DPP v Maguire

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 08 March 2018
• Neutral Citation: [2018] IECA 71
• Docket Number: Record No. 198CJA/2017
• Court: Court of Appeal (Ireland)
• Date: 08 March 2018

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

- AND -

ROBERT MAGUIRE

RESPONDENT

[2018] IECA 71

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Record No. 198CJA/2017

THE COURT OF APPEAL

Sentencing – Assault causing harm – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Maguire, pleaded guilty and was convicted on the 12th January 2017 at the Central Criminal Court of two counts, namely assault causing harm contrary to s. 3 of the Non Fatal Offences Against The Person Act 1997, and false imprisonment contrary to s. 15 of the 1997 Act. On the 6th July 2017 the respondent was sentenced to concurrent sentences of four years imprisonment with the final two years of each suspended for a period of two years on conditions. The appellant, the DPP, applied to the Court of Appeal seeking a review of the sentences on the ground that they were unduly lenient pursuant to s. 2 of the Criminal Justice Act 1993. The grounds on which the application was brought were: (i) the erroneous finding by the sentencing judge that the assault was the main offence and the false imprisonment was ancillary to that offence; (ii) the failure to identify the headline sentence for the false imprisonment and effectively placing it at the lower end of the scale of such offences; (iii) giving excessive weight to the mitigating factors in respect of both the assault and the false imprisonment; (iv) understating the aggravating factors in respect of both the assault and false imprisonment; (v) suspending the final two years of the sentence imposed; and (vi) failing to give sufficient weight to the impact on the injured party and her children.

Held by the Court that the decision to suspend half of each of the two year prison terms was an error. The Court held that the mitigating factors did not justify a reduction of 50% in the custodial element of the sentences. The Court was satisfied that the net custodial sentence of two years represented unduly lenient sentences. The Court held that it was necessary to re-sentence the respondent.

The Court held that the appropriate sentences should be of concurrent four year terms of imprisonment subject only to the final eight or nine months of those sentences being suspended. However, and in line with its common practice in s. 2 applications where the Court deems it necessary to increase a sentence with the consequence that a respondent must belatedly face a lengthier period in custody than was the case previously, and also, having regard to the impressive evidence from the respondent as to how positively he had used his time in prison, it would extend that suspended period to twelve months. The Court therefore imposed concurrent four year sentences with the final twelve months of each being suspended for a period of three years on similar terms to those directed in the court below.

Appeal allowed.

JUDGMENT ( ex tempore) of the Court delivered on the 8th day of March 2018 by Mr. Justice Mahon

1 The respondent pleaded guilty and was convicted on the 12th January 2017 at the Central Criminal Court of two counts, namely assault causing harm contrary to s. 3 of the Non Fatal Offences Against The Person 1997 Act, and false imprisonment contrary to s. 15 of the Non Fatal Offences Against The Person 1997 Act. On the 6th July 2017 the respondent was sentenced to concurrent sentences of four years imprisonment with the final two years of each suspended for a period of two years on conditions.

2 The appellant seeks a review of the sentences on the ground that they were unduly lenient pursuant to s. 2 of the Criminal Justice Act 1993, which provides as follows:-

2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the ‘sentencing court’) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person within 28 days from the day on which the sentence was imposed.

(3) On such an application, the Court may either:-

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.’

3 The victim of the assault was approximately thirty years old when the offences were committed on the 14th / 15th January 2012. She was the mother of four children of whom the respondent was the father of two. She and the respondent had been in an on / off, and often troublesome, relationship between September 2002 and shortly before Christmas 2011. On the evening in question the injured party put the children to bed and shortly afterwards went to bed herself and fell asleep. She woke up to find the respondent in her bedroom shouting at her and hitting her in the face and spitting at her. He grabbed her by the throat and pushed her down on the bed and kicked her. The two older children, aged eight and nine, were outside the bedroom door screaming. The respondent had locked the door. A baby in a cot in the bedroom awoke and started to cry and the respondent prevented the injured party from comforting the child. The respondent pulled the injured party by her hair and threatened to kill her. He left the room and locked it behind himself. The respondent then returned to the bedroom, again locking the door, and grabbed the injured party by the neck and pushing her down on the bed where he continued to kick her. She fell unconscious.

4 A neighbour heard the screaming from the house and the gardaí were called. The injured party was taken to Tallaght hospital for treatment. She was later referred to the Sexual Assault Treatment Unit in the Rotunda hospital. She was hospitalised at a later date in relation to her injuries.

5 The respondent was twenty nine years old at the time of the offences. He had thirteen previous convictions, including one for theft. The remaining convictions related to road traffic matters.

6 The injured party was severely traumatised as a result of her treatment at the hands of the respondent. In her victim impact statement she said, inter alia:-

‘This had had a detrimental affect on my son who was nine years old at the time and witnessed everything that happened that night. It is something he still carries with him today and he is a very angry and aggressive young boy as a result. He refuses to go to...