DPP v Lehane

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 16 June 2016
• Neutral Citation: [2016] IECA 196
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 26/2016
• Date: 16 June 2016

Sheehan J.

Mahon J.

Edwards J.

Between/

The Director of Public Prosecutions

Respondent

- and -

Donal Lehane

Appellant

[2016] IECA 196

Record No. 26/2016

THE COURT OF APPEAL

Sentencing – Intimidation of a witness – Error of principle – Appellant seeking to appeal against sentence – Whether sentencing judge failed to attach sufficient weight to the appellant?s previous good character and his complete lack of previous convictions

Facts: The appellant, Mr Lehane, in 2010, pleaded not guilty to a number of sexual offences arising from his encounter with the complainant. At the time, the complainant was a provider of sexual services for money, and her services were engaged by the appellant. He was acquitted by a jury of those sexual offences. Between March and May 2010, the appellant sent texts and e-mails to the complainant which were of a lurid and threatening nature. In them, he stated that unless she withdrew the allegations of sexual assault, her family and neighbours would be informed of her working as a prostitute. Her home location was identified and reference was made to a video clip of a compromising nature being released. There was no threat of violence in any of the communications. The appellant was found guilty by a jury at the Central Criminal Court in Dublin on 2nd December 2015 of two counts of intimidation of a witness contrary to s. 41 of the Criminal Justice Act 1999. He was sentenced on 25th January 2016 to a term of imprisonment of eighteen months in respect of both counts, with the eighteen months sentence on the second count to commence on the legal expiration of the sentence of eighteen months imposed in respect of the first count. It was further directed that the second eighteen month sentence (in respect of the second count) be suspended for a period of eighteen months conditional upon the appellant entering into a bond in the sum of ?100. The period applicable to the suspended eighteen month sentence was stated to be during the appellant?s period of imprisonment, and for eighteen months post release. He was also directed not to have contact with the victim. The appellant appealed to the Court of Appeal against his sentence on two main grounds: (i) the sentencing judge failed to attach sufficient weight to the appellant?s previous good character and his complete lack of previous convictions; and (ii) the sentencing judge failed to attach sufficient weight to the severely punitive effect of a custodial term of eighteen months, having particular regard to the fact that the consequences of conviction and a period to be spent in custody would be catastrophic for the appellant and his family.

Held by Mahon J that he identified an error of principle in relation to the sentences as imposed to the following limited extent: (i) insufficient weight was afforded to the fact that the appellant was a first time offender, with little likelihood of re-offending; and (ii) insufficient weight was afforded to the fact that the consequences of any period spent in custody would have very significant adverse effect on the appellant?s family, and particularly the appellant?s three young children ranging in ages between twelve months and four years, and that such an effect would likely be extremely serious if such period in custody was to be lengthy. Of particular relevance in that regard was the fact that the appellant was self-employed at the time of his conviction, and was the sole breadwinner for his wife and young children. In those circumstances, Mahon J held that it was necessary for the Court to re-sentence the appellant.

Mahon J held that he was in agreement with the appropriateness of the two eighteen month sentences imposed in the court below, but he directed that they be concurrent rather than consecutive as originally ordered and be back dated to 2nd December 2015, the date on which the appellant initially went into custody. The Court directed that the final nine months of the sentence be suspended for a period of two years post release on the appellant entering into a bond in the sum of ?100. Finally, it was ordered, as it was in the court below, that the appellant have no further contact with the complainant.

Appeal allowed.

Judgment (ex tempore) of the Court delivered on the 16th day of June 2016 by Mr. Justice Mahon

1 The appellant was found guilty by a jury at the Central Criminal Court in Dublin on 2nd December 2015 of two counts of intimidation of a witness contrary to s. 41 of the Criminal Justice Act 1999. He was sentenced on 25th January 2016 to a term of imprisonment of eighteen months in respect of both counts, with the eighteen months sentence on the second count to commence on the legal expiration of the sentence of eighteen months imposed in respect of the first count. It was further directed that the second eighteen month sentence (in respect of the second count) be suspended for a period of eighteen months conditional upon the appellant entering into a bond in the sum of ?100. The period applicable to the suspended eighteen month sentence was stated to be during the appellant's period of imprisonment, and for eighteen months post release. He was also directed not to have contact with the victim. This is the appellant's appeal against his sentence.

2 In 2010, the appellant pleaded not guilty to a number of sexual offences arising from his encounter with the complainant. At the time, the complainant was a...