Judgment of Judge Michael White: the DPP v Dermot Laide, Sean Mackey and Desmond Ryan.
Before dealing with sentence and the legal principles that apply, I will address some issues about the operation of the Criminal Justice System, relevant to this trial.
Over the course of this lengthy trial, the court heard the evidence of 103 witnesses. From that evidence, a very accurate picture of the events outside the Burlington Hotel on the August 31st, 2000 at about 3 a.m. were reconstructed. The violence which led to the death of Brian Murphy lasted no more than five minutes. Despite a very thorough and painstaking investigation, the youths who kicked Brian Murphy on the head, when he lay defenceless and surrounded on the ground, were not specifically identified by any witness either in their statements or in the course of the trial.
The DPP properly preferred charges of manslaughter. One of the accused, Dermot Laide, has been convicted of that offence.
It is important to emphasise that the prosecution case against Dermot Laide was that he was part of a group assaulting Brian Murphy, without lawful excuse. The prosecution did not contend that the assault was planned or premeditated, nor did they make the case that it was he who delivered the fatal kick or kicks or the fatal punch or punches. They relied on the principle of joint concert.
While it is surprising that some witnesses interviewed by the gardaí, were not able to identify the persons kicking Brian Murphy in the head when he was surrounded and in a defenceless position, the judge and the jury had to act in accordance with the evidence adduced.
During the trial the reputation of Brian Murphy was challenged by three of the accused. The provenance of the incident which led to his death had to be explored. There was however an unfair concentration on other peripheral issues, which caused the Murphy family great distress. They have now given evidence, as to the type of person he was, and hopefully restored some balance.
I now turn to sentencing policy and principles
When passing sentence, a court takes account of sentencing policy, and is guided by sentencing principles, laid down by the Superior Courts. Sentencing policy is the penal objectives which the Criminal Justice System seeks to achieve. The major aims are punishment, general deterrence, individual deterrence and rehabilitation.
Of sentencing principle, there is a duty on the court to impose a proportional sentence. The punishment should be appropriate not only to the offence committed but to the particular offender.
A judge has discretion to impose a sentence which meets all the particular circumstances of the case. The court in assessing the sentence in respect of each individual accused has a duty to set out the aggravating factors of the offence, and the mitigating circumstances.
If a plea of guilty is entered, the court is entitled to substantially mitigate sentence. In some circumstances when a trial is contested, a defendant is still entitled to have his sentence mitigated because of the manner of conduct of the defence.
Naturally a court takes seriously any type of offence where death arises. Excessive consumption of alcohol is not a defence to a criminal charge, nor is it an excuse for criminal behaviour, and may on occasions be an aggravating factor. The court must take into consideration the previous good character of an accused and also their young age at the time of the offence. It can also consider the impact on the accused of widespread publicity arising from trial and conviction. An accused person should not be penalised as a result of their background.
Sentencing in manslaughter fits into two broad categories.
The first is an intentional killing which usually commences as a charge of murder, and is reduced to manslaughter either by a jury after deliberation or where a plea is accepted to the reduced charge of manslaughter. The sentence imposed usually ranges upwards from six years depending on the gravity of the offence and some of these manslaughters in terms of gravity border on murder. This category is known as voluntary manslaughter, and is always dealt with in the Central Criminal Court, the criminal division of the High Court.
The second category is where the intentional element is lacking, and ranges from gross negligence to assault manslaughter. Sentence can vary from non-custodial to six or seven years. This category is known as involuntary manslaughter, and applies in this case.
Violent disorder is one of the more serious public order offences and covers a wide range of criminal activity. As it can only be dealt with on indictment, it is a serious offence to which a broad range of penalties can apply.
In assessing sentence on a violent disorder charge, a court is entitled to look at all the circumstances of the violent disorder, and can take into consideration any loss of life, or serious injury, during the incident.
When conviction ensues the court can determine sentence on the evidence adduced, provided this evidence has been established beyond a reasonable doubt.
I now wish to consider the manslaughter and violent disorder conviction of Dermot Laide.
There was cogent evidence in the course
of the trial, that Mr Laide delivered two punches of very considerable force to the head of Mr Brian Murphy, and was part of the group who advanced on him. I am satisfied that his actions contributed substantially to the escalation of this incident, and to Mr Murphy becoming surrounded and defenceless. His readiness to use considerable force, was again demonstrated, when he punched Michael Hussey forcefully in the face when coming to the aid of Mr Frame. This was at a time when Mr Murphy was already seriously injured.
I consider the aggravating factors to be:-
(a) The death of a young man at 18 years of age.
(b) The grief of his family.
(c) His contribution to the escalation of the dispute, to serious violent disorder.
(d) The use of violent force completely out of proportion to the situation he faced, when he was not personally threatened.
The mitigating factors are
(a) His previous excellent character borne out by the character evidence and testimonials presented to the Court.
(b) His age of 19 at the time of the offence.
(c) The improbability of future criminal behaviour.
(d) The damage to his character as a result of publicity.
(e) The offences were not planned or premeditated.
Taking all these circumstances into account the court will impose a custodial sentence, in the upper range of the second category of offences I have referred to.
I now turn to the conviction of Sean Mackey for violent disorder
In the course of the trial, the case was strongly made by Mr Mackey and two of the other accused, that the group with Brian Murphy were the initial aggressors. There is no doubt from the evidence that the dispute arose when someone from this group started to jeer Andrew Frame. Mr Frame in his statements and evidence accepted he had approached the group, and became aggressively verbal in response. Some pushing and shoving ensued between Andrew Frame and Brian Murphy.
At this time Sean Mackey intervened. In the course of trial and in his plea, it was submitted that he only responded to an unprovoked assault on him by Mr Murphy. While undoubtedly Brian Murphy threw the first punch, this court does not accept that Mr Mackey became involved either in direct response to an assault on him by Brian Murphy or as a peacemaker. His involvement in this incident directly led to its escalation.
There was overwhelming evidence in the course of the trial from his initial approach to assist Mr Frame up to his journey home in a taxi, his demeanour was that of a person out to cause trouble. He contributed significantly to the seriousness of this incident. The kick delivered to the body of Mr Murphy, when he was in a defenceless position on the ground, while not life threatening was a serious assault.
The aggravating factors are
(a) His contribution to the escalation of this incident.
(b) In the course of this serious incident of violent disorder a young man lost his life.
(c) His demeanour throughout the incident.
The mitigating factors are
(a) His previous excellent character borne out by the character evidence and testimonials presented to the Court.
(b) His age of 19 at the time of the offence.
(c) The improbability of future criminal behaviour.
(d) The damage to his character due to the widespread publicity.
(e) His voluntary admissions.
(f) The offence was not planned or premeditated.
Having considered all these factors the Court will impose a custodial sentence.
I now turn to the conviction of Desmond Ryan for violent disorder.
On his own admission he delivered two punches to Mr Murphy on his jaw at a time when he was being kicked on the ground, and was getting up. He immediately withdrew because the assault was getting out of control. He did not contribute to the earlier escalation of the incident. It is very difficult to understand how a young man, who was obviously caring as evidenced by his immediate assistance to Mr Murphy after the incident, could have acted in such a fashion.
I would have expected someone of his disposition to intervene to protect Mr Murphy.
The aggravating factors in Mr Ryan's case are
(a) The assault was perpetrated to Mr Murphy's head at a time when he was surrounded and defenceless.
(b) It was an unprovoked serious assault.
The mitigating factors are:-
(a) His previous excellent character as evidenced by the character evidence, and testimonials.
(b) His young age of 19 at the time of the offence.
(c) The improbability of future criminal behaviour.
(d) The damage to his character due to widespread publicity.
(e) His voluntary admissions.
(f) The offence was not planned or premeditated.
(g) The conduct of his defence, as he did not put in issue the character and disposition of Mr Brian Murphy, deceased.
(h) His active assistance to Mr Murphy shortly after the assaults occurred.
Because of the very serious nature of the intervention, when Mr Murphy was being kicked on the ground I will impose a custodial sentence, but there are substantial mitigating circumstances which I will take into account in passing sentence.
One other issue arises in Mr Ryan's case.
As evidenced by the letter of February 27th, 2002, from the faculty of agriculture, University College Dublin, he is in the middle of his final exams.
Mr Ryan did not in any way contribute to the delay in this case coming to trial and it is appropriate if requested that I defer the issue of the warrant until his exams are completed.