DPP v Byrne

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 02 July 2019
• Neutral Citation: [2019] IECA 193
• Docket Number: Record No. 5/2019
• Court: Court of Appeal (Ireland)
• Date: 02 July 2019

[2019] IECA 193

THE COURT OF APPEAL

Donnelly J.

Birmingham P.

Kennedy J. Donnelly J.

Record No. 5/2019

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

ALICE BYRNE

APPELLANT

Sentencing – Assault causing harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Ms Byrne, appealed to the Court of Appeal against severity of sentence. The sentence under appeal was one of four years’ imprisonment, with the final year of the sentence suspended, imposed on 17th December, 2018 in the Circuit Criminal Court in Dublin. That sentence was imposed following the entry of a plea of guilty to a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The sentence was made consecutive to a sentence of nine months’ imprisonment imposed in respect of a burglary offence, which was imposed on the same day. The appellant relied on two grounds of appeal. The first ground was that the sentencing judge should not have placed the offence on the high end of the highest scale which recommended a maximum of five years for the index offence. The appellant submitted that where she was unarmed, with no weapon of offence forming any part of the assault and the offence was not premeditated, the headline sentence should not have been as indicated. The second ground was that the trial judge had failed to attach sufficient weight to the significant mitigating factors present in the case including, but not limited to, the views of the Probation and Welfare Service who had provided reports to the sentencing court and also a report from a psychologist concerning the appellant. It was also submitted that the trial judge failed to attach adequate or sufficient weight to the fact that the appellant was genuinely remorseful and apologetic for her actions and also the appellant referred to her guilty plea.

Held by the Court that, given the seriousness of the injuries, the location of the offence, the ferocious and lengthy nature of the assault and the aggravating factor of it being committed on bail, this offence was quite correctly placed at a headline sentence of five years. The Court held that this was a sentence which was within the margin of the sentencing judge’s sentencing discretion where she had given sufficient credit for all the relevant mitigating factors.

The Court held that there was no error in principle in this case and that it therefore must dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court ( ex tempore) delivered on the 2nd day of July, 2019 by Ms. Justice Donnelly

1 This is an appeal against severity of sentence. The sentence under appeal is one of four years” imprisonment, with the final year of the sentence suspended, imposed on 17th December, 2018 in the Circuit Criminal Court in Dublin. That sentence was imposed following the entry of a plea of guilty to a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997. The sentence was made consecutive to a sentence of nine months” imprisonment imposed in respect of a burglary offence, which was imposed on the same day.

2 The burglary offence was committed on 1st October, 2015. In relation to that offence, the Circuit Court heard that the appellant, along with her son and others, entered a domestic dwelling, whilst the householder was at home. They committed criminal damage with baseball bats. The Court heard that the appellant's role was to secure entry to the property and to ‘direct operations’. Her son had been in a relationship with the daughter of the householder.

3 In relation to the assault count, the victim was an in-patient in James Connolly Hospital and on 13th August, 2017, she was outside the hospital, smoking. She saw the appellant approach her and she appeared to be arguing with a man. The appellant engaged the victim in conversation and then walked away. At that stage, the man who had been with the appellant came over and apologised to the victim for the appellant's behaviour before, in turn, walking away. Some minutes later, the victim saw the appellant involved in assaulting the man on the roadway. She then came back, shouting ‘what did you say to my fella?’ The victim said that she had said nothing. The appellant then ‘went for her, full tilt’ as the man sought to hold her back. The appellant got free from the man and ‘launched at’ the victim. An assault followed which was described in these terms:

4 The injured party said she got kicked or punched in the stomach and was reduced to the foetal position on the ground. She said that the accused kept kicking her and kicking her. She said that the appellant was so strong that she was like the “Incredible Hulk” with strength and rage. The injured party said that at one stage, she managed to get up and stuck her leg out in self-defence and connected with the appellant. She said that the male who was with the appellant managed to eventually get her off the victim. The victim said that at this...