DPP v Doherty

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 02 July 2019
• Neutral Citation: [2019] IECA 350
• Docket Number: [26/18]
• Court: Court of Appeal (Ireland)
• Date: 02 July 2019

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

EVE DOHERTY

APPELLANT

[2019] IECA 350

[26/18]

THE COURT OF APPEAL

Sentencing – Harassment – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Ms Doherty, on 1st August 2017, was convicted following a contested trial of a single count of harassment contrary to s. 10 of the Non-Fatal Offences against the Person Act 1997. Subsequently, on 19th January 2018, she was sentenced to a term of three years imprisonment with that sentence being backdated to 27th October 2017. Ms Doherty appealed to the Court of Appeal against both her conviction and sentence. On 31st May 2019, the Court delivered a judgment dismissing the appeal against conviction. In the course of the appeal against severity of sentence, the trial Judge was criticised for identifying a headline sentence of four years. It was said that this was excessively high and that insufficient credit was given for the significant factors, correctly identified by the trial Judge, that were present by way of mitigation.

Held by the Court that it accepted that there were significant factors present by way of mitigation, including, but not limited, to the fact that this was a first-time offence, committed by someone of mature years and by someone who had a distinguished record of public service; there was also that fact that incarceration was going to be particularly difficult. It seemed to the Court that the combination of these factors made it desirable that the Judge, having identified the headline sentence, mitigated to the extent that she did, would have considered an element of suspension; a sentence suspended in part would have provided an incentive not to engage in any repetition of the behaviour which had brought Ms Doherty before the courts. In the Court’s view, the absence of any suspended element and the imposition of a three-year sentence simpliciter in the circumstances of the case amounted to an error in principle. The Court therefore quashed the sentence imposed in the Court below and proceeded to resentencing.

The Court held that, in a situation where Ms Doherty had spent twenty months in custody, it would deal with the issue by leaving the sentence of three years imprisonment imposed in the Circuit Court in place, but would suspend the unserved portion. The Court held that it would hear counsel on what would be appropriate terms for the suspension.

Appeal allowed.

JUDGMENT (Ex tempore) of the Court delivered on the 2nd day of July 2019 by Birmingham P.

1 On 1st August 2017, the appellant was convicted following a contested trial of a single count of harassment contrary to s. 10 of the Non-Fatal Offences against the Person Act 1997. Subsequently, on 19th January 2018, she was sentenced to a term of three years imprisonment with that sentence being backdated to 27th October 2017. Ms. Doherty has appealed against both her conviction and sentence. This Court, differently constituted in part, on 31st May 2019, delivered a detailed judgment dismissing the appeal against conviction. In the course of that judgment, the background facts were set out in considerable detail, particularly between paras. 7 and 17 and there was also reference to the impact the appellant's behaviour had on her victim. The Court will not repeat that exercise at this stage.

2 The substantive sentence hearing took place in the Circuit Court on 27th October 2017. At the conclusion of that hearing, Judge Greally acceded to a request not to finalise matters at that stage, but to obtain a probation report. In doing so, she commented that there were two very significant elements of mitigation absent in the case, the first being the lack of a plea of guilty and the second the lack of any evident remorse for her actions. The Judge commented that in her view, a custodial sentence of some measure was an inevitability, but that she would remand Ms. Doherty in custody and would direct the preparation of a probation report.

3 On behalf of the appellant, the lack of a plea of guilty and the lack of an acknowledgement of wrongdoing or an expression of remorse is acknowledged. On that basis, it is accepted that mitigation which, in other circumstances, would be available and would be significant, is not available. However, it is said that the absence of a guilty plea and the absence of any acknowledgement of wrongdoing does not set at naught the very significant other factors that were present by way of mitigation.

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