DPP v Stephen Duffy

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley,Mr Justice Charleton
Judgment Date19 January 2023
Neutral Citation[2023] IESC 1
CourtSupreme Court
Docket NumberRecord No.:2022/36
Between
The People (At the Suit of the Director of Public Prosecutions)
Respondent
and
Stephen Duffy
Appellant

[2023] IESC 1

Dunne J.

Charleton J.

O'Malley J.

Woulfe J.

Murray J.

Record No.:2022/36

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Sentencing – Causing serious harm – Financial compensation – Appellant seeking to appeal against sentence – Whether a voluntary offer of financial compensation is to be considered as a factor in mitigation

Facts: The appellant, Mr Duffy, pleaded guilty in the Dublin Circuit Court to one charge of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced to four years imprisonment, with the entirety of the sentence being suspended on certain conditions including payment of compensation to the injured party. The respondent, the Director of Public Prosecutions, applied to the Court of Appeal for a review of the sentence on grounds of undue leniency. The Court of Appeal quashed the sentence, and imposed instead a sentence of four years with the last three years suspended ([2022] IECA 53). The appellant appealed to the Supreme Court submitting that the views of victims to the effect that they do not wish a defendant to be imprisoned may be highly relevant, depending on the circumstances, and that there is no general rule that such views are irrelevant. It was argued that where there is clear evidence at a sentence hearing that the victim does not wish an accused person to be imprisoned, that evidence and that wish will not be rendered irrelevant either because of a subsequent change of mind, or uncertainty as to whether there has been a change of mind, or because he is otherwise unhappy with the process. It was said that it would be unfair to determine appeals on the basis of such changes. The appellant challenged the finding of the Court of Appeal that the fact that the victim in the case accepted sums of money was not relevant as a mitigating factor. It was submitted that the acceptance of money as compensation, or as an expression of remorse, is a factor to be taken into consideration by a sentencing judge.

Held by the Court that the views of an injured party cannot, in general, influence the sentencing court in determining the appropriate sentence for the offence committed by the accused; however, an injured party may put forward an ad misericordiam plea for leniency, and if it is based on a reason specific to the accused the court is entitled to take it into account. The Court held that a voluntary offer of financial compensation is in all cases to be considered as a factor in mitigation, if the court finds that it is a genuine expression of remorse and acceptance of responsibility for the harm done. The Court held that the weight to be attached to it will vary according to the court’s view of the genuineness of the offer and the degree of hardship it is likely to cause the accused, as well as all the other circumstances of the case. The Court held that the offer and acceptance of compensation does not mean that a custodial sentence will not be imposed; while it is a mitigatory factor, the court should never countenance the possibility that money can purchase leniency. The Court held that the court should never put pressure on the victim to accept the money; nor should it put pressure on the accused to increase the offer, since an increase will not necessarily mean a greater level of remorse on his part and may have the effect of driving his family to seek money from dubious or extortionately expensive sources. The Court held that the mechanism provided under s. 6 of the Criminal Justice Act 1993 may most appropriately be used in minor cases where the judge is, in any event, considering a non-custodial option and the damage done is relatively easy to quantify. In more serious cases, the Court held that it may be deployed where it is clear that the injured party would be entitled to seek an award of damages in civil proceedings, the accused person has means and an order can be made without unduly prolonging the sentencing process. The Court held that an order made in those circumstances should not affect the court’s determination of the appropriate sentence.

The Court dismissed the appeal.

Appeal dismissed.

Judgment of Ms. Justice Iseult O'Malley delivered the 19 th of January 2023

Introduction
1

The Court heard this appeal on the 27 th July 2022. The parties were informed orally on that date that the appeal would be dismissed. The reasons for that decision are now set out.

2

The appellant pleaded guilty in the Dublin Circuit Court to one charge of causing serious harm (contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997). He was sentenced to four years imprisonment, with the entirety of the sentence being suspended on certain conditions including payment of compensation to the injured party. The respondent (“the Director”) applied to the Court of Appeal for a review of the sentence on grounds of undue leniency. The Court of Appeal quashed the sentence, and imposed instead a sentence of four years with the last three years suspended (see People (DPP) v. Duffy [2022] IECA 53). The issues raised in the appeal concern the relevance of, and weight to be attached to, firstly, the views of the victim of an offence as to sentence and, secondly, an offer of financial compensation by the accused.

3

The circumstances of the offence are set out in full in the judgment of the Court of Appeal, and only a brief summary of the facts is necessary here.

4

Shortly after midnight on the 29 th August 2016, the appellant encountered the victim, Mr. Darley, in a public area. After a brief exchange, during which there was no sign of aggression on either side, he struck him a single blow with his fist. The two men did not know each other, and it appears that the assault was entirely unprovoked. Mr. Darley was rendered unconscious. The appellant left the scene, then came back, put the victim into the recovery position, and left again.

5

The victim was very seriously injured by the assault. He suffered a bleed in his brain, required life-saving surgery and was in a coma for about a fortnight. He was left with permanent loss of his senses of taste and smell, and with chronic headaches, blackouts and dizzy spells. He fell down a flight of stairs due to a blackout and injured both ankles. Because of the risk of seizures he was unable to drive, or travel in an aeroplane, for two years. He became nervous in public places. He had memory difficulties and was unable to maintain regular employment. This resulted in financial difficulties and he became homeless for two years, staying in hostels and shelters. His family relationships were badly affected.

6

The incident was captured on CCTV. The appellant had been wearing distinctive clothing and was traced through CCTV footage which, amongst other things, showed him withdrawing money from an ATM. When arrested and interviewed by Gardaí in September 2016 he accepted that the figure in the footage looked like him, but he did not make any admissions. He said that he had a poor memory of the night in question.

7

When returned for trial to the Circuit Court, the appellant brought a preliminary application to have the charge dismissed on the basis of two arguments – that the prosecution would not be able to prove in a trial that the blow was not lawfully struck, and that it would not be able to prove that he acted intentionally or recklessly. This application was heard in February 2019. The application was dismissed, with the judge finding that there was no merit in the first argument and that, while there might be a difficulty showing intention, a finding of recklessness would be open on the evidence. A trial date was fixed. The case was not reached on the date fixed and it was relisted for the 20 th April 2021. At some point, described by the prosecution as an early stage, the appellant offered a plea to assault causing harm, contrary to s.3 of the Act. This was not accepted by the Director. The appellant pleaded guilty to the more serious s.4 charge on the trial date, and was sentenced on the 15 th July 2021. It was accepted by the prosecution that the plea was on the basis of recklessness rather than intention.

8

At the sentence hearing, the trial judge had available to her the medical evidence and the victim impact report, summarised above. She heard that the appellant was a young man of 24 years old (20 at the time of the assault) who was a qualified welder. He had family support, was in a stable relationship and had a child. He had no previous convictions and had not come to adverse attention in the intervening years. He was said to have had a habit of binge drinking and cocaine use at the relevant period, and to have changed his life for the better since. A probation report assessed him as being at low risk of reoffending. A number of written testimonials from family, work and others were presented. He had communicated his remorse in a letter of apology to the injured party, and had offered him a sum of €5,000 which had been accepted. He was offering to pay a further sum of €10,000 over the coming 12 months, if left at liberty to earn it. The prosecuting garda confirmed that the appellant had expressed a willingness to engage in a restorative justice process, but that the injured party, after some changes of mind, had ultimately decided against it. However, he was described by the garda as “not looking for blood”, as bearing no sense of ill will towards the appellant, and as “not pushing for any particular result one way or the other”. His attitude was that the penalty was a matter entirely for the judge.

9

The trial judge considered that the far-reaching and lasting consequences of the assault placed it in the mid-range of seriousness for the offence of assault causing serious harm. She set a headline...

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5 cases
  • Director of Public Prosecutions v Delany
    • Ireland
    • Court of Appeal (Ireland)
    • 26 January 2023
    ...attracted a headline sentence in the upper part of the midrange rather than at or near the bottom. Having considered DPP v Stephen Duffy [2023] IESC 1, the Court thought that the judge fell into errors of principle in sentencing on both Bills. The Court quashed the sentences for violent dis......
  • Director of Public Prosecutions v Boles
    • Ireland
    • Court of Appeal (Ireland)
    • 21 July 2023
    ...and instead the respondent paid the sum to charity. Counsel referred us to the dicta of O'Malley J. in The People (DPP) v. Stephen Duffy [2023] IESC 1 wherein the learned Supreme Court judge noted that: “ A voluntary offer of financial compensation is in all cases to be considered as a fact......
  • Blanco v Criminal Injuries Compensation Tribunal and Others
    • Ireland
    • High Court
    • 22 March 2024
    ...which it considered might fairly and justly be awarded in respect of varying types of personal injury. 50 . In DPP v Stephen Duffy [2023] IESC 1, the Supreme Court noted the significance of the BV decision and stated, at §67: “The [CJEU]Court also said “fair and appropriate” compensation fo......
  • Director of Public Prosecutions v Stokes
    • Ireland
    • Court of Appeal (Ireland)
    • 24 July 2023
    ...or targeting homes. Issue is also taken with the judge's view on the absence of restitution. Reference is made to People (DPP) v Duffy [2023] IESC 1 in this respect. Moreover, it is said that too much emphasis was placed on the victim impact evidence. Crowley is again relied upon. Ultimatel......
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