The People (Director of Public Prosecutions) (prosecutor) v Michael Bambrick (defendant).
Criminal Law - Sentencing - Plea of guilty to manslaughter accepted by DPP - Whether life sentence could be imposed - Whether plea of guilty is a mitigating factor - Fear of accused reoffending - Whether in such circumstances a life sentence would be preventative detention.
The Central Criminal Court (before Mr Justice Carney); sentence imposed 26 July 1996.
WHERE an accused man had pleaded not guilty to murder but guilty to manslaughter in respect of two counts, and these pleas had been accepted by the Director of Public Prosecutions, then the imposition of the maximum sentence was not available and this was so even where there were fears that the accused might reoffend as such a sentence would constitute preventative detention.
Mr Justice Carney, in the Central Criminal Court, so held in imposing sentences of 15 years and 18 years on counts 1 and 2 respectively.
Kevin Haugh SC and Patrick Marrinan BL for the prosecutor; Patrick Gageby SC and Fergal Foley BL, for the defendant.
MR JUSTICE CARNEY said that there were two matters of concern to him, namely, the propensity of the accused to re offend and the constitutional problems adverted to in previous written judgments where a life sentence appears to be a nonmandatory option.
The accused was charged on count number 1 that he murdered
Patricia McGauley to which count he pleaded not guilty to murder but guilty to manslaughter and this plea was accepted by the Director of Public Prosecutions. On count number 2, the accused was charged with the murder of Mary Cummins and he again pleaded not guilty to murder but guilty to manslaughter and this plea was similarly accepted.
Mr Justice Carney said that Patricia McGauley, who had two children by the accused, was reported missing by him, her partner at the time, on 15 September 1991. Mary Cummins who was a single parent with a daughter aged five, was reported missing by a friend of hers on 24 July 1992.
Mr Justice Carney then set out the accused's statement to the Gardai, in which he gave details of his relationship with Patricia McCauley. They had met in 1982 and had a baby in 1983 and a second baby in 1990. The relationship was described as "up and down" and there were arguments about her drinking and his being out of work.
In his statement the accused said that on one evening in September 1991 he and Patricia were drinking and left the pub at closing time and went home. There had been an argument about the children and when they went home there was a further argument about cigarettes. When the shouting abated the two went to the bedroom and started making love. The statement continued: "I had her hands tied behind her back with a pair of tights. I then put tights in her mouth and tied them around the back of her head, sometimes she let me do this, she didn't like it all the time. I heard her gasping and I realised she was dead." The accused went on to describe disposing of the body in parts in a black plastic bag and taking them by bicycle to Balgaddy dump.
Around July 1992 the accused was with his daughter when he met Mary Cummins in a pub and he invited her for a drink to Ballyfermot. The three of them went first to her flat and then got a taxi to the accused's home. The accused arranged a babysitter for his daughter and then went with Mary Cummins to two pubs in Clondalkin and Ballyfermot. They left at closing time and returned by taxi to the accused's house. The babysitter went home and his daughter went to bed. The accused described in his statement how they had started kissing and then he had tied her up and gagged her by tying her hands behind her back with a belt and putting tights into her mouth. The accused went on to say " ... the next thing I knew she was dead." He gave a description of cutting up the body and putting the parts into refuse bags which he carried by wheelbarrow to fields near Balgaddy School where he buried them under rubbish lying there.
Mr Justice Carney said that the accused was known to have had sexual relations in the manner described on at least five other occasions which did not result in the death of his partner. The killing of Mary Cummins with the knowledge of what he had done to Patricia McGauley satisfied Mr Justice Carney that the accused had a propensity to reoffend and was of such an age that he was liable to be sexually active on release with remission from any determinate sentence. The probability was that he would have a pent up appetite for his form of bondage fuelled by group fantasising with other sexual offenders at Arbour Hill Prison.
Mr Justice Carney said that if he were to protect the community and the accused from himself it would be necessary to impose a life sentence with the possibility of release only when the minister's advisers were fully satisfied that he no longer posed a danger to any member of the community, women in particular. However, Mr Justice Carney said that interpretations of the Constitution which were binding on him persuaded him that he was not free under the law to approach the case from this perspective.
In The People (Attorney General) v O'Callaghan [1966] IR 501 counsel for the Attorney General submitted that the application for bail in that case should be refused and the applicant held in custody because it was feared that he might commit other offences it granted bail. The then Chief Justice Mr Justice O Dalaigh said that the rationale underlying this submission was a denial of the whole basis of our system of law and transcended respect for the requirement that a man should be considered innocent until found guilty and it sought to punish him in respect of offences neither completed nor attempted. Mr Justice Walsh said that a form of preventative justice had no place in our legal system and would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter upon which he had not been convicted.
Mr Justice Carney said that while the O'Callaghan case was primarily concerned with an applicant seeking bail, there was no reason why its statements of principle as regards preventative detention should not have general application. In Ryan v Director of Public Prosecutions [1989] IR 399 the Supreme Court firmly refused to reverse the principles established in O'Callaghan. Mr Justice Carney said that having a propensity to commit a particular crime must be on a lower plane than having an actual intention to commit it.
In Ryan, the then Chief Justice Mr Justice Finlay, said that it was urged upon the court that there might be before it in an application for bail very convincing evidence of the likelihood that if released the applicant would commit very serious assault or homicide and that the court would then have to choose the protection of life rather than the protection of the applicant's liberty. Mr Justice Finlay said that an intention to commit a crime was not in our criminal law a crime itself unless it was furthered by overt acts of preparation or converted by an agreement with another into a conspiracy. Mr Justice Finlay asked how such an intention could be proved and by what standard of proof must it be established.
Mr Justice McCarthy in Ryan referred to what he termed the Jack the Ripper cases which he said were few and to the pointing finger of accusation not of crime done but of crime feared. This argument pointed to horrific cases of sexual molestation where there was a possibility or even a probability that the person charged, although not convicted, having confessed to the alleged crime and, perhaps, professed an intention to do it again, must still be admitted to bail, thereby endangering the person. Here, it is said that the citizen calls on the courts for protection. Mr Justice McCarthy said that no court could validly direct the Oireachtas to enact any particular legislation no more than the Oireachtas could validly direct any court as to the resolution of a justiciable issue. So, it was said that the court had to balance the right of to liberty of the accused as against the right to safety of the citizen in general.
Mr Justice McCarthy pointed to legislation which provided for preventative detention in certain circumstances, such as section 10 of the Prevention of Crime Act 1908 the Offences Against the State Act 1939 and the Mental Treatment Acts.
In DPP v James Jackson (Court of Criminal Appeal, 26 April 1993, unreported), it was submitted on behalf of the applicant that the Central Criminal Court had imposed a preventative sentence on the accused, a sentence of life imprisonment, in order to protect women from the accused. There Mr Justice Hederman said that the court was satisfied that preventative detention was not known to our judicial system.
Mr Justice Carney said that on 27 April 1995 he imposed sentence on an accused man for the rape of his 68 year old diabetic mother. The findings of fact in that case were that from the age of 12 the accused had a tendency to attack women and that there was no likelihood of this aspect of his behaviour changing in the near future. Psychiatric opinion was that he was a danger to women and should not be allowed out on his own in the community. It was also found as a fact that the accused's anger was uncontrollable and was capable of being directed at any woman and he manifested no remorse for his actions. To take account of all the circumstances Mr Justice Carney had indicated that he would wish to sentence that accused taking account of the nature of his crime and ensuring that he would not be released until, in the opinion of the appropriate experts, his release was safe from the point of view of society in general and women in particular. However the court was circumscribed by the binding decisions of superior courts.
Mr Justice Carney said that the law was the same today as it was then and he was precluded from approaching the case on the basis that this accused should be preventively detained until in the opinion of the most qualified experts he is safe to let back into the community.
Mr Justice Carney asked whether he could sentence the accused to life imprisonment by way of punishment for these horrific homicides and concluded that he could not by reason of the fact that the accused pleaded guilty and by reason of the unanimous decision of the Supreme Court in DPP v G [1994] 1 IR 587. In that case the accused was sentenced on representative counts in respect of over 400 admitted occasions on which he had either raped or sexually interfered with three young girls between the ages of six and 12. Mr Justice Finlay referred to the judgment of the trial judge who took into account the co operation of the accused with the Gardai and also the effect on the victims and also the protection of the community. The trial judge said that where a conflict existed he was giving total priority to the protection of the community and a life sentence was imposed. Mr Justice Finlay said that there was an obligation on the trial judge to give significant effect to the mitigating circumstances arising from the early admission of guilt and notification of a plea of guilty. Mr Justice Finlay also referred to his decision in People (DPP) v Tiernan [1988] IR 250 where he said that in the case of rape an admission of guilt made at an early stage and followed by a subsequent plea of guilty can be a significant mitigating factor. In G the life sentence was reduced to a determinate sentence to give effect to the mitigating factor of the early plea of guilty.
Mr Justice Carney said that the maximum penalty appeared as a matter of law not to be available where an accused person had pleaded guilty and made an early and full confession. In the instant case the details of the crimes were only known through the accused's confession. Mr Justice Carney also pointed out that there was another reason why the maximum penalty could not be imposed and that was because the Director of Public Prosecutions had accepted a plea of not guilty to murder but guilty to the lesser offence of manslaughter. The accused was therefore entitled to a sentence which was in reality less than that which he would have received had he been convicted of murder. The problem for the community's point of view was that on release on licence from a life sentence the accused would be subject to controls whereas on release with remission (which was a matter of right) from a determinate sentence, he would be subject to none.
Mr Justice Carney said that to impose a sentence of 30 years and claim that it was a lesser sentence than life imprisonment would be both judicially dishonest and populist and the sentences being imposed were within known parameters and were intended to be severe and deterrent.
On count number 1 the accused was sentenced to 15 years penal servitude and on count number 2 to take account of his then knowledge of his propensities, the accused was sentenced to 18 years, both sentences to run concurrently. To take account of time already spent in custody the last year of each sentence was suspended unconditionally.
Mr Justice Carney noted that his five years in this court had demonstrated to him that each case gets worse and the horrors of the instant case would soon be dwarfed by one of the next.
Solicitors: Chief State Solicitor for the prosecutor, Owen A MacCarthy (Dublin) for the defendant.
