Dave Mahon loses appeal against sentence for killing partner’s son

Court of Appeal rules that seven-year term imposed ‘quite typical of knife manslaughters’

David Mahon arriving  at the Central Criminal Court in April 2016 with his wife Audrey where he stood trial charged with the murder of Audrey’s son, Dean Fitzpatrick in 2013. File photograph: Collins

David Mahon arriving at the Central Criminal Court in April 2016 with his wife Audrey where he stood trial charged with the murder of Audrey’s son, Dean Fitzpatrick in 2013. File photograph: Collins

 

A Dublin man has lost an appeal against the severity of a seven-year prison sentence for killing his partner’s son.

David Mahon (46) had pleaded not guilty to the murder of Dean Fitzpatrick (23), the older brother of missing teenager Amy, on May 26th, 2013.

Dean Fitzpatrick received a stab wound to the abdomen outside the apartment his mother, Audrey Fitzpatrick, shared with David Mahon at Burnell Square, Northern Cross, on the Malahide Road in Dublin.

The two-week trial heard that Mahon had been in a relationship with Audrey Fitzpatrick for 12 years by the time her son died.

The State had argued that Mahon was drunk, angry and agitated when he thrust a knife into his stepson with deadly intent. Mahon claimed his death was an accident or possible suicide and that Mr Fitzpatrick had “walked into the knife” while they had been arguing.

A Central Criminal Court jury found Mahon not guilty of murder but guilty of manslaughter and he was sentenced to seven years imprisonment by Ms Justice Margaret Heneghan on June 13th, 2016.

‘Knife manslaughters’

The Court of Appeal upheld Mahon’s sentence on Thursday holding that a seven-year sentence, taking an overview of the case, was “quite typical of knife manslaughters”.

As sentence appeals go, this one was “somewhat unusual”, according to Mr Justice George Birmingham in his judgment delivered on behalf of the three-judge court.

“Unusually” for sentence appeals, the case made on Mahon’s behalf was that the sentencing judge did not sentence in accordance with verdict of the jury, said Mr Justice Birmingham.

Counsel for Mahon, Seán Guerin SC, said the only conclusion which could be drawn from the verdict is that the jury were not satisfied beyond a reasonable doubt that Mahon had stabbed the deceased.

As such, he said Mahon was factually proven only to have produced the knife. “That was all he did.” He produced the knife, he didn’t thrust it, he didn’t stab, and because he didn’t thrust it, he didn’t commit an act that could have amounted to a physical assault, said Mr Guerin.

The alternative view to murder was that Mahon had merely produced the knife as if to show the victim “as it were”. He either intended to put him in fear or was reckless to put him in fear.

Once that is acknowledged, said Mr Guerin, it becomes clear that this was a “very unusual case” involving a “very low” level of culpability.

One of the routes by which the jury may have arrived at the verdict of unlawful and dangerous act of manslaughter was in finding that Mahon committed the unlawful and dangerous act of putting Mr Fitzpatrick in fear, said Mr Justice Birmingham.

The court did not disagree with the principle that a sentencing court is obliged to proceed on the basis most favourable to the accused.

However, in the Court of Appeal’s view, it was “going too far” to say the verdict returned by the jury must definitively mean they concluded that the knife had been produced by Mahon to frighten. There were several possible routes by which the jury could have arrived at a manslaughter verdict, said Mr Justice Birmingham.

In the case of murder trials which result in manslaughter convictions, Mr Justice Birmingham said it will sometimes be the case that several different scenarios have been canvassed to a greater or lesser extent.

Sometimes a verdict is explained by the prosecution’s failure to exclude an issue raised like provocation, or the prosecution’s failure to prove one of the ingredients of murder, particularly the intention to kill or cause serious injury.

In such cases, it may be appropriate for the sentencing judge to form an overview of the case and to sentence accordingly, said Mr Justice Birmingham.

Guilty pleas

In this case, the judge did not specifically address or rule on the submissions made to her. However, taking an overview of the case, the sentence imposed by her was “quite typical of knife manslaughters”.

He said sentences of eight years, one year higher than was imposed on Mahon, were imposed by the Court of Criminal Appeal in DPP v Dillon, DPP v Kelly and DPP v Cooney, where guilty pleas to manslaughter had been offered.

Mr Justice Birmingham, who sat with Mr Justice Michael Peart and Mr Justice Alan Mahon, said the sentence decided upon was not out of line with sentences imposed in previous cases that might be regarded as broadly similar.

There were aggravating factors including the following of Mr Fitzpatrick from the apartment, the production of a large knife during the course of an altercation, Mahon’s leaving of the scene and the failure to seek medical assistance. The relationship between Mahon and Mr Fitzpatrick was relevant.

On the other hand, Mahon pleaded guilty to manslaughter in advance of his trial for murder and he came before the court without previous convictions of any relevance.

In the Court of Appeal’s view, it was a sentence that fell within the available range and the appeal was accordingly dismissed.