DPP v Hynes

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 07 April 2016
• Neutral Citation: [2016] IECA 102
• Docket Number: Record No: CJA 217/2012
• Court: Court of Appeal (Ireland)
• Date: 07 April 2016

[2016] IECA 102

THE COURT OF APPEAL

Edwards J.

Record No: CJA 217/2012

Sheehan J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

? V ?

BRIAN HYNES

APPELLANT

Sentencing ? Assault causing harm ? Severity of sentence ? Appellant seeking to appeal against sentence ? Whether sentence was unduly severe

Facts: The appellant, Mr Hynes, on the 16th October 2010, was at home when his daughter, who was visiting her parent?s home, had in their presence and hearing received an abusive and implicitly threatening phone call from her partner, Mr Coyne, the injured party, railing about why she was not yet home. The appellant, who was under the influence of alcohol, then proceeded to arm himself with a bayonet type knife and walked over to the home of his daughter and the injured party. On arrival there, the appellant had produced the knife and immediately attacked the injured party in a frenzy, inflicting six stab wounds to the injured party?s left leg. The appellant pleaded guilty to a count of assault causing harm contrary to s. 3 of the Non?Fatal Offences Against the Person Act 1997 and a count of producing an article capable of inflicting serious injury in the course of a dispute or a fight and in a manner likely unlawfully to intimidate another person, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. On the 21st June 2012, Naas Circuit Criminal Court imposed on the appellant two concurrent terms of four years imprisonment, with the last eighteen months thereof suspended. The appellant appealed to the Court of Appeal against the severity of those sentences. The appellant complained that the way in which the sentencing judge took account of aggravating factors in the case was contrary to established sentencing principles. The appellant submitted that the sentencing judge erred in that having articulated a view that a sentence of imprisonment at the highest end of the (five year) scale on each count was the appropriate sentence to impose, he selected four?years as the tariff, but did not reduce that in any way to reflect the characteristics and circumstances of the appellant. It was further submitted that in pitching the offences at the highest level on the scale, the judge erred and thereafter, whereas he mentioned the personal circumstances of the appellant, he did so in a very superficial way and failed to have full and proper regard to all of the appellant?s circumstances. The appellant submitted that the sentencing judge had inadequate regard to the significant provocation to which the appellant had been exposed and he failed to properly analyse the appellant?s reaction in the context of his past history and the psychological report. It was further complained that the sentence lacked proportionality. In addition, it was said that the sentencing judge placed undue emphasis on the remission to which the Court considered the appellant would become entitled in light of his good character, that being something that is a matter for the executive and which does not properly fall for consideration in the sentencing of an offender.

Held by Edwards J that the Court found no error of principle in the sentencing judge?s locating of the offences on the scale of seriousness. Edwards J held that on any view of the available evidence the case was exceptional, involving a significant genuine provocation offered to a psychologically vulnerable party who had commenced using drink as an ill?conceived coping mechanism for dealing with multiple adversities in his life, and who at the time of the index offence was in fact intoxicated. Edwards J held that those various circumstances formed the background to his loss of self?control, and in the Court?s view were, in the circumstances of the case, properly to be regarded as mitigating factors of which account required to be taken. Edwards J held that a global discount of 37.5% to reflect that mitigation was inadequate. Edwards J held that the failure to properly reflect the mitigating factors in the case was in itself a sufficient error of principle to cause the Court to quash the sentences imposed by the court below. The Court found a further error of principle in the taking into account by the sentencing judge of the likely remission to be earned by the appellant in respect of any sentence imposed upon him.

Edwards J held that the Court would set aside the sentences of four years with eighteen months suspended. The Court proceeded to re?sentence the appellant, considering that the mitigating circumstances of the case justified a discount of two years and six months from the headline sentences of four years in each instance.

Appeal allowed.

Judgment of the Court delivered on the 7th day of April, 2016 by Mr. Justice Edwards

Introduction

1 This is a case in which two concurrent terms of four years imprisonment, with the last eighteen months thereof suspended, were imposed on the appellant by Naas Circuit Criminal Court on the 21st of June 2012 following the appellant pleas of guilty to a count of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 and a count of producing an article capable of inflicting serious injury in the course of a dispute or a fight and in a manner likely unlawfully to intimidate another person, contrary to s.11 of the Firearms and Offensive Weapons Act 1990.

2 The appellant now appeals against the severity of these sentences.

The facts of the case

3 The appellant, a married man with a grown up son and daughter, was born on 20/05/1951 and is now 64 years of age. He was aged 59 years on the date of the incident and 61 years at the date of sentence. His daughter Sylvia, had been in a 20-year difficult relationship with Eamon Coyne, the injured party, who was then aged 36 years. The appellant's daughter and the injured party have two young children, a boy and a girl, in respect of whom the appellant is their maternal grandfather.

4 The prosecution case was that on 16th October 2010 the appellant was at home when his daughter, who was visiting her parent's home, had in their presence and hearing received an abusive and implicitly threatening phonecall from the injured party, railing about why she was not yet home. The appellant, who was under the influence of alcohol, then proceeded to arm himself with a bayonet type knife which he kept under his bed, and walked over to the home of his daughter and the injured party which was located no more than a few minutes walk away. On arrival there, and having entered the house through the open front door, the appellant had produced the knife and immediately attacked the injured party in frenzy in the course of which he inflicted six stab wounds to the injured party's left leg.

5 The injured party suffered a good deal of blood loss. However upon medical examination at Naas Hospital where he was taken in the aftermath of the event he was documented as being ?alert and oriented and under no obvious stress? and he was not detained overnight in the hospital. However it was expected that the injured party would experience localised pain, tenderness and swelling for up to three weeks after the incident. He is now left with scarring at his numerous wound sites, and has numbness in his left leg which prevents him from having physiotherapy. According to the victim impact statement the injured party was also psychologically injured by the attack, has had difficulty sleeping, has nightmares and has had to undergo counselling. There was also mention in the victim impact statement of a suicide attempt by the injured party since the attack on him, but in the absence of a psychiatric report dealing with this, and in circumstances of the co-existence of a fractured relationship with, and separation from, his partner, and other stressors in his life, such as his perceived difficulties in negotiating adequate access to his children, which is referred to in the evidence of Garda Bracken, the Court feels it would be unsafe to directly attribute this suicide attempt as being a consequence of the appellant's assault on the injured party.

6 The appellant later called to the Gardaí by arrangement and made a full statement wherein he outlined the background to the incident, and, in particular, the unhappy history between his daughter and the injured party. He did not seek to distance himself from the incident. He accepted ownership of the knife but claimed that he had very little recollection of the incident itself. In answer to a Garda question he indicated that he had brought the knife, which was a bayonet type instrument which he kept under his bed, ?probably to protect myself and just to frighten him. I had no intention of doing harm to him. It was just scare tactics, but I can't recall even being there.?

7 The appellant stated that he was ?deeply sorry about what happened?, and that both he and his wife were very upset as a result of the incident. He did not have any previous convictions and had never before or since come to the adverse attention of the Gardaí. Indeed the prosecuting Garda, Garda Bracken, referred to him as a ?good hardworking man? with whom he never had any problems.

8 The appellant's case was that there had been a significant history of domestic violence in the relationship between his daughter and the injured party. Garda Bracken confirmed this and testified that, as a result, the appellant and his wife were often left to ?pick up the pieces?; minding their grandchildren.

9 The Garda described the appellant's predicament as being ?a very sad situation. He's a decent hardworking man?. The sentencing court heard that whereas the appellant may have remonstrated with the injured party on previous occasions in relation to the treatment of his daughter, he had never before reacted with physical violence. He was ordinarily inclined...