DPP v Carberry

 
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[2014] IECA 12

THE COURT OF APPEAL

Finlay Geoghegan J

Irvine J.

Hogan J.

131 CJA/14
DPP v Carberry
BETWEEN/
IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
THE PEOPLE (at the suit of the DIRECTOR OF PUBLIC PROSECUTIONS)
APPELLANT
v.
JOSEPH CARBERRY
RESPONDENT

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 MCCORMACK 2000 4 IR 356 2000/8/3024

DPP v RYAN 2014 2 ILRM 98 2014 IECCA 11

Criminal Law – Sentencing – Mitigating Factors – Leniency - s. 3 of the Non Fatal Offences against the Person Act 1997

1

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 [2000] 4 I.R. 356, 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

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 briefly the background to the two offences.

3

3. The background to the first offence was that Mr. Carberry saw a Ms. Karen Manley who had just purchased some cans of beer at a convenience store in O'Connell Street in Dublin. She saw Mr. Carberry (whom she knew as "Jody") coming to her with what was described as aggressive body language. He approached her and said words to the effect that "you are going to get it". Ms Manley then felt the impact of a knife on her, felt wet on her leg and after screaming she collapsed and was hospitalised. As it happens, the original consent to the release of medical records was lost. This, as we shall see, was also the case in respect of the other offence, so that in neither case is the medical evidence actually available to the Court. It is nonetheless clear from the evidence of the prosecuting Garda, Garda Gaffney, that Ms. Manley lost a significant amount of blood and there was a small puncture wound around her groin area. It is obviously unfortunate that the Court does not have these medical details, but that is nevertheless clear that the victim's injuries were potentially serious.

4

4. A few minutes later Mr. Carberry approached a Ms. Imelda O'Brien, whom he also knew. There was some screaming and shouting and then Mr. Carberry produced what appeared to be a steak knife. It is accepted that there was an injury to Ms. O'Brien's abdomen and to the left hand and that she required hospitalisation as a result. Unfortunately Ms. O'Brien died before the sentencing hearing, although it must be stressed that there was no suggestion that there was any link between these injuries and her untimely death.

5

5. The evidence before the Circuit Court was that Mr. Carberry has a bad criminal...

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