DPP v Hogan
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 14 October 2022 |
| Neutral Citation | [2022] IECA 236 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 149/2021 |
[2022] IECA 236
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 149/2021
THE COURT OF APPEAL
Sentencing – Criminal damage – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Hogan, pleaded guilty to one count of criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991 (count 1), one count of assault of a peace officer contrary to s. 19(1) of the Criminal Justice (Public Order) Act 1994, as amended by s. 185 of the Criminal Justice Act 2006 (count 2) and one count of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997 (count 4). On the 18th March 2021, the appellant was sentenced to five years’ imprisonment with the final 18 months suspended on count 1 and 3 years on count 2. Count 4 was taken into consideration as was count 3 which concerned breach of a safety order contrary to s. 33(1) of the Domestic Violence Act 2018. The appellant appealed to the Court of Appeal against severity of sentence. The appellant contended that: (1) the nominated headline sentence for the criminal damage offence was simply too high; (2) there was undue emphasis on the aggravating factors; and (3) there was inadequate discount for mitigation.
Held by the Court that the judge erred in nominating the headline sentence of 7 ½ years on the criminal damage count; the headline sentence nominated was too high and this amounted to an error in principle. When the Court considered the ultimate sentence imposed by the judge, that being 5 years with 18 months suspended to encourage rehabilitation, it was of the view that if it were to quash the sentence, it would find itself in the position when re-sentencing of imposing a sentence in the same terms as the court below. The only aspect where the Court would differ from the sentencing judge was in terms of the period for which the final 18 months of the sentence was suspended. The Court held that the suspension for a period of 10 years was not proportionate when considering that portion of the sentence which may fall for consideration as to re-activation should that arise was one of 18 months. Moreover, the Court held that the length of the operational period of a suspended sentence must be proportionate in the distributive sense and there should be a reasonable prospect of compliance on the part of the offender. In the circumstances, the Court held that 10 years was too long.
The Court held that it would intervene but only to a very limited degree. In order to re-structure, the Court quashed the sentence imposed on the criminal damage count but reimposed the same sentence as in the court below. However, while the Court ordered that the final 18 months of the sentence was suspended on the same conditions, the operational period would be for a period of 3 years.
Appeal allowed.
JUDGMENT of the Court delivered (ex tempore) on the 14th day of October 2022 by Ms. Justice Kennedy.
This is an appeal against severity of sentence. The appellant pleaded guilty to one count of criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991, (count 1), one count of assault of a peace officer contrary to s. 19(1) of the Criminal Justice (Public Order) Act 1994, as amended by s. 185 of the Criminal Justice Act 2006 (count 2) and one count of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997 (count 4). On the 18th March 2021, the appellant was sentenced to five years' imprisonment with the final 18 months suspended on count 1 and 3 years on count 2, count 4 was taken into consideration as was count 3 which concerned breach of a safety order contrary to s. 33(1) of the Domestic Violence Act, 2018.
At approximately 8:45pm on the 19th July 2020, the landlady of a property in Birr, County Offaly was notified by the tenant of a neighbouring property of banging coming from inside her property. She attended at the property with her husband, knocked and rang the doorbell. The banging persisted and the landlord looked through the letterbox and saw a shirtless male who was later identified as the appellant herein. She shouted through the letterbox that she was going to call the Gardaí.
The property in question was home to the appellant's partner and their two daughters. The appellant had been released from prison on the 4th July 2020, and despite having a safety order against him, his partner had permitted him to reside in the property. On the afternoon of the date in question, the appellant's partner left the property with the children. During the course of the day, she received over 100 text messages and 75 missed calls from the appellant who was questioning the parentage of one of their daughters.
At approximately 9:30pm, Gardaí arrived at the scene and gained access to the property by climbing over a rear wall. On entering the property, they observed damage to internal doors, coffee tables, dining tables, chairs, kitchen units and appliances. In her statement to Gardaí, the landlady described the property as being “completely trashed.” She estimated the total damage to the property to be approximately €1,550.
Gardaí originally thought the property to be vacant until they heard a noise coming from the attic. After carrying out an inspection of that space, the appellant was found unconscious and foaming from the mouth. He had to be resuscitated by Gardaí. An empty whiskey bottle was recovered. Once resuscitated, the appellant became violent and aggressive. He was arrested and brought to Birr Garda Station where he was deemed unfit for interview due to his state of intoxication.
The following morning, the appellant was brought to the doctor's room for the purposes of taking fingerprints. While in the doctor's room, the appellant made a phone call and became aggressive with the person he was speaking to on the phone. He made a run from the doctor's room towards Garda O'Gorman to try and hit him but was intercepted and restrained by Gardaí Treacy and O'Brien. Garda Treacy was restraining the appellant from behind and the appellant swung his head backwards, headbutting the Garda in the nose causing injury to his mouth and gums.
In interview, the appellant claimed he had no recollection of damaging the property or of his arrest. He further acknowledged that he was residing at the property with his partner, in breach of the safety order.
At the time of sentencing the appellant was 24 years of age. He has 37 previous convictions including three previous criminal damage convictions and two previous convictions for a breach of a safety order.
The appellant's childhood was described by the sentencing judge as “highly traumatic” with the appellant having witnessed his father assaulting his mother throughout. His father passed away when the appellant was 15 years of age.
The appellant suffers from addiction issues.
The sentencing judge placed the offending at the upper end of the mid-range and identified a headline sentence of seven and a half years.
The judge considered the following factors as aggravating the offending conduct; the level of violence used, that the criminal damage was caused to a residence, that the appellant sent frightening and threatening messages to the injured party, the appellant's attempt to minimise the gravity of his offending, his prior convictions, that he is assessed at very high risk of reoffending and the impact of the offending on the victims.
The judge considered that it was “a hugely aggravating factor” that the appellant assaulted Gardaí acting in the course of their duties, this was the subject of count 2.
In terms of mitigation, the judge considered the appellant's early guilty plea, his cooperation with the Gardaí and his letters of apology to the Gardaí and to his partner. He observed that the appellant's mother paid the cost of the damage but felt that credit for this was due to her rather than the appellant. He also observed that she has endeavoured to encourage him in his...
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Director of Public Prosecutions v Stokes
...Moreover, it is argued that the headline sentence was, in any event, excessive. 19 . Reference is made to People (DPP) v Hogan [2022] IECA 236 and People (DPP) v Barry [2009] IECCA The Respondent 20 . The Director contends that the sentencing judge considered each offence separately and pla......