Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Jurijs Princs

Neutral Citation: [2007] IECCA 142


Court of Criminal Appeal Record Number: 230CJA/06

Date of Delivery: 31 July 2007

Court: Court of Criminal Appeal

THE COURT OF CRIMINAL APPEAL

Murray C.J. 2006 No. 230CJA
Hanna J.
Irvine J.

BETWEEN

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

The sentence in question is one of four years and nine months imprisonment imposed on the Respondent by the Central Criminal Court on the 15th November 2006 for the offence of manslaughter of Mr. Robertas Stravinsks a Latvian national. The sentence imposed was backdated to the 23rd May 2005, the date of the Respondent’s arrest.

Facts Related to the Offence

The Respondent was charged and tried for the crime of murder. He had offered a plea to manslaughter but this was not accepted by the D.P.P. At the trial the Respondent relied on the defence of provocation. He was acquitted of the offence of murder and convicted of manslaughter.

At the hearing of this application the facts and circumstances surrounding the unlawful killing of the deceased by the Respondent although sketchy in parts were not in controversy and were agreed. These were as follows:

Early on the 23rd May 2005 the Respondent and the deceased were among a group of persons drinking in a friend’s house. A considerable quantity of alcohol was consumed there and, later on, elsewhere on the same day. Some disagreement arose between the Respondent and the deceased concerning a spare room which the Respondent had in his flat but which he did not wish the deceased to occupy. However no violence arose on account of this.

At a certain point on the 23rd May the Respondent, the deceased and another man left the house in which they were drinking and eventually, later in the afternoon, arrived at the Respondent’s flat at Cromwellsfort Road, Dublin where drinking continued.

At some stage during this latter drinking session, the Respondent took up a kitchen knife which had been lying on a nearby table and stabbed the deceased three times while he was sitting in an armchair. One of the stab wounds was to the neck and shoulder area which damaged the corotid artery. It also pierced a lung. That stab wound proved fatal. The other two stab wounds were to the legs and were not fatal.

The third man who had returned to the flat with the Respondent and the deceased had fallen asleep. He awoke to find the deceased in the armchair covered in blood and the Respondent attempting to stem the blood with bandages. The Respondent told this man he had killed the deceased. He was also expressing remorse at the effect that this would have on the deceased’s child who was then only six months old. The Respondent then phoned another friend who arrived later and assisted the Respondent to carry the body of the deceased into an adjoining bedroom. The three men then left the flat and the Respondent was arrested later that evening when stopped by the Gardaí. In fact the Respondent had driven to a shop where he purchased flowers and some drink. His manner of driving to the shop was so erratic and dangerous that it had been reported to the Gardaí. On foot of this complaint the Gardaí went to investigate and arrested him outside the shop where he had made his purchases. He was still wearing the same clothes as he had worn in the flat when he had stabbed the deceased and there was much evidence of blood on them. In the meantime the death of the deceased had been reported to the Gardaí by persons who had returned to the flat and found the body. The Gardaí having made a connection between the stabbing of the deceased and the Respondent arrested him on suspicion of the killing.

He was duly detained under s. 4 of the Criminal Justice Act of 1984 and interviewed. During the course of these interviews he admitted stabbing the deceased but gave as a reason for doing so aggressive and insulting behaviour on the part of the deceased. He told the Gardaí that the deceased had been shouting at him, insulting him and was of the belief that the deceased would become more aggressive although at no stage was there any evidence of actual violence being used by the deceased. In evidence to the Court at his trial he added to the foregoing by saying that the deceased had insulted a former girlfriend and referred to her as a “Lithuanian bitch” who slept with a Russian. The deceased was being offensive towards Russians. The Respondent is himself Latvian but of Russian extraction. At his trial the Respondent said that he lost control and grabbed the kitchen knife which happened to be on the table and stabbed the deceased. There was no evidence that the deceased had attacked or attempted to attack the Accused.

The Sentence

In the first instance the learned trial Judge acknowledged the gravity of the offence and stated “First of all a young man is dead, and that person had a partner and a child… . Secondly, it is a fact that in this case, the deceased person was drunk, unarmed and was sitting on a chair so the Court must regard this as being a very serious matter indeed.” The learned Trial Judge then went on to address the factors which he felt operated in mitigation of the culpability of the Respondent. The following mitigating factors were taken into account by him:

· He co-operated with the Gardaí in the investigation and admitted to them his part in the offence.

Manslaughter

The law recognises two offences of homicide one of which is murder and the other manslaughter. The Respondent was tried for murder, acquitted on that charge and convicted of manslaughter. Murder arises where a person kills another person unlawfully with intent, that is to say the intent defined in s. 4 of the Criminal Justice Act 1964 where an accused “intended to kill, or cause serious injury to, whether the person actually killed or not.” Manslaughter is any other unlawful killing. It is usually defined by reference to two categories, voluntary and involuntary manslaughter.

The Law Reform Commission has summed up the various categories of voluntary manslaughter in the following terms “Voluntary manslaughter currently comprises a number of sub categories. First, where all the elements of murder are established or the Jury is satisfied that the Accused acted under provocation when he or she killed the other person. Second, where all the elements of murder established but the Jury is satisfied that excessive force was used by the Accused in self defence. Third, where – pursuant to the Criminal Law (Insanity) Act 2006 – a plea of diminished responsibility is established in answer to a charge of murder or infanticide.” (Law Reform Commission, Consultation Paper, Involuntary Manslaughter, 2007).

This is a case of voluntary manslaughter by a violent and unlawful act. That the Respondent fatally stabbed the deceased victim was not in issue at the trial. It was common case in this appeal that the defence of the Respondent at his trial for murder was one of provocation which the Jury accepted in bringing in a verdict of manslaughter and a not guilty verdict on the charge of murder. In doing so the Jury may be taken to have concluded, on the basis of the evidence before it, that the provocation caused the Respondent to loose control of himself or at least that the Prosecution failed to prove beyond reasonable doubt that the provocation did not result in the Respondent losing such control. However, provocation can never exonerate an accused from criminal responsibility it can only reduce murder to manslaughter.

The maximum penalty for manslaughter is life imprisonment. 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. As Mr. Tom O’Malley points out in his second edition of Sentencing Law and Practice (at p. 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.” He also added, as regards the length of sentence, (at page 250) “…It is clear that the amount of violence intended or inflicted is a crucial factor.”

In summary, the offence of manslaughter, particularly voluntary manslaughter where an unlawful act of violence is involved, should normally involve a substantial term of imprisonment because a person has been killed. Only where there are special circumstances and context will a moderate sentence or in wholly exceptional circumstances, a non-custodial sentence, be warranted. Those circumstances are more likely to arise in cases if involuntary manslaughter and in any case there are no such special circumstances in this case.

Submission on behalf of the D.P.P.

The essence of the submissions by Counsel on behalf of the D.P.P. are that the learned trial Judge did not give sufficient weight to the gravity of the offence having regard to the level of violence used by the Respondent and at the same time gave undue weight to the mitigating factors. It was submitted that the sentence of four years nine months was out of kilter with the kind of sentences which had been approved or imposed by this Court in comparable cases. Counsel referred first of all to the case of D.P.P. –v- Kelly 2005 1 ILRM at 19 where the accused, who was aged 27 years at the time of the offence, fatally stabbed the victim in a confrontation that arose over the taking of a mobile phone. Counsel pointed out that in that case the Court took into account the following mitigating factors, the youth of the accused; he expressed regret; he was in constant employment and a good worker; he had no previous convictions and the knife was not carried by him but given to him by somebody at the scene. In that case this Court concluded that the offence fell into “the upper part of the middle range of gravity for manslaughter” and this case should be considered falling into the same category. In that case a term of imprisonment of fourteen years was imposed.

Secondly Counsel for the D.P.P. referred to the case of D.P.P. –v- Dillon (CCA, Unreported, 17th December 2003). Counsel pointed out that this was also a case of fatal stabbing. The accused had been tried for murder but convicted of manslaughter where the defence was provocation or self defence. The trial judge had imposed a sentence of twenty years imprisonment but on appeal this was reduced to eight years. It was submitted that in the context of that case the Court considered that provocation was a less meritorious factor than self defence from the sentencing point of view.

Finally Counsel referred to the case of D.P.P. –v- Cooney (CCA, Unreported, 27th July 2004). That was also a case of fatal stabbing after a row. The accused had offered a plea of manslaughter which was accepted. The mitigating factors included the fact that the accused had accepted his guilt and tried to assist the deceased. Alcohol was also involved. The trial Judge imposed a sentence of fourteen years which was reduced to eight years on appeal.

Counsel submitted that in failing to attach sufficient importance to the aggravating factors of this case the sentence of four years and nine months imposed by the learned trial Judge constituted a substantial departure from the sentence imposed in similar or near similar circumstances.

Submissions on behalf of the Respondent

Counsel for the Respondent submitted that the learned trial Judge had properly exercised his discretion in deciding on the appropriate sentence. He emphasised that the learned trial Judge had accepted the validity of the various mitigating factors namely, his willingness to plead guilty to the crime of manslaughter at a very early stage, his immediate and genuine remorse for the crime, his early co-operation with and admissions to the Gardaí, his previous good character with the absence of any previous convictions and finally that the crime was not a premeditated act.

As regards the case-law relied upon by Counsel for the D.P.P. Counsel for the Respondent pointed out that the Kelly case, where eight years imprisonment was imposed, could be distinguished from the present case. In that case the accused had left a house to confront the victim and he did so armed with a knife. He quoted from the judgment of the Court in that case which noted “It is also clear that he was not going about armed with a knife but he entered into what he perceived to be a fraught situation equipped with one. He fought while so equipped: even on the view of the evidence most favourable this is conduct which requires to be severely stigmatised in sentencing.” Here the accused simply picked up a kitchen knife which was to hand. While the cases relied upon by the D.P.P. may appear to indicate that a sentence of eight years is the appropriate sentence in cases of this nature nonetheless, Counsel submitted, that a trial Judge in every case retains both a duty and a discretion to impose a sentence which he or she considers appropriate in all the circumstances of the case and the particular circumstances of the accused, very few criminal cases being particularly similar. In support of this proposition he cited a statement to that effect by Finlay C.J. in The People (D.P.P.) –v- Tiernan 1988 IR 250 at 254.

In essence he submitted that the learned trial Judge in this case had identified all the relevant factors, both those which were aggravating and those which were mitigating and in exercising his discretion he accorded them due weight. Having done so the sentence cannot be considered as unduly lenient.

Decision

The learned trial Judge was, of course, entirely correct in pointing out the gravity of the offence which the Applicant committed involving as it did the voluntary act of fatally stabbing his victim. The Applicant stabbed his victim three times one of which was fatal. Moreover there was no physical aggression at any stage from the victim. The Respondent stabbed him while he was sitting in a chair in an inebriated state. What the Respondent stated provoked him was verbal abuse and insults coming from the victim concerning himself but in particular concerning Russians. Although the Respondent stated he had some fear of aggression from the victim there was no evidence that the victim made any overt act of aggression and according to the Respondent’s statement to the Gardai he did not bang the wall or bang the table at any stage in the room where the fatal killing took place. The knife which he used, which had a six inch blade, happened to be on the table but he knew it was there. As the learned trial Judge pointed out the victim impact report disclosed that the death of the deceased had devastating consequences for his partner and the child. The actions of the Accused therefore were one of gross violence with a knife with foreseeable risk of fatal consequences. In his statement to the Gardai he acknowledged that not only was the deceased sitting in a chair at the time but also was significantly inebriated which must have rendered him effectively defenceless to this sudden and violent attack.

No two cases are exactly alike and the Court has to look at the totality of the circumstances in order to determine the gravity of the offence in that context. Having regard to the circumstances of this case as outlined above the Court is satisfied that the D.P.P. is correct in submitting that this case of manslaughter falls in the upper part of the middle range of gravity.

There are, of course, the mitigating factors to be taken into account and these were correctly identified by the learned trial Judge. Counsel for the Respondent emphasised that he did all he could to aid the deceased after the stabbing by endeavouring to stem the flow of blood with towels or bandages and expressed immediate remorse for the crime. As the learned trial Judge pointed out this attempted aid was unsuccessful because what the deceased really needed was immediate medical attention. This ground of mitigation is, in the Court’s view, limited by the fact that the Respondent never called for outside medical assistance even though he told the Gardai that the deceased was alive after the stabbing for ten or fifteen minutes. He had told the Gardai that although he had his mobile phone with him he did not know how to phone for an ambulance. However he did phone a friend who came and assisted him to move the body into the bedroom and on the evidence he had the telephone numbers of other acquaintances on his mobile phone. One would have thought that the first instinct of anyone wishing to aid a severely bleeding victim would be to call an ambulance or to seek outside medical assistance although this would involve bringing the matter immediately to the notice of the authorities. The Respondent could have but did not ask his friend or telephone anybody else to try and get medical assistance as soon as possible. Instead, when his friend arrived in response to his call, the body was moved to, and left in, a bedroom and the Respondent without calling anybody else left to buy, inter alia, drink before he was eventually arrested by the Gardai. His initial expression of remorse was confined to the victim’s partner’s child rather than the victim himself. It can be said that from the outset he did co-operate with the Gardai, although it must also be said, that non co-operation would not have been entirely helpful given that his own clothes were covered with the victim’s blood whose body was in a bedroom in his flat. Nonetheless in addition to co-operating with the Gardai throughout he offered a plea of guilty to manslaughter at an early stage and all these are factors which properly serve to mitigate his sentence. Also to be taken into account by way of mitigation is his previous good character and absence of previous convictions in this country or his home country. By way of mitigation the trial Judge also pointed out that the offence was not a premeditated act but was something which erupted spontaneously against a background of drink on both sides. However it was the Respondent’s sudden loss of self control which resulted in the fact that he stands guilty of manslaughter rather than the more serious crime of murder which would automatically have involved a life sentence.

Although Counsel for the Respondent was correct in submitting that due regard must be had to the discretion exercised by a trial Judge the function of the Court is nonetheless to review a sentence as to whether it was wrong in principle or unduly lenient.

The learned trial Judge was also correct in pointing out that the extra burden which imprisonment in a foreign environment imposes on a foreign national should be taken into account when determining the length of sentence.

Although the learned trial Judge correctly identified all the relevant elements to be taken into account in relation to the sentence to be imposed in this case, the Court is of the view that the sentence of four years nine months falls well below the appropriate range of sentence for this kind of case and was unduly lenient. Either the learned trial Judge failed to give sufficient weight to the gravity of the offence and the surrounding circumstances or gave undue weight to the mitigating factors.

Accordingly, for the reasons stated, the Court proposes to uphold the application on behalf of the D.P.P.

The Court, at the request of the Respondent’s Counsel, who wishes to introduce a matter which has arisen since sentence was imposed at the trial court, has decided to adjourn to a later date its final determination of the sentence it should impose in the light of its decision on the application of the D.P.P.

The Respondent shall continue to be detained pursuant to the original warrant pending the making of a final decision and order in this matter.

In this matter the Court has already allowed the application of the D.P.P. for a review of the sentence imposed by the trial Court on the respondent on the grounds of undue leniency. As the Court pointed out in its substantive judgment on that application, the respondent stabbed his victim three times one of which was fatal. There was no physical aggression at any stage on the part of the victim. The Respondent stabbed him while he was sitting in a chair in an inebriated state.

As appears from those facts and the other circumstances the offence which the respondent committed, and indeed as acknowledged by the learned trial Judge, is a grave offence. The offence with which he was originally charged was murder which was reduced to manslaughter on the grounds of provocation. Again, as it was pointed out in the judgment of the Court on the substantive issue, manslaughter is a serious offence involving as it does the loss of life as a result of a criminal act of the accused. Normally it warrants a substantial term of imprisonment save and in wholly exceptional circumstances which do not arise in this particular case.

In a case such as this where a charge of murder has been reduced to manslaughter because of provocation regard must be had to the nature and degree of provocation involved and in particular whether there was any threat or violence on the part of the victim.

In this case, although the Respondent had mentioned in his account to the Gardai and in his evidence that he feared that the victim might become more aggressive, nonetheless the provocation was of a low level involving as it did insults and verbal abuse without any overt threat of violence.

Also relevant is the degree of violent response on the part of the accused to the level of provocation particularly where a dangerous or lethal weapon is used such as a hammer, a knife, a firearm and the like. In this case, as we know, it was a 6” kitchen blade. One of the factors which the learned trial Judge emphasised and which is in favour of the respondent, but only insofar as it removes an element of aggravation from the offence, is that he did not bring the knife to the scene for the purpose of using it. He was not carrying a knife. In the heat of the provocation, so to speak, the knife happened to be available on the table and he grabbed the knife and used it. It still is a very serious offence and the foregoing fact means that there is absent an aggravating factor which the case-law indicates would otherwise add to the seriousness of the offence.

The Court has taken into account what was said on behalf of the respondent today. Correspondence which was submitted to the Court which indicates that he is behaving himself well in prison although it does not add a great deal to the more important factors which the Court has to take into account when imposing sentence at this stage. The Court has also taken into account the Probation Officer’s Report, which again does not add a great deal to the totality of the facts which the Court has to take into account in imposing sentence. It is true, as Counsel pointed out, that he identified drink as a problem for the respondent and that he has expressed a desire to do something about it. On the other hand it is not really an excusing factor except insofar as it was a factor that may have been taken into account in accepting the defence of provocation. The fact that he has not indicated any willingness to learn English, which given that he is in prison and has the time at his disposal to do so, and that learning English would open up other avenues of self improvement courses to him, is not hugely in his favour. Although again this is not a major factor given the particularly serious circumstances of the original offence.

Having regard to all these matters and the matters referred to in the substantive judgment when the application of the D.P.P. was allowed and taking into account some of the cases which were said might be parallel in some way to this case, the Court is of the view that the appropriate sentence in this particular case is one of ten years. However, taking into account all the mitigating factors referred to including the fact that the respondent must serve his term of imprisonment with the extra burden of doing so in a foreign environment and cut off from the relatives of his home country, the Court considers that of the ten years imprisonment three years be suspended on the Respondent entering into the usual bond to be of good behaviour and abide by the law. The sentence should commence on the same date as the original sentence.

Accordingly the Court will substitute for the term of imprisonment of four years imposed in the trial Court a sentence of ten years imprisonment with three years of the ten years suspended on the usual terms.