DPP v Whelan

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 11 May 2018
• Neutral Citation: [2018] IECA 142
• Docket Number: [98/2017]
• Court: Court of Appeal (Ireland)
• Date: 11 May 2018

[2018] IECA 142

THE COURT OF APPEAL

Hedigan J.

Birmingham J

Mahon J

Hedigan J.

[98/2017]

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MELISSA WHELAN

APPLICANT

Sentencing – Assault causing serious harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Ms Whelan, was sentenced to a total period of 12 years’ imprisonment, three years of which were suspended for a period of 12 years in respect of one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences against the Person Act 1997. The applicant also pleaded guilty to two counts of theft contrary to s. 4 of the Theft and Fraud Offences Act 2001, both of which were taken into consideration. The applicant appealed to the Court of Appeal against the severity of the sentence, submitting that the sentencing judge erred in fact and in law in: 1) assessing the offence before the court as being of such severity that it warranted a sentence of 12 years’ imprisonment before any mitigating factors were taken into consideration; and 2) failing to attach sufficient weight to the mitigating factors in the case, in particular the applicant’s early guilty plea.

Held by the Court that some allowance must be made for all the other mitigating factors in addition to the 25% allowance for the very valuable plea of guilty in this case. It seemed to the Court that there was thus an error in principle in the approach that the sentencing judge took, and in that regard, the Court would quash the sentence and proceed to resentence the applicant.

The Court held that the other mitigating factors should attract a further reduction of 18 months, resulting in a reduction from the headline of 12 years by 4 and a half years leaving in place a sentence of 7 and a half years; the 4 and a half years would be suspended subject to the same conditions imposed by the Circuit Criminal Court.

Appeal allowed.

JUDGMENT of the Court delivered on the 11th day of May 2018 by Mr. Justice Hedigan

1 The applicant appeals against the severity of the sentence imposed upon her in this matter. She was sentenced to a total period of 12 years' imprisonment, three years of which were suspended for a period of 12 years in respect of one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences against the Person Act 1997. The applicant also pleaded guilty to two counts of theft contrary to s. 4 of the Theft and Fraud Offences Act 2001, both of which were taken into consideration.

2 The applicant was born on 8th January 1991. She grew up in a dysfunctional household in which her father was serving a life sentence and her mother had serious alcohol addiction difficulties. She has four young children from an abusive previous relationship who are being cared for by her former partner's parents and she has a history of substance abuse.

Background

3 The circumstances of the case are that on 6th May 2015, the applicant and the injured party attended at a ground floor apartment at Knock Hill, Ennis Road, Limerick where there were a small number of other individuals in attendance at an impromptu house party. They were known to each other for a short time before this incident occurred. The injured party had been involved in a very serious road traffic accident in 2012 in which he sustained head injuries but had substantially recovered by the time this assault occurred. During the night, Gardaí were called to the premises twice on foot of complaints made by neighbours in relation to noise and on each occasion they left, having dealt with those complaints.

4 The injured party is described as being of a placid disposition and it appears he spent the evening watching television and chatting. There is some suggestion that at some point during the evening, he may have hugged one of the other individuals at the party. It appears that he spent most of the evening drinking on the couch. At some point during the night while he was sitting on the couch, the applicant suddenly assaulted him by striking him on the nose with a bottle. She then punched him in the face several times, and when he ended up on the ground, she kicked him several times as he lay on the floor. At the end of the assault, she dragged the injured party outside into the patio area, and upon her return decided she was going to leave, but changed her mind and continued drinking. It appears that the other individuals at the party believed the injured party had left and gone home of his own accord.

5 At 7am the next morning, a neighbour, having spotted a young man lying on the ground outside, rang the Gardaí. When the gardaí arrived, they found the injured party unconscious and in a seriously injured state. He was removed by ambulance to University Hospital Limerick, but because of his injuries he was transferred to Cork University Hospital where he was operated on due to significant swelling of the brain. He suffered a cardiac arrest and was operated on a second time two days later. He was kept in an induced coma for a period to allow him to heal. On emerging from this, he...