The Director of Public Prosecutions v Mountassir

• Jurisdiction: Ireland
• Judge: Mr. Justice Maurice Collins,Ms. Justice Iseult O'Malley
• Judgment Date: 05 December 2025
• Neutral Citation: [2025] IESC 53
• Court: Supreme Court
• Docket Number: S:AP:IE:2025:000021

In the Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

Between

The People (Director of Public Prosecutions)

Prosecutor/Respondent

and

Soufiane Mountassir

Defendant/Appellant

[2025] IESC 53

Charleton J.

O' Malley J.

Woulfe J.

Collins J.

Donnelly J.

S:AP:IE:2025:000021

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Final but unapproved

No redaction required

JUDGMENT of Mr. Justice Maurice Collins delivered on 5 December 2025

1 I agree with O' Malley J that this appeal must be dismissed. I largely agree with her analysis but there are some points of difference which I wish to address briefly. For that purpose, I gratefully adopt my colleague's comprehensive statement of the factual background, procedural history and the arguments advanced before this Court.

Section 40 of the Domestic Violence Act 2018 (“the 2018 Act”)

2 Section 40 of the 2018 Act provides in sub-section (1) that where a court is determining the sentence to be imposed on a person for a “ relevant offence”, the fact that the offence was committed against a “ relevant person” shall be treated as an aggravating factor for sentencing purposes. “ Relevant offence” (as defined) encompasses a range of offences, including a number of specified offences under the Non-Fatal Offences Against the Person Act 1997, any offence involving violence or the threat of violence (other than an offence under section 39 of the 2018 Act) and a range of serious sexual offences, including rape and sexual assault. A person is a “ relevant person” in respect of another person if he or she is the spouse or civil partner of that person or is or was in an intimate relationship with that person.

3 In the case of a “ relevant offence”, therefore, the fact that the offender is the spouse or civil partner of the victim or is (or was) in an intimate relationship with the victim must be treated as an aggravating factor for sentencing purposes. So much is clear from the terms of section 40(1) of the 2018 Act. But the Oireachtas has gone further. Section 40(2) of the 2018 Act requires (“ shall”) the court imposing sentence for an offence within the scope of sub-section (1) “ to impose a sentence which is greater than that which would have been imposed if the person against whom the offence was committed was not a relevant person.” That prescription is, however, subject to section 40(3), which provides that section 40(2) does not apply “ where the court considers that there are exceptional circumstances justifying it not applying that subsection.” Section 40 does not prescribe what constitutes “ exceptional circumstances” for this purpose.

4 The statutory mandate here is clear. In the case of a “ relevant offence”, the fact that the offender is the spouse or civil partner of the victim, or is (or previously was) in an intimate relationship with the victim, must be regarded as an aggravating factor for sentencing purposes and, absent exceptional circumstances, must result in the imposition of a sentence greater than the sentence that would have otherwise been imposed for that offence.

5 Provisions similar to section 40 of the 2018 Act are to be found elsewhere in the statute-book: see for example, section 11 of the Criminal Justice Act 1984 1 (fact that an offence was committed on bail a mandatory aggravating factor); section 10(10) of the Non-Fatal Offences Against the Person Act 1997 2 (fact that a harassment offence under that section was committed by a person previously convicted of an offence against the other person or a person connected with the other person); section 74A of the Criminal Justice Act 2006 3 (fact that an offence was committed as part of, or in furtherance of, the activities of a criminal organisation); section 3A(1) of the Child Trafficking and Pornography Act 1998 4 (fact that an offence under section 3 of that Act was committed by a public official during the performance of his or her duties as such); section 4A of the same Act 5 (fact that an offence under sections 2 or 4 of that Act was committed by a public official during the performance of his or her duties as such); section 8(4) of the Criminal Justice (Offences Relating to Information Systems) Act 2017 (fact that an offence under section 3 or 4 of that Act involved misusing the personal data of the rightful identity owner with the aim of gaining the trust of a third party, thereby causing prejudice to the rightful identity owner); section 10(2) of the Criminal Justice (Smuggling of Persons) Act 2021 (any behaviour by the offender related to the commission of an offence under sections 6, 7 or 8 of that Act that endangered or was likely to endanger the life or safety of the person to whom the offence related, or resulted in the exploitation or inhuman or degrading treatment of the person to whom the offence

related) and section 8 of the Criminal Justice (Hate Offences) Act 2024 (hatred against a person or a group of persons on account of their protected characteristics or any of those characteristics on the part of a person in the commission of an offence to which that section applies)

6 There are material differences between these provisions. Some apply very broadly (e.g., section 11 of the Criminal Justice Act 1984 which applies to any offence committed on bail and section 8 of the Criminal Justice (Hate Offences) Act 2024 which, with certain limited exceptions, applies to all criminal offences) whereas others are much more limited (e.g., section 10 of the Non-Fatal Offences Against the Person Act 1997 which is limited to the offence of harassment).

7 The statutory aggravated factors also differ in character: some may be seen as directed primarily to the culpability of the offender (e.g., the commission of an offence while on bail or the commission of an offence by a public official during the performance of his or her duties as such) whereas in other cases the aggravating factor may be seen as more closely related to the conduct constituting the offending and/or the potential impact on the victim (e.g., section 8 of the Criminal Justice (Hate Offences) Act 2024). In each case, however, the statutory provision is structured in essentially the same way: the Oireachtas has identified a factor which courts are required to treat as an aggravating factor for the purposes of sentencing and it has expressly required the sentencing court, absent exceptional circumstances, to impose a greater sentence than it would otherwise have imposed if that aggravating factor was not present. 6 The Oireachtas has clearly taken the view that the presence of the relevant statutory aggravating factor will normally make the offence more serious, such that a greater sentence will normally be warranted than would otherwise be the case.

8 That, at the level of principle, the Oireachtas is entitled to make such a judgment is not in controversy. As regards section 40 of the 2018 Act specifically, it was clearly open to the Oireachtas to take the view that certain offences, including offences against the person, offences involving violence or the threat of violence and certain sexual offences, are to be regarded as inherently more serious when committed against a current or former intimate partner. O' Malley J in her judgment, and the Sentencing Guidelines and Information Committee in its valuable Report on the Application of Section 40 of the Domestic Violence Act 2018, identify the considerations on which that legislative judgment is based. As well as harm to the victim, such offending causes significant societal harm. While women are not the sole victims of such offending, they are undoubtedly disproportionately affected by it. The Oireachtas was entitled to legislate so to provide for the more severe punishment of such offending (at least in the absence of “ exceptional circumstances”), both to reflect its view of the seriousness of such offending when it comes before the courts for sentencing and to deter future such offending. The Oireachtas might have done this through the creation of new

criminal offences with greater penalties 7 but it was also entitled to adopt the “ statutory aggravation” model that it did in the form of section 40

9 Section 40 does not prescribe any particular “ uplift” in the sentence to be imposed, nor does it make a custodial sentence mandatory or even presumptively require such a sentence. It therefore differs materially from the provision condemned by this Court in Ellis v Minister for Justice and Equality [2019] IESC 30, [2019] 3 IR 511. The relationship between offender and victim, and the role of the relationship in the offending, will differ from case to case. I agree with O' Malley J that it would be wrong to regard section 40 as requiring any form of across the board “ tariff”. In every case, the appropriate sentence remains a matter for the sentencing court to determine. However, in the absence of “ exceptional circumstances” the court is required to reflect the fact that the offending conduct was directed against a current or former intimate partner by way of a greater sentence than might otherwise be considered appropriate. That such offending is to be regarded as inherently more serious, and that it ought to be punished more severely (absent exceptional circumstances) follows from the section: it is not a matter that requires proof at a sentencing hearing.

10 In its Report on the Application of Section 40 of the Domestic Violence Act 2018, the Sentencing Guidelines and Information Committee observe that “ it is inherent in the concept of ‘exceptionality’ that the circumstances that may be considered exceptional cannot be enumerated in advance”: §51. That is undoubtedly so and the capacity for the sentencing court to disapply the provisions of section 40(2) where it considers that that is justified by exceptional circumstances is an important feature of the statutory...