DPP v O'Dea
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Mr. Justice Mahon |
| Judgment Date | 28 March 2017 |
| Neutral Citation | [2017] IECA 100 |
| Docket Number | Record No. 115/16 |
| Date | 28 March 2017 |
[2017] IECA 100
THE COURT OF APPEAL
Mahon J.
Peart J.
Mahon J.
Hedigan J.
Record No. 115/16
Sentencing – Assault – Manifestly excessive sentence – Appellant seeking to appeal against sentence – Whether sentence was manifestly excessive
Facts: The appellant, Mr O'Dea, pleaded guilty and was convicted on the 9th February 2016 at Dublin Circuit Criminal Court of three offences, namely two counts of assault contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997 and production of an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offensive Weapons Acts 1990. Sentences were imposed in respect of the first two offences on the 21st April 2016 of three and a half years imprisonment and three years imprisonment respectively. The third offence was taken into consideration. The appellant appealed to the Court of Appeal against sentence on the following grounds: (i) inadequate weight was afforded to the mitigating factors; (ii) excessive weight was afforded to the aggravating factors; (iii) the sentencing judge failed to take an individuated approach to sentence; (iv) the judge made findings of fact which were not based on evidence; and (v) the sentences were excessive.
Held by the Court that a headline sentence of in the region of five years suggested that undue weight was afforded to the aggravating factors, and to this extent it found that there had been an error of principle. The Court held that an appropriate headline sentence would have been in the region of three and a half to four years for both offences. The Court proceeded to resentence the appellant.
The Court held that the appellant should receive a sentence of three and a half years imprisonment for both offences, to run concurrently, from the date directed by the court below. In recognition of the mitigating factors and to incentivise rehabilitation the Court would suspend the final eighteen months of both sentences for a period of three years post release subject to a sum of €10,000 being paid by and or behalf of the appellant to a nominated charity within three months, such a payment to be receipted to the respondent, the DPP, within ten days of payment. The appellant was also required to enter into a bond in the sum of €100 to keep the peace and be of good behaviour.
Appeal allowed.
The appellant pleaded guilty and was convicted on the 9th February 2016 at Dublin Circuit Criminal Court of three offences, namely:-
• Assault contrary to s. 3 of the Non Fatal Offences Against The Person Act 1997,
• assault contrary to s. 3 of the Non Fatal Offences Against The Person Act 1997,
and
• production of an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offensive Weapons Acts 1990
Sentences were imposed in respect of the first two offences on the 21st April 2016 of three and a half years imprisonment and three years imprisonment respectively. The third offence was taken into consideration. The appellant has appealed against sentence. The maximum sentence for each offence is one of five years imprisonment.
On the morning of the 21st September 2013 the two victims of the assault, Mr. O'Meara and Mr. Hadi, were in their room with a female companion at the Radisson Hotel in Dublin 2, when the appellant forced his way into the room armed with a metal wheel brace. Shortly beforehand, the appellant maintained that his then, as he described her, on/off girlfriend had claimed that she had been raped by Mr. Hadi some hours earlier in the hotel room. Mr. O'Meara was persuaded to open the bedroom door on the pretence that the appellant's former girlfriend had returned to collect some belongings earlier left behind by her. On opening the door Mr. O'Meara was confronted by the appellant in an aggressive state and wielding the wheel brace, and being urged by the young woman accompanying him to attack Mr. Hadi.
In the ensuing struggle, Mr. O'Meara was hit on the head several times by the wheel brace. The appellant smashed a glass over Mr. O'Meara's head and struck and lacerated Mr. Hadi's lip with the broken glass. Mr. Hadi was also struck with the wheel brace.
A lady visitor in the room ran to reception and the gardaí were called. The gardaí stopped a BMW car near the hotel and arrested the blood stained appellant. He claimed that he was on en route to St. James Hospital with his...
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