DPP v Bannerton
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 21 July 2022 |
| Neutral Citation | [2022] IECA 191 |
| Year | 2022 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 83CJA/2022 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2022] IECA 191
The President.
McCarthy J.
Kennedy J.
Record Number: 83CJA/2022
THE COURT OF APPEAL
Sentencing – Assault causing serious harm – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Bannerton, on the 27th July 2020, pleaded guilty to one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 and one count of assault causing harm contrary to s. 3 of the 1997 Act. The respondent was sentenced to six years’ imprisonment with the final 18 months suspended in respect of the offence contrary to s. 4 and two years in respect of the s. 3 offence. The sentences were imposed on a concurrent basis. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency. The Director appealed the sentence on the grounds that the sentencing judge: (1) failed to fully appreciate the gravity of the offences as committed by the offender; (2) departed in a significant way from the norm that would reasonably be expected in a case of this nature; (3) failed to have sufficient regard to the deterrence aspect of the sentence; (4) failed to have sufficient regard to the aggravating factors; (5) attached too much weight to the mitigating factors; and (6) in respect of the sentence imposed for the offences, failed to have sufficient regard to the particular character of the victim(s) and/or the content of the victim impact statements and the effect of the injuries on their lives.
Held by the Court that given the complicated history of the respondent, it could see why the judge took the view that a structured sentence being a part suspended sentence was appropriate in the circumstances. The Court held that had it been sentencing in the first instance it might have arrived at a greater sentence than that of six years’ imprisonment but in the circumstances, given the history of the matter, the respondent’s particular history and the approach adopted by the Director in this review of sentence, it was not persuaded ultimately that there was such a substantial departure from the norm to intervene.
The Court dismissed the review.
Application refused.
JUDGMENT of the Court delivered (ex tempore) on the 21st day of July 2022 by Ms. Justice Isobel Kennedy.
This is an application brought by the Director of Public Prosecutions pursuant to the provisions of section 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency. On the 27th July 2020, the respondent pleaded guilty to one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997 and one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The respondent was sentenced to six years' imprisonment with the final 18 months suspended in respect of the offence contrary to s. 4 and two years in respect of the s. 3 offence. The sentences were imposed on a concurrent basis.
The offending herein relates to two incidents of assault perpetrated by the respondent in Galway city centre in the early hours of the morning on the 15th June 2019. The assaults occurred within minutes of each other and were perpetrated against two injured parties neither of whom were known to one another and neither of whom knew the respondent.
The first assault in time occurred at approximately 1:42am. The injured party, with a date of birth of the 31st August 1950, began conversing with the respondent's partner after which he was struck in the face by the respondent on at least two occasions and thereafter kicked by him while he was on the ground. This assault resulted in a fracture in the injured party's right clavicle and a laceration to his lip.
The second assault in time occurred at approximately 1:45am. The injured party exited a taxi in order to go to the aid of the respondent's partner with whom he was now engaged in a physical dispute. In this way he is described as a good Samaritan. Upon the injured party's intervention, the respondent struck him on at least three occasions causing him to fall back and hit his head on the road. The respondent left the injured party lying unconscious in the middle of the road. This assault resulted in extensive injuries to the injured party's head including a fracture to his skull.
The first injured party made his way to a friend's house and later received medical treatment at the Galway Clinic. The second injured party was removed from the scene by ambulance to University Hospital, Galway. He was initially treated by staff in the emergency department and thereafter transferred to the intensive care unit. On the 8th July 2019, he was transferred to Craigavon Area Hospital in Northern Ireland where he was treated until the 24th July 2019. He remains under the supervision of the Community Brain Outpatient team.
Taking into account the impact on the victims and the circumstances of the respondent, the judge identified a headline sentence of three years' imprisonment in respect of the s. 3 assault and nine years' imprisonment in respect of the s. 4 assault.
He acknowledged the mitigating factors: the respondent's plea of guilty, his expression of remorse, his complex relationship with alcohol and the impact of that on his mental health.
It was the judge's view that the mitigating factors reduced the s. 3 sentence to one of two years and the s. 4 sentence to one of six years.
The Court was furnished with a psychiatric report on the day of the sentencing hearing. Having taken time to consider this report and its contents as regards the rehabilitation of the respondent, the judge suspended the final 18 months of the s. 4 sentence for a period of five years.
The Director appeals the sentence on six grounds, as follows:
“The learned sentencing Judge:
1) Failed to fully appreciate the gravity of the offences as committed by the offender;
2) Departed in a significant way from the norm that would reasonably be expected in a case of this nature;
3) Failed to have sufficient regard to the deterrence aspect of the sentence;
4) Failed to have sufficient regard to the aggravating factors;
5) Attached too much weight to the mitigating factors; and
6) In respect of the sentence imposed for the offences, failed to have sufficient regard to the particular character of the victim(s) and/or the content of the victim impact statements and the effect of the injuries on their lives.”
The applicant outlines their submissions in relation to ground 2. Relevant portions from The People (DPP) v McCormack [2000] 4 IR 356, The People (DPP) v Mahoney [2016] IECA 27 and The People (DPP) v Byrne [2018] IECA 120 are cited to the effect that the applicant must prove “a clear divergence by the court at trial from the norm' that will have been caused by an obvious error of principle.”
The applicant submits that in failing to impose a sentence that reflected the gravity of the respondent's offending behaviour, his culpability, and the impact of his attacks on the injured parties and in affording excessive weight to the mitigating factors in this case, the sentencing judge departed from the norm that would be expected.
In outlining grounds 1, 4 and 6, the applicant references the judgment of the Court of Criminal Appeal in The People (DPP) v Fitzgibbon [2014] IECCA 12. This judgment set out the sentencing ranges for s. 4 offences. It is noted that in The People (DPP) v O'Sullivan [2019] IECA 250 the Court stated that the upper limit of seven and a half years for a mid-range, which arose from Fitzgibbon, was too low and a figure of ten years was more appropriate.
Professor O'Malley on Sentencing Law and Practice is referenced wherein it is stated that a court will have regard primarily to the gravity of the offence, as measured by reference to the harm caused and offender's culpability as assessed at the time of the offences. The applicant further points to s. 5(2)(a) of the Criminal Justice Act 1993 which provides that a court, when imposing sentence shall take into account and may receive evidence or submissions concerning any effect of the offence on the person in respect of whom the...
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