aggravated by the other. It is that interconnection which demands the imposition of

a severe sentence. Having concluded that there was an error of principle in the formulation of the sentences by the learned High

Court judge, this Court proceeded to hear further submissions from the respondent’s counsel before rising to consider the sentence it

would substitute as appropriate. Having considered those further submissions, it is the decision of the Court to impose sentences

which, whilst severe, will not deprive the respondent of some hope of rehabilitation and re-entry into society. The Court is also

mindful of his very young age at the time of the commission of the offences. The Court also takes into account the fact that the

respondent offered a plea of guilty to manslaughter at the commencement of his second trial, though that plea was of no great value

when the entire history of the case is taken into account and notably where the denial of rape was maintained.

The Court will substitute sentences of twelve years on each of the convictions for manslaughter and rape, the same to run

concurrently, and to be backdated to the 10th September, 2001. The Court would hope that the educational opportunities afforded

to the respondent in the past will be continued during the remainder of his sentence.

Given that it formed no part of the applicant’s oral submissions before this court, and given that the decision of this Court in DPP v

Dwyer [2007] IECCA 3 was not available to the learned trial judge or referred to by counsel for the applicant, the court in reaching its

decision has not taken into account in any way, other than in the manner considered by the trial judge, the significance of the

convictions incurred by the respondent during the period when he was on bail in 2005. The Court believes it was a reasonable

approach on the part of the trial judge to treat the 2005 convictions as raising doubts about the sincerity of the respondent’s efforts

at rehabilitation at that time and will refrain from considering any other sequelae which may flow from the Dwyer decision, given that

it is not altogether clear from the judgment whether the later offences in that case were committed subsequent to the offences the

subject matter of the application for review.