Court of Criminal Appeal reduces manslaughter sentence from ten years to eight years suspended due to unaccepted guilty plea offer.

COURT OF CRIMINAL APPEAL

Record No. 304/08

Finnegan J.

Budd J.

McKechnie J.

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

.v.

FINN COLCLOUGH

APPLICANT

Judgment of the Court delivered on the 26th day of February 2010 by Finnegan J.

The applicant was charged with murder contrary to common law, the particulars of the offence being that he did on the 26th

day of May 2007 at Waterloo Road in the City of Dublin murder one Séan Nolan. Following a trial lasting six days he was

found not guilty of murder but guilty of manslaughter. He was sentenced to ten years imprisonment. He appeals against

sentence only.

Séan Nolan was born on the 13th September 1988 and was then eighteen years and eight months of age. On that day there

were graduation celebrations at St. Joseph’s CBS School which he attended with his family, friends and classmates. The

celebrations continued into the following morning and entailed a visit to some pubs and a night club. On leaving the night

club Séan Nolan with two friends walked in the Donnybrook direction looking for a female friend of Mr Nolan whom he

knew lived in the Waterloo Road area. They purchased a bottle of wine in a petrol station. At Waterloo Road they met the

applicant and two of his friends.

The applicant was also celebrating. On the night of the 25th May he was seventeen years and two months of age. With

family and friends he had been celebrating a twenty first birthday. On that day too he had finished his school year. He

returned to his family home at Waterloo Road with some friends. In the house at that time were his parents who were in

bed, his brother and some friends. Later at about 3 a.m. the applicant with one male and one female friend aged sixteen

years and fifteen years respectively went out for a walk and that is when they came across Mr Nolan and his friends.

Mr Nolan and his friends were still looking for the house in the Waterloo Road area and made inquiries of the applicant and

his friends. Their conversation was short. The fifteen year old girl described Mr Nolan’s group as having an aggressive

demeanour. Mr Nolan’s companions in their evidence accepted that the applicant and his friends were intimidated by the

encounter. The applicant and his friends returned to his family home and locked the door behind them. Mr Nolan and his

friends remained close to the entrance to the applicant’s home. The fifteen year old girl went out and asked them to leave

but they did not. The applicant became agitated, took two knives and ran from the house onto Waterloo Road. He was

screaming and shouting and brandished the two knives. Mr Nolan approached the applicant and there was some pushing and

shoving and then Mr Nolan struck the applicant. The applicant pushed at Mr Nolan and in so doing stabbed him in two

positions. Mr Nolan collapsed. The applicant returned to his house. He then telephoned an ambulance. Shortly afterwards

an ambulance and Gardai arrived.

The applicant told the first Garda who arrived on the scene “it was me”. He was immediately cautioned and arrested and on

being arrested he said “He hit me. He would not get out of the garden. I am only seventeen.” The applicant following his

arrest was co-operative and expressed remorse which was accepted as genuine and spontaneous.

In the course of sentencing the learned trial judge referred to The People (Director of Public Prosecutions) v Kelly [2005]

2 I.R. 321. In that case the Director of Public Prosecutions handed into court two lists, one of sentences imposed in the

Central Criminal Court on pleas to manslaughter and the other of sentences imposed on convictions for manslaughter. The

Court of Criminal Appeal dealt with those lists as follows at page 331:-

“Some of the sentences on the list with which we have been provided are suspended, in whole or in part,

where they are part suspended, the portion suspended ranges from six months to seven years. There is nothing

to indicate whether those portions of the sentence are suspended conditionally or unconditionally. Accordingly

for ease of presentation we have considered for example a six year sentence with one year suspended as a five

year sentence.

With that qualification, the information with which we have been provided and which extends to fifty cases

may be summarised as follows. Sixteen of them were cases of pleas of guilty. Of these three attracted sentences

of over ten years. Thirteen cases, therefore, attracted sentences of less than ten years of which nine featured

sentences of under five years. Of this group four sentences were wholly suspended.

Of the thirty four cases of convictions for manslaughter, ten attracted sentences in excess of ten years. Twenty

four therefore attracted sentences of less than ten years of which fifteen were under five years. Two of these

were wholly suspended.

In aggregate, therefore, of the fifty cases there were thirteen sentences in excess of ten years and thirty seven

of under ten years. Of this latter group twenty four sentences were of under five years. Of this group, in turn

six sentences were wholly suspended.

Of the sentences in excess of ten years in conviction cases, one was of twelve years, three of fourteen years and

one of seventeen years. There were in all five cases attracting sentences over ten years of which the present

case was one. Of the sixteen cases of pleas to manslaughter three attracted sentences of over ten years,

fourteen years being the longest sentence imposed.”

A circumstance which occurred in Director of Public Prosecutions v Kelly relevant here is that in that case the applicant

offered to plead guilty to manslaughter which plea was not accepted and he successfully defended the allegation of murder

being convicted of manslaughter: the court treated him as having pleaded. That manslaughter also involved use of a knife. In

the Central Criminal Court the applicant was sentenced to fourteen years imprisonment: on appeal to the Court of Criminal

Appeal the sentence was reduced to eight years imprisonment.

The learned trial judge in sentencing the applicant expressly took into account the applicant’s youth, remorse and lack of

previous convictions. He took into account the evidence of Dr O’Connell. The learned trial judge expressly took into

account the impact of the death of Mr Nolan on his family.

The evidence of Dr. Paul O’Connell at sentencing was as follows. Dr. O’Connell is a forensic psychiatrist. He gave

evidence that the applicant has an extensive psychiatric history dating from 2002 at which time he came into contact with

the Lucina Clinic Child and Adolescent Mental Health Services at St. John of God’s. He displayed symptoms of obsessive

compulsive disorder including extensive hand washing, fears of contamination, tics and involuntary motor movements. In

the period 2003 to 2007 the applicant was treated at the Lucina Clinic with psychological treatment techniques and

medication. The medication included Dispiritone an antipsychotic drug and Fluoxetine an antidepressant. He was discharged

from the Lucina Clinic in 2007, the year of the offence. Dr. O’Connell interviewed the applicant on the 11th December

2008. He was in D2 Wing in Cloverhill Prison because the authorities regarded him as a vulnerable prisoner. The opinion of

Dr. O’Connell is that the applicant suffers from obsessive compulsive disorder and still has symptoms of that condition

which is a risk factor for depression. In the records of the Lucina Clinic the applicant is described as a “peacemaker” within

his family: that is one who would ordinarily adopt a conciliatory stance when there were family arguments or would

otherwise withdraw from confrontation in the family. On a test, the HCR20, which calculates the risk of future violence, the

applicant scored as a low risk.

At the end of counsel’s closing speeches the learned trial judge addressed counsel for the applicant as follows.

“Judge Mr Gageby you floated provocation in about a sentence or so, so that is there. I am not clear from

your speech that you are still running self-defence as you indicated at an earlier stage that you were.

Mr Gageby I would ask Your Lordship to instruct in self-defence, yes, but obviously I am not asking Your

Lordship to do anything more than to do that.

Judge Very good. Jury back, please.”

The learned trial judge then dealt in the course of his charge with provocation and self-defence. At the sentence hearing

counsel for the applicant put it to the Garda witness that the only issue in the case was the intention of the accused during

the course of the fracas. The learned trial judge interrupted as follows:-

“That is not quite true Mr Gageby. You sought leave to run provocation and you also asked me to charge on

the full defence of self-defence. So there were three issues run and it is totally incorrect to say that the issue is

narrowed to intent.”

In his submissions counsel for the applicant pointed out to the learned trial judge that both the closing by the prosecution and

his closing were on the sole basis of the presence or absence of intent.

At the conclusion of counsel for the applicant’s address on sentencing the learned trial judge said:-

“Three issues were raised in this trial rather than the single issue of intent as suggested by Mr. Gageby. The defence

obtained leave to run provocation as a defence and also asked me to charge the jury on the full defence of self- defence

which, if successful would have resulted in an outright acquittal. In these circumstances it is difficult to accept that I am

only dealing with the plea of guilty as contended for by Mr Gageby. We don’t know on which issue the jury made their

finding of manslaughter rather than murder but they were permitted by me during the trial to hear from Dr. O’Connell so

they would have material on which to apply the subjective test.”

Grounds of Appeal

The following grounds of appeal were relied upon by the applicant:-

The learned trial judge failed to have any regard to the fact that the applicant was in effect convicted of

involuntary manslaughter.

The learned trial judge erred in failing to examine the range of penalties applicable to the offence of manslaughter

and determine the location of the applicant’s offence within that range before considering the mitigating factors

applicable in the case or implicitly located the offence committed by the applicant within the said range of

penalties at a level higher than that which was appropriate prior to considering the mitigating practice applicable.

The sentence of ten years imposed upon the applicant was excessive and/or unduly severe and/or

disproportionate.

Further the learned sentencing judge failed to make adequate allowance for the several mitigating factors in the

applicant’s case including:

his youth.

the fact that he had no previous convictions.

he was assessed at low risk of re-offending.

his remorse.

his psychiatric history and effort to deal with his difficulties.

his offer of a plea of guilty.

The sentence of ten years, having taken into account all the mitigating circumstances identified by the learned trial judge, is

not one which is excessive so as to amount to an error of principle. The statistical information which is derived from

Director of Public Prosecutions v Kelly is of some limited assistance in establishing the range of penalties which have been

imposed on pleas to or convictions of manslaughter. However it must be borne in mind that the circumstances attending

each of the offences and each of the offenders involved in the fifty cases mentioned are not disclosed. Nonetheless it is quite

clear from the statistics that a plea of guilty merits consideration in terms of sentence. In the sixteen cases recited in which

there was a plea to manslaughter the outcome was as follows:-

Over ten years - three cases.

Five to ten years - four cases.

Less than five years - five cases.

Wholly suspended - four cases.

In the present case the applicant tendered a plea of guilty to manslaughter which was not accepted. The learned trial judge

was not prepared to treat the offer of a plea as a plea of guilty. The learned trial judge had regard to the circumstance that

on the run of evidence it was necessary for him to charge the jury on provocation and on the full defence of self-defence.

In Director of Public Prosecutions v Mark Greene, unreported, Court of Criminal Appeal, 26th May 2009 the

circumstances were not dissimilar to the present case. It concerned a fatal stabbing. The applicant offered to plead guilty to

manslaughter but the offer was not accepted and the matter proceeded as a charge of murder. He was convicted of

manslaughter. In the course of judgment Hardiman J. said:-

“Bearing in mind all of the factors most significantly in favour of the accused, which are that he offered to plead guilty

to manslaughter and is therefore entitled to be treated as having pleaded guilty since he was acquitted of murder…”

Also in Director of Public Prosecutions v Kelly, [2005] 2 I.R. 321 at 337 the Court of Criminal Appeal treated as having

pleaded to manslaughter the applicant who had offered a plea which was rejected by the prosecution.

In the present case it is unclear what if any consideration was given to the applicant in respect of his offer of a plea of guilty

to manslaughter. The court considers it an error in principle if no such consideration was given or that such consideration

was diluted because, arising out of the hearing, issues arose as to self-defence and provocation which would not have arisen

if the offer of a plea was accepted.

This being so this court will grant the applicant leave to appeal and treat the application as the hearing of the appeal and for

the sentence imposed by the learned trial judge will substitute a sentence of ten years with the last two years suspended. The

court is satisfied that such a sentence appropriately reflects the mitigating factors identified by the learned trial judge together

with such mitigation as his offer of a plea of guilty to manslaughter entitles him.