DPP v Malone

CourtCourt of Appeal (Ireland)
JudgeMs. Justice Donnelly
Judgment Date03 November 2022
Neutral Citation[2022] IECA 262
Docket NumberRecord No.: 37/CJA/22

In the Matter of Section 2 of the Criminal Justice Act 1993

The People (At the Suit of the Director of Public Prosecutions)
Keith Malone

[2022] IECA 262

Edwards J.

Kennedy J.

Donnelly J.

Record No.: 37/CJA/22


JUDGMENT of the Court delivered on this 3rd day of November, 2022 by Ms. Justice Donnelly.


Keith Malone (“the respondent”) took a knife from the kitchen drawer in the home of Ms. K., his then partner, and the mother of his infant child, and stabbed her four times, mainly to her back, as she tried to flee in panic. She spent 19 days in hospital recovering from her injuries which included a pneumothorax (a collapsed lung), a penetrating liver injury with a 2.5cm liver laceration and an undisplaced facture of the right posterior tenth rib. The respondent, who had a number of previous convictions, the most relevant of which were two convictions for assault and one conviction for possession of a knife, pleaded guilty to one count of assault causing harm contrary to Section 3 of the Non-Fatal Offences Against the Person Act, 1997, and one count of production of an article, contrary to Section 11 of the Firearms and Offensive Weapons Act, 1990.


The respondent was sentenced to 3 years imprisonment on each count to run concurrently, the final three months of which were suspended on conditions that he

  • a) enter a bond in the sum of €500,

  • b) keep the peace and be of good behaviour towards all the people of Ireland for a period of 12 months

  • c) remains under the supervision of the Probation Service for a period of 12 months, keep all the appointments, comply with all the probation officer's lawful directions and recommendations, co operate with any assessments or domestic violence programme or other therapeutic programme deemed suitable by the Probation Service, notify the Probation Service of any change in personal circumstances while under supervision including any change of address, employment or contact details,

  • d) to have no contact and to stay away from the victim

  • e) And to attend as recommended by the Probation Service the Men Ending Domestic Violence programme and to cooperate with any assessment for any therapeutic programme for which he is deemed suitable.


This is an undue leniency application against that sentence which is brought by the Director of Public Prosecutions (“the DPP”) pursuant to the provisions of s.2 of the Criminal Justice Act, 1993.

Background & Facts

On 6th January 2019, the respondent was staying with Ms. K in order to visit their one-year-old daughter. At some point in the day, the respondent went to a pub with some friends. Ms. K followed later in the day, and the respondent's friends left a short time after that. At that point, the respondent and Ms. K returned to her home, where an argument ensued in which the respondent was blaming the victim for various matters.


During the argument, the respondent said, “I could stab you. My mother knows I could stab you”. He ran to the kitchen and took a knife from the kitchen drawer. The victim, Ms. K, attempted to escape through the locked front door. The respondent stabbed her four times in the back and right arm above the elbow, resulting in serious injuries. The victim remembers thinking “I'm dead, I'm dead”. She saw him locking the door and noticed that he had a really angry look. She pleaded with him to stop. She believed when he saw the blood something clicked with him and he said to her “What are you after making me do to you?”. She tried not to panic as she didn't want him to panic. She said to him “Will we just get out and get an ambulance.”


It was accepted by the sentencing judge that, following the assault, the respondent brought the victim to a neighbour's house, placed her in an armchair, and asked for an ambulance to be called, repeating “I'm after stabbing her”. Neighbours gave evidence that the respondent was visibly intoxicated.


The respondent returned to the house to retrieve the child and some belongings before handing the one-year-old to a neighbour to be cared for. There was some dispute at the sentence hearing about whether he initially refused to hand the baby over. He was later arrested and cautioned by Gardaí. His response was to ask the arresting Garda “is she alright?”.


The respondent exercised his right to silence during his interview with the Gardaí. He pleaded guilty to the charge of assault before Drogheda Circuit Court on the 14th January, 2020. He pleaded guilty to the second charge, production of an article capable of causing harm, before Naas Circuit Court on the 19th January, 2022. Having relied upon his right to silence and not entering into signed pleas, he otherwise cooperated with Gardaí and the court process.

The Effect on the Victim

At the sentence hearing, the DPP read the statement of evidence of Ms. Jane Rothwell, Consultant Surgeon who outlined that Ms. K was treated in the Emergency Department of Naas General Hospital in relation to her injuries. She had already had a needle decompression of the right side of her chest performed at the scene by an advanced paramedic. In hospital, she had a chest drain inserted and was managed for pneumothorax. She was admitted as a surgical patient and treated surgically for 19 days in the hospital. It was nine days later before her right lung had almost fully expanded.


The victim gave evidence of the effect of the incident upon her. She recalled being terrified and was sure she would be killed. She remembers lying on the couch in a neighbour's house having difficulty breathing and thinking that she was going to die and never see her children again. She told herself she couldn't die saying to herself “You can't leave your babies”. She described the procedures in hospital saying at times the pain was unbearable. She was scared that the respondent would come for her and had to be given medication to help her sleep.


Getting out of hospital was the beginning of her nightmare as she was afraid to leave her house in case the respondent would come for her. She has huge fear and anxiety. She has had counselling and has spent hundreds going to see specialists to help her with the trauma. Her other children, aged 18 and 15, were also affected by this. She was told many times she was lucky to be alive as “one more inch” would have killed her. She said her life and the lives of her children had changed forever.

The Sentencing Remarks

In the course of her sentencing remarks on the 19th January, 2022, the sentencing judge outlined the facts as set out above. When considering the aggravating factors, the sentencing judge highlighted the severity and viciousness of the assault, the serious injuries suffered by the victim, the high level breach of trust on the part of the respondent, the level of intoxication on the part of the respondent on the evening of the assault, the use of a weapon which inflicts greater injury, the significant impact physically and mentally on the victim (including her ability to have trusting relationships, to move on with any work, and to not be fearful), and finally, the previous offences and convictions of the respondent, including a historic assault conviction.


The maximum sentence of imprisonment that might be imposed on each count is set by statute as one of five years. Having considered the aggravating factors in the case, the sentencing judge placed the headline sentence as one of five years (60 months) in relation to each offence, though to run concurrently. She then turned to the mitigating factors.


As mitigating factors, the sentencing judge took into consideration the lack of premeditation, the respondent's behaviour immediately following the assault, the fact that he didn't abscond and took care of his child, the fact that he abided by all bail conditions between his arrest and the sentencing hearing, his ongoing cooperation with Probation Service, and repeated clear urinalysis tests. She took into account that he was remorseful and that he had pleaded guilty.


In applying the mitigation to the offence, the sentencing judge said that she was obliged to reduce the period of imprisonment and that the appropriate reduction was one of 20 months which brought that down to a period of 40 months which was three years and four months. The judge then said that taking into account the early plea she would reduce it to three years. She then said that she was obliged to look into the possibility of being rehabilitated fully as she noted the stated intention to cooperate with the Probation Service. She said it was appropriate to suspend the final three months, saying “I think that to suspend any more than that would be disproportionate in all the circumstances”.


It is of some benefit to quote directly from the sentencing remarks as it sets the context for this application. The sentencing judge stated:

“It seems to me that without doubt I have to place this offending at the highest end of the higher range. That means that it's deserving of a sentence of imprisonment prior to mitigation of a period of five years, which would be 60 months' imprisonment. I have to bear in mind that in accordance with the jurisprudence of the Court, an early plea and a plea during covid is deserving of a certain level of mitigation, as indeed are the other factors that I've mentioned. So, in that regard, taking all of the factors into account, it seems to me therefore that I should and that I'm obliged to really reduce the period of imprisonment to a period of – by a period of 20 months, which would bring it down to a period of 40 months, which is three years and three months' imprisonment. So, I think taking all of the mitigating –

COUNSEL FOR THE DPP: Three years and four months.

JUDGE: Three years and four months. But taking all of the mitigating factors into account, including...

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1 cases
  • Director of Public Prosecutions v Doyle
    • Ireland
    • Court of Appeal (Ireland)
    • 4 July 2023
    ...for the limited mitigation, affording a reduction of one third from the headline sentence. Reliance was placed on People (DPP) v Malone [2022] IECA 262 where there was no significant mitigation other than a guilty plea. It was noted that the Court in that case varied the sentence so as to g......

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