DPP v Hunter

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 17 February 2012
• Neutral Citation: [2012] IECCA 57
• Docket Number: 98/11
• Court: Court of Criminal Appeal
• Date: 17 February 2012

[2012] IECCA 57

COURT OF CRIMINAL APPEAL

Finnegan J.

Moriarty J.

Hogan J.

98/11

DPP v Hunter

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

STEWART HUNTER

APPELLANT

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

DPP v MCCORMACK 2000 4 IR 356 2000/8/3024

AG, PEOPLE v O'DRISCOLL 1 FREWEN 351

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S4

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S2

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S13

CRIMINAL LAW

Sentence

Assault causing harm - Maximum term of imprisonment - Whether maximum sentence should be reserved for highest level capable - Whether fact that offence could have been worse prevented offence from being treated at highest level - Whether applicant showed any remorse - Previous convictions - Whether applicant's alcoholism taken into account - Whether applicant's personal circumstances taken into account - Whether significant effect of assault on victim should be taken into account - Whether error in principle - Non-Fatal Offences Against the Person Act 1997 (No 26), s 3 - Appeal dismissed (2011/98 - CCA - 17/2/2012) [2012] IECCA 57

People (DPP) v Hunter

Finnegan J.

1 Stewart Hunter was charged with one count of assault causing harm contrary to section 3 of the Non-Fatal Offences against the Person Act1997. On the 31^st March 2009 at Leinster Road West in the City of Dublin he assaulted Jerzy Marek causing him harm. He was found guilty after trial on the 18^th February 2011. He was sentenced on the 13^th April 2011 to a term of imprisonment of five years. The maximum sentence provided for in section 3 of the Act is a sentence of five years.

2 The submissions on behalf of Mr Hunter raise two matters. Firstly that the sentence imposed pays no regard to the personal circumstance of Mr Hunter, reliance being placed on decisions of the Court inThe Director of Public Prosecutions v. McCormack [2000] 4 I.R. page 356 and The People v O'Driscoll [1972] Frewen Volume 1 359. The second is that the maximum sentence was not appropriate and reliance is made on comments in some cases to the effect that the maximum sentence should be reserved for cases at the highest level of the offence capable of being envisaged. The court thinks that that statement needs to be considered. There can be, in relation to any offence, cases very different in their particular circumstances which fall at the highest level of the particular offence. It is always possible to imagine an additional circumstance which could be added to the offence which is before the court which would make it even worse but that does not prevent the offence being at the highest level. This offence could have been worse if, for example, there had been a second wounding. Nonetheless the offence in this case is at the highest level. Accordingly it was open to the learned trial judge to impose the maximum sentence.

3 The evidence given in the case is that there was a report to Rathmines Garda Station of an assault. The Gardai attended at the scene. They found Mr Marek on the ground. He was falling in and out of consciousness. He was bleeding profusely. A lady was staunching the flow of blood with a towel. He had a slash wound along the entire left side of his face. While conscious, he told the Gardai that it was "Stuart in No. 3", that is the Eagle House, a building with a number of apartments. He was taken to hospital. The wound required thirty eight stitches. It was thirteen inches long. He was shocked, afraid, depressed. The scar disturbs him greatly. He finds it difficult to get work, difficult to get friends, difficult to meet girls. He no longer feels safe in Ireland.

4 The Gardai, following on their finding Mr Marek, knocked on Mr Hunter's door. He denied witnessing the assault. When told that a man had been seriously assaulted he replied that he did not care using a profanity. He was interviewed again. At that interview he told the Gardai that Marek had phoned him and said that he was calling to see him. His door bell rang. Mr Marek arrived at the door and that he told him to go...