DPP v Curtis

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 11 October 2019
• Neutral Citation: [2019] IECA 259
• Docket Number: [306/18]
• Court: Court of Appeal (Ireland)
• Date: 11 October 2019

[2019] IECA 259

THE COURT OF APPEAL

Birmingham P.

McCarthy J.

Kennedy J.

[306/18]

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

- AND -

ALAN CURTIS

RESPONDENT

Sentencing – Assault – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of sentence on the grounds of undue leniency. The sentence sought to be reviewed was one of four years’ imprisonment, the final two years of which were suspended on terms imposed. The offence was one contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997, and the sentence was imposed on the 15th of November, 2018 following a contested trial.

Held by the Court that there was an error in principle in failing to have due regard to the gravity of the offence. The Court held that it would make a valued judgment as to where on the scale of seriousness this case, objectively speaking, lay for the purpose of fixing a headline sentence. The Court thought it fell in the middle range being approximately five to six years, having had regard to DPP v Fitzgibbon [2014] IECCA 12. The Court had regard to the fact that it was imposing a lengthier sentence than that which was imposed in the trial court. The Court noted that there were a number of mitigating factors present. Accordingly, even though a higher sentence might have been imposed at first instance, the Court limited its intervention to imposing a sentence of five years’ imprisonment, with the last twelve months suspended in order to incentivise the appellant in rehabilitating himself and for the purpose of re-introducing the appellant into society.

The Court held that it would quash the sentence in the court below, substituting a sentence of five years’ imprisonment with the final twelve months suspended and the respondent would have to enter into a bond to avail of the twelve months’ suspension. The Court held that the terms would involve him being subject to the probation service and complying with their directions during a period of one-year post-release from custody.

Appeal allowed.

Judgment of the Court ex tempore delivered on the 11th day of October 2019 by Mr. Justice McCarthy

1 This is an application brought by the Director of Public Prosecutions pursuant to s.2 of the Criminal Justice Act, 1993 seeking a review of sentence on the grounds of undue leniency. The sentence sought to be reviewed is one of four years' imprisonment, the final two years of which were suspended on terms imposed. The offence is one contrary to s.4 of the Non-Fatal Offences Against the Person Act, 1997, and the sentence was imposed on the 15th of November, 2018 following a contested trial.

2 The trial related to events that had occurred on the 28th March, 2014 at Cashel Road, Crumlin in Dublin, and the jury concluded that the respondent had assaulted the injured party, a sixteen-year-old youth. What occurred on the date in question was the subject of controversy at the trial. It is clear that the injured party was one of a group of young people, perhaps as many as twenty in number, who were playing music and talking loudly in the vicinity of the home of Mr Curtis' mother. It is clear that Mr Curtis emerged from the house, that he was carrying a hurley, that he struck the injured party, Mr McClelland, and that Mr McClelland sustained a depressed fracture of the skull requiring emergency surgery at Beaumont Hospital.

3 In the course of the trial the defence was essentially one of self-defence. Mr Curtis claimed that Mr McClelland was witnessed by him damaging his car with a plank. He said that he feared for his safety and that of his mother and sister who resided in the house. He accepted...