DPP v Schaufler
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 06 November 2020 |
| Neutral Citation | [2020] IECA 299 |
| Docket Number | Record No.: 04/2019 |
| Court | Court of Appeal (Ireland) |
| Date | 06 November 2020 |
[2020] IECA 299
Birmingham P.
McCarthy J.
Donnelly J.
Record No.: 04/2019
THE COURT OF APPEAL
Sentencing – Causing serious harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant pleaded guilty to a number of offences arising out of a single but ongoing incident that occurred on the 20th June, 2018 and into the 21st June, 2018, in the property he had rented from the victim of those offences. He was sentenced as follows: (a) in relation to Count 1, causing serious harm, fifteen years imprisonment with the final six years suspended; (b) in relation to Count 2, false imprisonment, fifteen years imprisonment with the final six years suspended; (c) in relation to Count 3, robbery, seven years imprisonment; (d) in relation to Count 5, unauthorised taking of a vehicle, two and a half years imprisonment. All sentences were to run concurrently. The sentences were backdated to the date of the arrest of the appellant; the 26th June, 2018. The appellant appealed to the Court of Appeal against sentence. The appellant lodged a number of grounds of appeal but in written submissions the main thrust of the grounds were that the headline sentence was unduly severe and excessive. The appellant in related submissions argued that undue emphasis was placed on the aggravating factors in the matter and that the sentencing judge failed to have sufficient regard to the mitigating factors. It was also submitted that the sentencing judge failed to pay any due regard to the penal objective of rehabilitation and the appellant queried the methodology of the sentencing judge.
Held by the Court that, in the circumstances present in this case, the sentence imposed was not excessive and was not unduly severe. The Court held that an effective sentence of 9 years imprisonment in respect of the offence under s. 4 of the Non-Fatal Offences Against the Person Act 1997 of causing serious harm, when aggravated by the offence of false imprisonment was, even under the Fitzgibbon guidelines (The People (DPP) v Fitzgibbon [2014] 2 I.L.R.M 116), within the margin of discretion of the trial judge.
The Court held that the appeal would be dismissed.
Appeal dismissed.
The appellant pleaded guilty to a number of serious offences arising out of a single but ongoing incident that occurred on the 20th June, 2018 and into the 21st June, 2018, in the property he had rented from the 81 year old victim of these offences. He was sentenced as follows:
(a) In relation to Count 1, causing serious harm, fifteen years imprisonment with the final six years suspended;
(b) In relation to Count 2, false imprisonment, fifteen years imprisonment with the final six years suspended;
(c) In relation to Count 3, robbery, seven years imprisonment;
(d) In relation to Count 5, unauthorised taking of a vehicle, two and a half years imprisonment.
All sentences were to run concurrently. The sentences were backdated to the date of the arrest of the appellant; the 26th June, 2018.
Garda Kevin O'Hara gave evidence of the circumstances of the offence. The appellant resided in a rented property in Cartron Point, Sligo. He was a tenant of the injured party, Mr. Michael Lally. On the 20th June, 2018, the appellant and Mr. Lally met at the property at the appellant's request. The appellant told the victim that there was a leak in an upstairs bedroom. Mr. Lally went upstairs to inspect the leak but there was no leak. The curtains were drawn in the room. The appellant asked Mr. Lally to sit on the bed and demanded money from him. Mr. Lally stated that he had no money but could get him money. The appellant drew an iron bar which he had in his hand and he hit Mr. Lally a number of times across the head and his back. The appellant took Mr. Lally's bank cards and demanded his PIN number for the card. Mr. Lally was subsequently tied up. Mr. Lally's two legs were tied and his two arms were tied. Mr. Lally's phone was smashed. His hearing aids were out and his glasses were knocked off as well. The appellant locked the bedroom door and left the injured party.
Mr. Lally's family reported him missing on the 21st June, 2018. Mr. Lally's car was subsequently observed in Sligo town. Gardaí reviewed CCTV. As a result of their investigations, they went to the rental property. Gardaí found that the back door of the house was left open and upon entering the house discovered that the upstairs bedroom was locked. Having broken into the room, Mr. Lally was discovered in the locked bedroom lying on the floor. He was disorientated and his face was covered in blood. Garda Kevin Quinn stated that his face was very swollen and he was badly injured. Mr. Lally was nearly 29 hours in the room before he was discovered.
Mr. Lally was taken by ambulance to Sligo University Hospital. Dr. Karen Harris of the Emergency Department reported on Mr. Lally's injuries. She noted that he had remarkable swelling on his forehead and face. Mr. Lally had five lacerations on his face. On his right forehead, there was a four-centimetre full thickness laceration which required five sutures for closure. There was a further one centimetre vertical laceration directly above this which was dressed. He had a three centimetre horizontal laceration over his right eyebrow which was full thickness and required four sutures for closure. There was a further 2.5 centimetre laceration over his left eyebrow which was closed with five sutures and a one centimetre laceration on the right side of the bridge of his nose, closed with two sutures. All of these lacerations were deep and the skin surrounding them was bruised and injured.
Dr Harris went on to state the following:
“ Mr Lally went on to have extensive imaging due to the extent of his injuries. He had a CT of his brain which showed widespread intracerebral bleeding of both frontal lobes. He also had a small subdural haemorrhage and a small epidural haemorrhage. He had multiple fractures of his nasal bones, orbits, zygoma and skull. The X ray of his right shoulder confirmed a fracture of his clavicle. He was seen by ophthalmology on call and referred also to the maxillofacial surgeons in Altnagelvin Hospital who agreed to see him there for a follow up once he was stable. He was admitted under the care of Mr … general surgeon on call that day. I see he went on to have a repeat CT brain two days later, which showed some worsening of the bleeding. He also went on to have X rays of his lumber spine which showed an L3 fracture which was confirmed on MRI scan. This was treated in a brace by orthopaedic team. He was seen in Derry by the maxillofacial surgeons who advised treating him with antibiotics but there was no role for surgery in managing his fractures. He was discharged home on the 4th of July 2018 which follow-up arranged with orthopaedic and ophthalmology teams. In summary, Michael Lally is an 81-year old gentleman who was assaulted and brought to the emergency department with very serious injuries. He had multiple facial bones and skull fractures with underlying intracerebral haemorrhage. He also had a right clavicle fracture and an L3 fracture. His brain injuries were certainly life threatening. I would expect he will recover fully from his shoulder and spinal injuries, but it's likely he'll have some long term symptoms from his facial and brain injuries”.
The victim's daughter read his victim impact report at the hearing. The report detailed both the significant immediate impact on the victim of his injuries but also the ongoing problems he had. After a long initial recovery period, Mr. Lally was no longer able to live his life as before, he could not carry out DIY as he had done, his eyesight was affected, his sleep affected, he had vertigo and headaches every second day. He was also confused now. There is no doubt that his quality of life was severely affected by the ongoing impact of his injuries. Ongoing medical bills also had a significant financial impact.
It appears that the appellant had requested a neighbour to take care of his cats on the morning of the incident as he said he had to return to Germany where his daughter had been involved in a road traffic accident. He was described as “very emotional” at this time. After the attack on the victim the appellant then made two withdrawals from the victim's bank account in the total sum of €400.00. (€200.00 in Sligo and €200.00 in Wexford). He left the car in Sligo and the appellant then travelled to Dublin and onto Rosslare, Co. Wexford by train. The appellant did not leave the jurisdiction however but 6 days after the event, he called into a local shop in Rosslare and asked for the Gardaí to be called and the appellant voluntarily turned himself into An Garda Síochána on the 26th June, 2018. Due to the state he was in the Gardaí felt that an intervention under the Mental Health Act was required. The appellant was arrested under the Mental Health Acts and brought to Wexford Garda Station, where he was medically assessed. He was transferred to Wexford General Hospital and was hospitalised for a number of days for treatment. The appellant was then detained, he made full admissions and expressed remorse and apologised and he was subsequently charged. The appellant did not apply for bail and was returned for trial at Sligo Circuit Court on the 6th November, 2018, where he pleaded guilty at the earliest opportunity having indicated at all times his intention to offer guilty pleas.
It was accepted by the Garda that the appellant was co-operative, he had stated the appellant had a “bad conscience” and that he was remorseful. He had no previous convictions. He was a 51 year...
To continue reading
Request your trial
-
DPP v Mubango
...[2014] IECCA 12 rather than those later set out in DPP v O'Sullivan [2019] IECA 250, as required by this Court in DPP v Schaufler [2020] IECA 299. The judge concluded that the offending fell into the most serious category of such offending and held that the recklessness of the appellant was......