DPP v Carberry

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 17 November 2014
• Neutral Citation: [2014] IECA 12
• Court: Court of Appeal (Ireland)
• Date: 17 November 2014

[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

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

Facts: The Director of Public Prosecutions appealed pursuant to s. 2 of the Criminal Justice Act 1993 against the leniency of two sentences. The accused pleaded guilty to two offences contrary to s. 3 of the Non Fatal Offences against the Person Act, 1997 ('the 1997 Act'). The accused had a bad criminal record but no previous convictions for violence. A number of mitigating factors had been put forward on the offender"s behalf. The accused had a difficult upbringing and few opportunities in life. He had made and early plea of guilty and expressed remorse for the crime he committed. At the time of sentencing the offender had been six months drug and alcohol free. The argument on appeal was that the Circuit Court judge had erred in not applying the correct approach to sentencing. The DPP argued that the two year sentences did not reflect the gravity of the offences committed by the accused because they were unprovoked attacks on two defenseless victims.

Ruling: The court allowed the Director"s appeal and set aside the two sentences in view of their leniency. The two offences fell into the upper end of the mid range of s. 3 offences. The appropriate sentence was one of three years imprisonment prior to mitigation. The court suspended the entirety of the three year sentence and imposed a number of terms. The offender was required to keep the peace and to be of good behaviour, remain alcohol and drug free and place himself under the supervision of the Probation and Welfare Service for the three year period. The offender was also required to enter a bond in favour of the People of Ireland.

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...