DPP v Harty
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 15 October 2018 |
| Neutral Citation | [2018] IECA 318 |
| Docket Number | [297CJA/16] |
| Court | Court of Appeal (Ireland) |
| Date | 15 October 2018 |
[2018] IECA 318
THE COURT OF APPEAL
Birmingham J.
Birmingham J.
Whelan J.
McCarthy J
[297CJA/16]
Sentencing – Assault causing serious harm – Undue leniency – Appellant seeking review of sentences – Whether sentences were unduly lenient
Facts: The appellant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1992 seeking to review certain sentences on grounds of undue leniency. The sentences were imposed on 28th October 2016 in Waterford Circuit Court. Sentences of four and a half years’ imprisonment with the final eighteen months suspended and a concurrent sentence of one year’s imprisonment were imposed on the respondent, Mr Harty. The longer sentence was imposed in respect of a s. 4 assault, an offence of assault causing serious harm, and the concurrent sentence was imposed in respect of a s.3 assault being an offence of assault causing harm. The DPP submitted that the judge erred in viewing the case as being in the upper mid-range rather than the high range. It was said that in consequence, his starting sentence of 6 and a half years for the s. 4 assault was too low. The written submissions suggested that a starting sentence of 7 and a half years would have been appropriate. It was said that the mitigation from 6 and a half years to 4 and a half years was generous and that the further suspension of eighteen months was inappropriate. It was said that the decision to make the s. 4 and s. 3 assault sentences concurrent was inappropriate.
Held by the Court that discounting from what was already a low starting point by two years and then further going on to suspend eighteen months or one-third of the sentence, gave rise to a sentence that was unduly lenient. The Court felt that a consecutive sentence should have been imposed. The Court held that it would proceed to resentencing.
The Court held that it would impose a sentence of five and a half years’ imprisonment on the s. 4 count and a consecutive sentence of 12 months’ imprisonment on the s. 3 assault, but, conditional on his entering a bond to keep the peace and be of good behaviour during the period he would spend in custody and for a period of two and half years thereafter, the Court would suspend the final two and a half years of the sentence.
Appeal allowed.
Before the Court is an application brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1992, seeking to review certain sentences on grounds of undue leniency. The sentences sought to be reviewed were imposed on 28th October 2016 in Waterford Circuit Court. On that day, sentences of four and a half years” imprisonment with the final eighteen months suspended and a concurrent sentence of one year's imprisonment were imposed on the respondent. The longer sentence was imposed in respect of a s. 4 assault, an offence of assault causing serious harm, and the concurrent sentence was imposed in respect of a s.3 assault being an offence of assault causing harm.
From the written submissions and from the oral argument, it is clear that there is no real dispute between the parties about the legal principles that are applicable to reviews such as these. Indeed, those principles have not really been in dispute since the first such case, the case of DPP v. Byrne [1995] 1 ILRM 279.
The background facts are that on New Year's Eve/the early hours of the morning of New Year's Day on 31st December 2014, a very serious assault occurred at Poolderry, Waterford. The injured party, who was aged nineteen years at the time, was at a New Year's Eve party along with friends. The accused, with others, arrived, not having been invited. The stage was reached when the injured party and his friends said they were going to leave. The accused and his group also decided that they were going to leave. An argument ensued outside wherein the accused tried to punch one of the friends of the injured party, but missed. The injured party then asked one of the group that the accused/respondent was with to leave and turned away. As he did so, the accused/respondent, with force, thrust a glass bottle into the injured party's face, and in particular, into his eye. The respondent had broken a previously intact bottle immediately prior to pushing it into the complainant's eye. The accused thrust the bottle into the complainant's eye twice, and on the second occasion, a piece of glass remained in the complainant's eye. The complainant was disorientated and tried to remove whatever was in the eye, and when he did so, began bleeding very heavily. The injured party's friends sought to offer assistance and one provided a jumper for him to hold to his eye. An ambulance was summoned. As it happened, the injured party's father is a paramedic and was on duty the night in question. Ultimately, he was among those despatched to the scene only to find that it was his son who had been injured and was in need of assistance.
The injured party was brought to University Hospital Waterford where it was immediately evident that he had suffered a very significant injury to his right eye. He was brought to the operating theatre where he underwent surgery. This was to be just the first of a number of surgical interventions, but despite the best efforts of his doctors, he has lost vision in the eye and they have been unable to restore it.
In the aftermath of this initial surgery, the injured party spent approximately a fortnight in hospital. On three subsequent occasions, he underwent retinal eye surgery. After these operations, he had to lie down on his stomach with his face facing down, twenty-four hours a day, with only a five-minute break each hour. A very powerful victim impact statement prepared by the injured party sets out the detail of the ophthalmic, cosmetic, and psychological effect.
The respondent left the area after the incident, but with the assistance of one of those who had been present for the incident and was in a position to identify him, he was arrested and interviewed. In the course of interviews, he made admissions and expressed remorse for his actions.
The second incident which gave rise to the s. 3 assault charge occurred on 1st September 2015. On that occasion, the injured party, who has a very distinctive appearance, with long black hair halfway down his back and a long triangular beard, was in a car park leading to a lane in Dungarvan town. He was confronted by a number of individuals who made reference to Bob Marley. As the injured party was on his return journey, making his way back to the car, a confrontation occurred with the individuals in the course of which the injured party sustained two cuts over his eyes. In the course of the Garda investigation that followed, the respondent, Mr. Harty, was...
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