DPP v D.F.

CourtCourt of Appeal (Ireland)
JudgeMr. Justice Collins
Judgment Date18 February 2020
Neutral Citation[2020] IECA 40
Docket NumberRecord Numbers: CCA CJ 0134/2019
Date18 February 2020


- AND -

[2020] IECA 40

Birmingham P.

McGovern J.

Collins J.

Record Numbers: CCA CJ 0134/2019



Sentencing – Rape – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, on 25 March 2019, pleaded guilty to one count of rape between 1 June 1979 and 1 September 1979. In respect of the rape the respondent was sentenced to a period of six years to commence on 19 June 2019 with the final four years of the sentence to be suspended for a period of four years’ conditional upon the respondent entering into a bond to keep the peace and be of good behaviour for a period of four years from the date of his release. In imposing sentence, the Court took into account three counts of indecent assault. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal to review the sentence on the grounds of undue leniency.

Held by the Court that, having had regard to all the features of this case, an appropriate headline sentence was twelve years with a reduction to nine years on account of the guilty plea, albeit late in the day. The Court was of the view that the sentence should be further reduced to five years having taken into account the age and health issues of the respondent and the hardship to him in having to face, at a late stage in his life, an increase in the effective sentence already imposed on him.

The Court held that, having had regard to all the circumstances of this case, it did not consider it appropriate to suspend any portion of the adjusted sentence.

Appeal allowed.

Judgment of the Court delivered on the 18 th day of February 2020, by Mr. Justice Collins

This is a leniency appeal brought by the Director of Public Prosecutions (hereafter “the DPP” or “the Director“) arising from a sentence imposed on the Respondent by His Honour Judge Eugene O'Kelly in the Circuit Court (South Eastern Circuit, County of Waterford) on 24 May 2019 following his prosecution and conviction on a plea of guilty for assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997 (hereafter section 3“) and a separate prosecution and conviction for manslaughter, again on a plea of guilty.


The first in time of these offences (Bill 43/2018) – the section 3 assault causing harm – involved an unprovoked assault on a Kiefer Dowling on 18 August 2017, first within and then immediately outside a nightclub in Waterford which resulted in the victim being knocked unconscious. The Respondent pleaded guilty to this count on 7 November 2018. At the time of the offence, the Respondent was subject to a three months suspended sentence which had been imposed in the Circuit Court (on appeal) on 16 June 2017.


The second of the offences (Bill 70/2018) involved the unlawful killing of Damien O'Brien, arising from another unprovoked assault during which the Respondent punched the deceased in the face with sufficient force to knock him to the ground, resulting in him sustaining a fractured skull and consequential brain injuries that proved fatal. The postmortem report indicates that Mr O' Brien had suffered a broken nose, broken eye sockets and a broken jaw as a result of the assault on him by the Respondent, in addition to the skull fracture that was the immediate cause of his death. The Court was told that it was accepted before the Circuit Court that Mr O' Brien was knocked unconscious by the force of the punches, that is to say that he was unconscious before his head impacted against the ground. The Court was also told that it had been accepted that the facial injuries suffered by Mr O' Brien were caused by the punches, not by the impact of Mr O' Brien striking the ground.


This second assault occurred on 7 July 2017 at a time when the Respondent was on bail on the section 3 assault charge. Mr O'Brien died on 13 July 2017 which therefore was the date of the manslaughter offence. The Respondent pleaded guilty to this offence on 26 February 2019.


For logistical reasons, the Judge heard the evidence of Detective Garda Seamus Halpin in relation to the manslaughter offence first. The Judge also saw CCTV footage of the assault on Mr. O'Brien, which this Court was also invited to view and which it has viewed in the course of the appeal hearing. The CCTV footage of the assault itself is difficult to decipher but clearly shows a man subsequently identified as the Respondent involved in a scuffle and then immediately leaving the scene of the assault at some speed, in the company of another man and later shows the Respondent engaging in what appears to be some form of re-enactment of his assault on Mr O' Brien.


The Judge also heard a victim impact statement read by Mr. O'Brien's sister, Ms. Sandra Griffin, which this Court has also seen. Detective Garda Halpin gave evidence that the Respondent had twenty-four previous convictions, most of those convictions were for Road Traffic Act offences and the Respondent had not had a custodial sentence imposed on him for any of those offences. That total of twenty-four previous convictions did not include the s.3 assault conviction because sentence had not yet been imposed for that offence.


In relation to the section 3 assault, evidence was given by Garda Barrett. Again, there was CCTV footage which was shown to the Circuit Court and which this Court has also reviewed in the course of the appeal hearing. The footage initially shows a violent attack on the victim inside the nightclub, in the course of which the victim was punched and head-butted. Both parties were then ejected from the nightclub. Footage from a CCTV camera located at the entrance to the nightclub then records the Respondent striking the victim with a single punch with his left hand which was struck with sufficient force to knock Mr Dowling unconscious, resulting in him collapsing to the ground.


Mr Dowling chose not to make a victim impact statement.


A plea in mitigation was then made on the Respondent's behalf by counsel, principally by Ms. Gearty SC. She very frankly acknowledged the seriousness of the offences and made it clear that the Respondent expected to receive custodial sentences in respect of each. She referenced her client's pleas of guilty and also referred to the fact that her client had written a letter of apology (which this Court has also seen). Ms. Gearty referred to her client's education and employment history. In terms of the sentence that the Court might impose, Ms. Gearty referred to a 6-10 year sentence that had been imposed for manslaughter where a weapon had been used and/or where there was an element of pre-meditation. She submitted that neither of these elements (weapons/pre-meditation) were present in this case. Accepting that other injuries had been caused to the deceased, Ms. Gearty pointed out that the post mortem report indicated that the immediate cause of death was the deceased's head striking against the pavement. It was, she submitted, a “result crime” and therefore of a different order to deaths caused by (for instance) a stabbing or a shooting.


On this basis, and having regard to the Probation Report in respect of the Respondent, the Court was invited to suspend a portion – possibly (so counsel suggested) a significant portion - of the sentence to be imposed on the Respondent.


Toward the conclusion of her submissions, Ms. Gearty made a reference to the “totality principle”, to which further reference is made later in this judgment.


The Probation Report to which Ms. Gearty referred was before this Court. It is dated 22 May 2019 and in it the Probation Officer expressed the view that the Respondent was aware of the harm he had caused to his victims, especially Mr. O'Brien and had shown a great deal of remorse about the killing of Mr. O'Brien whom – he said – had no intention of seriously hurting.


The Probation Report went on to describe the Respondent's family circumstances. The Respondent is recorded as saying that he had a very supportive extended family. The Report also refers to the Respondent's immediate family circumstances, his education and employment history, a history of substance abuse (in terms of limited cocaine use and alcohol use) and concludes by expressing the view that applying a risk assessment tool used by the Probation Service, the Respondent was then “at moderate risk of reoffending in the next twelve months.”


The Judge identified a number of aggravating factors in respect of the section 3 assault, including the fact that it occurred in a nightclub where young people gather to enjoy themselves and that it was unprovoked. The assault continued after it was initially stopped by security staff; the appellant had head-butted the victim and the blow that had knocked the victim unconscious had been delivered completely without warning and in the presence of security staff.


The Judge referred to the Respondent's previous convictions, noting that, while they were for motoring offences, the most recent convictions were of such a serious nature that the Respondent had received a suspended sentence for one and an order for Community Service in lieu of a prison sentence for another.


Taking those aggravating factors into account, the Judge placed the section 3 assault at the upper end of the mid-range on the scale of gravity for s.3 assault and the appropriate headline sentence was, in his opinion, one of 3½ years' imprisonment. The Judge then referred to the mitigating factors that had been outlined to him, particularly the Respondent's early guilty plea and indicated that, taking account of all those factors, he would reduce...

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