DPP v M.R
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 29 July 2022 |
| Neutral Citation | [2022] IECA 192 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 209/2020 |
In the Matter of an Application Pursuant to Section 2 of the Criminal Justice Act, 1993
[2022] IECA 192
Edwards J.
Kennedy J.
Ní Raifeartaigh J.
Record No: 209/2020
THE COURT OF APPEAL
Sentencing – Assault – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent was sentenced to various punishments on the 7th of October 2020 by Tipperary Circuit Criminal Court, in respect of the offences charged on two bills of indictment, namely Bill No. TNDP0013/2020 (13/20) and Bill No. TNDP11/2020 (11/20), respectively. The respondent had pleaded guilty to all of the offences on both bills. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the sentences imposed upon the respondent in respect of Bill No. 11/20 only, on the grounds that the sentences imposed in that matter were unduly lenient. Although the notice of application sought a review of all of the sentences imposed for offences charged on Bill No. 11/2020, the main focus of the applicant’s complaints, both in written and oral submissions, had been in respect of the sentence imposed for the Non-Fatal Offences Against the Person Act 1997 s. 3 assault on Mr Coman, that being the most serious of those offences. The applicant maintained that the sentences ultimately imposed, and in particular that for the offence involving Mr Coman, were outside the norm and represented a substantial departure from what could be considered appropriate sentences, or an appropriate sentencing package reflecting the totality of the respondent’s offending behaviour and were unduly lenient in the circumstances.
Held by the Court that the sentencing judge was best placed, having received the evidence first hand, to assess the extent to which the respondent’s actual culpability was reduced because of his mental state. The sentencing judge took into account that the respondent represented a high risk in terms of possible re-offending, having regard to his previous record, his homelessness, substance misuse, mental health issues and lack of family supports, but also took into account that the assaults were unpremeditated and that at the time he was suffering from psychosis and had been drinking. On the basis that he would otherwise have been entitled to start at 5 years’ imprisonment, but in fact started at 3 ½ years’ imprisonment, the Court deduced that he regarded the respondent’s culpability as being reduced by 30%. The Court thought that this was an appropriate reduction on the evidence that was before him and it did not accept the submission of the applicant that this represented an excessive level of discounting for culpability, given the severity of the respondent’s mental illness. The Court therefore found no error of principle with respect to the assessment of culpability. As regards the level of discounting for mitigation not bearing on culpability, the sentencing judge suspended 1½ years of the 3 ½ year headline sentence that he had determined upon; this amounted to a discount of just under 43% from the headline sentence. It was perhaps at the generous end of what he could have allowed, but the Court was satisfied that it was within his margin of appreciation in this exceptional case; although, if he had been so minded, less discount might have been afforded than was afforded, he would not have been able to deprive the respondent of the minimum level of mitigation to which he was entitled. The Court held that any discretion in that regard would have been confined to what might legitimately have been withheld within his margin of appreciation.
The Court was not persuaded that the sentence imposed by the Circuit Court judge at first instance was unduly lenient. The Court refused the application.
Appeal dismissed.
JUDGMENT of the Court delivered on 29th July, 2022 by Mr Justice Edwards.
The respondent was sentenced to various punishments on the 7th of October 2020 by Tipperary Circuit Criminal Court, in respect of the offences charged on two bills of indictment, namely Bill No. TNDP0013/2020 (“13/20”) and Bill No. TNDP11/2020 (“11/20”), respectively. The respondent had pleaded guilty to all of the offences on both bills. This is an application by the Director of Public Prosecutions seeking a review of the sentences imposed upon the respondent in respect of Bill No. 11/20 only, on the grounds that the sentences imposed in that matter were unduly lenient.
It requires to be stated at the outset that the respondent is a person with a long history of mental health issues. He has a long-standing diagnosis of paranoid schizophrenia, alcohol dependence and antisocial personality disorder. He has been under the care of psychiatric services for many years, mostly while in the community, but also from time to time in hospital acute psychiatric units and during periods in prison.
Because the appellant received sentences for offences on two separate bills of indictment during the same hearing, it is necessary to review the circumstances of both cases in order to provide a full context for the application which we are asked to consider.
Bill No 13/20 charged a single offence of arson contrary to section 2 (1) and (4) of the Criminal Damage Act 1991 in respect of which the following evidence was heard by the sentencing court.
Evidence on behalf of the prosecution at the sentencing hearing was given by Sgt Tommy Hanrahan. He testified that on the 6th of May 2019 gardaí had received a report of a house fire at No 1, Croagh Garden, Croagh Street, Thurles, Co Tipperary, an address described as being in the centre of the town, or the vicinity of the centre of the town. Garda Padraig Walshe had arrived on the scene and met the respondent outside the house. There was smoke coming from the house. The Fire Brigade were contacted and attended at the scene and the situation was brought under control. While the Fire Brigade were attending to the emergency Garda Walshe spoke with the respondent in an effort to ascertain what had happened. The respondent informed him that he was the resident of the house. He then proceeded to tell Garda Walshe that he had set fire to the curtains after a priest had put words in his head. He said that the priest had taken the code for his sperm and he wanted to go and see the devil.
The property was damaged both by the fire and by the process of extinguishing the fire. The ultimate landlord was a Ms Cantwell who had rented the apartment to Tipperary County Council. That local authority had then made the house available to the respondent as an individual who, because of mental health and other difficulties, had been homeless on and off for some time. We understand that this was done through the agency of an organisation called “NOVAS”, an Outreach Support Service for homeless persons in Thurles.
As to the extent of the damage caused, gardaí had been informed that approximately €16,000 worth of damage had been caused to the property by the fire, including its furniture, furnishings and fittings. Sgt Hanrahan was unable to state the position with respect to insurance. Further, no vouching documentation was furnished to the court in respect of the asserted level of damage. However, Sgt Hanrahan stated that an estimate for repairs and renovation works had been provided (it was not specified by whom) which covered “replacing toilets, washbasins, shower screens, electric showers.” Also, “replacing of fitted kitchen, replacing all flooring, replacing front and back doors.”
Under cross examination it was accepted by Sgt Hanrahan that Garda Walshe had made a statement in which he had described the damage observed by him in these terms:
“I saw a wooden armchair which appeared to have suffered fire damage on its main cushion. I also observed that the curtain in the kitchen area of the property appeared to have suffered fire damage. And that the kitchen area appeared to have suffered some smoke damage as the walls were blackened in areas with sought (sic).”
While it was accepted by counsel for the respondent at the sentencing hearing that the damage observed by Garda Walshe had been caused, and that there would also have been water damage to the property, it was not accepted that damage at the level indicated by Sgt Hanrahan had occurred. Notwithstanding that the extent of the asserted damage was being disputed, counsel for the DPP did not request the sentencing judge either to conduct a Newton hearing, or to adjourn the matter to enable the State to adduce further and better evidence of the damage caused. Further, although the landlord had been apprised of her entitlement to give victim impact evidence, alternatively to provide a victim impact statement, she had not availed of this.
The respondent was not arrested at the scene following his admissions to setting the fire. On the contrary, a power of detention available to gardaí under the Mental Health Act 2001 (“the Act of 2001”) was invoked. Specific details were not given in evidence but, in circumstances where it is not in any sense controversial that this occurred, we infer that the power in question was that under s.12 of the Act of 2001 which provides:
“12.(1) Where a member of the Garda Síochána has reasonable grounds for believing that a person is suffering from a mental disorder and that because of the mental disorder there is a serious likelihood of the person causing immediate and serious harm to himself or herself or to other persons, the member may either alone or with any other members of the Garda Síochána—
(a) take the person into custody, and
(b) enter if need be by force any dwelling or other premises or any place if he or she has reasonable grounds for believing that the...
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