DPP v CG

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Sheehan
• Judgment Date: 11 April 2016
• Neutral Citation: [2016] IECA 355
• Docket Number: 149CJA/15
• Date: 11 April 2016

The People at the Suit of the Director of Public Prosecutions

Respondent

V

C.G.

Appellant

[2016] IECA 355

149CJA/15

THE COURT OF APPEAL

Sentencing – Making a threat – Undue leniency – Appellant seeking a review of sentence – Whether sentence was unduly lenient

Facts: The respondent, on the 5th March, 2015, pleaded guilty to the following counts on the indictment: Count 1 Assault causing harm upon K (the maximum sentence for this offence was five imprisonment and a sentence of four years imprisonment was imposed); Count 4 Assault causing harm to CA (a sentence of three years imprisonment was imposed on the respondent in respect of this offence where the maximum sentence was five years imprisonment); Count 5 Making a threat to K (a sentence of five years imprisonment was imposed in respect of this offence where the maximum sentence was ten years imprisonment); Count 7 Possession of a firearm without a firearm certificate contrary to s. 2 of the Firearms Act 1925 (a sentence of four years imprisonment was imposed on the respondent in respect of this offence where at the time the judge believed that the maximum sentence for this offence was five years imprisonment). The respondent was indicted on seven counts, but the appellant, the DPP, accepted a plea of guilty on counts 1, 4, 5, and 7 and entered a nolle prosequi on counts 2, 3, and 6. The plea was accepted on the basis of the full facts being disclosed to the sentencing judge. The DPP initially sought a review of two of the sentences imposed at the Circuit Criminal Court in Dundalk on the 20th May, 2015, namely those imposed on counts 5 and 7 on grounds of undue leniency pursuant to s. 2 of the Criminal Justice Act 1993. At the oral hearing in the Court of Appeal the appeal in respect of count 7 was withdrawn and counsel indicated to the Court that he was proceeding only on count 5. The DPP argued that the trial judge erred in the imposition of the penalty imposed on count 5 having regard to the available penalty and further having regard to all the penalties that were imposed in relation to the balance of the counts. The appellant submitted that the sequence of events, the tender age of the victims, the fact that both were his children and in his sole care within the jurisdiction at the time of the offending, as well as the sustained nature of the period of the violence giving rise to the offences, established that this offending in respect of each count was at the very highest given the accumulation of circumstances attaching to each offence. The respondent contended that the case was summarised comprehensively by the sentencing judge prior to the imposition of sentence and concluded that the sentencing judge correctly identified the appropriate sentences in this case. The respondent submitted that there were substantial points of mitigation that supported the sentences that were imposed and further submitted that when all the circumstances of the offences as committed by the offender were considered then the sentences imposed were within the appropriate range of sentences and accordingly were not a substantial departure from what would be regarded as an appropriate sentence.

Held by Sheehan J that he was not persuaded by the argument that DPP v McKenna (No. 2) [2002] 2 IR 345 is an authority on foot of which the Court ought to hold that this was a proper case for a consecutive sentence. Sheehan J noted that there were factors in favour of the appellant, including his engagement with counselling services, his attendance at Cluain Mhuire and the plea of guilty in circumstances where the trial could not have proceeded the day on which the plea was entered. In those circumstances Sheehan J held that the sentence imposed while undoubtedly lenient was within the margin of appreciation that the Court is required to afford a sentencing judge.

Sheehan J held that he would dismiss the application for a review of the sentence.

Appeal dismissed.

Judgment of the Court (ex tempore) delivered on the 11th day of April 2016, by Mr. Justice Sheehan

1 This is an application by the Director of Public Prosecutions for a review of the sentence imposed on the respondent CG pursuant to s. 2 of the Criminal Justice Act 1993, at the Circuit Criminal Court in Dundalk on the 20th May, 2015.

2 In the early hours of the 8th February, 2014, the respondent was at home with his partner when he was disturbed by some matters relating to one of his daughters whose mother was abroad at the time with her partner and two young children.

3 The domestic arrangements that had been put in place were that one daughter CA was to stay in a friend's house and the other younger daughter K was to stay with her father, the respondent. Both girls were allowed to go to their home to watch television.

4 As a result of a telephone call between CA and the respondent, the respondent became aware that his youngest daughter was intoxicated and behaving inappropriately. When he heard this he ordered a taxi and went to her home accompanied by his partner. The respondent met his daughter K there and commenced assaulting her by slapping her, as a result of which she fell to the ground. K's older sister CA, then intervened whereupon the respondent took a handgun from his pocket and held it sideways to her face.

5 CA ran on to the landing at which point the respondent picked his daughter K up off the floor hurting her in the process and took her to a waiting taxi. There is some dispute as to whether or not he put the gun in her mouth during the course of the journey to his own home. When the taxi arrived at his home he took K forcibly from the taxi and brought her into his home. He there produced the gun again and at one point in the course of assaulting her he threw the gun at her, he also pulled her hair, boxed her and at one point forced her legs over her head. During the currency of the assault the respondent threatened to kill his daughter who experienced difficulty breathing. A witness described the respondent as appearing like a madman.

6 The respondent's partner asked a neighbour to call the police. K escaped to her neighbour's home and was subsequently taken to hospital. A consultant paediatrician described a wide range of physical injuries suffered by her, including serious injuries to her face, shoulder, elbows, forearm, wrists, hands, legs and feet. She had no bone injuries and was discharged from hospital a week later.

7 She needed to use crutches for four months and subsequently collapsed in September following a panic attack and had to be taken to Temple Street Hospital in Dublin. There were two victim impact reports prepared by different probation officers on behalf of K and CA. Both reports noted the devastating effect that these assaults had on their lives.

8 In the case of K the probation officers says that she is only now at the outset of a lengthy path to recovery. At the time of the report she was deeply distressed by her father's lack of expressed remorse. Her progress in school has been hampered and her deteriorating physical health had brought an end to her involvement in Gaelic football and other sports. What particularly troubled her was the fact that she had prior to this night a close bond with her father and she was struggling to understand how he could have assaulted her in the way that he did.

9 With regard to CA the probation officer reports that the crime has impacted on her at an emotional, social and psychological level, but the report also states that CA...