DPP v Lyons

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 18 May 2017
• Neutral Citation: [2017] IECA 156
• Docket Number: 176CJA/16
• Court: Court of Appeal (Ireland)
• Date: 18 May 2017

[2017] IECA 156

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Mahon J.

Hedigan J.

176CJA/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Michael Lyons

Appellant

Sentencing – Assault causing serious harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Lyons, entered a plea of guilty to the offence of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 on the 24th March, 2015. In Donegal Town Circuit Criminal Court, the appellant was sentenced on the 9th June, 2016, to four years imprisonment. The appellant appealed to the Court of Appeal against severity of sentence on the grounds that: (i) the sentencing judge imposed an excessive sentence and the headline sentence was set unduly high; (ii) he failed to consider the possibility of suspension; (iii) he erred in law or in fact and law in determining the aggravating factors; (iv) he failed to adequately regard the submissions in mitigation; (v) he misdirected himself in law or in fact and law in assessing the sentence imposed and in disregarding The People (DPP) v Cullen [2015] IECA 4.

Held by the Court that, save in very unusual circumstances, any violent assault resulting in the disastrous consequences presented in this case must be reflected in a custodial sentence. The Court agreed with the sentencing judge when, following his careful analysis of the evidence, he located this offence at the lower end of the middle range; that range, as per The People (DPP) v Fitzgibbon [2014] IECCA 12, is between four years and seven and a half years. The Court noted that the mitigating factors, carefully identified by the sentencing judge, remained the same; taking those into account, he allowed three years off the headline sentence he had fixed upon of seven years. Like the sentencing judge, the Court considered that the appropriate sentence was one just above the bottom of the middle range but in accordance with Fitzgibbon would fix that at four years and six months. Given that reduced headline sentence, the Court held that a reduction by three years would result in an inappropriately short sentence. The Court would thus reduce it by fifty percent to a sentence of two years and three months.

The Court held that it would therefore sentence the appellant to two years and three months in prison commencing on the 9th June 2016.

Appeal allowed.

JUDGMENT of the Court delivered on the 18th day of May 2017 by Mr. Justice Hedigan

Introduction

1 This is an appeal against the severity of the sentence imposed on the appellant in Donegal Town Circuit Criminal Court. The appellant entered a plea of guilty to the offence of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 on the 24th March, 2015. The appellant was sentenced on the 9th June, 2016, to four years imprisonment.

The Circumstances of the Offence

2 On the 12th October, 2013, in Quiggs Bar, Carrick, County Donegal the appellant and Mr. Byrne ('the injured party') were drinking heavily and became quite drunk. They were told to quiet down on two occasions. On the second occasion the injured party had his hand on the appellant and was told to let go of his grip. The appellant said that he thought this was a bit of silliness and things were said. The appellant said that he felt the injured party was swinging for him and reeled back. The appellant threw a number of punches. There seems to be some dispute about whether they made contact. He then punched the injured party again causing him to fall to the ground and bang his head on a solid wooden floor. This final punch resulted in the injury.

3 An ambulance was called. The appellant stayed and assisted in what way he could. He was on his knees beside the injured party crying. The injured party remained on the floor and was bleeding heavily. He was brought to Letterkenny General Hospital, arriving at 12.45 am on the 13th October, 2013. He was discharged after 11 days.

4 The medical report noted that on arrival he was combative, vomiting, bleeding from his ear and there had been a witnessed loss of consciousness. He suffered a scalp injury, head injury, fractured skull and intracerebral contusion and/or subarachnoid haemorrhage and/or subdural haemorrhage. The symptoms of post traumatic amnesia suggested that he sustained a traumatic brain injury of at least moderate severity, secondary to the injury sustained. The injury is serious, permanent and irreversible. It has seriously affected his personal, domestic, occupational and recreational life. In the victim impact statements his wife notes that he hasn't been right since the incident, needs constant supervision and his day to day functioning is limited. We have received and considered updated particulars of Mr Byrne's condition which were furnished to the court on the 17th of May.

5 The appellant contacted the injured party's family that night to enquire about his welfare. He called to his house the next day to apologise. He then attended Carrick Garda Station where he made a voluntary statement with full admissions and apologised again. This statement and one from the barmaid and the injured party's wife were read to the Court. Mr Byrne is unable to recall the incident.

The Appellant's Personal Circumstances

6 The appellant had no previous convictions and had not come to Garda attention before or after the incident. Five character references were handed into Court. A probation report was also before the Court. The appellant has peripheral vascular disease and has had stents inserted in his heart including an operation since the incident which may have been induced by way of stress from the case. He expressed deep remorse and shame. He accepted that he had consumed excessive alcohol but did not regard that as an excuse. He was not a regular drinker. The report concluded that he was at a low risk of re-offending and deemed him suitable for community service.

7 After the incident he became depressed and barely left the house for three to four months. He offered €13,000 compensation notwithstanding his limited means. This offer was however refused by the injured party's wife.

8 The appellant has two children who are aged 12 and 16. He also helped look after his mother who is now 97 years old.

Sentence

9 The sentencing judge noted that he was taking the case as being at the lower end of the middle range and he stated that the bottom of that range would be about six years. The aggravating factors he found were that the blow was of such a severity as to cause the injury and he also took into account the presence of alcohol. The judge then added one year for the aggravating factors.

10 The mitigating factors were noted to be numerous. These were:-

(i.) the guilty plea,

(ii.) his remorse,

(iii.) that his life was immeasurably changed,

(iv.) his lack of previous convictions,

(v.) that he is a husband and father,

(vi.) that he stayed at the scene,

(vii.) he immediately fully cooperated,

(viii.) he apologised to the family the next day,

(ix.) his very positive probation report which noted he was suitable for community service,

(x.) his low risk of re-offending,

(xi.) his references,

(xii.) his offer of compensation and

(xiii.) the consequences of his having never been to prison before.

The judge stated that because the mitigating factors were 'so strong and so poignant' he would take three years off the seven and he imposed a four year custodial sentence.

Appellant's Submissions

11 The appellant appeals on the grounds, inter alia, that the sentencing judge imposed an excessive sentence and the headline sentence was set unduly high. He failed to consider the possibility of suspension. He erred in law or in fact and law in determining the aggravating factors. He failed to adequately regard the submissions in mitigation. He misdirected himself in law or in fact and law in assessing the sentence imposed and in disregarding The People (DPP) v. Cullen [2015] IECA 4.

12 It was submitted that this was a single action which was immediately regretted and the appellant confessed and expressed remorse at every opportunity. This was not an offence that merited a starting point of seven years or a finishing point of four years. This was not proportionate to the significant mitigating factors.

13 it was submitted that the headline sentence was set unduly high. The learned sentencing judge had been referred to The People (DPP) v. Fitzgibbon [2014] IECCA 12 at paras. 8.10 to 8.14 which offers guidance on sentencing. It was held that the middle range carries a sentence between four and seven and a half years. It is admitted that the severity of the assault is highly significant. The injuries must also be taken into account. These two will not always exactly correspond. Greater weight attaches to the consequences where they might be reasonably expected to result from the assault or are not entirely disproportionate. The degree of culpability is also important. An unprovoked attack will be more serious. The general circumstances of the assault are also a factor, such as the use of weapons.

14 The judge assessed the offence to be at the lower end of the middle range but measured the sentence at six years instead of four. An extra year was then added for the alleged aggravating factors. It was submitted that this was incorrect and that the level at which the judge started would already include aggravating factors. There was double counting.

15 It was submitted that it was an error of law and fact to find the severity of the blow to be an aggravating factor when the evidence showed it was the fall onto the hard floor that caused the injury and both parties had consumed a lot of alcohol. The injuries were not...