DPP v Prendergast

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 08 December 2015
• Neutral Citation: [2015] IECA 318
• Docket Number: 242/15
• Court: Court of Appeal (Ireland)
• Date: 08 December 2015

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Michael Prendergast

Appellant

[2015] IECA 318

242/15

THE COURT OF APPEAL

Sentencing — Assault causing harm — Mitigation — Appellant seeking to appeal against sentence — Whether trial judge failed to give appropriate weight to the mitigating factors in the case

Facts: The appellant, Mr Prendergast, at Castlebar Circuit Court on the 16th October, 2015, pleaded guilty to assault causing harm to Mr Clarke on the 14th September, 2013 in the course of a sporting event and was sentenced to two years imprisonment with the final twelve months of that sentence suspended on the usual terms. He then appealed to the Court of Appeal against the said sentence. In the first instance he contended that the trial judge incorrectly located the offending behaviour at the higher end of the scale of penalties available. Secondly, he contended that the trial judge failed to give appropriate weight to the mitigating factors in the case and thirdly, he contended that the trial judge erred in holding that the offence was so serious that it required the imposition of an immediate prison sentence. The respondent, the DPP, submitted that the Court of Appeal should proceed on the basis of an account given by the referee.

Held by Sheehan J that the respondent’s submission that the Court should proceed on the basis of the account given by the referee was a correct statement of the law. Sheehan J held that the trial judge proceeded on the version of events given by the injured party; this appeared to be the case when he stated in the course of his sentencing remarks that “what happened on the pitch that day was no different in principle to a street assault at night”. Sheehan J held that this amounted to an error in principle, but that no fault attaches to the sentencing judge in this regard. It seemed to the Court that on the run of the case, he took the view that he was obliged to take the victim’s account as the basis for sentencing; unfortunately it was not made clear to him that he ought to have sentenced the appellant on the basis of the referee’s report providing the proper context of the assault in this case. Sheehan J proposed to proceed to a fresh sentence hearing.

Sheehan J held that the injuries in the case were so serious that a prison sentence with all the ancillary disadvantages that this entails was warranted. However, the Court took the view that the fact of imprisonment was more important than the duration of same. Sheehan J noted the extensive mitigating factors advanced on behalf of the appellant, and noted that he had paid some compensation to the injured party. The Court noted the contents of the probation report which stated that the appellant was someone who was unlikely to reoffend. Sheehan J also noted the impressive character references which had been submitted to the Court on the appellant’s behalf. The Court proposed to quash the original sentence and to substitute in its place a sentence of twelve months imprisonment, backdated to the 16th October, 2015. The Court suspended the balance of that sentence on condition that the appellant agrees to undertake community service for a period of 100 hours.

Appeal allowed.

Judgment of the Court (ex tempore) delivered on the 8th day of December 2015 by Mr. Justice Sheehan

Mr. Justice Sheehan

1 At Castlebar Circuit Court on the 16th October, 2015, the appellant Michael Prendergast pleaded guilty to assault causing harm to Jonathan Clarke on the 14th September, 2013 and was sentenced to two years imprisonment with the final twelve months of that sentence suspended on the usual terms.

2 He now appeals against the said sentence and contends that the learned trial judge erred in principle under three separate headings when imposing sentence.

3 In the first instance he contends that the trial judge incorrectly located the offending behaviour at the higher end of the scale of penalties available. Secondly, he contends that the trial judge failed to give appropriate weight to the mitigating factors in the case and thirdly, he contends that the trial judge erred in holding that the offence was so serious that it required the imposition of an immediate prison sentence.

4 In order to consider these grounds of...