DPP v Heneghan & O'Sullivan
| Jurisdiction | Ireland |
| Judge | Birmingham J. |
| Judgment Date | 25 November 2014 |
| Neutral Citation | [2014] IECA 30 |
| Docket Number | 66/2013 |
| Court | Court of Appeal (Ireland) |
| Date | 25 November 2014 |
[2014] IECA 30
THE COURT OF APPEAL
Sentencing – Assault – Severity of sentence – Appellants seeking to appeal against the severity of sentences – Whether consecutive sentences were appropriate
Facts: The appellants, Mr Heneghan and Mr O"Sullivan, in December, 2011, approached Ms EO. Mr Heneghan struck her on the head with a bottle. This drew the attention of a security guard at Cork University Hospital. Conscious of the fact that the security guard was aware of what had happened, the two males fled the scene. Very shortly thereafter, they came into contact with Ms RM. They pretended to be drunker than they in fact were in order to give effect to their plans. Ms M received a blow to her head with a glass bottle, she was pushed face down to the ground and she was held there by Mr Heneghan, while Mr O'Sullivan opened his trousers, took out his penis and placed it in the general anal buttocks area, but did not proceed to penetration. When the victim attempted to call the police on her mobile phone, the incident stopped. The appellants then emptied the contents of the victim"s handbag and some €50 was taken. They then left the scene. Concerning Mr Heneghan, the trial judge saw the mitigating factors in his case as being his age, his absence of previous convictions and his early plea of guilty. The appellants appealed to the Court of Appeal against the severity of sentences imposed upon them in February, 2013, in the Cork Circuit Court. The sentences were, in the case of Mr Heneghan, a sentence of three years imprisonment for a s. 3 assault and a consecutive sentence of six years imprisonment in respect of an offence of sexual assault with one year suspended. In the case of Mr O'Sullivan, the sentences appealed were four years imprisonment in respect of the s. 3 assault, six years in respect of the sexual assault, again with one year suspended. Concerning Mr O"Sullivan, the appeal has concentrated on the question of the appropriateness of consecutive sentences and the manner in which consecutive sentences were actually imposed. The argument that was made was that in the circumstances of Mr O"Sullivan, it was wrong in principle to give consecutive sentences. It was said that that might have been appropriate if the court was dealing with an offender of full age and full understanding and full maturity, perhaps with previous convictions, but for somebody with the developmental difficulties, to which there has been reference, that the decision to impose consecutive sentences was inappropriate; Mr O'Sullivan ought not to have been dealt with as someone of his actual age of nineteen years, but should have been dealt with as if he was in fact a younger person. Alternatively it was argued that if there were consecutive sentences imposed that the totality of the sentences imposed was excessive and disproportionate. The DPP responding said first, that the sentences were measured and appropriate and that the approach taken by the sentencing judge was entirely acceptable. So far as the question of whether consecutive sentences could be imposed was concerned, the DPP said that the offences in question, while close in time, did not form in part a single transaction and that accordingly it was entirely appropriate that sentences were consecutive.
Held by Birmingham J that this was a situation where the trial judge was absolutely justified in deciding to impose consecutive sentences as these were offences that were close in time, but were separate and distinct; each of them were offences of considerable seriousness. Considering whether adequate credit was given for the fact that the two people being sentenced were as young as they were, that they had no previous convictions, that there were developmental issues and in Mr Heneghan"s case that there had been an early plea, the Court held that inadequate credit was given for these factors and accordingly, the Court concluded that there was an error in principle. The Court decided to leave the starting point sentences as fixed by the trial judge in place, while suspending a greater portion of the sentence.
Birmingham J held that in the case of Mr O'Sullivan, the Court would suspend a period of three and a half years. In the case of Mr Heneghan, the Court suspended four years.
Appeal allowed.
1. In this case the two appellants Mr. Heneghan and Mr. O'Sullivan appeal against the severity of sentences imposed upon them on the 27 th February, 2013, in the Cork Circuit Court. The sentences that are the subject of appeal are, in the case of Mr. Heneghan, a sentence of three years imprisonment for a s. 3 assault and a consecutive sentence of six years imprisonment in respect of an offence of sexual assault with one year suspended. In the case of Mr. O'Sullivan, the sentences appealed are four years imprisonment in respect of the s. 3 assault, six years in respect of the sexual assault, again with one year suspended.
2. In terms of the overall sentences that are under examination, we are looking at the situation where in the case of Mr. Heneghan it is an aggregate sentence of nine years with one suspended and in the case of Mr. O'Sullivan, ten years with one suspended.
3. The facts of these cases are that on the 3 rd December, 2011, the first injured party Ms. EO, a Polish national and hotel employee, left her place of work outside Cork City around 2.30 in the morning, walking towards Cork city centre. Her route brought her close to the Mercy University Hospital and in the vicinity...
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