DPP v Jones
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 06 April 2017 |
| Neutral Citation | [2017] IECA 113 |
| Court | Court of Appeal (Ireland) |
| Docket Number | 76/CJA/16 |
| Date | 06 April 2017 |
[2017] IECA 113
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Edwards J.
Hedigan J.
76/CJA/16
In The Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993
Sentencing – Assault causing harm – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Jones, entered a guilty plea to the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 on the 11th December, 2015. The respondent was sentenced in the Dublin Circuit Criminal Court on the 24th February, 2016, to 18 months imprisonment suspended for 18 months. There was also a charge of assault causing serious harm contrary to s. 4 for which a nolle prosequi was entered. The suspension was on the following conditions; the respondent enter into a bond of €100, keep the peace and be of good behaviour for a period of 18 months and pay to the victim, within four weeks, compensation of €8,000. The appellant, the DPP, appealed to the Court of Appeal on the basis that the sentence imposed was unduly lenient. The appellant submitted that: the sentencing judge erred in reducing the offence from the upper end of the scale and imposing a sentence at the lower end; while the sentencing judge identified the appropriate mitigation tendered he gave too much weight to it given the serious nature of the assault; the sentence did not reflect the serious nature of the assault with a weapon and there was no element of deterrence to others; there was a failure to regard and reflect in the sentence the full extent of the trauma and lasting effects as outlined in the victim impact statement and medical reports; there was a failure to appropriately consider the level of violence which should have attracted a custodial sentence; undue weight was given to the guilty plea; it was not proper to consider the effect of a custodial sentence on the respondent’s ability to pay compensation; and the pending civil action was not a matter that should have been taken into consideration.
Held by the Court that it was only because the same circumstances no longer obtained as obtained at the date of sentencing, due to the fact that time had moved on, coupled with the Court’s concern that the respondent should not be visited with the additional hardship that the Court had identified as not of his making, that the Court found the scales tipped very marginally in favour of maintaining the status quo in terms of the respondent’s sentence.
The Court held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal by the Director of Public Prosecutions on the basis that the sentence imposed was unduly lenient. The respondent entered a guilty plea to the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 on the 11th December, 2015. The respondent was sentenced by His Honour Judge John Aylmer in the Dublin Circuit Criminal Court on the 24th February, 2016, to 18 months imprisonment suspended for 18 months. There was also a charge of assault causing serious harm contrary to s. 4 for which a nolle prosequi was entered.
The suspension was on the following conditions. The respondent enter into a bond of €100, keep the peace and be of good behaviour for a period of 18 months and pay to the victim, within four weeks, compensation of €8,000.
In the early hours of the morning on the 20th July, 2014, in the Palace Night-club the respondent struck Mr. Brian Murphy in the face with a pint glass. It was disputed whether the victim was acting in an ‘annoying’ manner and making provocative gestures towards the respondent. The injured party denied this but two of the prosecution's civilian witnesses said there had been prior interaction between the parties.
The glass hit the victim around his left eye. He was taken to St. James's Hospital for emergency treatment. The incident and injury resulted in scarring, permanent loss of vision in his left eye and psychological trauma. He underwent five operations under general anaesthesia. He will need at least one more.
A victim impact statement was read to the Court. It included details of the devastating impact the injury had on the victim who was studying medicine at the time. An updated victim impact statement has been handed into Court.
The respondent remained at the scene and was cautioned, arrested and taken to Kevin Street Garda Station. He admitted to striking the victim. He made admissions both at the scene and at the Garda Station answering all questions put to him. He stated that the injured party ‘came close, he made the cut gesture again, that's when I instinctively threw my right hand at him, I was completely unaware that I was holding a pint glass at that moment, and after that's it's quite a blur, rush of adrenalin’. The respondent expressed remorse to the injured party several times.
At the time of the incident the respondent was 25 years old with no previous convictions. He had a degree in business and was working in a bank and taking banking exams. He worked from the age of 16 and put himself through college where he achieved a first class honours degree. He had €8,000 compensation with him at the sentencing hearing. At the time he was in a relationship and they were expecting a child in July, 2016. He has since had the baby. As a consequence of his conviction he no longer works in the same employment but has found work in another similar post.
In sentencing the learned judge described this as a very serious offence on the upper end of the scale of s. 3 offences. The injuries were described as ‘horrific’. The mitigating factors identified were the respondent's previously impeccable character with no previous convictions. He had never come to Garda attention and was never likely to. The assault was without premeditation. The respondent was given the benefit of the doubt in relation to provocation. There was no need for rehabilitation as there is no likelihood of reoffending. It was noted that there was an offer of compensation to be made from the savings of the respondent and his partner. It was noted that if allowed to pursue his career the respondent would remain available to provide further compensation. A custodial sentence would be likely to destroy his career prospects and this would affect the injured party's ability to recover compensation.
It was the appellant's submission that the sentencing judge erred in reducing the offence from the upper end of the scale and imposing a sentence at the lower end. There was a grave level of violence. The sentence was unduly lenient given the serious injuries and the use of a weapon.
While the sentencing judge identified the appropriate mitigation tendered he gave too much weight to it given the serious nature of the assault. The wholly suspended sentence was inappropriate where the offence had been deemed to be at the upper end of the scale.
The sentence did not reflect the serious nature of the assault with a weapon and there was no element of deterrence to others. The Court was referred to the decision in The People (DPP) v. Lyons [2014] IECCA 27 at para. 40 where it was noted that even though personal deterrence was not a significant factor there should be an element of deterrence to others. It would send the wrong message to society if this was not reflected in the custodial element and totality of punishment.
It was submitted that there was a failure to regard and reflect in the sentence the full extent of the trauma and lasting effects as outlined in the victim impact statement and medical reports.
There was a failure to appropriately consider the level of violence which should have attracted a custodial sentence. The use of a glass to strike the injured party's face was an aggravating factor that was not given proper consideration during sentencing.
Undue weight was given to the guilty plea. There was very strong evidence against the respondent. It is accepted however that a guilty plea is always positive mitigation.
It was submitted that it was not proper to consider the effect of a custodial sentence on the respondent's ability to pay compensation. The Court was referred to O'Malley, Sentencing Law and Practice, 3rd Ed., (Dublin, 2016) at para. 27-11 where the author states that the payment of compensation in the case of a serious offence should not save a person from imprisonment.
The pending civil action was not a matter that should have been taken into consideration. The Court was referred to Lyons at para. 63 where it was held to be a separate liability that is not a factor in sentencing. The payment of compensation should not automatically be a factor in mitigation.
The judge must consider the...
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DPP v Lawlor
...the respondent submits that a custodial sentence would still be unwarranted. The respondent refers to the case of DPP v Robert Jones [2017] IECA 113. While the Court of Appeal found that the sentence imposed in Jones was unduly lenient, it went on to say that: ‘The question is, in circumsta......