Director of Public Prosecutions v Boles

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 21 July 2023
• Neutral Citation: [2023] IECA 211
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 32CJA/2023

In the Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

Between/

The People (At the Suit of the Director of Public Prosecutions)

Applicant

and

Jake Boles

Respondent

[2023] IECA 211

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

Record No: 32CJA/2023

THE COURT OF APPEAL

Sentencing – Coercive control – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient

Facts: The respondent, Mr Boles, pleaded guilty before Trim Circuit Criminal Court to one count (count 1 on the indictment) of coercive control, contrary to s. 39 of the Domestic Violence Act 2018; five counts (counts 2 to 6) of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997; and two counts (counts 8 and 9) of criminal damage, contrary to s. 2(1) of the Criminal Damage Act 1991. The indictment had also included, at count 7, a charge of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. A nolle prosequi was entered in respect of that count. The Circuit Criminal Court sentenced the respondent to concurrent periods of 2 years’ imprisonment on each of counts 1 to 6, each of which was conditionally suspended in its entirety for a period of 4 years, the relevant conditions including inter alia a requirement to submit to supervision by the Probation Service for a period of 2 years from the date of sentence. On imposing sentence, the Circuit Criminal Court took into consideration counts 8 and 9. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of those sentences, pursuant to s. 2 of the Criminal Justice Act 1993, in the belief that they were unduly lenient. The applicant’s complaints were as follows: (i) in regard to the assault causing harm offences, the sentencing judge erred in attached insufficient weight to the aggravating factors; (ii) in respect of all offences, the sentencing judge attached disproportionate weight to mitigation which resulted in an excessive discount from the headline sentences, and erred in effectively affording the respondent excessive or double credit for mitigation in suspending the entirety of his sentence; and (iii) the sentencing judge erred in failing to attach any, or any sufficient weight, to the need to promote both specific and general deterrence.

Held by the Court of Appeal that the headline sentences nominated by the sentencing judge for the assaults causing harm were substantially too low. To have nominated a headline sentence as low as 3 years’ imprisonment was in the Court’s view an error of principle. The Court considered that it was an error to conclude that it was appropriate to completely suspend the sentences. By doing so, the resultant sentences were, in the Court’s view, outside the norm, and consequently were unduly lenient. The Court proceeded to quash the sentences and to resentence the respondent.

The Court, dealing with count 1, nominated a headline sentence of 3 years’ imprisonment. The Court discounted from that sentence by one third to reflect the mitigating circumstances in the case including rewarding progress towards rehabilitation up to the date of sentencing in the court below. To reflect continued progress towards rehabilitation in the interim and to incentivise future progress in that regard, the Court suspended a further one third of the headline sentence, leaving a net sentence of 2 years’ imprisonment with the final year thereof suspended for a period of 4 years and on the same conditions as were imposed by the court below. In respect of each of counts 2 to 6, the Court nominated headline sentences of 5 years’ imprisonment. From this the Court discounted by 2 years to reflect the mitigating circumstances in the case including rewarding progress towards rehabilitation up to the date of sentencing in the court below. To reflect continued progress towards rehabilitation in the interim and to incentivise future progress in that regard the Court suspended a further 2 years of the headline sentence, leaving a net sentence of 3 years’ imprisonment on each count with the final 2 years thereof suspended for a period of 4 years and on the same conditions as were imposed by the court below. The Court held that all sentences were to be served concurrently and were to date from the date of re-sentencing but with credit for time served on remand (if any).

Application granted.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 21 ^st of July 2023.

Introduction

1 . This is an application brought by the Director (i.e. “the applicant”) pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed on Mr Jake Boles (i.e. “the respondent”) by the Circuit Criminal Court, it appearing to the Director that this sentence may have been unduly lenient.

2 . The respondent had pleaded guilty before Trim Circuit Criminal Court to one count (being count no. 1 on the indictment) of coercive control, contrary to s. 39 of the Domestic Violence Act 2018 (i.e. “the Act of 2018”); five counts (being count nos. 2 to 6, inclusive) of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (i.e. “the Act of 1997”); and two counts (being count nos. 8 and 9, respectively) of criminal damage, contrary to s. 2(1) of the Criminal Damage Act 1991 (i.e. “the Act of 1991”). The indictment had also included, at count no. 7, a charge of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. However, a nolle prosequi was entered in respect of this count.

3 . The court below sentenced the respondent to concurrent periods of 2 years' imprisonment on each of count nos. 1 to 6 inclusive, each of which was conditionally suspended in its entirety for a period of 4 years, the relevant conditions including inter alia a requirement to submit to supervision by the Probation Service for a period of 2 years from the date of sentence. On imposing sentence, the court below took into consideration the two counts of s. 2(1) criminal damage (being count nos. 8 and 9, respectively).

4 . The applicant now seeks a review of those sentences, pursuant to s. 2 of the Criminal Justice Act 1993, in the belief that they were unduly lenient.

Factual Background

5 . At the sentencing hearing of the 7 ^th of October 2022, a Garda Mark Egan (otherwise “Garda Egan”) gave evidence in relation to the factual background of the respondent's offending. This evidence comprised a precis of the history of the relationship between the respondent and the complainant, and the abuse that occurred in that context, which abuse formed the subject matter of the indictment.

6 . Garda Egan testified that the relationship began sometime in mid-September 2017, at which time the respondent was approximately 19 years old, and the complainant was aged 17 years. The complainant described how very shortly into this relationship the respondent became emotionally abusive towards her and would refer to her as a “ tramp” and a “ slut”. In or around November 2017, the respondent pushed the complainant out of the door of his house when she arrived with Christmas presents. It was said that on this occasion he threw a box of runners at her.

7 . The relationship was said to have acrimoniously ended in January 2018, however the pair continued to socialise in similar circles and shared mutual friends. After a five-month hiatus, the pair reconciled and resumed going out in May 2018. Evidence was given that during 2018 the respondent started renting a house in a village in County Meath. However, at no point during the relationship were the two parties living together, although the complainant would sometimes stay overnight at the respondent's rented house.

8 . The relationship was described by the complainant as being “ normal” between July and October 2018. This characterisation was explained as meaning that while there was still conflict between the pair, nothing of any significance occurred. This normality was short-lived, however, because in October 2018 the respondent started to become physically abusive towards the complainant, and this continued throughout November and December 2018. The abuse initially began with the grabbing of her arm, the pinning or pushing of her down onto a bed or against a wall. The complainant also described verbal arguments the pair had, in which the respondent would threaten her and her family and would threaten to burn down the family home or damage her father's car. It was said that in the course of these arguments the respondent would cover the complainant's mouth to prevent her from calling for help.

9 . There was evidence that the respondent was also emotionally manipulative towards the complainant in this period, involving the respondent threatening to commit suicide and referencing various tragedies he had experienced in his own life.

10 . An incident occurring on the 18 ^th of October 2018 while the pair were staying at a hotel in Dublin involved the respondent, in the course of an argument with the complainant, criminally damaging her mobile phone and hair straightener. This incident of criminal damage formed the subject matter of count no. 8 on the indictment.

11 . On New Year's Day 2019, the respondent physically assaulted the complainant while the pair were at a friend's house. This was the subject of count no. 2 on the indictment. This assault was described in evidence as involving the respondent ripping the complainant's dress; dragging her by her hair around the floor; putting of his hands over her mouth; violently screaming abuse in her ear, and; pushing his fist into her face causing bruising. It was further said that when they returned to his house later on, the respondent occasioned a further assault on the complainant. While this latter incident was not charged as a standalone assault,...