DPP v D. W

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 02 June 2020
• Neutral Citation: [2020] IECA 145
• Docket Number: Record No: 0095/2019
• Court: Court of Appeal (Ireland)
• Date: 02 June 2020

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

V

D. W.

APPELLANT

[2020] IECA 145

Birmingham P.

Edwards J.

McCarthy J.

Record No: 0095/2019

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 2nd day of June, 2020 by Mr Justice Edwards

Introduction

1 This is an appeal against the severity of a sentence of four years imprisonment with the final year suspended for three years, subject to the appellant entering into a bond in the sum of €150 to keep the peace and be of good behaviour for the suspended period, and the further condition that the appellant “stay away from [the injured party ‘N.C.’] for a period of 30 years, that you will not contact her yourself or cause anybody to contact her by any means whatsoever, and that you will stay away from any property that NC resides (sic) or will reside.”

2 The offence for which this sentence was imposed was one of assault causing harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997, in circumstances where the victim had been the appellant's life partner for a number of years, i.e., it was a case of domestic violence.

3 The focus of the appeal is solely on the condition requiring the appellant to stay away from the injured party, and not to contact or initiate contact with her, for a period of 30 years, in circumstances where they have four children together.

4 The case raises the interesting issue as to whether, and to what extent, the law may place limits on the kind of conditions that may be placed on suspended sentences. In The People (Director of Public Prosecutions) v Alexiou [2003] 3 I.R. 513 Murray J, giving judgment on behalf of the Court of Criminal Appeal, cited with approval the observation of Mr Thomas O'Malley in his seminal work on Sentencing Law and Practice (1st Ed, 2000) that “there do not exist defined limits, as such, as to the kind of conditions which can be imposed.” That situation, which is true in so far as it goes, still obtains. It is not suggested that there may not be limits, merely that “defined limits do not [presently] exist”. The Court of Criminal Appeal in Alexiou, in considering an open-ended condition requiring a convicted person to leave the State and, implicitly, to remain outside the State indefinitely, while upholding the condition in the circumstances of the particular case, indicated that this was not best practice as it created “a risk that such a condition could have a disproportionately punitive effect”. In offering this observation the Court was ostensibly accepting that in certain circumstances proportionality considerations might operate to place limits on conditions attaching to suspended sentences.

5 The case presently before us raises for the first time the legal nature of conditions attaching to a suspended sentence and what type of proportionality requirements, if any, may apply to them. Are conditions attaching to a suspended sentence an integral part of the primary punishment; or are they merely a facilitatory mechanism adjunct thereto and, to the extent that some, but not all, may have punitive effect in themselves, comprise secondary punishment?

6 The Supreme Court in Lynch and Whelan v Minister for Justice, Equality and Law Reform [2010] IESC 34 has suggested in an obiter dictum that the only proportionality consideration engaged in the sentencing context is proportionality “in its ordinary meaning” (per Murray J.), i.e., proportionality in the distributive sense of whether the punishment measure comprising the sentence is appropriate to the circumstances of the case; but that the proportionality of a sentencing measure in terms of how it may impinge on constitutionally guaranteed personal rights., i.e., “proportionality” when used as a term of art in the context of the constitutional doctrine of proportionality, as propounded in Heaney v Ireland [1994] 3 I.R. 593, does not arise for consideration.

7 This view, albeit expressed obiter dictum, and in circumstances where Murray J. giving judgment for the court conceded that “it may not have been strictly necessary to decide the point”, must be regarded as carrying great weight and authority, and there can be little doubt as to its application certainly in so far as measures which impose primary punishment are concerned.

8 It is less clear, however, that it fully excludes consideration of how sentencing measures which are not intended to operate in themselves as primary punishment, but which may still have some punitive effect and therefore arguably constitute secondary punishment, may impinge on constitutionally guaranteed personal rights that one would not otherwise expect to be impacted by the primary punishment.

9 However, before considering any of these issues it is necessary to indicate in more detail the context in which they arise in terms of the specific circumstances of the case which requires to be determined.

Background to the appeal

10 The appellant had faced trial on indictment in respect of three counts, namely count no 1, charging assault causing harm, contrary to s.3 of the Non-Fatal Offence against the Person Act, 1997 (“the Act of 1997”); count no 2, charging a threat to kill or cause serious injury contrary to s. 5 of the Act of 1997; and count no 3, charging false imprisonment contrary to s. 15 of the Act of 1997. The appellant was found guilty on the 9th of November 2018 by the unanimous verdict of a jury in respect of count no 1, and was acquitted on counts no 2 and 3.

11 At the sentencing hearing the court below heard evidence from a member of An Garda Siochána that the injured party, N.C., had been in an on/off relationship with the appellant for ten or eleven years. He is the father of her four children. The relationship had ended after her last child was born in April/May 2017. Despite this, there was still a lot of contact between her and the appellant, and he would come back and forth to see the children. The injured party had told the court of trial that the appellant would sometimes stay over but that he was not living with her.

12 The incident giving rise to the charges had occurred on the 31st of March 2018. On that occasion the Injured party had been to a female friend's house for drinks. She told the court of trial that an arrangement had been made with the appellant that he would mind the children whilst she was out. She stated that this happened quite often, i.e. that the appellant would step in to babysit while she went out socialising, in order to give her a break.

13 The evidence was that on this occasion, however, the appellant was unhappy about the injured party going out. She stated that she arrived home at about 1 o'clock in the afternoon on the 1st of April 2018 which was Easter Sunday. When she arrived home, the children were in the house, but the appellant had gone shopping. He returned a few minutes later. The injured party recalled the house being in a mess with empty beer cans strewn about. She stated that she gave out to the appellant for having people over when the children were there, but she said that the conversation ended well. In fact, she said, the appellant suggested that she go to bed to get some rest, indicating that he had already slept and would clean up the place.

14 The evidence was that the Injured party went to her bedroom upstairs and got into bed. She switched on the TV and started to drift off to sleep. She was subsequently woken when the appellant came into the bedroom and grabbed her by the hair. She stated that he pulled her to the ground while asking her to open her phone. She replied that she would not. She stated that he kept throwing her around the room. At one point she impacted against the wall. The injured party had also said that during the Incident the appellant threw a cup towards her but that this smashed against the wall. She claimed that the appellant had threatened her with an electric razor and threatened to shave her hair. Further, he kicked her in the back, specifically her spine.

15 The injured party's evidence was that she ran into the bathroom at one point but that he had kicked in the door and dragged her back out again. She stated that she was terrified during the incident and that it went on for what felt like ages, but subsequently she estimated it as having lasted for half an hour, or possibly forty minutes. When asked how the incident ended, she said that he had his knees on her, choking her, but then he jumped up and ran downstairs when there was a knocking at the front door. This afforded the injured party the opportunity to get out of the house and to summon assistance. Gardaí were alerted following the incident, and upon their arrival at the scene found the injured party to be in a distressed state, crying and with blood around her lips.

16 The injured party was conveyed to hospital and was attended to by paramedics en route who gave her morphine to alleviate her pain.

17 The court of trial heard medical evidence from a Consultant in Emergency Medicine, Professor John Ryan, who stated that the injured party had presented with swelling over her left jaw, where there was pain on palpation and associated trismus (a medical term for tonic spasm of the muscles in the neck and lower jaw, causing the mouth to remain tightly closed). There was also pain in her lower cervical spine; pain on palpation of her lower ribs; pain in her lower thoracic and upper lumbar spine and coccyx; and pain over her right elbow, right arm and left knee. There was no marked swelling. She was admitted to the clinical decision unit for analgesia. She was given medication for pain relief. She was reviewed the following day when she was noted to have full range of movement in her cervical thoracic and lumbar spine. She was prescribed analgesia and was later discharged.

18 Photographs of the injured party's injuries were exhibited.

19 The...