Court of Appeal, Dublin
A man who stabbed a taxi driver and left him to die on the side of a rural road in Co Louth, must wait to hear whether his prison sentence will be increased on foot of an appeal by prosecutors.
Joseph Hillen (25), with an address at Glendasha Road, Forkhill, Co Armagh, had admitted killing Martin Mulligan (53) in a rural area near Dundalk, Co Louth in the early hours of September 28, 2015, but denied it was murder.
The trial heard that Hillen initially denied all knowledge of Mr Mulligan's death, but ahead of his trial he made a voluntary statement in which he admitted stabbing the taxi driver following an altercation on the side of the road.
He was found guilty of manslaughter by a Central Criminal Court jury and was sentenced to seven years imprisonment with the final year suspended by Ms Justice Eileen Creedon on January 28, 2019. Passing sentence, Ms Justice Creedon said the verdict suggested the jury accepted Hillen believed he was acting in self-defence.
The Director of Public Prosecutions are seeking a review of Hillen’s sentence on grounds it was “unduly lenient”.
Counsel for the DPP, Patrick Treacy SC, told the Court of Appeal today that some manslaughters were “close to being indistinguishable from murder”.
In those cases, he said sentences of life imprisonment have been imposed and the DPP was submitting that this was a “worst case” scenario. Failing that submission, he said it was a “high culpability case”.
Mr Treacy said the sentence was unduly lenient due to the particular devastation caused to the Mulligan family, the build-up to the killing, the aftermath, the use of the knife, the “brutality”, Hillen’s convictions for dangerous driving while on bail for the killing, his previous convictions and his “lack of honesty”.
He said the trial judge erred in categorising the killing as being in the upper mid-range for seriousness.
Mr Treacy said the trial judge gave “excessive credit” to Hillen for making a pre-trial voluntary statement. It would be “naive to lose sight of the tactical advantage” that give the accused, Mr Treacy said. It allowed Hillen put forward his version of events, without having to be cross-examined and where the deceased was not in a position to contradict anything.
When the trial judge gave Hillen credit for his pre-trial statement, she didn’t balance it against the way he conducted himself in garda interviews, where he was “utterly unhelpful”, counsel said.
According to Hillen’s “narrative”, Mr Treacy said the accused claimed the deceased had a knife, which he grabbed and “jabbed out” twice.
He said the “brutality” involved stabbing the knife 22.5cm into the deceased’s abdomen, right through the intestinal area. It was taken out and put “completely through” the deceased’s right thigh.
It was “savage penetration” into both the deceased’s abdomen and right thigh, each of which would cause catastrophic bleeding.
A “disturbing feature” was the 19cm cut down the deceased’s v-neck jumper. It was a “very unusual” feature which was never explained, Mr Treacy said. Hillen’s DNA was on the jumper, which indicated that the jumper was pulled and that the knife was used to slice, he added.
On the accused’s own account, Mr Treacy said Hillen’s companion drove the deceased’s car away and threw his keys into a field. That removed any means of escape for the unfortunate deceased who then had to deal with “these two young men on his own”.
Furthermore, Mr Treacy pointed to the “buildup and the aftermath” of the incident. He said Hillen had collected his companion in Dundalk earlier that day before driving through a stop sign, through traffic lights and onto the wrong side of the road. He said the car was pursued by gardaí, but the pursuit had to be abandoned because it was deemed too “dangerous”.
In the aftermath, he said Hillen and his companion left the scene with the weapon, leaving Mr Mulligan “on a country road to die”. No ambulance was called, nor were the gardaí. The only action Hillen took was to dispose of the knife three days later.
Mr Treacy said Hillen had simply pleaded not guilty and left it open to the jury to return a not guilty verdict, but DNA evidence placed him at the scene.
He said it was put forward on Hillen’s behalf that he was remorseful, but all of above undermined his remorse.
Extraordinarily, he said the sentencing judge made no reference to aggravating factors in her judgment. It was a “fundamental error” in light of her repeated references to mitigating factors.
He said Hillen had 15 previous convictions including two incidents of dangerous driving while he was on bail for the killing, which was “troublesome”.
Counsel for Hillen, Brendan Grehan SC, said it was “baseless” for the DPP to contend that this manslaughter ought to fall within the most extreme category or at the higher level.
Mr Grehan said the trial judge had to respect the verdict of the jury, in circumstances where Hillen had claimed “excessive self-defence”. He said the DPP was “dissatisfied” with the fact the jury accepted Hillen’s narrative and had come to the Court of Appeal to complain about the sentence.
“I make no apology for saying this case falls squarely in the middle range,” Mr Grehan submitted, adding that most sentences for manslaughter fall within the four to 10 year bracket. It was an excessive self-defence case and there was nothing to justify going above the 10 year category.
He said the wounds were “quite unusual” and the pathologist accepted they could have been caused by backhanded thrusts from a kneeling position.
Mr Grehan said the decision to enter a guilty plea to manslaughter can be a “delicate issue” in cases of self-defence. A guilty plea to manslaughter could cause a jury to think the prosecution were “halfway” to murder.
The fact Hillen offered to plead guilty to manslaughter but in fact did not enter the plea might reduce the offer “somewhat, but not much”.
He said his client was only 21 years old at the time of the killing and had no previous convictions for crimes of violence.
Mr Grehan submitted that the headline sentence of 10 years was “absolutely correct” as was the categorisation of the offence as being mid-range. He said the judge was “merciful” towards Hillen and may have been lenient, but not so lenient for the sentence to be deemed “unduly lenient”.
He said his client had written a letter during the trial indicating some insight into the crime and remorse for Mr Mulligan’s family.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Aileen Donnelly, said the court would reserve its judgment.