DPP v Andrzej Benko
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 13 January 2022 |
| Neutral Citation | [2022] IECA 3 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: CA106/2014 |
[2022] IECA 3
Birmingham P.
Kennedy J.
Ní Raifeartaigh J.
Record Number: CA106/2014
Bill No. CCDP 53/2011
THE COURT OF APPEAL
Sentencing – Attempted murder – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Benko, was tried in the Central Criminal Court in March 2014. He was arraigned and pleaded not guilty to a sole count of attempted murder of his wife on the 5 July 2010. The appellant was found guilty by the jury in a unanimous verdict and remanded until the 7 April 2014 for sentence and remanded further until the 11 April 2014, on which date a sentence of fifteen years was imposed. The appellant appealed to the Court of Appeal against conviction and severity of sentence. The Court dismissed the appellant’s appeal against conviction. The appellant contended that the sentencing judge erred in relying on the authorities cited to him without sufficiently distinguishing those cases from the facts of the case which differed in many clear respects, including the nature of the mens rea on the part of the appellant. It was submitted that the judge erred in principle in imposing a sentence which failed to reflect the cooperation and admissions provided to the appellant and failed to impose a sentence which reflected the appellant’s personal circumstances.
Held by the Court that, in view of the seriousness of the crime in question, there was no error in principle in the ultimate sentence of 15 years the sentencing judge arrived at, even taking into account all the mitigating factors urged on behalf of the appellant. The Court held that, if those mitigating factors had not been present, a much higher sentence, whether a life sentence, or a determinate one of 20 years, would have been appropriate. The Court noted that fact that the offence was not committed in the context of a criminal lifestyle or enterprise was a point of distinction from some of the cases discussed; so too was the fact that there was no use of a firearm, nor danger to the public generally, nor multiple victims. The Court held that the case presented alarming features of a different kind; the accused took a hammer to a sleeping woman, his wife and mother of his child, while she was in her bed in the family home, and she had been left with lifelong serious debilitating injuries such that she would never lead an independent life or be able to care for her own child. The Court held that a headline sentence of life imprisonment or one of 20 years would not have been inappropriate if the appellant did not present with the mitigating factors that he did; but given the mitigating factors that presented themselves, the Court considered that 15 years was an appropriate post-mitigation sentence.
The Court dismissed the appeal against severity of sentence.
Appeal dismissed.
JUDGMENT of the Court delivered on the 13 th day of January 2022 by Ms. Justice Ní Raifeartaigh.
. This is a case in which the court previously dismissed the appellant's appeal against conviction. This judgment deals with his appeal against severity of sentence.
. The appellant was tried in the Central Criminal Court in March 2014. He was arraigned and pleaded not guilty to a sole count of attempted murder of his wife, Joanna Benko on the 5 July 2010. The appellant was found guilty by the jury in a unanimous verdict and remanded until the 7 April 2014 for sentence and remanded further until the 11 April 2014, on which date a sentence of fifteen years was imposed. The facts are described in detail in the court's judgment in respect of the appellants' appeal against conviction and it will suffice to set out a brief summary here only. On the 5 July 2010 at about 10.15am, the appellant arrived at Blanchardstown Garda Station in an agitated state and reported that he had hurt his wife. He had already phoned emergency services but was concerned that he had not properly been understood and therefore had driven to the Garda Station to confirm the report. The ambulance and Gardaí having been earlier alerted had gone to the property in Mulhuddart and found the accused's wife, Joanna Benko alive but severely injured. She was lying on the bed in the main bedroom of the house and had significant injuries to her head. She was rushed to Blanchardstown Hospital and then to Beaumont Hospital where she was treated in a specialist neurological unit. It emerged that she had suffered a comminuted fracture of her skull, bruising and injury to her brain, with the result that she would be permanently left confined to a wheelchair for most of her day, was rendered more childlike, had severely limited communication, and would require full-time care for the rest of her life.
. The appellant on arrival at the station spoke to a Garda Caul and upon being brought to a consultation room he immediately informed her that he had hit his wife on her head with a lump hammer while she lay sleeping. Thereafter there were a number of interviews in which he made admissions to having done this and providing contextual details. He said that he had left early in the morning for work, had completed a number of errands, and had then purchased flowers for his wife on his way home because it was her birthday. There was a history of drug abuse by his wife and when he arrived back at the house, he was confronted by a scene which brought the situation home to him. He took their three-year-old son from where he was sleeping next to his mother in her bed downstairs where the boy fell asleep on the couch. The accused then took a small lump hammer from a downstairs room, came upstairs and hit his wife in the left temple “three times, not more than four”.
. The basis upon which the murder trial was contested was in relation to the narrow issue of intent. He relied upon the fact, as he said, that his intention was equivocal and was coming and going in the moments before he hit her. For example, one of his admissions was as follows:-
“When I was going upstairs, I intended to kill her. During when I already hit her once, I kept hitting. I didn't want to anymore. It was coming I wanted to, then didn't want, then want, then didn't want”.
He also said that he had hit her with perhaps 20% of his force but the hammer was heavy.
. This was the only issue in the trial. At the outset of the trial admissions were made pursuant to s.22 of the Criminal Justice Act 1984 on his behalf so that there was no issue in relation to his arrest and detention, the lawfulness and chain in relation to forensic and bodily samples, any searches carried out during the investigation, custody of the exhibits, proof of CCTV footage or phone calls, and the transfer by ambulance of the injured party and her subsequent medical treatment. The only issue in dispute was whether he had an intent to kill which was the required mens rea for attempted murder.
. During custody the appellant gave his accounts on video tape and during his interview he answered all questions and gave further details. He identified the hammer he had used. He gave an account of the history of his wife's drug taking and how he felt this was impacting on her care of their son. The Gardaí confirmed that the appellant had expressed concern for his wife and a hope that she would survive and had become upset and cried.
. On the date of sentence, 7 April 2014, there was an updated medical report before the court from Mr. Mulrooney, Senior Clinical Neuropsychologist, who had assessed her on the 27 March 2014. She had improved in her mobility and was able to walk slowly for short distances, but generally was transported by wheelchair. Because of damage to the left hemisphere of her brain, there was significant disruption in her language structures. She could only communicate through Polish, whereas she had spoken English before, and even while communicating through Polish she was not communicating in a verbal sense; rather she could answer simple questions by signalling answers. There was a deterioration in her general social competence that would prevent her from engaging in the role of a parent although she saw her son on a regular basis. The report said that the injuries to her were “devastating and significant, constituting life altering changes”, and that “her capacity to function as an adult has been removed, save in with direct support of a competent adult”. It was confirmed that she would be unable to care for her child independently and would have difficulty communicating her needs, including independent movement, and that she would require direct support and care for the rest of her life.
. It was confirmed that the appellant had no previous convictions. It was also confirmed that the defence had offered a count of causing serious harm prior to the trial but that this was not acceptable to the DPP.
. After being charged, the HSE had become involved in the care of their son who was three years old at the time and the appellant was assessed to address whether he could safely access him, given what had happened. Following that assessment, he was allowed to have very substantial access to his son in the region of 36 hours per week although that was cut down substantially coming up to his trial. It was considered prudent to step down the level of access so as to make the ultimate separation easier from his son's perspective as it was envisaged that the appellant would be receiving a substantial custodial sentence. The boy was at the time of sentence in foster care with the HSE. It was confirmed also that the injured party's mother had relocated to Ireland and acts as a carer for her daughter. Victim impact statements from the injured party's mother and brother were read to the court.
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