DPP v Kane
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 30 March 2023 |
| Neutral Citation | [2023] IECA 86 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 40/2021 & 41/2021 |
[2023] IECA 86
The President.
McCarthy J.
Kennedy J.
Record Number: 40/2021 & 41/2021
THE COURT OF APPEAL
Sentencing – Assault causing harm – Proportionality– Appellant seeking to appeal against sentence – Whether sentence was proportionate
Facts: The appellant, Mr Kane, on the 11th November 2020, was convicted of 1 count of coercive control contrary to s. 39 of the Domestic Violence Act 2018, 12 counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, 1 count of assault contrary to s. 2 of the 1997 Act and 1 count of intimidation contrary to s. 41(1) of the Criminal Justice Act 1999. The appellant pleaded guilty to count 1 on a second indictment of attempting to pervert the course of justice, contrary to common law. He was sentenced to 12 ½ years’ imprisonment with the final 2 years suspended. The appellant appealed to the Court of Appeal against severity of sentence. Issue was taken with the notional sentence nominated on the coercive control count of 3.5 years, the 6 years nominated on the intimidation count and the 7 ½ years nominated on the perverting of the course of justice count. Issue was also taken with the consecutive elements of the sentence, specifically that the s. 3 offence on count 14 was imposed consecutively to the s. 3 offence reflected on count 8. It was said that the sentence imposed failed to have adequate regard to the principle of totality and was disproportionate and excessive in all the circumstances. Finally, it was contended that insufficient regard was had to mitigation.
Held by the Court that, regarding the headline sentence nominated in respect of count 1, the appellant’s moral culpability was high and correctly found to be so by the sentencing judge, the harm done to the injured party was significant and as a consequence, the Court did not find any error with the judge placing the offending in the mid to upper range of penalties available and her resulting nomination of the notional headline sentence. Regarding the headline sentence nominated in respect of count 17, having looked at the circumstances in which the offence occurred, the timing of the offence and the nature of the activity, the Court was not persuaded of any error on the part of the judge in identifying a notional sentence of 6 years’ imprisonment. Regarding the headline nominated in respect of count 1 on Bill 1032/20, the offence carried a maximum penalty of life imprisonment and the Court saw no error in principle in how the judge approached the offence and her nomination of the headline sentence. On a consideration of the transcript, the Court held that there was no doubt but that the judge approached the entire sentencing process with scrupulous care and diligence. The Court held that the discretion to impose consecutive sentences was exercised with reference to the nature of the appellant’s actions and the severity of the assaults. The Court held that the judge was justified in exercising her discretion to make the sentences consecutive to one another; the offences were not committed within a relatively short period of time and the evidence was that the assaults were so frequent so as to meld into one another. The Court found no error in the manner in which the judge exercised her discretion. The Court found it difficult to see how the overall, ultimate sentence of 10 ½ years actual incarceration was disproportionate. The Court was satisfied that the judge took proper account of the mitigating factors and reduced the sentence accordingly.
The Court, in the circumstances of the serious, prolonged offences, the nature of the activity, the appellant’s controlling and coercive behaviour, the injuries sustained to the injured party, both physical and emotional, was not persuaded that the appellant had demonstrated an error in principle and, accordingly, the appeal was dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered on the 30 th day of March 2023 by Ms. Justice Isobel Kennedy.
This is an appeal against severity of sentence. On the 11 th November 2020, the appellant was convicted of 1 count of coercive control contrary to s. 39 of the Domestic Violence Act, 2018, 12 counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997, 1 count of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997 and 1 count of intimidation contrary to s. 41(1) of the Criminal Justice Act, 1999. The appellant pleaded guilty to count 1 on a second indictment of attempting to pervert the course of justice, contrary to common law. He was sentenced to 12 1/2 years' imprisonment with the final 2 years suspended.
The appellant is the former partner of the injured party. The relationship commenced in April 2018, when the injured party was looking for a place to live and she began living with the appellant.
On the 22 nd September 2019, the investigating Garda received a phone call from Dr Collins, a consultant in emergency medicine at James Connolly Memorial Hospital, who was so gravely concerned about the injured party that she was moved to contact the Gardaí. It transpired that the injured party had attended the hospital in excess of 20 separate occasions and the doctor believed that there was a real threat to her life from the violent behaviour inflicted upon her by the appellant. The injured party met with the Gardaí on several occasions thereafter and made statements regarding the multiple assaults on her by the appellant throughout their relationship.
The offending, the subject of count 1, coercive control, occurred between the 1 st January 2019 and the 22 nd September 2019. The Domestic Violence Act, 2018 commenced on the 1 st January 2019. The injured party made statements outlining common conduct on the part of the appellant, describing how she was living under the constant threat of violence, waking up daily not knowing if she would be beaten or not, how she would be awoken by the appellant roaring abuse, shouting into her face. She described emotional abuse, that the appellant would insult her, using demeaning, aggressive and abusive language. She recalled an incident where she was made to sit in the front room of the apartment unclothed while the appellant berated her. The injured party also described controlling behaviour, that the appellant interfered with her relationship with her family and her access to her friends. She stated that the appellant's behaviour left her meek and submissive and had a serious impact upon her. She described how she was constantly on edge, walking on eggshells, waiting for the next act of violence.
The next series of offences were that of 12 counts of assault causing harm during the period from May 2018 to September 2019, which included burning her foot with a cigarette, grabbing her by the throat and choking her. She described how incidents of this kind were so common that they tended to meld into one another. Another incident concerned cutting her face with a pizza slicer, and incidents of punching her to the face. She described ongoing violence on a daily basis and being pulled around the house by her hair.
The violence then appears to have elevated in January 2019. A particularly graphic incident occurred in February/March 2019, the subject of count 8, where the appellant walked down the corridor of the apartment and headbutted the injured party in the nose. This incident occurred while the injured party was recovering from surgery to her nose, unrelated to the assaults, and of which the appellant was aware.
Count 9 relates to an incident which occurred between the 14 th and 15 th March 2019, where the appellant banged the injured party's head against a solid surface. On the 15 th March 2019, the injured party called to Blanchardstown Garda Station, where a member of An Garda Síochána noted injuries to her face, nose and eye. The appellant was present at the Garda Station on this occasion.
Count 11 relates to an incident which occurred on the 26 th March 2019, at a bridge, where the appellant banged the injured party's head against the steel railings of the bridge. She was encountered by a number of witnesses. A member of the ambulance crew which attended at the scene noted the injured party was bleeding heavily from her head. She required seven staples to her head in respect of that injury.
Count 12 relates to an incident which occurred between the 5 th and 10 th September 2019, where the appellant stamped on the injured party's head while she was on the ground. A neighbour encountered the injured party on the 7 th September 2019 and the appellant told the neighbour that the injured party was not to be trusted in respect of what she was saying had happened to her.
Yet another incident occurred between the 19th and the 20th September 2019, count 14, where the appellant stamped on the injured party's arm resulting in a comminuted fracture to her ulna. Count 15 relates to an incident occurring between the 19th and the 21st September 2019, where the appellant choked the injured party. When she attended hospital for the fracture a couple of days after that incident, in addition to the fracture, strangulation marks, being finger marks, around her neck were observed. This was the visit which resulted in Dr Collins making the call to An Garda Síochána in respect of the injured party. The doctor called the Garda Station to express her concerns regarding the relationship between the injured party and the appellant. She considered there to be a real and substantial threat to the injured party's life from the appellant's behaviour.
It is telling that notwithstanding the pain from the comminuted...
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Director of Public Prosecutions v Boles
...written judgment that directly considers the offence of coercive control contrary to s. 39 of the Act of 2018 is The People (DPP) v. Kane [2023] IECA 86. Some assistance is also to be gained from sentencing cases involving other offences that were committed in the context of an intimate rel......