Director of Public Prosecutions v Lambert
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 28 March 2023 |
| Neutral Citation | [2023] IECA 124 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [222/21] |
[2023] IECA 124
The President
McCarthy J.
Kennedy J.
[222/21]
THE COURT OF APPEAL
Sentencing – Non-Fatal Offences Against the Person Act 1997 s. 3 – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Lambert was initially charged with offences contrary to ss. 3 and 4 of the Non-Fatal Offences Against the Person Act 1997, s. 11 of the Firearms and Offensive Weapons Act 1990, and violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994, but entered a plea of guilty to the s. 3 count, a plea that was acceptable to the respondent, the Director of Public Prosecutions. On 8th November 2021, the Dublin Circuit Criminal Court imposed a sentence of three years and two months detention. The appellant appealed to the Court of Appeal against severity of sentence. It was argued on his behalf that while the selection of five years as the headline or pre-mitigation sentence might possibly be regarded as appropriate and beyond criticism if the offence was one that had been committed by an adult, it was not appropriate when the offence was committed by a 16-year-old and the Court was being called on to sentence someone who was a minor. It was said that he received a sentence of three years and two months detention, whereas had he been a little older and an adult at the time of the sentence hearing, he would have been dealt with by way of a sentence of three years and six months imprisonment, but with the final six months of the sentence suspended. It was said that this was wrong in principle and offended against the terms of a statute. In that regard, the appellant quoted from s. 96(4) of the Children Act 2001.
Held by the Court that it was clear from the whole sentencing process that the judge was conscious that the person before the Court was very young, that the person had offended in a very serious manner while 16 years old, and that those factors were true, whether the person was days short of their majority or had just turned 18 years old days earlier. It seemed to the Court that there was no real distinction in substance in the circumstances of the case as to whether the view was taken that regard should be had to the age and maturity at the headline identification stage or at the application of mitigation stage. The Court held that it was clear that the judge felt that the appropriate sentence, if she had been dealing with an adult, was three years and ten months and that she felt that if she was dealing with someone who had just turned 18, that the appropriate sentence would be one of three years and six months imprisonment, but with six months of that sentence suspended. The Court held that sentence of three years and two months detention that was imposed could only be regarded as a more severe penalty than the sentence that would have been regarded by the judge as appropriate for someone who had just turned 18 years of age if the suspended sentence element of the new adult sentence is totally ignored, and if the view is to be taken contrary to the long-established jurisprudence of the Court that the suspended sentence element was not a real penalty at all. The Court held that the possibility that, had there been a part-suspended sentence, that the appellant might have been called on to serve, could not be dismissed. The Court held that, by any standards, this was a very serious incident. Overall, it appeared to the Court in the circumstances of the case that the sentence that was imposed did not fall outside the available range for offending of such seriousness. The Court did not identify an error in principle.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT ( ex tempore) of the Court delivered on the 28 th day of March 2023 by Birmingham P.
. Before the Court is an appeal against severity of sentence. The sentence under appeal is one that was imposed on 8 th November 2021 in the Dublin Circuit Criminal Court. It is a sentence of three years and two months detention. It might be noted this is not the first time the appeal has been before the Court, and it is the situation that when it first appeared in the Court list, that this Court raised questions as to whether any issue arose by reason of the fact that the appellant had been sentenced while a minor, while still short of his 18 th birthday, but was coming before the Court by way of appeal at a time when he had attained his majority. The question was raised as to whether the Court was in any way constrained. That resulted in the Court receiving written and oral submissions and that issue has been the subject of a separate judgment, DPP v. Reece Lambert [2023] IECA 47, a judgment that was linked to another case, that of DPP v. Cian O'Leary [2023] IECA 48 that appeared to be raising related issues.
. The background to the case is to be found in events that occurred on 2 nd January 2020 in the Thorndale Avenue area of Artane, County Dublin. There, an encounter took place between two groups of teenage boys. An aspect of the incident was video recorded and broadcast on social media. In particular, it might be noted that the sentencing Court, and now this Court, has had an opportunity to watch a short clip, which apparently was posted on social media, which shows the injured party on the ground in a very distressed state. That such a clip had been posted adds an additional dimension to this offence.
. In the course of the incident, the complainant and injured party, Mr. Bartosz Bulanda, suffered significant injuries to his hands, face and head. The appellant was initially charged with offences contrary to ss. 3 and 4 of the Non-Fatal Offences Against the Person Act 1997, s. 11 of the Firearms and Offensive Weapons Act 1990, and violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994, but entered a plea of guilty to the s. 3 count, a plea that was acceptable to the Director. The initial sentence hearing took place on 29 th July 2021, at which point there was a probation report before the Court. However, the case was adjourned to a date in October 2021 in order to facilitate the preparation of an updated probation report, a course of action which had been recommended by the Probation Service.
. The incident of 2 nd January 2020 involved a fight between two gangs of teenage boys or youths; it was estimated to have involved some 25 youths. The initial report relating to the incident, which came to the attention of Gardaí and saw Gardaí despatched to the scene, referred to the fact that some of the participants had weapons such as baseball bats, poles and crowbars. On the account of the injured party, he was one of a group of some seven people who were in the park, when a larger group, estimated to be of the order of 25 people, arrived, some of whom were carrying poles and other weapons. The injured party and his group ran from the scene. It appears that the injured party's position was at the back of the group as they ran from the scene. The injured party described himself as having been pushed to the ground, at which point he was initially hit by a pole, and then, while he was on the ground, he remembers being hit again with a pole and being kicked and hit. To use his own language, the injured party realised afterwards that he had been...
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