DPP v Kilmartin

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr Justice Peart,Mr Justice Edwards
Judgment Date09 Mar 2015
Neutral Citation[2015] IECA 54
Docket Number[2013 No. 270 CJA]

[2015] IECA 54

THE COURT OF APPEAL

The President

Mr Justice Peart

Mr Justice Edwards

[2013 No. 270 CJA]

Between

In the Matter Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions
Appellant
and
Alan Kilmartin
Respondent

Application by DPP – Review of sentence – Sentence of three years suspended for five years on conditions – Serious assault – Severity of offence – Aggravating and mitigating factors – Victim impact – Approach to sentencing – Whether trial judge erred in principle – Whether unduly lenient sentence

Facts The DPP sought to apply for a review of sentence that was imposed on the respondent, Mr Kilmartin, on 25th November 2013. The judge imposed a sentence of three years suspended for five years on conditions. The accused pleaded guilty and was convicted of a serious assault. The assault occurred over three years ago and had a grave, long-lasting effect on the victim. On the night in question, the respondent was employed as a security man in the area of the victim's residence. He called at her address to inform her of a possible interference with her car. He then entered the property on the pretext of making an inquiry as to her water supply. She went to check this. He proceeded to attack her with a metal implement that he had brought with him for the purpose. He hit her, causing head injuries and several lacerations. The assault had a serious impact, not only on her physical wellbeing, but on her psychological wellbeing also. The accused was in his early 30s; he had no previous convictions; he had been seen by a psychiatrist and had been detained in a psychiatric unit, voluntarily, after the episode. He had attempted to take his own life. He had acknowledged what he had done and was remorseful. The respondent and his representatives did not put forward a medical excuse to relieve him of culpability for his actions but psychiatric evidence was called. The judge imposed the suspended sentence on conditions. They included keeping the peace and that he was to comply with the requirements of his psychiatrist. He took into consideration the guilty plea advanced by the respondent; the severity of the offence and the aggravating and mitigating factors, in particular that the accused suffered from clinical depression.

Held The judge highlighted his role was not to substitute the original sentence but instead to question whether the trial judge had erred in principle. He had to be satisfied that the sentence imposed by the trial judge was outside the zone of acceptability in a proper approach to sentencing. The judge concluded the trial judge erred in principle and said there was no basis on which a wholly suspended sentence, in view of the severity of the crime, could be imposed.

-The sentence was unduly lenient. The court would proceed to impose the appropriate sentence.

JUDGMENT of the COURT (Ex tempore) delivered by The President on the 9th day of March 2015
1

This is an application by the Director of Public Prosecutions for the review of the sentence that was imposed on the respondent, Mr. Kilmartin, on 25th November 2013, and on that occasion, the judge imposed a sentence of three years imprisonment, suspended for five years on conditions which I will refer to in a moment.

2

The accused pleaded guilty in February 2013 to a series of crimes arising out of an offence that occurred some three years ago. It was, by any standards, and it is not in dispute, a serious assault. I should mention that the victim of the events of this night testified in the Circuit Court at the sentencing hearing as to the impact that this assault had on her and it is perfectly clear from that impressive testimony that this attack had very grave and long-term consequences on the victim. It is also her wish that her name would not be disclosed and I propose not to make any reference to her name, or indeed her general circumstances.

3

So what happened? The respondent, was employed as a security man in the area of the victim's residence. He called, on a night three years ago, to her home and he gave her information about possible interference with her car, all that would be normal, legitimate, to be expected of a security person. Then he came into her apartment, which surprised her, understandably, and he made a pretext enquiry about the water in her apartment and she went off to check that and returned and he then set about attacking her with a metal implement that he had brought with him for the purpose. He beat her about the head very severely, causing her head injuries,...

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