DPP v Carberry
 IECA 12
THE COURT OF APPEAL
Finlay Geoghegan J
131CJA/2014 - Finlay Geoghegan Irvine Hogan - Court of Appeal - 17/11/2014 - 2014 13 3728 2014 IECA 12
CRIMINAL JUSTICE ACT 1993 S2
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3
DPP v MCCORMACK2000/8/3024
DPP v RYAN2014 IECCA 11
Criminal Law – Sentencing – Mitigating Factors – Leniency - s. 3 of the Non Fatal Offences against the Person Act 1997
1. This is an appeal by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, against the leniency of two sentences which were imposed by His Honour Judge McCartan, on May 14 th 2014. The accused pleaded guilty to two offences contrary to s. 3 of the Non Fatal Offences against the Person Act, 1997 ("the 1997 Act"). In approaching this question the Court follows the well known statement of principle contained in one of the earliest s. 2 leniency appeals, mainly that of The People v. McCormack, 359 where Barron J., delivering the judgment of the former Court of Criminal Appeal, said that:
"In the view of the court, undue leniency connotes a clear divergence by the court of trial -from the norm and would, say perhaps in exceptional circumstances, have been caused by an obvious error in principle."
Each case must depend on its own special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence of the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties will depend on these two factors. It is only when the penalties below the range as determined on this basis that the question of undue leniency may be considered."
2. This is the approach which commends itself to this Court. So far as these offences were concerned it is striking that they were each committed within the space of a few minutes of each other on September 5 th 2010. Mr. Carberry received two sentences of imprisonment in respect of these offences under s. 3 of the 1997 Act. Both sentences ran concurrently and both were suspended in their entirety. Before considering the question of undue leniency it is necessary first to narrate...
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