DPP v Byrne

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 23 March 2017
• Neutral Citation: [2017] IECA 97
• Court: Court of Appeal (Ireland)
• Docket Number: Record No : CJA 109/16
• Date: 23 March 2017

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

ANN MARIE BYRNE

Respondent

[2017] IECA 97

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No : CJA 109/16

THE COURT OF APPEAL

Sentencing – Causing serious harm – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Ms Byrne, on the 6th of May 2014, pleaded guilty before Galway Circuit Criminal Court to a single count of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. On the 13th of April 2016 she was sentenced to five years imprisonment, suspended in its entirety for a period of twelve months upon conditions which included a requirement to keep all appointments with the Probation Service and to comply with all lawful directions from her Probation Officer. The applicant, the DPP, applied to the Court of Appeal seeking a review of this sentence on the grounds that it was unduly lenient. The DPP submitted that the sentencing judge failed to adequately reflect the seriousness of the offence in the sentence imposed. The applicant further submitted that the sentencing Judge erred in principle in that he failed to give he failed to give any or any adequate weight to the very significant effect on the victim of the acts of the respondent. The DPP submitted that the sentencing judge erred in principle in failing to impose an immediate custodial sentence. In elaboration on this it was submitted that the sentencing judge gave undue weight to the mitigating factors in the case.

Held by the Court that the particular circumstances of this case, which cumulatively influenced the sentencing judge to take the step that he did, comprised special reasons of a substantial nature and were sufficiently exceptional to have allowed him to legitimately exercise his discretion to suspend the entirety of the sentence.

The Court held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered by Mr. Justice Edwards on 23rd March 2017

Introduction

1 On the 6th of May 2014 the respondent pleaded guilty before Galway Circuit Criminal Court to a single count of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997.

2 On the 13th of April 2016 she was sentenced to five years imprisonment, suspended in its entirety for a period of twelve months upon conditions which included a requirement to keep all appointments with the Probation Service and to comply with all lawful directions from her Probation Officer.

3 The applicant now seeks a review of this sentence on the grounds that it was unduly lenient.

The circumstances of the offence

4 On the evening of the 1st of July 2013 the respondent was drinking in The Plots Park, Woodquay, Galway City with friends. There she met the injured party, Helena Flaherty. At around 5.50 p.m. an argument ensued between the two after the respondent began taunting the injured party about her weight. The situation became violent. The altercation ended with the injured party lying on her back and the respondent sitting on her chest. The respondent proceeded to bite the injured party's bottom lip, removing 9 square centimetres of tissue which dropped in the grass.

5 The injured party was taken to University College Hospital, Galway. Though the lower lip tissue was found in the grass and transported to the hospital within minutes of the injured party's arrival, it could not be reattached by surgeons.

6 Dr. Deirdre Jones, the injured party's treating surgeon, said that she regarded the injury as ‘extremely serious’. The injured party was at risk of blood borne infections such as hepatitis and HIV, but luckily did not contract any such infection. She said the injured party was ‘very distressed’ by the incident, which left her lower lip and gingiva exposed. Though Dr. Jones and her colleagues were able to reconstruct the lower lip without major difficulty, the injured party ‘will have very significant [permanent] scarring in her lower lip’ and Dr. Jones predicted that the shape of the injured party's face would be permanently changed.

7 The Gardaí at the scene of the incident shortly after it had occurred. They identified the respondent as having been possibly involved and Garda William Dineen cautioned the respondent with a view to asking for her account as to what had happened, whereupon she immediately admitted her involvement and apologised. She was taken to Galway Garda Station and when interviewed there was fully co-operative and was very forthcoming with the truth.

The impact on the victim

8 In a victim impact statement read to the Court by Ms. Flaherty, she told the Court that the incident had changed her life completely. She has permanent nerve damage resulting in numbness. She now has trouble pronouncing words and has to be careful when eating as she sometimes bites her lip. She told the Court she could not eat solid food for a month after the incident. She is very self conscious about her appearance and spends a lot of time trying to hide her injury using make-up. The injury was slow to heal and affected her relationship with her children, who she avoided for a time as she did not want to frighten them. She also described how she gave her terminally ill mother a fright when she saw her first.

9 She told the Court that the assault had changed her life and that she believed it would affect her for the rest of her life. She stated that she was going to have reconstructive plastic surgery to see if her lip could be improved. She was waiting on an appointment for surgery, and was going through various preliminary medical tests in advance of it. She stated that she has a tightness in part of her face, that she has a slight speech problem manifesting itself as a lisp, and she has a tendency to bite her injured lip when eating meals. She has nerve damage in her remaining lower lip which is numb, and this affects her ability to consume hot drinks.

10 Counsel for the respondent communicated a public apology to the injured party on behalf of his client at the conclusion of her evidence, to which the injured party did not respond.

The respondent's personal circumstances

11 The respondent was born in 1974 in Dublin where she was raised. At some point in her adult life she moved to Athenry, Co. Galway but has since moved back to the greater Dublin area. At the time of the assault she was a single mother to three children – one of whom was a young adult, the other two of whom were young teenagers. She has since given birth to two more children and lives with their father, her partner, in local authority housing in Mulhuddart.

12 She had no previous convictions or history of violence.

13 The respondent has bipolar disorder, and is under the care of Blanchardstown Mental Health Services. In that regard the sentencing judge was provided with a number of medical reports, including reports from her General Practitioner and from her treating psychiatrist. She receives a monthly visit from a psychiatric nurse and takes a cocktail of medication a number of times a day. She was subjected to abuse as a child by a relative who is now deceased. At the time of sentencing she had been abstinent from both alcohol and drugs for some time and her record of dealing with the probation services was positive. She had been fully co-operative and had expressed remorse for her actions.

14 At the time of the initial Probation Report the appellant was in homeless accommodation. However, by the date of her sentencing she had moved to secure accommodation. She had presented as being someone who was motivated to deal with her offending behaviour and the main issues of concern highlighted were her alcohol and drug use, strained family and personal relationships, mental health issues, financial pressure and lack of involvement in training and employment.

15 She appeared to be getting her life together. The probation report concluded that she was at a moderate risk of reoffending, but noted that she had reduced her risk in areas they had highlighted by attending the Tallaght Probation Project and completing a number of programs there, such as Anger Management, Anger Control and Alcohol Awareness programs. She had also had specialised counselling in relation to serious historical abuse. She continued to attend the project's Women's Support Group which had helped to support her in areas such as her mental health issues, education and homelessness.

16 She was assessed as suitable for continued support from the Probation Service. The latest report available as of the date of sentencing concluded:

‘If the Court wishes for Ms Byrne to be supervised by the Probation Service the following conditions would be helpful in supporting her make the long term changes in her life, that will ensure that she does become involved in a violent incident again.

Ms Byrne will:

** Attend all appointments with the Probation Service.

** Attend all appointments and courses at the Tallaght Probation Project, including offence related work, as directed by her probation officer.

** Engage with mental health services and comply with medical treatment as directed by medical staff.

** Abstain from drug and alcohol use and engage with addiction services as appropriate.’

The sentence

17 In arriving at a sentence of five years imprisonment suspended in its entirety, the sentencing judge agreed in the first instance with a submission from counsel for the applicant that the case fell into the mid range, on the parameters set out in The People (Director of Public Prosecutions) v Fitzgibbon [2014] IECCA 12, namely that the gravity of the offence merited a custodial sentence in the four year to seven year band. However, the...