Director of Public Prosecutions v Hutchinson

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 21 October 2024
• Neutral Citation: [2024] IECA 260
• Docket Number: Record Number: CCAOT0259/2024

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent/

and

Lee Hutchinson.

Appellant

[2024] IECA 260

McCarthy J.

Kennedy J.

MacGrath J.

Record Number: CCAOT0259/2024

THE COURT OF APPEAL

Criminal law – Sentencing guidelines – Aggravating factors – Applicant is seeking a reduction in the length of imprisonment for harassment charges – Whether the sentence imposed was too severe

Facts: Lee Hutchinson appealed his 6-year sentence (with 1 year suspended) for three counts of harassment under Section 10 of the Non-Fatal Offences Against the Person Act 1997. The harassment targeted three members of An Garda Síochána between 2014 and 2018, involving defamatory letters and threats. Hutchinson pleaded guilty in June 2023 after discussions with the Director of Public Prosecutions. Hutchinson sought to reduce his sentence, arguing that the sentencing judge incorrectly cited a 10-year maximum penalty instead of 7 years and placed excessive weight on aggravating factors while not sufficiently considering mitigating circumstances like his guilty plea and good character. The grounds for appeal included the judge's incorrect citation of the statutory maximum penalty, an excessively high headline sentence given the nature of the offense, insufficient consideration of mitigating factors such as the guilty plea and professional consequences, and excessive weight placed on Hutchinson's profession as a teacher.

Ms. Justice Kennedy held that the appellant’s original sentence according to Section 10 of the Non-Fatal Offences Against the Person Act 1997 of 6 years, with 1 year suspended, was incorrect due to an error in applying the statutory maximum penalty for harassment (which was 7 years, not 10 years). The judge found that the sentence imposed was too severe and did not fully consider mitigating factors such as the appellant's guilty plea, previous good character, and the consequences he had faced. Kennedy re-sentenced the appellant to a total of 7 years imprisonment, reducing the sentence for each of the three counts of harassment to 2 years and 4 months, and suspended the final 2 years for rehabilitation. The decision was informed by previous case law, including DPP v. Doherty (2019), DPP v. Carraher (2018), and DPP v. Kelly (2015), as well as the principles of totality and proportionality in sentencing.

Kennedy J, concluded that the original sentence was incorrect due to an error in the statutory penalty, and re-sentenced the appellant to 7 years imprisonment, with 2 years suspended for rehabilitation.

Application successful.

JUDGMENT of the Court delivered (ex tempore) on the 21st day of October 2024 by Ms. Justice Isobel Kennedy.

1 This is an appeal against sentence. On the 1st of November 2023, the appellant was sentenced to 6 years imprisonment with 1 year suspended on conditions in respect of each of the 3 counts of harassment contrary to s.10 of the Non-Fatal Offences Against the Person Act 1997. The sentences were imposed concurrently.

2 The appellant was returned for trial before Waterford Circuit Criminal Court on the 26th of November 2019, and pleaded guilty in respect of counts 1 to 3 on the indictment on the 13th of June 2023 following some discussion with the Director.

Factual Background

3 The background of the offending is that the appellant conducted a targeted campaign of harassment against three members of an Garda Síochána between the years of 2014 and 2018.

4 The campaign involved: a letter addressed to all three victims sent to Waterford Garda Station in August 2018, a letter written to Garda Fitzgerald's wife in September 2018, a letter written to the Board of Management of a local secondary school attended by a child of Garda Keher which was brought to the attention of Gardaí in September 2018, a letter written to Garda Keher's wife and sent to her place of work in September 2016, a letter written to the Commissioner of An Garda Siochana in or around May 2014 copied to Dunmore East Garda Station and the District Superintendent, and telephone calls made to Dunmore East and Waterford Garda Stations since 2014.

Sentencing Remarks

5 The sentencing judge identified a number of “highly aggravating” factors in the case, including: the persistent nature of the harassment which was sustained over a number of years, the significant distress caused to the victims and their immediate families as evidenced by their victim impact statements, the highly defamatory allegations made, the high degree of maliciousness of the appellant's actions, the anonymous nature of the allegations, the fact that the appellant researched and identified aspects of the individual victim's lives and their families' lives, the fact that the appellant made a threat against the victims' children and is himself a secondary school teacher, and the fact that the victims were targeted due to their occupation as gardaí.

6 The sentencing judge noted several factors proffered by the defence in mitigation, including: a guilty plea, the fact that the appellant is a qualified secondary school teacher with no permanent post, the fact that the appellant has an alcohol dependency, the fact that the appellant has no previous convictions, the fact that his adoptive mother died some years ago, and the psychologist's report of Dr Lambe.

7 The sentencing judge took note of the fact that the guilty plea was entered nearly 4 years after the book of evidence was served, there was no apology, and that the articulate nature of the...