Emerson v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 03 March 2016 |
| Neutral Citation | [2016] IECA 83 |
| Docket Number | 172/13 |
| Court | Court of Appeal (Ireland) |
| Date | 03 March 2016 |
[2016] IECA 83
THE COURT OF APPEAL
Sheehan J.
172/13
Sheehan J.
Mahon J.
Edwards J.
Crime & sentencing ? Offences against the person ? Assault ? Appeal against sentence
Facts: The appellant had been convicted of assault on a member of the public with a hammer. He contended the sentencing judge had failed to give him sufficient credit for inter alia an early guilty plea.
Held by Mr Justice Sheehan in an ex tempore decision, the other Justices concurring, that the appeal would be allowed. The Court was persuaded by submissions that the sentencing judge had failed to give adequate consideration to suspending any part of the sentence. Accordingly, the sentence would be set aside and a fresh sentence handed down.
This is an appeal against the severity of a sixteen month sentence of imprisonment that was imposed on the appellant at the Dublin Circuit Criminal Court on the 12th July, 2013, following a plea of guilty by him to an offence of assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997.
Counsel on behalf of the appellant submits that the learned sentencing judge failed to give the appellant sufficient credit for his early plea of guilty and failed to give him sufficient credit for the fact that he had availed of the period between the offence and the date of sentence to engage in significant rehabilitative programmes with the Coolmine Drug Treatment Centre and also with the Fr. Peter McVerry Trust.
The appellant also submits that the sentencing judge erred in law and in fact or a mixture of both by imposing a sentence with the exclusive purpose of punishing the appellant in circumstances where:-
1. The defendant had rehabilitated since the commission of the offence.
2. The court imposed a sentence of imprisonment by virtue of the fact that the appellant had previous convictions saying to impose a non custodial alternative would require someone with a record of no previous convictions.
3. The learned trial judge erred by holding that the only way the appellant could be punished was by way of a sentence of imprisonment.
In order to consider these grounds of appeal it is necessary to consider the facts of the case, the personal circumstances of the appellant and the trial judge's remarks.
On the 21st June, 2012, the appellant entered a premises known as Peachfield, Kilshane Cross, Finglas, a property that the injured party was caretaking and living in at the time. He shared this accommodation with some associates. At 1.00 am on the night in question, the caretaker entered the kitchen of the premises and turned on the light. When he did so, he observed the appellant in the kitchen with a hammer in his hand. The appellant ran out of the house and into the front yard where the injured party confronted him and tried to take the hammer off him, but he was unsuccessful in this and the appellant hit him in the head with the hammer. Some of his associates came to his assistance and with their support he succeeded in detaining the appellant until the gardaí arrived. The injured party was obliged to go to hospital where he received three stitches and his wound was treated under local anaesthetic.
The garda evidence confirmed that the appellant was under the influence of an intoxicant at the time of his arrest and the Court was told that the appellant had 46 previous convictions. Among these was a conviction in July 2006, for the unlawful seizure of a vehicle in respect of which he had received a sentence of six years imprisonment. The remaining convictions included 12 for theft, 3 for burglary, a number of public order offences as well as convictions for the unauthorised taking of vehicles. The appellant was 28 years old at the time of sentence. He is in a relationship and is the father of two children. The Court was also told that when he was younger he had suffered a significant brain injury in a road traffic accident.
The Court was presented with a number of documents in support of the appellant who was at the time of the sentence hearing living in accommodation provided by the Fr. Peter McVerry Trust and undergoing a rehabilitation programme with the Coolmine Therapeutic Community. He was just about to complete the first part of a drug rehabilitation programme at the date of sentencing.
The learned sentencing judge, having heard the evidence and summarised the relevant facts, went on to say the following before imposing sentence:-
?Now Mr. Emerson is a man with the record, a substantial criminal record with a number of offences and a number of very serious offences. He is also a man who it seems has tried to reform himself and to a great degree is probably successful in that endeavour. He seems to have taken the chances that were given to him and he has finally seen the light and it seems that he has taken certain steps and the outcomes are probably positive. I have had the evidence of Mr. Briody as well as the reports handed in from the various persons and they paint a positive picture. Now I have been addressed also by Mr. Bowman in relation to the way he thinks I should approach this matter. He tells me...
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