DPP v Kelly

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 15 January 2019
• Neutral Citation: [2019] IECA 11
• Docket Number: 248CJA/18
• Court: Court of Appeal (Ireland)
• Date: 15 January 2019

[2019] IECA 11

COURT OF APPEAL

Birmingham P.

Birmingham P.

Baker J.

McCarthy J.

248CJA/18

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

MATHEW KELLY

RESPONDENT

Sentencing – Assault – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The applicant, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking to review a sentence on grounds of undue leniency. The sentence sought to be reviewed was one of two and a half years imprisonment, suspended in full, that was imposed in respect of a s. 3 assault offence on 26th July 2018 in the Circuit Court in Wicklow. It was accepted on behalf of the respondent, Mr Kelly, that the sentence was lenient, but was not so lenient as to be unduly lenient and so as to cross the threshold for intervention. The DPP said that this was not a marginal case, but was clearly a case that called for at least some element of custody.

Held by the Court that the fact that an assault of such a serious nature with so many aggravating factors was committed against someone who had invoked the protection of the Court and obtained a Safety Order moved the case out of that category of the extremely marginal or the cases on the edge and into a different category which required custody and where the total absence of a requirement to serve any period in custody amounted to an error.

The Court held that it would quash the sentence of two and a half years, suspended in full, that was imposed in the Circuit Court and for that sentence substitute a sentence of two and a half years imprisonment with the final 18 months suspended, therefore, a net 12-month sentence.

Appeal allowed.

JUDGMENT (Ex tempore) of the Court delivered by on 15th day of January 2019 by Birmingham P.

1 This is an application brought by the DPP pursuant to s. 2 of the Criminal Justice Act 1993 seeking to review a sentence on grounds of undue leniency. The sentence sought to be reviewed is one of two and a half years imprisonment, suspended in full, that was imposed in respect of a s. 3 assault offence on 26th July 2018 in the Circuit Court in Wicklow.

2 The background to the case is to be found in events that occurred on 17th November 2017 at Roundwood in Wicklow. The incident involved an assault on the former partner of the respondent, Mathew Kelly, who is the mother of his child. On the occasion in question, the injured party was in the vicinity of a crèche which is located close to her home, along with her two-year old daughter whom she was picking her up from the crèche. Indeed, it appears it was the little girl's first day there. It appears that there may have been some tension as the little girl was dropped off at the crèche, but the real difficulty arose at the collection stage. At that point, an incident developed, and in the course of that incident, at a time when the respondent had his daughter in his arms, he put her down and then punched his ex-partner in the mouth with a closed fist. She fell against the window of the crèche and fell to the ground. The respondent then repeatedly punched his partner to the head and body while she was on the ground. The victim impact report also refers to kicking while on the ground. In the aftermath of the incident, the respondent went from the scene to the local Garda station and said there ‘you may lock me up’. The Judge, in the course of his sentencing remarks, described the assault as cowardly, vicious and violent. It is of some considerable importance to note that the injured party had obtained a Safety Order from the District Court in Bray and that that order of the Court was in force at the time of this assault.

3 In terms of the respondent's background and personal circumstances, he was born in July 1992, and thus was aged 25 years and was just short of his 26th birthday at the time of the sentence hearing. He had no previous convictions and had a good and varied work record. This included a carpentry apprenticeship, qualifying as a barber, working in the hospitality industry, spending time in Australia for a period where he worked in several different capacities before returning to Ireland where he again worked in a number of...