DPP v Cullen
 IECA 4
THE COURT OF APPEAL
Ryan J., Birmingham J., Edwards J.
Sentencing – Causing serious harm – Appeal against conviction and sentence – Applicant seeking to appeal against conviction and sentence – Whether trial judge erred in refusing to grant a direction
145/2011 - Ryan Birmingham Edwards - Court of Appeal - 20/1/2015 - 2015 IECA 4
Facts: The applicant, Mr Cullen, allegedly acting in joint enterprise with two other men, assaulted Mr Byrne in 2008. The injured party suffered a number of injuries in the incident, most seriously injuries to his right lower leg and foot, ultimately necessitating the amputation of his right foot. The applicant was convicted in 2010 by unanimous verdict in the Circuit Criminal Court, of causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act, 1997. The applicant was sentenced to imprisonment for twelve years for the offence in question, backdated to the date on which he went into custody. The applicant appealed to the Court of Appeal against both his conviction and sentence. The applicant claimed that the trial judge had erred in permitting the doctrine of common design to be introduced to the jury by the prosecution in its closing speech at the end of the case, and that the judge erred in refusing to grant a direction at the close of the prosecution case. The main complaint made the applicant with respect to the refusal to grant a direction is that, because it was elicited during the trial that the injured party was unable to say whether the applicant had emerged from the car which had struck him, there was no evidence as to the participation of the applicant in the assault resulting in serious injury to the injured party. The applicant contended that the sentence imposed was excessive in all the circumstances of the case, and that to impose such a sentence represented an error of principle in itself, referring to People (Director of Public Prosecutions) v Fitzgibbon  2 ILRM 116. It was further submitted that the sentencing judge placed excessive weight upon the aggravating factors in the case rather than appropriately balancing both aggravating and mitigating factors within this context. It was suggested that the sentencing judge did not have sufficient regard to the sentencing objective of rehabilitation and that he erred in failing to consider suspension of any portion of the sentence.
Held by Edwards J that the prosecution evidence, taken at its highest, was such that a jury properly directed could convict upon it in respect of the s.4 count. Even in the absence of evidence of the injured party’s assailants exiting the car, Edwards J held that the jury had a clear basis for inferring that the said assailants, acting in joint enterprise, had pursued the injured party in a car and had used that car in the course of assaulting and causing him serious injury. Edwards J held that while joint enterprise might not have mentioned up to that point in the case, it did not have to be mentioned, and the clear run of the case was such that nobody could have been under any illusions but that the prosecution was at all times relying on joint enterprise. In Edwards J’s view this case was properly characterised by the sentencing judge as involving a vicious assault. The Court considered that while the trial judge could not be criticized for regarding the offence as being in the uppermost of the three indicative ranges if, after taking into account aggravating factors and before taking into account mitigating factors, she had so assessed it, but that she was in error in effectively rating it, after mitigating circumstances had been taken account of, as being at the very upper end of that range. Edwards J held that the applicant ought to have been afforded some mitigation on the basis that the attack appeared to have been spontaneous rather than pre-planned, and also on the basis that the evidence did not establish the applicant to be the actual driver of the vehicle that drove over the injured party; the failure to take account of these factors was also held to be an error of principle. The Court considered that the sentencing judge was entitled to view the case as meriting an immediate and substantial custodial sentence without suspension of any portion of it, given previous re-offences.
Edwards J held that the trial judge was correct in allowing the s.4 count to proceed to a jury and he set aside the sentence of 12 years, considering that a sentence of 9 years imprisonment was the appropriate sentence in this case, backdated to the date on which the applicant went into custody.
Appeal allowed in part.
This is a case in which the applicant was convicted by the unanimous verdict of a jury on the 3rd of November 2010, following a five day trial in the Circuit Criminal Court, of causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act, 1997.
The case was concerned with an alleged assault by three men, who were said to have been acting in joint enterprise, one of whom was alleged to be the applicant, on a Mr Kevin Byrne in the early hours of the morning of the 2nd of March 2008 at St Helena’s Road in the Dublin suburb of Finglas. The injured party suffered a number of injuries in the incident, the most serious of which were injuries to his right lower leg and foot, ultimately necessitating the amputation of his right foot on the 13th of March 2008.
Following his conviction, the applicant was sentenced on the 20th of December 2010 to imprisonment for twelve years for the offence in question, backdated to the date on which he went into custody.
The applicant appeals against both his conviction and sentence.
Evidence before the jury
The injured party is the managing director of a company business. On the night of the 1st of March 2008 he was attending a company function at a bar in Leeson St in Dublin city along with other staff members. The function continued until 2.30am or 3.00 am on the 2nd of March 2008, following which some staff members went on to a nightclub. The injured party, however, decided to go home and he arranged to share a taxi with two other staff members, Warren Edgely and Jackie White who, like the injured party, were going northside.
The taxi proceeded first to Beaumont where Warren Edgely was dropped off at his home, and it then proceeded to Finglas where Jackie White was in turn to be dropped off at her home, and it was intended that the taxi would ultimately proceed from Finglas to Swords so that the injured party could be dropped off last at his home.
When the taxi pulled up outside Jackie White’s home at 13 Hazelcroft Road, Finglas south, the injured party required to use the bathroom. The taxi driver, although requested to do so, was unwilling to wait outside, and so the injured party paid the taxi fare and went into the house with Jackie White. It was a cold night and Jackie White had difficulty putting the key into the door. She kept dropping it, and the injured party picked up the key and helped her in the door.
The injured party’s evidence was that he had had about five bottles of Corona beer over the course of the night out. He also testified that Jackie White “had some drink taken but was not falling down drunk.” However, Jackie White stated in her own evidence that she was “very drunk”.
The injured party and Jackie White proceeded into the house. The injured party went into a room off the entrance hall and sat down on a settee whilst Jackie White proceeded upstairs. The injured party’s evidence was that Jackie went upstairs to use the bathroom first. It was put to the injured party in cross-examination, and it was subsequently confirmed in the evidence of Jackie White, that there was no bathroom upstairs. The injured party responded “I don’t know the layout of the house. She said she was going up the stairs to use the bathroom so I assumed that the bathroom was upstairs.”
The injured party told the jury that about 10 or 15 seconds after he sat down there was a very loud bang at the front door, and he thought that somebody was kicking the front door. Jackie White came “probably halfway down the stairs” and enquired as to what the bang was. There was then another large crash or bang at the front door. The door opened and a man came in. The injured party described the man as wearing an orange padded jacket; as being the same height as himself – about six foot; as wearing “kind of like a skull cap” and as looking “very gaunt around the face”.
The injured party could not say if Jackie had opened the door or if the door was kicked open, all he could say was that the door had opened. However, under cross examination he stated he assumed that Jackie had opened the door. Jackie White subsequently told the jury that the man in question was her ex-boyfriend Joseph Cullen; that he came into the house under his own steam; that she did not open the door for him; that she did not remember any bangs; and that he must have had a key.
In the course of being interviewed by the Gardai while being detained under s.4 of the Criminal Justice Act, 1984, the applicant admitted that it was he who had entered the house, and that he had had a key.
The injured party stated in evidence in chief that when the man in the orange padded jacket came in, he looked at him and roared at him two or three times. He stated that the man looked incensed. The injured party denied a suggestion later put to him in...
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