DPP v McAuley

JudgeMr. Justice Mahon
Judgment Date12 December 2017
Neutral Citation[2017] IECA 325
Docket NumberRecord No. 13CJA/2017
CourtCourt of Appeal (Ireland)
Date12 December 2017


- AND -

[2017] IECA 325

Record No. 13CJA/2017


Crime & sentencing – Offences against the person– Assault – Application for review of sentence

Facts: The respondent had been convicted of an offence of assault, and sentenced to community service in lieu of a term of imprisonment. The appellant applied for a review of that sentence under s 2 of the Criminal Justice Act 1993, contending the sentence was unduly lenient

Held by the Court that the appeal would be allowed. The nature of the assault, in so far as it related to an attack on the Garda trying to assist the respondent’s daughter, required the imposition of a custodial sentence. On that basis, the sentence would be varied.

JUDGMENT (ex tempore) of the Court delivered on the 12th day of December 2017 by Mr. Justice Mahon

This is an application by the appellant pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of a sentence imposed at Dublin Circuit Criminal Court on the 19th December 2016 in respect of an offence of assault contrary to s. 3 of the Non Fatal Against the Person Act 1997. The sentence was one of two hundred hours Community Service in lieu of a term of three years imprisonment.


Section 2 of the Criminal Justice 1993 provides as follows:-

(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:-

(b) 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

(c) refuse the application.


On the 19th February Garda Sheng and Garda Moore called to an address at Kilbarrack, Dublin 5 following a telephone call seeking assistance from the appellant's ten year old daughter. The respondent opened the door, appeared to be intoxicated, and became very aggressive when he saw the gardaí. He slammed the door. The door was then opened by his partner, Martina Masterson, who was holding her young infant son in her arms and was accompanied also by a ten year old girl. All appeared distressed. Ms. Masterson invited the two gardaí into her sitting room. The respondent came into the room and shouted at the gardaí to leave. He became increasing aggressive, both shouting at the gardaí and at Ms. Masterson. Ms. Masterson then went upstairs with her young child. The gardaí followed her upstairs to speak with her. The respondent than pursued the gardaí upstairs repeatedly shouting at them, and telling them to leave. He pushed and punched Garda Sheng in the face causing him to fall down the stairs whereupon he was rendered unconscious. The respondent proceeded to throw a mirror and a picture and a bag of clothes down the stairs, landing on Garda Sheng. Garda Power was required to deploy his OC spray on two occasions in order to subdue the respondent. Assistance from other gardaí arrived and the respondent was arrested. He was taken to the garda station but was unable to be interviewed for some time because of his level of intoxication.


At the time of the offence the respondent and Ms. Masterson had separated and he occasionally visited her home to spend them with his children. On the occasion in question he turned up at her home having earlier attended the funeral of the father of a close friend and was in an intoxicated state.


The respondent has fourteen previous convictions between 1991 and 2008. All but two were District Court convictions. None are for crimes of violent. One was a serious drugs conviction in respect of which he served a lengthy prison sentence.

Grounds of Appeal

The grounds of appeal are as follows:-

(i) The learned sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances, being a sentence of two hundred hours Community Service in lieu of a term of three years imprisonment;

(ii) the learned sentencing judge erred in principle in failing to take adequate account of the evidence adduced that the offence was grave in nature;

(iii) the learned sentencing judge failed to determine where the offence fall on the scale of offending to reflect the nature of the offence and the aggravating factors before applying mitigation;

(iv) the learned sentencing judge erred in failing to attach any or any appropriate weight to the aggravating factors in the case. In particular the learned sentencing judge failed to have any or any appropriate regard to the following factors;

(a) the fact that the assault was perpetrated on a member of An Garda Síochána carrying out his duties by attending at the scene of a domestic dispute and attempting to de-escalate the situation to prevent citizens from harm including a female and a young child;

(b) the fact that the attack on a member of An Garda Síochána...

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1 cases
  • DPP v Connor
    • Ireland
    • Court of Appeal (Ireland)
    • 28 September 2020
    ...authorities; The People (DPP) v Matthew Kelly [2019] IECA 11, The People (DPP) v Andrew Crilly [2019] IECA 143, DPP v Gregory McAuley [2017] IECA 325; and The People (DPP) v Shane Tobin [2020] IECA 22 The DPP also submits that sentencing judge failed to incorporate any element of general de......

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