DPP v Mubango
| Jurisdiction | Ireland |
| Judge | Mr Justice McCarthy |
| Judgment Date | 30 June 2022 |
| Neutral Citation | [2022] IECA 199 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 189/2019 |
[2022] IECA 199
President
McCarthy J
Kennedy J
Court of Appeal Record No. 189/2019
THE COURT OF APPEAL
Sentencing – Assault causing serious harm– Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Mubango, pleaded guilty to two counts; one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and another count of assault causing serious harm contrary to s. 4 of the 1997 Act. On the 15th of July 2019, the Dublin Circuit Criminal Court imposed a sentence of ten years’ imprisonment with the final 18 months suspended in respect of the count of assault causing serious harm and further, a concurrent sentence of three years’ imprisonment was imposed on the count of assault causing harm. Both sentences were backdated to the 17th of May 2018 when the appellant first entered custody. The appellant appealed to the Court of Appeal against the severity of the sentence imposed in respect of the count of assault causing serious harm. The grounds of appeal advanced by counsel for the appellant were as follows: (i) the judge attached insufficient weight to the plea of guilty entered by the appellant where she made a finding that the said plea was made in early course as a result of the late service of additional evidence by the respondent, the Director of Public Prosecutions; (ii) the judge gave disproportionate weight to the victim impact evidence tendered by the respondent; (iii) the judge fixed a headlines sentence of 12.5 years which was excessive in all the circumstances of the case; (iv) the judge gave insufficient regard to the fact that the injuries sustained by the injured parties were inflicted as a result of the recklessness on the part of the appellant as opposed to the intentional infliction of harm or serious harm; and (v) the judge placed insufficient regards to the matters advanced in mitigation.
Held by the Court that all relevant mitigating and aggravating factors were considered by the Circuit Judge when sentencing. The Court noted that in substance the effective sentence imposed provided for eight and a half years in custody, representing a very substantial discount from the headline sentence; this was in circumstances where the mitigating factors were modest. The Court did not think that the headline sentence identified was excessive or represented an error of principle. The Court held that the judge engaged with all relevant matters and the principles of sentencing were properly applied. The Court thought that the identification of the headline sentence was within the judge’s margin of discretion. Furthermore, the Court thought that more than ample credit was afforded for the mitigating factors given the gravity of the crime. The Court held that the appellant could not have legitimately expected a lesser custodial sentence. The Court emphasised the importance of general deterrence of offences involving the use of knives and found that the headline sentence clearly took that into consideration.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT ( ex tempore) of the Court delivered on the 30th day of June 2022 by Mr Justice McCarthy
This is an appeal against the severity of sentence imposed in the Dublin Circuit Criminal Court by Her Honour Judge Codd on the 15th of July 2019 on Bill No: DUDP990/2018. Lawrence Mubango, the appellant herein, pleaded guilty to two counts; one count of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997 and another count of assault causing serious harm contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997. The judge imposed a sentence of ten years' imprisonment with the final 18 months suspended in respect of the count of assault causing serious harm and further, a concurrent sentence of three years' imprisonment was imposed on the count of assault causing harm. Both sentences were backdated to the 17th of May 2018 when the appellant first entered custody. The appellant now appeals only against the sentence imposed in respect of the sentence on the count of assault causing serious harm.
We will now briefly outline the facts of the matter. The appellant was aged 29 years old at the time of the offences committed herein. The offences occurred on the 17th of May 2018 at 11 Parknoe House, Tyrone Court, Inchicore, Co. Dublin. There were two victims Messers. Ncube and Ndluli (who was also known by a nickname of “ Click”). The three men came into contact having met in the city centre in the afternoon of the 16th of May 2018. The three men stayed in town to socialise and were later drinking and smoking cannabis at Wolfe Tone Park.
At approximately midnight the three returned to the apartment of the appellant's then girlfriend, Ms Conroy, at 11 Parknoe House. Ms Conroy was at home at the time in bed with her young son. The appellant asked whether or not the two “ lads”, as she described them, could stay, and Ms Conroy was amenable to this request. Ms Conroy then went to sleep in circumstances where she had to be up for work the next day and the three men went to the kitchen where they shut the door and proceeded to continue drinking, having ordered a bottle of vodka. Controlled drugs were used by the respective men including the appellant.
As events proceeded into the early hours, Ms Conroy was disturbed by a knock on her bedroom door. She was awoken by Mr Ndluli who entered her room and asked if she had a cigarette. Ms Conroy was annoyed by this thoughtless request and ultimately, he apologised for disturbing her and left. Shortly after, Ms Conroy went into the sitting room, where the men now were, and she told them to be quiet or they would have to leave. She then returned to her bedroom and went back to sleep.
Later, Ms Conroy was again awoken by the appellant who asked her if Mr Ndluli had tried to sleep with her. She responded sharply and observed the appellant “ sitting on the left side of the bed with his hands on his head”, following on from which he left the bedroom, slamming the door. Ms Conroy followed him and told him not to slam the door and he apologised.
Following this exchange, the appellant became extremely agitated and accused Mr Ndluli of having tried to sleep with his girlfriend. Mr Ndluli denied this. In the next stage of the sequence of events, shortly before 6am, the appellant hit Mr Ndluli and Mr Ncube sought after Ms Conroy's assistance by knocking on her bedroom door, following which the appellant proceeded to hit him as well. Mr Ncube and the appellant shouted at each other, as Mr Ncube was angry at what had been done. At around this time, Mr Ncube picked up a knife in the kitchen and the appellant went out onto the balcony, broke a glass candleholder, and threatened to throw himself from the apartment's third floor balcony. Ms Conroy prevailed on the appellant to come back inside where he then continued his argument with Mr Ncube.
Mr Ndluli disarmed Mr Ncube at Ms Conroy's request. Then, Mr Ndluli and Ms Conroy ejected the appellant and Mr Ncube from the apartment, where Mr Ndluli followed. Ms Conroy then closed the front door to the apartment, leaving the three men outside in the corridor. Shortly after that, the appellant broke through the door of Ms Conroy's apartment, going to the kitchen and picking up a red knife. Mr Ncube followed him and picked up a smaller knife. Mr Ndluli intervened and managed to get Mr Ncube to leave the apartment with him. As both were in the corridor outside the apartment, the appellant followed them out and disarmed Mr Ncube. Then the appellant, wielding a knife in each hand, stabbed Mr Ndluli once in the side of the chest. This was the subject of the assault causing harm count on the indictment.
Having been stabbed, Mr Ndluli told the appellant to stop. He and Mr Ncube moved back towards the front door of Ms Conroy's apartment at which point the appellant proceeded to attack Mr Ncube. This attack forms the subject of the assault causing serious harm count on the indictment. Mr. Ncube fell to the floor and the appellant stood over him and continued to attack him as Ms Conroy tried to pull the appellant away, shouting at him to stop.
After the appellant finished this attack, Mr Ncube tried to crawl away from the appellant and towards the lift area of the hallway. Ms Conroy took her child and fled to a neighbour's apartment who had become aware of the altercation outside. Mr Ndluli tried to assist Mr Ncube and asked the appellant to call an ambulance wherewith the appellant responded by telling them both to “ fuck off”. He then poured a bottle of 7-up over both Mr Ndluli and Mr Ncube and walked away.
Gardaí were called, arriving shortly thereafter. They found Mr Ndluli cradling Mr Ncube and found Mr Ncube to have been “ eviscerated with his intestines protruding from his stomach”. Ambulance paramedics then arrived, and Mr Ncube was removed to St. James's Hospital by ambulance. Mr Ndluli made his own way to the hospital thereafter.
The appellant was later apprehended at the nearby Blackhorse Luas stop. The appellant told Gardaí at the scene that he was sorry and that he had stabbed two people. He was then arrested and cautioned, following which he said:-
“ They were supposed to [be] (sic) my guests, the two of them. We had drugs. They overpowered me. I should have called you guys. The fight was over my girlfriend. I had the knife in my hand. I stabbed the two people”; and further added “it was self-defence, but I took it too far.”
The appellant was then conveyed to Kilmainham Garda...
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