DPP v Jesenak
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] IECA 263 |
| Docket Number | 38/17 |
| Court | Court of Appeal (Ireland) |
| Date | 13 October 2017 |
[2017] IECA 263
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Mahon J.
Hedigan J.
38/17
Sentencing – Assault causing harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Jesenak, entered guilty pleas, in the Dublin Circuit Criminal Court, to s. 3 assault causing harm, which was entered on the new mention date and s. 5 threat to kill, entered prior to sentencing on the 10th February, 2017, both contrary to the Non-Fatal Offences Against the Person Act 1997. There were two further counts for offences contrary to s. 2 assault, for which a nolle prosequi was entered. The appellant was sentenced to concurrent sentences of three years with the final year suspended for 18 months. The suspension was on condition that he enter a bond of €150 and remain under the supervision of the probation services, that he undergo an alcohol awareness programme, remain alcohol free, undergo urine tests and undergo an anger management programme, as directed by the probation services. The appellant was given credit for the three months and ten days he had already served. The appellant appealed to the Court of Appeal against severity of sentence on the grounds that the sentencing judge failed to give adequate credit and weight to the appellant’s early guilty plea, his good behaviour post offending, his strict compliance with the terms of his bail which separated him from his family, the absence of a weapon and long term permanent physical injury, his apology, lack previous convictions involving violence, his drunken state, the effect of unemployment, the onerous nature of imprisonment for him when frequent family visits are unlikely and his English is limited, and the fact that the appellant was re-entering the workforce and seeking to rehabilitate himself.
Held by the Court that there was no case to be made that the sentence imposed was too severe. The Court considered the sentence to have been a lenient one and would not interfere with it.
The Court held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal against severity of sentence. The appellant entered guilty pleas, in the Dublin Circuit Criminal Court, to s. 3 assault causing harm, which was entered on the new mention date and s. 5 threat to kill, entered prior to sentencing on the 10th February, 2017, both contrary to the Non-Fatal Offences Against the Person Act 1997. There were two further counts for offences contrary to s. 2, assault, for which a nolle prosequi was entered.
The appellant was sentenced to concurrent sentences of three years with the final year suspended for 18 months. The suspension was on condition that he enter a bond of €150 and remain under the supervision of the probation services. That he undergo an alcohol awareness programme, remain alcohol free, undergo urine tests and undergo an anger management programme, as directed by the probation services.
The appellant was given credit for the three months and ten days he had already served.
The offence occurred on the 12th June, 2016, at the home the appellant shared with his former partner and another flatmate. The offences were committed against his partner. At the time they had a 20 month old daughter and the injured party was seven months pregnant. Garda Curley gave evidence of what was reported by the injured party.
The appellant had been drinking over the weekend. They had plans to attend a baby market but the appellant indicated he would not go. The injured party went alone and returned to the appellant sleeping. He awoke and became angry with her over who had helped her buy things at the market. The appellant started shouting at the injured party causing their daughter to run out into the garden. The injured party followed their daughter and the appellant followed after her. He continued shouting at her. He grabbed her arm and punched her in the face. The injured party was then on the ground with their daughter next to her screaming ‘mamma’.
The injured party described being punched in the face about five times and having her hair pulled with the result that she had a lump on the back of her head. Her nose was bleeding and the appellant shouted at her that he would kill her and destroy everything and burn everything she has. He said to her, ‘Do you not think I have the power to kill you?’ she said, ‘I'm afraid to be killed and I want to stay alive to mind my children’? He said to her then he would get an axe and kill her and bury her in the ground so that no one would ever find her. She said that he then let go of her and kicked her a few times across the legs.
Then the appellant went back into the house and started throwing the things that she had bought for the baby out the back door and she was trying to bring the things back in, but he said that she would have to leave the house, but that their daughter would have to stay with him. The injured party described then crying and lying on the ground outside in the garden, she didn't know what to do or where to go.
About five minutes later, she said that he opened the door and told her to come back inside in case the neighbours saw her. She went back inside and upstairs and he stayed downstairs in the dining room. She sat on the stairs and then described that he came back and tried to grab her through the rails and that she ran upstairs and again, he chased her and started to pull her hair. She described trying not to fall because she was trying to protect her baby.
The appellant said to her that it was all her fault, and now that she is pregnant, that all she does is cry. He started to punch her again and then he told her to go to the bathroom and clean herself up, that she was a stupid bitch and dirty and that he couldn't bear to look at her and that she had to do something about her face. When she splashed water on her face in the bathroom blood splashed on the wall and he started to shout at her, telling her to stop dirtying the place.
She described then how he grabbed her neck and tried to strangle her. He threw her on the ground and he was trying to strangle her with one hand and he put his other hand across her mouth and he started to stick his fingers down her throat. He was shouting at her and choking her.
At that stage, he then left and went downstairs and she could hear him say that there was somebody knocking at the door. Two members of the Gardaiì had arrived and the appellant was directed to leave the property. The flatmate stated that she had heard the incident and was afraid to leave her room. She had phoned a friend and asked them to call the Gardaiì as her English wasn't that good.
He returned at approximately 5 am. The injured party stayed in bed with him until he fell asleep and then went to the kitchen and made contact with the Gardaiì. She was crying, visibly shaken and had bruising to her face and legs when Garda Curley arrived.
The appellant was then arrested and taken to Clondalkin Garda station and charged. He was taken to Court the following morning and remanded in custody. He was granted bail by the High Court on the 22nd September, 2016. He has not had contact with the injured party since being bailed.
The injured party did not wish to complete a victim impact statement or attend Court. While she had no fractures there was bruising and cuts to her face and bruising to her legs. Garda Curley noted that the injuries were perhaps not as serious as originally made out. Follow up medical attention was required. Their baby was delivered healthily.
The appellant is 31 years of age, originally from Slovakia and moved to Ireland in 2005. The injured party was also from Slovakia and had moved to Ireland with her family. They met in or about 2011. Prior to coming to Ireland the appellant had trained as a sculptor and spent one year on an agricultural course. He initially worked as a plasterer but became unemployed during the recession. He began to drink more and more....
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DPP v Sidney Sutton
...imprisonment, the final twelve months suspended, was imposed. 32 Similarly in The People (Director of Public Prosecutions) v. Jesenak [2017] IECA 263 a headline sentence of four years was nominated on a count of threatening to kill and the assault of his the accused partner was described as......