DPP v M.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 18 December 2015
• Neutral Citation: [2015] IECA 313
• Docket Number: Record No: 201/14
• Court: Court of Appeal (Ireland)
• Date: 18 December 2015

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

v

M.C.

Appellant

[2015] IECA 313

Record No: 201/14

THE COURT OF APPEAL

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

Facts: The appellant had been the injured party’s personal fitness trainer at a gym that the injured party regularly attended, and it was in that context that a personal relationship between them developed. That relationship was sometimes romantic and intimate but was at other times stormy and fraught. During the latter times the appellant engaged in intimidating and controlling behaviour vis a vis his partner, characterised by his resorting from time to time to domestic violence, which on one occasion was accompanied by false imprisonment; and on another occasion by sexual assault; and, after the injured party had made clear that she wished to end the relationship, by harassing her by means of telephone calls, text messages and other forms of unwanted communication. The main assault, which was the subject of a s. 3 of the Non Fatal Offences Against the Person Act 1997 charge, occurred on the 12th of August 2012 and occurred in the context of the injured party being subjected to a prolonged ordeal. The appellant was sentenced to five years imprisonment at Dublin Circuit Criminal Court on the 30th of January 2014 to date from that date, in respect of offences of assault causing harm, contrary to s. 3 of the 1997 Act and sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, both sentences to run concurrently. The appellant appealed to the Court of Appeal against the severity of his sentences on the grounds that the sentencing judge had, by failing to follow established best practice in terms of sentencing procedure, over-assessed the gravity of the case. His second main complaint was that the sentencing judge, by utilising the option of suspending a portion of the sentence rather than giving a straight discount, had failed to give adequate credit for mitigating circumstances.

Held by Edwards J that the headline sentences determined upon by the sentencing judge were excessive in both instances, and that there was an error in principle in that regard. The Court did not agree that the sentencing judge erred in utilising a partly suspended sentence; a sentencing judge is entitled to avail of all of the potential sentencing options available to him, and it is a matter entirely for his discretion as to which is or are most appropriate. By utilising the option of partly suspending the headline sentence in this case, Edwards J held that the trial judge was able to give credit for mitigation while at the same time incentivising the appellant to take the necessary steps to address his underlying psychological issues so as to minimise his risk of re-offending.

Edwards J held that the Court would set aside the sentence of five years with the last eighteen months thereof suspended, and proceeded to re-sentence the appellant. Edwards J considered that the s.2 sexual assault ought properly to be assessed as belonging in the low to medium range on the spectrum of available penalties, before any discount for mitigation. The Court therefore considered that a headline sentence of three years and six months imprisonment was also appropriate for his offence. Edwards J held that the appellant was entitled to a discount for mitigation based upon his early plea of guilty, his previous good character, his remorse and his personal circumstances including his psychological issues. To reflect the mitigating circumstances in his case, and with a view to incentivising his continuation along the path on which he had already begun to travel, the Court imposed sentences of three years and six months on the appellant for both the s. 3 assault and the s. 2 sexual assault, respectively, to run concurrently, but would also backdate both sentences by 27 months from the date of the appeal hearing (Tuesday 15th December 2015) to take account of the 27 months the appellant had already spent in prison. Edwards J further suspended the unserved balance of both sentences for a period of two years following his release from prison upon the usual conditions that the appellant should enter into a bond to keep the peace and be of good behaviour, and to submit to supervision by the Probation Service, and to abide by their directions, during the said period of suspension.

Appeal allowed.

Judgment of the Court delivered on 18th December 2015 by Mr. Justice Edwards

Introduction:

1 In this case the appellant appeals against two sentences of five years imprisonment, imposed upon him at Dublin Circuit Criminal Court on the 30th of January 2014 to date from that date, in respect of offences of assault causing harm, contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997 (being count 3 on the indictment) and sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended (being count 4 on the indictment), respectively, both sentences to run concurrently.

2 The appellant had pleaded guilty to the said offences. He had also pleaded guilty to counts of harassment (count 6 on the indictment) and false imprisonment (count 8 on the indictment) and these were taken into consideration.

The facts of the case

3 The facts of the case were extensively described in evidence given at the sentence hearing by Garda Trevor Phelan. In succinct précis all four charges arose out of a succession of incidents that occurred during a personal relationship that existed between the appellant and the injured party from approximately December 2011 until early 2013. The appellant had been the injured party's personal fitness trainer at a gym that the injured party regularly attended, and it was in that context that a personal relationship between them developed. That relationship was sometimes romantic and intimate but was at other times stormy and fraught. During the latter times the appellant engaged in intimidating and controlling behaviour vis a vis his partner, characterised by his resorting from time to time to domestic violence, which on one occasion was accompanied by false imprisonment; and on another occasion by sexual assault; and, after the injured party had made clear that she wished to end the relationship, by harassing her by means of telephone calls, text messages and other forms of unwanted communication.

4 The main assault, which was the subject of the s.3 charge, occurred on the 12th of August 2012 and occurred in the context of the injured party being subjected to a prolonged ordeal, which included her being also falsely imprisoned, an aspect of the matter which was separately charged and the subject matter of one of the charges taken into account.

5 On the occasion in question, the appellant, in the course of an escalating argument with the injured party at the injured party's home where he was staying, sought to obstruct the injured party from leaving the house by grabbing hold of her car keys which she had just removed from her handbag, ripping them from her hands. He then pulled her handbag away from her and took out a glass perfume bottle from the bag which he smashed off the kitchen table. The appellant then pushed the injured party from a standing position backwards into a seat that was behind her. She tried to get up and he leaned over and pushed the chair backwards onto its two back legs. The injured party was scared that he would drop the chair backwards and that she would hit her head, so she tried to escape the chair. As she attempted to do so the appellant was shouting and hurling abuse and pointing his finger at her. With his index finger only an inch from her eyes he complained that she never listened to him and that he was only trying to love her, and he then queried why she would not let him.

6 At this point the appellant grabbed both sides of the injured party's hair gripping tightly with both of his hands. He pulled her head forward by the hair and then pushed her head backwards hard and fast and rammed her head off a cream gloss dresser. The injured party felt an immediate pain and got a headache instantly. She reached for the back of her head to see if it was bleeding, and the appellant stepped away and the chair then tilted forwards again resting back onto its four legs and she covered her face with her hands.

7 At this stage the injured party could not stop crying and the appellant then began shouting at her again. She attempted to get up from the chair and he pushed her back into it by grabbing both of her arms and applying pressure to them. He again tilted her chair backwards so that it was balancing on two legs and so that the back of the chair was touching a glass sliding door. The injured party banged her head off the glass trying to break free of him. However, the appellant was holding her wrists very tightly and she claims to have been in excruciating pain as he held her wrists.

8 The injured party then pushed her hands up to either side of her ears and she pleaded with him to stop because she was in a lot of pain. However the appellant would not stop and he kept holding her wrists at her ears so she that she was unable to get free. Eventually the injured party managed to push him off and she stood up and moved past him and went towards the front door.

9 The injured party opened the front door and went outside and walked quickly towards her next door neighbour. She contends that she was so scared she could not speak or cry out for help. When she got to her neighbour's door and was about to press the bell the appellant approached her from behind, put both his arms around her at elbow level, and lifted her off the ground. Then he turned her around and walked a few...