DPP v Smith
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 14 January 2019 |
| Neutral Citation | [2019] IECA 1 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 166/2018 |
| Date | 14 January 2019 |
[2019] IECA 1
THE COURT OF APPEAL
Edwards J.
Birmingham P.
Edwards J.
McCarthy J.
Record No: 166/2018
IN THE MATTER OF AN APPLICATION PURSUANT TO S.2 OF THE CRIMINAL JUSTICE ACT 1993
Crime & sentencing – Offences against the person – Non-fatal offences – Causing serious harm by stabbing – Whether sentence unduly lenient
Facts: The respondent had pled guilty to a count of causing serious harm following an incident in which a complainant was stabbed following a dispute with a friend. The sentence of imprisonment for three years was entirely suspended and the DPP now sought to appeal.
Held, that the appeal would be dismissed. The Court was persuaded that the sum total of the mitigating factors and circumstances of the case justified the sentencing judge suspending the entire term of imprisonment.
On the 10th of May 2018 the respondent, Mr. Daniel Smith, who had pleaded guilty before Waterford Circuit Criminal Court to one count of causing serious harm contrary to Section 4 of the Non-Fatal Offences Against the Person Act 1997, received an entirely suspended sentence of three years” imprisonment.
The Director of Public Prosecutions now seeks a review of the said sentence on the grounds that it was unduly lenient.
On the 8th April 2015 members of the gardaí responded to a call concerning a stabbing incident that had occurred at 4 Holy Crescent in Waterford City. On arrival there, the gardaí concerned observed a substantial amount of blood in the hallway and kitchen of the premises. They also encountered the complainant, Mr. Jamie Walsh, who was in distress with two large stab wounds on his back.
When questioned after medical treatment concerning how he had suffered his injuries Mr Walsh contended that earlier that day he and the respondent had been drinking with two girls upstairs in the premises, and that later on an argument had developed between the two men. The complainant admitted to punching the respondent, who then left the room after which the situation appeared to de-escalate. However, the respondent had seemingly gone downstairs and had armed himself with a kitchen knife, then had returned upstairs and had stabbed the complainant twice in the back with it.
Upon being stabbed the complainant felt that he was losing consciousness and sought an ambulance. He was still waiting for the ambulance when the Gardai arrived on the scene.
The respondent had left the premises immediately after the stabbing but was later arrested at a different location. The respondent was not co-operative in the course of being interviewed, responding to the questions asked of him with ‘no comment’.
The complainant chose not to give a victim impact statement, or to testify at the sentencing hearing, and it is understood that he claims to bear no animosity towards the respondent. However, whilst the complainant has fully recovered, the severity of the injuries should not be understated. Mr Smith stabbed the complainant in the posterior chest wall and the right upper arm. The chest injury resulted in a large persistent right pneumothorax with a degree of tension secondary to pulmonary laceration with bronchopleural fistulation. This made it difficult for the complainant to breathe and reduced his right-sided breath sounds. There was a large volume of blood (600 millimetres) in the chest, which required the insertion of a chest drain. The complainant had a CT scan of his thorax which demonstrated the complete collapse of the right lower lobe of his lungs with the aforementioned degree of tension. The injuries required surgery under general anaesthetic and he was exposed to a substantial risk of death. Happily the complainant did not in fact die, and went on to make a full recovery from his physical injuries.
The respondent was born on the 26th of March 1997, and accordingly at the time of the offence he had only just recently celebrated his eighteenth birthday. He was just 13 days into his majority at the date of the offence. He had no previous convictions, and no previous history of violent or aggressive behaviour. Under cross-examination the prosecuting garda acknowledged that this incident appeared to be out of character for the respondent, who has received a positive probation report. He accepted that the respondent had been abusing both drugs and alcohol on the evening in question. According to the Probation report the respondent admits to having consumed cocaine and eight cans of alcohol on that evening. very intoxicated.
The respondent is currently employed full time at a Call Centre as a Technical Support Worker. Prior to commencing that in mid-2017, he had done a carpentry apprenticeship. Since the incident Mr Smith and his partner, with whom he is in a long term relationship and with whom he resides, has had a son. He is the sole breadwinner in the family, and wishes to be a positive influence on his child's life. He is now abstinent from illicit substances and has reduced his alcohol consumption. He has offered €1,000 in compensation to the complainant.
The Probation Report concludes in the following terms:
‘Mr Smith is 21 years of age and has one 16 month old son. Data from the Criminal Records Office indicates that he has no previous convictions. The risk assessment indicates that Mr Smith is at low risk of re-offending within the next 12 months, with the main area of risk being identified as alcohol and/or substance misuse.
Since the commission of the index offence, Mr Smith has become abstinent from substances and has deceased his alcohol consumption. He has become a father for the first time and is focused on being a positive influence in his son's life. It would appear that Mr Smith was shocked by his own actions during the index offence, and has changed his life for the positive in order to ensure that a similar situation does not occur again in the future.
Mr Smith has fully co-operated with this Service and is considered suitable for a community sanction. However, given that he has no previous convictions, is deemed to be at low risk of re-offending, and has addressed his alcohol and substance misuse, it is my assessment that he does not appear to require further intervention from this Service at this time. In these circumstances, the Court may wish to consider dealing with this matter by an alternative means.’
The respondent is remorseful and pleaded guilty at the earliest opportunity. However, for reasons unknown the case was not prosecuted speedily. It was more than three years after the incident before he was arraigned, pleaded guilty and was sentenced.
In sentencing the respondent the sentencing judge made the following remarks:
There are a number of aggravating factors. The first and obvious one was the use of a knife to commit the assault. There is, rightly, great public concern that knives are so readily introduced and used in arguments, often with lethal results. In this case, the stab wounds posed a substantial risk of death and, but for medical intervention, the consequences for Jamie Walsh could have been fatal. The manner of the attack was also an aggravating factor. There was no question of Mr Smith acting in self-defence, it was simply a case of retribution for having himself got punched. Mr Smith stabbed Jamie Walsh in the back without any warning to him and without affording his victim any opportunity to protect himself. It was a cowardly act. I note that the Director of Public Prosecutions places the offence in the medium range of severity while Mr Fitzgerald places the offence in the lower bracket. I agree with the Director and I place this offence at the lower end of the...
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