Court of Appeal dismisses appeal against manslaughter sentence, upholding judge's discretion on remand credit and prior suspended sentence aggravation.

THE COURT OF APPEAL

Appeal No. 277/11

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

- and –

John Flaherty

Appellant

Judgment (ex tempore) of the Court delivered by Mr. Justice Alan Mahon on the 21st day of July 2015

1. The appellant was convicted of manslaughter by a jury at the Central Criminal Court sitting in Waterford on 10th November 2011

having, prior to the commencement of the trial pleaded not guilty to murder and guilty to manslaughter. The appellant also pleaded

guilty on 2nd November 2011 to a charge of assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act

1997. He was sentenced in respect of both on 25th November 2011. In respect of the manslaughter conviction he received a

sentence of ten years imprisonment with the final two and a half years suspended unconditionally. In respect of the assault

conviction he was sentenced to two years imprisonment. Both sentences were concurrent and were directed to date from the lawful

termination of a activated suspended sentence imposed by the Circuit Criminal Court in Waterford on 24th November 2011. This

activated suspended sentence was for a term of two years.

2. This is an appeal against severity of sentence.

3. On 10th June 2010 the appellant entered the home of Amy Quigley with whom he was in an on/off relationship. Having entered her

bedroom he found her in bed with Patrick Murphy, the deceased. The appellant, having punched Mr. Murphy who was lying helpless in

bed, then momentarily left the bedroom, armed himself with a knife from the kitchen, returned to the bedroom and proceeded to

attack Ms. Quigley. In the melee that ensued, the appellant stabbed Mr. Murphy many times, killing him. The appellant and Ms.

Quigley were the parents of three young children who were residing with Ms. Quigley at the time. The deceased was the father of one

young girl. The appellant’s infant child, Michael, witnessed the violent assault on his mother and on the deceased. The learned

sentencing judge aptly described the occurrence as “an outrageous and violent incident which had the most appalling

consequences”.

4. The appellant’s grounds of appeal were originally nine in number, but at the outset of the hearing of the appeal counsel for the

appellant advised the court that the appeal has now been confined to the following:-

• The failure of the learned sentencing judge to:-

(i) give real and effective credit for the time spent on remand up to the date of the sentence hearing and,

(ii) to have sufficient regard to the totality of the sentences to the totality of sentences principle and,

(iii) the learned trial judge erred in principle in imposing a sentence which was in all the circumstances excessive.

5. The learned sentencing judge placed the case as falling in the mid to upper range of the crime of manslaughter in terms of its

gravity. He identified aggravating factors as including the fact that the deceased was, in effect, helpless in bed when attacked by

the appellant, that there was an element of pre-meditation on the part of the appellant in that he left the bedroom, went to another

room, picked up a knife, and returned with disastrous consequences, that the incident took place in a bedroom in the home of Ms.

Quigley, and in the presence of a very young child.

6. These crimes were committed by the appellant at a time when he was the subject of a suspended two year sentence for a serious

crime of violence imposed by the Circuit Criminal Court, being an assault contrary to s. 3 of the Non Fatal Offences against the Person

Act, 1997, and an offence which involved the appellant slitting a man’s face with a piece of glass. The sentence for this offence on

17th November 2009 was one of five years imprisonment with the final two years suspended. At the time of these offences therefore,

the appellant had only recently been released from custody having served the custodial element of the sentence imposed by the

Circuit Criminal Court.

7. As was pointed out by the learned sentencing judge, in the circumstances, the commencement of the sentence imposed for the

manslaughter offence had to date from the expiry of the activated Circuit Court suspended sentence. It was not open to him to

backdate the commencement of the manslaughter sentence to the date on which the appellant initially went into custody in relation

thereto. This is accepted as correct by counsel for the appellant. The learned sentencing judge did however provide for this aspect of

the case in that he suspended the final two and a half years of the ten year manslaughter sentence unconditionally in circumstances

where he indicated that he would have only suspended the final eighteen months of that sentence if he had been in a position to

backdate the commencement of the Circuit Court sentence. The learned sentencing judge stated in the course of his judgment:-

“So, as I say, it if were not for this issue of the suspended sentence I would be looking at imposing a sentence of ten

years imprisonment with eighteen months suspended, backdated to the date that Mr. Flaherty went into custody.

It seems to me that I can best give effect to the intentions of the Oireachtas which clearly is that there should be real

consequences for those who offend subject to suspended sentence. Whilst still having regard to the principle of totality

and avoiding an overall sentence that would in total be excessive, if I impose a sentence of ten years imprisonment

which I regard as the appropriate sentence for the offence, to date from the expiry of the sentence of two years that

was re-activated yesterday, but if I suspend the final two and a half years unconditionally, and I will do that. So far as

the second offence to which he pleaded guilty at the outset of the trial is concerned, I will impose a sentence of two

years imprisonment again to date from the expiry of the re-activated sentence yesterday and that sentence and the

sentence imposed on the manslaughter will be concurrent.”

8. It is therefore clearly the case that the appellant’s main ground of appeal, namely that the learned sentencing judge failed to give

real and effective credit for the time spent on remand, is misconceived. On the contrary, the learned sentencing judge did in reality,

and in effect, allow an additional twelve months of suspended sentence to provide for this situation. What he did not do is provide in

his sentence for the full period of remand in custody prior to the date of sentence.

9. While it is generally the practice, when arriving at the appropriate sentence for a particular offence and a particular offender, to

allow full credit for time spent in custody prior to the sentencing date, it is not mandatory that this be done, and indeed in some

instances which might be described as exceptional, it would not be appropriate to so do. Sentencing judges should have a discretion

to decline to give any credit, or alternatively to give limited credit, for time spent in custody in appropriate cases, and with due

regard to the totality principle.

10. In this case the learned sentencing judge was required to impose a sentence for a very significant crime involving very serious

violence with fatal consequences. He quite rightly placed the offence at the mid to upper range of manslaughter in terms of its

gravity. His assessment of the aggravating factors was entirely appropriate as was his identification of the mitigating factors.

11. While the activated two years suspended sentence was imposed in recognition that a serious offence, namely manslaughter, was

committed during a period of a suspended sentence, it was open to the learned sentencing judge in the manslaughter case to treat

as an additional aggravating factor the fact that the appellant, at a time when he had relatively recently been convicted of a serious

crime of violence, and which was not entirely dissimilar to the stabbing of Mr. Murphy, and also that the appellant had spurned the

chance afforded to him by the suspension of a significant period of a five year sentence. The learned sentencing judge was not

required to ignore this aspect of the appellant’s prior behaviour simply because the suspended sentence had been activated.

12. What the learned sentencing judge did do was to build into his sentence structure an element of discount to, as it were,

compensate the appellant to the degree he believed appropriate for the period of time spent in custody. He did so by adding an

additional twelve months to the eighteen months of suspended sentence which he initially intended to impose.

13. The totality principle in sentencing requires a sentencing judge to consider the total period of time that a convicted person will be

required to spend in prison where there is a multiplicity of separate prison sentences involved, and including the circumstances (which

are present in this case), namely the existence of a statutory requirement that a prison sentence should commence at the expiration

of an existing sentence yet to be completed.

14. No error of principle has been identified in the learned sentencing judge’s reasoning for the imposition of a ten year sentence with

the final two and a half years suspended. The court is satisfied that the headline sentence of ten years is the appropriate sentence,

and that the suspension of the final two and a half years of that sentence adequately and fairly respects the totality principle in the

particular circumstances of this case.

15. The appeal is therefore dismissed.