The People (At the Suit of the DPP) v Derek Lennon

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 08 February 2021
• Neutral Citation: [2021] IECA 30
• Docket Number: Record No: 253 CJA/19
• Court: Court of Appeal (Ireland)
• Date: 08 February 2021

Between:

The People (At the Suit of the Director of Public Prosecutions)

Appellant

and

Derek Lennon

Respondent

[2021] IECA 30

Edwards J.

Kennedy J.

Donnelly J.

Record No: 253 CJA/19

THE COURT OF APPEAL

Sentencing – Assault causing harm – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, the Director of Public Prosecutions, brought an undue leniency appeal against the respondent, Mr Lennon, in respect of the four-and-half-year sentence of imprisonment he received for assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The remaining five counts on the indictment were taken into consideration by the sentencing judge. The other counts on the indictment comprised two counts of witness intimidation, one count of criminal damage, production of an article capable of inflicting serious injury, and threatening to kill or cause serious harm. The appellant submitted that the headline sentence imposed by the sentencing judge of between six and seven years’ imprisonment, while placing the offence in the middle range of such offences, was too low having regard to the facts of the case. The appellant submitted that the credit afforded to the respondent in mitigation departed substantially from what was the appropriate sentence.

Held by the Court of Appeal that, regarding the first offence of witness intimidation, this was a case which was borderline between the low range and mid-range. The Court therefore found that 5 years was the appropriate headline sentence. Regarding the second offence, the Court held that this offending came within the mid to upper range of the mid-range. The Court was satisfied that an indicative sentence of 8 years was an appropriate headline sentence. The Court considered that the principle of global sentencing was covered by making these sentences concurrent. The Court held that a headline sentence of 8 years was the appropriate sentence for the two instances of intimidation. The Court thought that this was a case where it was appropriate to mark the severity of the assault by imposing a sentence on that offence. The Court held that the appropriate headline sentence was one of 5 years. The Court considered that the first offence of witness intimidation would merit a slightly higher amount of mitigation for the respondent’s guilty plea as this was beneficial to the prosecution in the circumstances of the case. The Court was of the view that a sentence of 3.5 years should have been imposed. In relation to the second offence of witness intimidation, as this count represented the most charges on the indictment and the one which must attract the highest sentence, the Court thought it appropriate in those circumstances to discount for the pleas at the generous end of its range of appreciation, namely by 25%. The Court held that the correct sentence for that offence was therefore 6 years. In relation to the offence of s. 3 assault, the Court was of the view that this offence was so serious that notwithstanding the plea of guilty the same deduction of 25% was not warranted. The Court was only prepared to discount by 20%. The Court believed the appropriate sentence for the assault was 4 years.

The Court identified a total sentence of 6 years, a clear divergence from the sentence of 4 and a half years actually imposed. The Court was satisfied that the sentence imposed in the Circuit Court amounted to a substantial departure from what would be the appropriate sentence in the circumstances. The Court held that the sentence imposed was unduly lenient and imposed the following sentences of imprisonment on the respondent: count 2 – 4 years; count 4 – 6 years; count 6 – 3 years and 6 months. The Court held that all sentences were concurrent and backdated to the 15th November 2018 when the respondent first went into custody.

Appeal allowed.

JUDGMENT of the Court delivered by Ms. Justice Donnelly on the 8 ^th day of February, 2021

1 . This is an undue leniency appeal brought by the DPP against the respondent, Mr. Lennon, in respect of the four-and-half-year sentence of imprisonment he received for assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997. The remaining five counts on the indictment were taken into consideration by the sentencing judge. The other counts on the indictment comprised two counts of witness intimidation, one count of criminal damage wherein the accused damaged the CCTV cameras at the victim's home, production of an article capable of inflicting serious injury, namely a wooden plank, and threatening to kill or cause serious harm.

2 . All counts pertained to the same victim. The first offence of witness intimidation took place on the 2nd October 2018 while the remaining five offences were committed on the 13th November 2018.

Factual Background

3 . The victim was a witness to a motorcycle collision involving the respondent. The respondent was prosecuted for a road traffic offence in respect of this incident. At the hearing in the District Court, the victim was required to give evidence. The respondent was convicted and he lodged an appeal and recognisance in relation to his conviction.

4 . The de novo appeal was before the Circuit Court and was listed for hearing on the 3rd October, 2018. The victim was therefore required to give evidence.

5 . On the 2nd October, 2018, the victim, shortly after arriving home at approximately 11pm, heard a bang against the porch door and a clang of metal off the ground. Upon opening the porch door, the victim saw a figure in the corner of his eye moving away from him. He also observed a motorcycle parked on the path outside his driveway. The Gardaí were contacted and they identified the motorcycle in question as belonging to the respondent. The respondent lived approximately three minutes' walk from the victim's home. The Gardaí found a piece of metal that looked like a part of a door lock in the driveway.

6 . Later that evening, the respondent was brought to a garda station for questioning. The respondent denied being involved in witness intimidation and stated that he had been to a friend's house near the victim's home and had to wheel his motorcycle as it did not start.

7 . The respondent was released without charge. The victim did not attend the Circuit Court on the 3rd October, 2018 due, he said, to fear.

8 . The second incident occurred on the 13th November, 2018. The victim was at home with his wife and their lodger. While in bed, at 11:50pm, the victim heard banging noises. The house alarm then went off and he jumped out of bed and ran down the stairs. The victim opened the front door and saw a person walking out of the driveway. The victim asked his wife and their lodger to stay upstairs. The victim looked out again and saw the respondent standing outside the house. In order to hear what the respondent was saying, the victim opened the sliding door and asked the respondent what he wanted. The respondent replied “[y]ou know who it is. Come here. I want to talk to you […] Come here, or you will be fucking sorry”. The victim then realised it was the respondent. The victim went out barefoot to the respondent and he noted that the respondent was holding a two-by-four plank. The aggression of the respondent increased as he told the victim if he did not come with him he would regret it. The respondent told the victim to tell his wife that it would be okay and to tell her not to call the guards. The victim went back inside to get his jacket and shoes and told his wife and their lodger to stay inside.

9 . The respondent then told the victim that he had a six-year-old child and that he needed his licence for courier work. He said the victim had “caused him a lot of trouble” and said “you won't be testifying”. The victim asked if he was threatening him and added that he better not be threatening him. The respondent made reference to breaking the victim's legs, to which the victim retorted that the respondent would be the one with the broken legs. The victim was terrified at this point. Further threats were made and the victim then stated that “I wasn't going any further” and the respondent replied “we will see about that”. At this stage, the respondent lunged forward with the plank. The victim raised his left arm to protect himself and the respondent hit him on the arm. The victim described that the respondent really put everything into this. Following that, the respondent struck the victim several times. During the struggle, the respondent said “you are dead now. You made a big mistake and you are going to pay for this.” The respondent continued the assault and punched the victim a number of times as they both held parts of the plank. The respondent made a further assertion which the victim recounted as “[h]e said I'd better come with him, and that I didn't know who I was dealing with.”

10 . A Garda car passed at this juncture and the respondent went behind a car in a nearby driveway. The respondent became aggressive towards the Gardaí when they alighted the vehicle a Garda's jacket was ripped at the scene. When the respondent was in the process of being arrested, he was shouting at the victim not to say anything to the Gardaí.

11 . Evidence was given that the CCTV cameras at the victim's home were damaged, the value of same amounted to €684.25.

12 . The victim was taken to hospital by ambulance and suffered lacerations to the nose and was given stitches. The injuries sustained will result in permanent scarring on his face. He had swelling and bruising around his eye and was tender around his cheekbones and had a mark over his proximal forearm. A separate dental examination revealed the impact of the blows to the head, and also resulted in structural damage to the teeth amounting to €1,635.

13 . During his interview with the...