Homeless man found guilty of killing has sentence reduced

Ruaidhrí Giblin

A homeless former drug addict found guilty of fatally stabbing a man in self-defence has had his sentence for manslaughter reduced on appeal.

Thomas Kinsella (37), of Orchid House on James Street in the capital had pleaded not guilty to the murder of John Murdoch at Cushlawn Way–Cushlan Dale in Tallaght on August 27th, 2011.

A Central Criminal Court jury unanimously found Kinsella not guilty of murder but guilty of manslaughter by reason of self-defence.

He was sentenced to 14 years imprisonment with the final five suspended by Mr Justice Barry White on January 31, 2013.

Kinsella successfully appealed his sentence Friday with the Court of Appeal holding that the starting point of 14 years was “seriously out of line” with other manslaughter cases. The court accordingly resentenced him to 11 years imprisonment with the final two suspended.

Giving judgment, Mr Justice George Birmingham said Kinsella was with two acquaintances in the Cushlawn area of Tallaght when they came into contact “to use that neutral phase” with a group of three men including the deceased John Murdoch outside a shop.

The three men followed Kinsella’s group down the road where the altercation or engagement became violent.

There was evidence to suggest that members of the deceased’s group “threw missiles” and then at one stage, Kinsella produced a knife and proceeded to inflict the fatal wound.

Kinsella always accepted that he caused the fatal injury but at trial contended that he was acting in self defence. He said he believed the deceased was armed with a bottle and he produced the knife to protect himself.

It is of relevance that Kinsella was homeless and was struggling with drugs and alcohol addiction.

Mr Justice Birmingham said the jury verdict had to be interpreted as meaning it accepted Kinsella believed that he was acting in self-defence and was using no more force than he thought was necessary.

Kinsella’s barrister, Brendan Grehan SC, told the Court of Appeal that the five year suspended period seemed extraordinarily long.

A much shorter period of suspension could have achieved the goal of encouraging someone to turn their life around particularly a drug addict for whom one slip-up could cause them to serve a full 14 year sentence which was never merited in the first place, Mr Grehan submitted.

Mr Justice Birmingham said the sentencing judge may have been influenced by the fact that the Probation Service found Kinsella to be at a high risk of re-offending and he was anxious that a substantial suspended sentence be hanging over his head when he was eventually released.

He said the 14 year starting point was out of line with cases that bore some similarities. However, given that Kinsella had a relevant prior record for violence and that a plea to manslaughter was not offered, a higher starting sentence was to be expected.

Mr Justice Birmingham, who sat with Mr Justice Garrett Sheehan and Mr Justice Alan Mahon, resentenced Kinsella to 11 years imprisonment with the final two suspended.

The court had regard to information that Kinsella had made significant progress while in custody. He has been attending AA meetings and is “proud to be in a position to say” that he is drug and alcohol free to the extent that he is no longer using methadone.

Mr Justice Birmingham said the court was pleased to hear that Kinsella was making progress while in custody and hopes that when he has served his sentence and rejoins the community that he can avoid re-offending.

The suspended potion will not be so lengthy that if it came to be activated it would result in Kinsella serving a sentence which was “very seriously out of line” with other manslaughter cases, the judge said.