DPP v Farnan

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 28 September 2020
• Neutral Citation: [2020] IECA 256
• Docket Number: 233/2019
• Court: Court of Appeal (Ireland)
• Date: 28 September 2020

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECTIONS

APPELLANT

AND

EDDIE FARNAN

RESPONDENT

[2020] IECA 256

Birmingham P.

McCarthy J.

Ní Raifeartaigh J.

233/2019

THE COURT OF APPEAL

Sentencing – Assault causing harm – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking to review a sentence of 33 months’ imprisonment, wholly suspended, on the grounds of undue leniency. The sentence under appeal was imposed at Dublin Circuit Criminal Court on 18th October, 2019, for the following offences: (i) threatening to kill or cause serious harm contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997; (ii) assault causing harm contrary to s. 2 of the 1997 Act; and (iii) damage to property contrary to s. 2(1) of the Criminal Damage Act 1991. The respondent entered a plea of guilty in respect of the offence of threatening to kill or cause serious harm on 1st April, 2019 at an adjourned pre-trial hearing. Further pleas of guilty were entered in respect of the other two offences on 18th July, 2019.

Held by the Court that the sentencing judge was within the range of her discretion and that while the sentence was undoubtedly lenient, it did not trespass into the zone of undue leniency for the purpose of this application.

The Court held that the application would be refused.

Application refused.

JUDGMENT of Ms. Justice Ní Raifeartaigh delivered on the 28 ^th day of September 2020

Introduction

1 This is an application brought by the DPP pursuant to the provisions of s. 2 of the Criminal Justice Act 1993, seeking to review a sentence of 33 months' imprisonment. wholly suspended, on the grounds of undue leniency. The sentence under appeal was imposed at Dublin Circuit Criminal Court on 18 ^th October, 2019, for the following offences: (i) threatening to kill or cause serious harm contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997; (ii) assault causing harm contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997; and (iii) damage to property contrary to s. 2(1) of the Criminal Damage Act 1991. The respondent entered a plea of guilty in respect of the offence of threatening to kill or cause serious harm on 1 ^st April, 2019 at an adjourned pre-trial hearing. Further pleas of guilty were entered in respect of the other two offences on 18 ^th July, 2019.

Factual Background

2 The three offences in question were committed by the respondent against his former partner, Ms. Lisa Power, on 2 ^nd June, 2017. The respondent and the injured party had previously been in a relationship and had one child together. At the time of the offences. they were living together in the injured party's home.

3 On 1 ^st June, 2017, an argument broke out between the parties, arising out of the allegations that the injured party was seeing her ex-husband. The respondent then left the house and went to his mother's house.

4 The following morning, a car being driven by the respondent pulled up outside the home of the injured party at speed. The respondent then came through the front door and dropped a bag of unopened beer cans on the floor. The injured party turned to go up the stairs and the respondent grabbed her by the back of the head and dragged her through the sitting room and into the kitchen. The respondent then placed his hands around her neck and held her up against the kitchen presses, demanding that she tell him “who owned” their daughter. The injured party answered that “he did” and begged him to let her go but he told her that she would not leave the house alive.

5 The respondent then swung the injured party across the kitchen floor, picked up a kitchen chair and threw it down on her but she was able to avoid it. She then crawled into the sitting room, at which point the respondent picked up a doll's pram and threw it at her back. He shouted at her to stand up and then threw her back down on the floor. She asked him to let her leave the house and that appeared to make him more annoyed as he punched the door of the sitting room. He then turned around and grabbed her by the hair, swinging her onto the couch.

6 The respondent proceeded to place his hands around the injured party's neck, and then covered her mouth, saying that “it would be much easier” and that “she would be dead in seconds”. She was gasping for air, at which point he took his hands from her throat and they struggled on the couch. The respondent got up and grabbed her by the left arm, before dragging her around the floor. He said that it would be “easy for him to rip her arms off or to break them”. She pleaded to be allowed to leave. He then smashed cups all over the kitchen, and started hitting himself in the face and off the doors. The injured party went towards the stairs, grabbed their child (who had been in the house during the course of the dispute) and ran out the door across the road to a neighbour's house. She took refuge there and saw through the window that the respondent was pulling off the handle to the boot of her car and the back door handle of her car.

The investigation

7 The injured party attended Tallaght Garda Station on 2 ^nd June, 2017 to make a statement in respect of the described events. Gardaí attended the house and found the respondent asleep on the couch. They woke him up and arrested him for making threats to kill. He became verbally abusive and the Gardai had to spray him with an “incapacitant spray”. He was handcuffed and brought to the station, throughout which trip he appeared to very agitated and continued to be verbally abusive to Gardaí. He made threatening comments about the injured party which were noted in the Garda notebook. Upon arriving at the Garda station, the respondent was detained for investigation and made claims that tension had arisen between himself and the injured party because she had been “slagging him off over self-harming”. At one point, he categorically denied using violence against her but accepted that he had been in a rage and had smashed things and punched a hole in the wall. That was the limit of admissions he made.

Injury sustained by the victim

8 The injured party attended her GP, Dr. Ní Bhroin, on 2 ^nd June, 2017, and a report was furnished to the sentencing court. Dr. Ní Bhroin described finding evidence of fresh bruising on Ms Power's neck, upper arms and hands. She also noted a whiplash injury, that neck movement was “very reduced and stiff” and that the injured party had described a headache. The victim was prescribed anti-inflammatories and muscle relaxants to help with muscle spasms and sleep.

9 The injured party was reviewed again by her GP on 7 ^th June, 2017, when it was noted that she was still having nightmares and flashbacks. On 7 ^th July, 2017, it was noted that the injured party continued to suffer from anxiety attacks. On 10 ^th August, 2017, the injured party was again reviewed and it was noted that her sleep was very poor and that she struggled with self-care. It was noted in a report of 20 ^th May, 2019, that the injured party was still suffering from daily headaches and neck pain.

10 A victim impact statement was handed into the sentencing court which recorded an economic loss of approximately €640 in damage to the injured party's car. Regarding psychological and psychiatric difficulties, the report noted that the injured party has not been able to have a full night's sleep since the incident. It noted that she suffers from panic attacks, is extremely nervous of men and has been prescribed citalopram for depression. A year after the incident, the injured party never left the house, rarely got dressed, is still having nightmares and is still receiving counselling. It noted that her three year old daughter is very jumpy in her sleep if she hears male voices. It also noted that she is now a lone parent trying to raise her child and relies on support from immediate family. The report went on to say that the incident has broken the injured party's confidence and traumatised her in every possible way; she has not been in a relationship since the incident and finds it hard to socialise. She would like to meet new people and become employed but still suffers symptoms of depression and hair loss. She has limited movement in her neck and cannot sit or lie down for long periods. Further, she is unable to lift her child any higher than waist height or play physical games with her. She had. for a time, contemplated suicide and is still receiving counselling in this regard.

The charges

11 The respondent was subsequently charged with six offences: (1) threatening to kill or cause serious harm contrary to s. 5 of the NFOAPA 1997: (2) criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991; (3) production of an article capable of inflicting serious injury contrary to s. 11 of the Firearms & Offensive Weapons Act 1990; (4) resisting or obstructing a peace office contrary to s. 19(3) of the Criminal Justice (Public Order) Act 1990; (5) assault contrary to s. 2 of the NFOAPA 1997: and (6) contravening a safety order contrary to s. 17(1) of the Domestic Violence Act 1996.

12 A nolle prosequi was entered in respect of the offences of production of an article capable of inflicting serious injury and contravening a safety order. The offence of resisting or obstructing a peace officer was taken into consideration when the respondent was being sentenced.

The Respondent's Personal Circumstances

13 A Probation Service Report was prepared by Ms. Claire McNamara which gave an insight into the respondent's personal circumstances. The applicant was, at the time of sentence, in his late 30s, and he had six previous convictions, although for relatively minor public order...