DPP v O'Brien
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 03 October 2018 |
| Neutral Citation | [2018] IECA 307 |
| Docket Number | 194CJA/17 |
| Court | Court of Appeal (Ireland) |
| Date | 03 October 2018 |
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
[2018] IECA 307
194CJA/17
THE COURT OF APPEAL
Sentencing – Threatening to kill or cause serious harm – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr O’Brien, pleaded guilty on arraignment to the first of three counts on the indictment. That count charged him with the production of an article, i.e. a hatchet. Subsequently on the sentence date of 19th June 2017 pleas of guilty were entered by the respondent to the second count of threatening to kill or cause serious harm contrary to s. 5 of the Non Fatal Offences Against the Person Act 1997 and to the third count of assault contrary to s. 2 of the 1997 Act. On the 19th June 2017 the sentencing court had before it a re-entry application relating to a suspended sentence, as the offences in question were committed during the currency of that suspended sentence. A sentence of 4 years with 18 months suspended had previously been imposed on the respondent for the offences of producing a weapon and threatening to kill or cause serious harm. The re-entry application was brought before the sentencing court so that it could decide whether or not to reactivate any part of the suspended portion of the sentence it had imposed on the earlier matter. The respondent was sentenced to 16 months, backdated to the 10th December 2016 in respect of the second count on the indictment. The other two counts were taken into consideration. No order was made on the re-entry application in relation to the re-activation of the suspended sentence. The appellant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, seeking review of sentence on grounds of undue leniency.
Held by the Court that, having considered the very serious nature of the offence and the fact that it was a similar offence for which he received a four year sentence with 18 months suspended in July 2014, and that he committed this offence during the currency of that 18 month suspension and just eight months after his release, the sentence was unduly lenient and erred in principle in that regard. The Court held that it would quash the sentence and proceed to resentence.
The Court held that, having taken into account the aggravating factors, it identified a headline sentence of five years. Applying the mitigating factors, it held that it would reduce that to four years and giving credit to him for his early plea and genuine remorse, it would reduce that to three years. Taking account of the fact that he had been at liberty since December 2017 having served 12 months of the 16 months sentence on the 19th June 2017 and had not reoffended during that time, and, with the aim of further incentivising his rehabilitation, the Court held that it would suspend the remainder of the three year sentence for a period of three years upon condition that he continues to engage with the Probation Service and complies with their directions and that he enter into a bond to keep the peace.
Appeal allowed.
This is an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993, seeking review of sentence on grounds of undue leniency. The respondent pleaded guilty on arraignment to the first of three counts on the indictment. This count charged him with the production of an article, i.e. a hatchet. Subsequently on the sentence date of 19th of June 2017 pleas of guilty were entered by the respondent to the second count of threatening to kill or cause serious harm contrary to section 5 of the Non Fatal Offences Against the Person Act, 1997) and to the third count of assault contrary to section 2 of the Non Fatal Offences Against the Person Act, 1997.
On the 19th June, 2017 the sentencing court had before it a re-entry application relating to a suspended sentence, as the offences in question were committed during the currency of that suspended sentence. A sentence of 4 years with 18 months suspended had previously been imposed on the respondent for the offences of producing a weapon and threatening to kill or cause serious harm. The re-entry application was brought before the sentencing court so that it could decide whether or not to reactivate any part of the suspended portion of the sentence it had imposed on the earlier matter.
The respondent was sentenced to 16 months, backdated to the 10th December, 2016 in respect of the second count on the indictment, the threat to kill or cause serious harm. The other two counts were taken into consideration. No order was made on the re-entry application in relation to the re-activation of the suspended sentence.
Garda Hetherington gave evidence to the sentencing court concerning the offences in question, which occurred on 10th December, 2016. Ms Linda Devlin, the injured party was then the partner of the respondent, and was living with him and their children at a house of a friend of hers, called Alan, at 8 Sundale Lawns in Tallaght. The family were renting from and living with Alan at this address in order to comply with the conditions of the suspended sentence that had been imposed on the respondent.
At some time in the afternoon, Ms Devlin went into a bedroom in the house and asked the respondent for some tobacco. He said he had none, but Ms Devlin found some under a pillow. She took the tobacco and went downstairs. The respondent went downstairs after her, and Ms Devlin was in the kitchen with Alan. The respondent took the tobacco back from Ms Devlin. Some kind of verbal dispute proceeded as between the respondent and Alan. This escalated into a physical fight between the men on the stairs of the house, and Ms Devlin got between them to try and keep the peace. She was concerned at this point for her own safety and that of her children. This incident went on for almost an hour, and Ms Devlin called the Gardaí to deal with it. When the incident between Alan and the respondent calmed down, the respondent became very angry with Ms Devlin for having called the Gardaí. He accused Ms Devlin of ratting on him, and told her that he hated rats and her day would come. Ms Devlin decided at this stage that she would leave the house with her children. Having called the Gardaí to deal with the initial dispute, Ms Devlin called again advising that the Gardaí need not attend. She did not wish for her children to see their father being taken away by the Gardaí. The respondent became more abusive towards Ms Devlin throughout the day. He was rowing with her over calling the Gardaí, and Ms Devlin was angry at him for disrespecting Alan. Later on in the day, she was in the bedroom upstairs and saw a hatchet on the bed. The respondent pushed Ms Devlin out of the room and onto the floor. She fell over and the respondent continued to push into her chest and at her shoulders. Ms Devlin managed to get up and go downstairs and sat in the living room. The respondent continued shouting at her from upstairs, calling her a rat bastard, a dirty dying dog, and a tramp bastard. The respondent came downstairs and said to Ms Devlin, ‘I'll fucking kill you, I'll split you in half’. The respondent had the hatchet raised in the air, and Ms Devlin told him ‘just go for it, I've no fight left’. The respondent then went upstairs, and Ms Devlin went next door to a neighbour. She had left her children with the neighbour who had been left there after the initial incident involving Alan. The Gardaí were called again and when they arrived at 8 Sundale Lawns, they entered the house and called out to the respondent asking him to come downstairs. The Gardaí searched the room and found the hatchet in the bed. The respondent was arrested and taken to Tallaght Garda Station. In the course of his interview with the Gardaí, the respondent stated that it was unusual for him and Ms Devlin to fight as they had done that day. He accepted that he owned the hatchet and that he had it for his own protection.
The respondent is 37 years old and was born on 11th May, 1979. He comes from a large family and grew up in the Balinteer area. He did his junior certificate and left school. He has had some painting and decorating jobs in the past. He and Ms Devlin have three children, aged 8, 9 and 10. Mr O'Brien is in loco parentis of another child of Ms Devlin's who is aged 17. The family have experienced periods of homelessness.
The respondent began taking cannabis at 13 years old and moved on to heroin. In recent times, he is dependent on cocaine and alcohol. He had inherited some 35,000 euro from his parents” estate and spent the majority of this on drugs. A brother of the accused died in 2014, which affected him badly. The incident in question occurred at the end of a four day binge, and the respondent in interviews admitted to having had a few drinks. He stated that his mind was not in the right place at the time. The respondent has been in custody since December, 2016 and is an enhanced prisoner in Cloverhill.
Letters were handed in to the sentencing court from Father Peter McVerry and Noel Dowling of the Merchants Quay project, indicating a willingness to work with the accused towards obtaining a place on a treatment programme on his release. A probation report dated 25th April, 2018 was handed into the sentencing court. Whilst it did not recommend that the accused be considered for residential drug treatment, it commented that the respondent is capable of desisting from offending, noting the period between 2006 and 2013 as being relatively offending free, bar one public order related...
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