DPP v Maxwell

• Jurisdiction: Ireland
• Judge: Mr. Justice McGovern
• Judgment Date: 11 March 2020
• Neutral Citation: [2020] IECA 62
• Court: Court of Appeal (Ireland)
• Docket Number: 174CJA/2019
• Date: 11 March 2020

NOTICE OF APPLICATION FOR REVIEW OF SENTENCE [SECTION 2 CRIMINAL JUSTICE ACT 1993]

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

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

- AND –

ROBERT MAXWELL

RESPONDENT

[2020] IECA 62

Edwards J.

McGovern J.

Kennedy J.

174CJA/2019

THE COURT OF APPEAL

CRIMINAL

Sentencing – Endangerment – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Maxwell, pleaded guilty to a count of endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997. At Tipperary Circuit Criminal Court on 28 June, 2019, he was sentenced to a term of four years’ imprisonment in relation to the endangerment charge and the sentence was suspended in full for a period of eight years. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal for a review of the sentence imposed on the respondent on the ground of undue leniency. It was the contention of the applicant that the suspension of the sentence in its entirety brought it into the category of undue leniency.

Held by the Court that the decision of the sentencing judge to entirely suspend the prison sentence amounted to an error in principle and could not be justified on all the facts. The Court held that the sentence would be quashed.

The Court held that an appropriate headline sentence for this offence was five and a half years which, on account of the guilty plea and other mitigating factors, would be reduced to four years. Having taken into account all the mitigating factors and the inevitable disappointment in having to serve a custodial sentence at this stage the Court held that it would suspend the final two years of the four-year sentence for a period of two years.

Appeal allowed.

JUDGMENT of the Court delivered on the 11th day of March 2020 by Mr. Justice McGovern

1 This is an application brought by the Director of Public Prosecutions for the review of a sentence imposed on the respondent at Tipperary Circuit Criminal Court on 28 June, 2019 on the ground of undue leniency.

2 The respondent pleaded guilty to a count of endangerment contrary to s.13 of the Non-Fatal Offences Against the Person Act 1997. The particulars of Count 2 on the Indictment to which the respondent pleaded guilty states: -

“That you did, on 6 August 2017, in the County of Tipperary intentionally or recklessly engage in conduct to wit drive motor vehicle 04 CW 1925 at Simon Ryan knocking him to the ground and driving over him and then turning the vehicle and driving at Simon Ryan a second time, which said acts created a substantial risk of death or serious harm to another.”

3 In addition, four public order charges which arose at the same location a short time later were taken into consideration. These concerned the conduct of the respondent when the Gardai returned to the scene about one hour later.

4 The legal principles applicable in applications of this nature have been well settled since DPP v. Byrne [1995] 1 I.L.R.M. 279 and the People (DPP) v. Stronge [2011] IECCA 79. The onus of proving undue leniency rests on the DPP, and the sentence in issue must amount to a substantial or gross departure from what would be regarded as the norm in cases of a similar nature.

5 In this case, the respondent was sentenced to a term of four years' imprisonment in relation to the endangerment charge and the sentence was suspended in full for a period of eight years.

6 In reviewing the sentence for the purpose of this application, it is necessary to briefly look at the background facts and then to the approach taken by the sentencing judge having regard to the general nature of the offence and the background circumstances of the respondent. It is important to note that counsel for the DPP informed the Court that he does not quarrel with the sentence of four years nominated by the sentencing judge but rather with the suspension of the entirety of the sentence.

7 The offence occurred during the night between August 6, 2017 and August 7, 2017 at Yewstown Estate, Nenagh, County Tipperary. Sergeant Michelle Casey outlined the facts to the judge saying that she attended the scene where a number of people were assisting the injured party, Mr. Simon Ryan, who had been struck by a vehicle driven by the respondent into a group of people. The injured party was struck and run over by a van driven by the respondent and there were various accounts from witnesses suggesting that the respondent had then reversed the van over the injured party as he lay on the ground or was attempting to do so when bystanders dragged the injured party away from the van. The particulars in Count 2 of the Indictment speak of the injured party being knocked to the ground and the van driving over him and the vehicle then being driven at the injured party a second time. Whether the van, in fact, reversed over the injured party having previously driven over him does not materially alter the seriousness of the event as described by a number of witnesses and outlined to the sentencing judge.

8 The injured party thought he was going to be killed in the incident and he has suffered serious physical injuries which included: -

(a) a laceration to the right side of the upper lip;

(b) a fracture of the third rib;

(c) a fracture of the left...