DPP v Farrell

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date02 Oct 2018
Neutral Citation[2018] IECA 306
Docket NumberRecord No: 171/2015

[2018] IECA 306

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Edwards J.

Hedigan J.

Record No: 171/2015

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
SEAN FARRELL
Appellant

Sentencing – Assault causing serious harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Farrell, on the 19th of May 2015, was convicted by the unanimous verdict of a jury sitting in Dublin Circuit Court of one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Persons Act 1997. The appellant was acquitted on one count of assault contrary to s. 3 of the 1997 Act, and one count of criminal damage contrary to s. 2 of the Criminal Damage Act 1991. On the 22nd of June 2015, the appellant was sentenced to eight years' imprisonment, with the sentence ordered to be backdated to the date at which he entered custody. The appellant appealed to the Court of Appeal against the severity of the sentence imposed at first instance on the grounds that: (i) the sentencing judge failed to suspend any part of the sentence of 8 years' imprisonment having regard to all the circumstances of the case; (ii) the judge placed too much emphasis on the appellant relying on his right to trial by jury; (iii) the judge placed too much emphasis on the fact that the appellant still maintained his innocence of the charge; (iv) the judge gave no or no adequate consideration to any possible rehabilitation of the appellant and how that should be considered in the sentencing process; (v) the judge erred in fact and in law in inadequately balancing the aggravating factors and the mitigating factors in the case which resulted in an excessive and disproportionate sentence; (vi) the judge failed to take into account that the appellant had only some minor convictions and had no conviction for assault or a crime involving violence; (vii) the judge overly relied upon the submissions in relation to sentence put forward by counsel on behalf of the respondent, the Director of Public Prosecutions; (viii) the judge erred in fact and in law in that he failed to attach sufficient weight to the mitigating factors in the case put forward on behalf of the appellant; (ix) the judge erred in fact and in law in that he failed to attach sufficient weight to the family history and personal background of the appellant and to a number of testimonials advanced on his behalf; and (x) the sentence lacked clarity in the manner in which it was arrived at and structured.

Held by the Court that this was clearly an upper range case and that the sentencing judge would have been fully justified in starting at ten years and discounting from that. Moreover, while accepting that the appellant would have been entitled to some discount in mitigation, the Court believed that the extent of available mitigation in the case was relatively modest; a discount of two years would have been more than adequate, and somewhat less than that would not necessarily have been susceptible to criticism. The Court held that whatever the starting point was, and whatever the discount to be applied was, the ultimate sentence actually imposed was clearly within the range of what was legitimately open to the trial judge. Regarding the complaint that no consideration was given to structuring a sentence so as to incentivise rehabilitation, the Court held that it was clear that the sentencing judge was conscious of the penal objective of rehabilitation but rejected it as being unrealistic in the circumstances of the case, and in particular where the appellant was not prepared to accept the verdict of the jury. The Court found no error of principle.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 2nd day of October 2018 by Mr. Justice Edwards .
1

On the 19th of May 2015, the appellant was convicted by the unanimous verdict of a jury sitting in Dublin Circuit Court of one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Persons Act 1997. The appellant was acquitted on one count of assault contrary to s. 3 of the Non-Fatal Offences Against the Persons Act 1997, and one count of criminal damage contrary to s. 2 of the Criminal Damage Act 1991.

2

On the 22nd of June 2015, the appellant was sentenced to eight years" imprisonment, with the sentence ordered to be backdated to the date at which he entered custody. The appellant appealed against both the conviction and sentence to this Court. On the 28th of June 2018, this Court refused the appellant's appeal against his conviction on all grounds. This judgment deals with the appeal against the severity of the sentence imposed at first instance.

Background facts
3

At the sentence hearing, Detective Garda David Jennings gave evidence as to the incidents forming the subject matter of the present case. On the 18th of June 2013, the victim in this case, Mr. Ryan Hickey, left his house shortly before 9pm to meet a friend, Mr. Niall Byrne. Mr Hickey drove to Mr. Byrne's estate, where the two sat in Mr. Hickey's vehicle and began to roll a joint of cannabis with the intention of smoking it. Mr. Hickey, sitting in the driver's seat, had the window rolled down and, after some time, the appellant, Mr. Sean Farrell, approached the vehicle, saying 'boo' to the appellant in through the rolled-down driver's door window. The appellant asked Mr. Hickey to let him into the back of the vehicle and so, Mr. Hickey got out of the driver's seat of the vehicle, pulled back the hatchback-type driver's seat, and let the appellant into the back of the car. Thus, the appellant was sitting directly behind Mr. Hickey, with Mr. Byrne in the front passenger's seat.

4

The evidence was then that, the appellant said to Mr Hickey, 'I heard you were a mad rat, Eingo'(Eingo being the nickname of Mr. Hickey, having spent a significant portion of his late teenage years in England). The appellant then proceeded to place one hand around the neck of Mr. Hickey, slicing him four times in the head and neck with a blade that he held in the other hand. The evidence was that Mr. Byrne had pulled the appellant off Mr. Hickey so as to allow him to get free. At this point, Mr. Hickey got free and got out of the vehicle, heading home on foot thereafter. Having left his keys in the ignition of the car, Mr. Hickey jumped the garden wall of his house so as to get into his house. His clothes were covered in blood and immediately his girlfriend called an ambulance. Towels were placed over Mr. Hickey's wounds so as to try and stop the bleeding, and he told his mother what had happened i.e. that 'Fat Farreller' had stabbed him with a Stanley blade.

5

Subsequent to the ambulance being called by Mr. Hickey's girlfriend, Garda Jennings received a call to attend the scene. Garda Jennings attended Mr. Hickey's house, where he met him in the garden of his house. He was bleeding from his head and face with a towel over his head. The evidence was that, before being taken to Tallaght Hospital, Mr. Hickey had told him that Garda Jennings had been stabbed by the appellant. The Gardaí subsequently obtained a search warrant for the appellant's house, whereby various potentially probative pieces of evidence were obtained, namely; his clothing which was taken for forensic testing – on one of his shoes a small amount of blood was found but no DNA could be extracted from that; there were fibres from a hoodie that the appellant was wearing which matched fibres found in the backseat of Mr. Hickey's vehicle behind the driver seat, and; a finger print taken from the exterior rear driver's side fly window which matched that of the appellant. During the search of his house, the appellant arrived home and was duly arrested, his reply after caution being 'for what?'.

6

The appellant was taken to Tallaght Garda station where he was interviewed on two occasions. Nothing probative emerged during these interviews, with the appellant repeatedly stating 'I'm innocent', without further elaborating on this statement.

7

Garda Jennings then returned to Tallaght Hospital where he took a statement from Mr. Hickey before he had undergone surgery. During this written statement, Mr. Hickey named the appellant as his attacker. He also indicated that he had known the appellant for four to five years and also gave a physical description of the appellant which matched up with Garda Jennings" knowledge of what the appellant looked like. This written statement also explicitly stated that there were only three people in the vehicle at the time. 14 hours later, after Mr. Hickey had undergone surgery, he was interviewed again by Garda Jennings. Once again, Mr. Hickey named the appellant as his attacker.

8

Subsequently, Garda Jennings sought to obtain a statement from Mr. Byrne. One week after the incident, Mr. Byrne indicated that he did not wish to make a statement, that he didn't see anything as he was on the phone at the time. He said that Mr. Hickey and the appellant were friends of his and that he didn't want to get involved as he had his own family to look after. On the 5th of August 2013, Mr. Byrne presented himself at Tallaght Garda Station where he gave a videotaped statement of the incident, whereby he stated that it was not the appellant but a person going by the nickname of 'Whacker' who had sliced Mr. Hickey. The statement elaborated that the appellant had been in the car on the day in question in the back passenger seat, but that he was not the attacker. The evidence at the sentence hearing was that when Garda Jennings sought further clarification from Mr. Byrne, he became evasive and jumpy, expressed a wish to leave the interview room and refused to answer any further questions. Garda Jennings met Mr. Byrne on a number of further occasions,...

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