DPP v Elders

• Jurisdiction: Ireland
• Judge: Birmingham J.
• Judgment Date: 10 November 2014
• Neutral Citation: [2014] IECA 6
• Docket Number: 186/12
• Court: Court of Appeal (Ireland)
• Date: 10 November 2014

[2014] IECA 6

THE COURT OF APPEAL

Ryan P.

Birmingham J.

Irvine J.

186/12

DPP v Elders

Between/

The People at the Suit of the Director of Public Prosecutions

V

Anthony Elders

Appellant

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

Sentencing – Assault causing harm – Excessive sentence – Appellant seeking to appeal against the severity of sentence – Whether the imposition of the maximum sentence constituted an error in principle

Facts: The appellant, Mr Elders, in 2007, opened the door of an occupied car and asked for a lift. When refused, the appellant became aggressive, a scuffle ensued and there was a threat made to damage the car and also the nearby home of the injured party. The appellant then left the scene and returned along with a number of others to the home of the injured party where they threw objects at the house and damaged the cars, causing damage to the extent of some €6,000. The appellant picked up some fragments of glass and threw it at the injured party, slicing his face. The appellant had contested the matter at trial, but he had been convicted by a jury and the trial judge at the end of the trial had remanded him on continuing bail and had directed that a probation report should be prepared. But when the matter was listed for sentence, the trial judge who had presided at the trial had by then retired and the matter came on before another judge sitting in the Circuit Court in Dublin. The facts were presented once more and a Victim Impact Report was presented to the court. The sentencing took place in 2012. The plea in mitigation that was presented to the Circuit Court judge focused on the fact that the appellant was only seventeen at the time of the offence and that he had no previous convictions when the events occurred. The view of the sentencing judge was that he assessed this offence as being at the top end of seriousness and he felt that the racist element was an aggravating factor. So far as the criminal damage aspect was concerned, he saw it as a mid range offence and he referred to the catastrophic consequences that this incidence had had for the injured party. The appellant was sentenced to five years imprisonment for assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act and the same sentence for criminal damage. The appellant appealed to the Court of Appeal against severity of sentence on grounds that the sentence was excessive and disproportionate and also that it failed to give due regard to the previous character of the appellant and the delay in the matter coming to trial. The appellant argued that the maximum sentence should be reserved for exceptional and rare cases and that even if the judge felt that this was an offence that required the imposition of a maximum sentence, that even then a portion of the sentence should still have been suspended. The DPP submitted that the case was approached with care by the sentencing judge, who considered all factors in relation to the nature of the offence and the personal circumstances of the applicant.

Held by Birmingham J that, having considered both the aggravating factors and the mitigating factors, one factor that was not present which might in other circumstances have availed the appellant was a plea of guilty as the fact that this case was contested must have added to the distress of the injured party. Birmingham J held that even though the offence was committed by a young first offender, a significant custodial sentence was clearly called for. However, it was Birmingham J"s view that in a situation where the offence was committed by somebody who was only seventeen without previous convictions and who had stayed out of trouble during the significant period that expired before the case came on for sentence, that failing to take those factors adequately into account represented an error in principle. Birmingham J held that to impose the maximum sentence without either coming down off the maximum sentence or imposing a suspended sentence, amounted to an error in principle.

Birmingham J held that the court would suspend the final twelve months of the sentence and that was on the basis that within a period of two months from the judgment, the €4,000 that was referred to by the appellant as available by way of compensation would be paid to the injured party.

Appeal allowed in part.

1 1. The matter before the court sees an appeal against severity of sentence brought by Mr. Elders. The sentence that he is appealing is one of five years imprisonment for assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act and the same sentence for criminal damage that was imposed on him in the Central Criminal Court in Dublin on the 22 ^nd May, 2012.

2 2. The circumstances of the offence are that the offence occurred in the early hours of the 1 ^st January, 2007, that is to say the early hours of New...