DPP v Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 04 June 2015
• Neutral Citation: [2015] IECA 113
• Docket Number: 58CJA/12
• Court: Court of Appeal (Ireland)
• Date: 04 June 2015

[2015] IECA 113

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

58CJA/12

In the matter of Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

and

Anthony Kelly

Respondent

Sentencing – Causing serious harm – Undue leniency – Appellant seeking review of sentence imposed on respondent – Whether sentence was unduly lenient

Facts: The respondent, Mr Kelly, was sentenced in February, 2012 to four years imprisonment with the final two years of the said sentence suspended for a period of six years in respect of an offence of causing serious harm. The offence of serious harm involved an unprovoked slashing of the face of a 21 year old man in May, 2011 by means of a knife causing permanent facial disfigurement to the victim. The respondent had a number of previous convictions, including convictions for assault and malicious damage. The respondent was 21 years of age and at the time the offence occurred he was heavily under the influence of intoxicants. The appellant, the Director of Public Prosecutions (DPP), appealed to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, for review of the sentence imposed on the respondent on the ground of undue leniency. The DPP argued that the sentencing judge had failed to give sufficient weight to the aggravating factors, namely the use of the knife, the nature of the injury inflicted and the lack of any provocation. The DPP relied upon two judgments in this regard: The People at the Suit of the Director of Public Prosecutions v Black (Unreported, Court of Criminal Appeal, 31st July, 2009) and The People at the Suit of the Director of Public Prosecutions v Fitzgibbon [2014] 2 ILRM 116. The DPP also submitted that given the failure by the respondent to abide by the terms of an earlier suspended sentence it was an error in principle to impose a partially suspended sentence again. Opposing the application, the respondent noted that the sentencing judge fully took into account the aggravating factors arising from the offence and referred to an aggravation of the fact in that the respondent was on a rampage, that the attack was unprovoked, that the victim was left with a permanent scar and that the offence had been committed whilst the respondent was subject to a suspended sentence. The respondent submitted that the sentencing judge accurately took into account the mitigating factors including the respondent”s plea of guilty. The respondent also submitted that it was open to the sentencing judge to suspend the second half of the sentence as in the course of the plea in mitigation reference was made to two initiatives which might assist the respondent”s rehabilitation and two documentary proposals were furnished on his behalf to that effect. Whilst the respondent acknowledged that the sentence imposed was a lenient sentence, it was his submission that it was not unduly lenient.

Held by Sheehan J that, having considered the submissions of both parties, the Court should afford great weight to the sentencing judge”s reasons for imposing sentence and noted the care taken by the sentencing judge in this case. The Court was, however, of the view that the aggravating factors were not given their due weight; the injured party received a serious facial wound leaving him permanently disfigured. Notwithstanding the clear intention of the sentencing judge to incentivise the respondent”s rehabilitation, the Court was of the view that the gravity of the offending was not adequately reflected in a sentence that only requires the respondent to spend two years in custody.

Sheehan J held that the sentence represented a significant departure from what would normally be an appropriate sentence and held that the sentence was unduly lenient.

Appeal allowed.

Judgment of the Court delivered on the 4th day of June 2015, by Mr. Justice Sheehan

1 This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for review of the sentence imposed on the respondent on the 10th February, 2012, on the ground of undue leniency.

2 The respondent was sentenced to four years imprisonment with the final two years of the said sentence suspended for a period of six years in respect of an offence of causing...