DPP v Howe

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 08 December 2014
• Neutral Citation: [2014] IECA 43
• Docket Number: 188CJA/13
• Court: Court of Appeal (Ireland)
• Date: 08 December 2014

DPP v Howe

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE (at the suit of the DIRECTOR OF PUBLIC PROSECUTIONS)

APPELLANT

v.

GERARD HOWE

RESPONDENT

[2014] IECA 43

188CJA/13

THE COURT OF APPEAL

Criminal Law - s. 3 of the Non Fatal Offences against the Person Act 1997 - s. 2 of the Criminal Justice Act 1993 – Leniency of Sentence

Facts: The Director of Public Prosecutions appealed under s. 2 of the Criminal Justice Act 1993 in respect of a sentence imposed of three years and six months with the final two years suspended. The sentence had been imposed on the respondent after he pleaded guilty to an offence under s. 3 of the Non Fatal Offences against the Person Act, 1997. The Director of Public Prosecutions felt that the sentence was unduly lenient. The respondent had slashed the face of the victim with a blade leaving him with a noticeable scar. The offence under section three carries a maximum sentence of five years and the question of undue leniency has to be measured against the statutory maximum prescribed by the Oireachtas. The court had to determine if there was a substantial departure from the norm in a case of this kind.

Held by Hogan J: No issue was taken about the way the trial judge approached the sentencing process. The court agreed that the sentence imposed was lenient but was not persuaded that the Director met the threshold of demonstrating that the sentence amounted to a substantial departure from the norm. The court determined that the trial judge was entitled to take into account the respondent"s mitigating factors and reduce the sentence from three and half years to an eighteen month custodial sentence with two years suspended. These factors included a guilty plea, the youth of the accused, admissions of the accused, the apology to the victim"s family and his subsequent good behaviour.

CRIMINAL JUSTICE ACT 1993 S2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

DPP v BYRNE 1995 1 ILRM 279 1995/5/1758

DPP v HUNTER UNREP CCA 17.2.2012 2012/12/3313 2012 IECCA 57

1 1. This is an appeal by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993 in respect of a sentence imposed of three years and six months with the final two years suspended. The Director contends that this sentence which was imposed on the respondent, Mr. Howe, following a plead of guilty under s. 3 of the Non Fatal Offences against the Person Act, 1997 was unduly lenient. Mr. Howe was sentenced on 2 ^nd July 2013 and the court has been informed that he has now completed that sentence.

2 2. The background to the offence is a disturbing one. The injured party, a Mr. Fowler, was assaulted by two persons in a fast food restaurant on 19 ^th April 2009 in Dublin city centre. It appears that there was an initial disagreement and altercation in the bathroom downstairs. When Mr. Fowler returned upstairs to his seat and then proceeded to sit down he was promptly assaulted by another person. Using a blade, Mr. Howe slashed the face of Mr. Fowler on a number of occasions.

3 3. According to the prosecuting member, Mr. Fowler's cheek was sliced open and...