The People (At the Suit of the DPP) v Stephen Duffy

• Jurisdiction: Ireland
• Judge: Mr Justice McCarthy
• Judgment Date: 08 March 2022
• Neutral Citation: [2022] IECA 53
• Court: Court of Appeal (Ireland)
• Docket Number: Court of Appeal Record No. 155CJA/2021

In the Matter of Section 2 of the Criminal Justice Act 1993

Between/

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

Prosecutor/Applicant

and

Stephen Duffy

Accused/Respondent

[2022] IECA 53

Birmingham P

McCarthy J

Donnelly J

Court of Appeal Record No. 155CJA/2021

THE COURT OF APPEAL

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

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for a review on grounds of undue leniency of the sentence imposed on one count of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997. The respondent, Mr Duffy, pleaded guilty on the 20th of April 2021 and he came before Dublin Circuit Criminal Court on the 15th of July 2021 where he was sentenced to a term of four years imprisonment which was fully suspended on condition that the respondent undertake to pay an additional sum of €10,000 to the injured party within a period of two years (this had been paid and a sum of €5000 was paid at the time of sentence) and enter a bond to keep the peace and to be of good behaviour for four years subsequent to the date of sentencing. The applicant submitted that the sentencing judge erred in: (i) failing to have regard to the diminution of mitigation arising from the protracted proceedings and the lateness of the plea of guilty; (ii) failing to have regard to the effect of the offending of the injured party; (iii) failing to have regard to the serious nature of the offence; (iv) failing to have regard to the unprovoked nature of the attack; (v) having too much regard to the plea of guilty, the respondent’s background and previous good character and his personal circumstances; and (vi) determining that a wholly suspended sentence was appropriate in this case in a manner that was inconsistent with the sentences imposed by the courts in similar cases.

Held by the Court that the trial judge fell into an error of principle in concluding that this was a case where there were “special reasons of a substantial nature and particularly exceptional circumstances” which would have warranted an entirely suspended sentence in the case of an assault under s. 4. The Court found that the plea of guilty on any view was at a very late stage – on the day of trial only – in circumstances where the injured party had attended for the purpose of giving evidence. The Court held that the extent of the respondent’s remorse was undermined by the course of action taken in procedural terms by the respondent. The Court held that whilst the payment of a sum of money can be indicative of remorse the court must always be mindful of the fact that a party cannot by payment of money alone trigger some entitlement to a reduced sentence; the fact that the victim accepts the sum in question, which in this case might be regarded as trifling in terms of the levels of damages he might recover were he to sue, cannot be relied upon as a mitigating factor. The Court held that, in this instance, the victim merely received a fraction of that to which he was entitled. The Court thought that the issues pertaining to use of controlled drugs or alcohol, or any health difficulties could not be regarded as significant factors in sentencing, on the evidence, in this case. The Court thought that it was legitimate to suspend a portion of the sentence. However, the Court held that the trial judge fell into an error of principle by wholly suspending the sentence. The Court accordingly quashed it and proceeded to re-sentence.

The Court held that a post mitigation custodial penalty of four years was appropriate. The Court thought a period in custody must be served as this did not fall into the exceptional category identified in the authorities. The Court imposed a sentence of four years and suspended the last three years thereof on the same terms as those imposed in the Circuit Court.

Appeal allowed.

[UNAPPROVED]

JUDGMENT ( ex tempore) of the Court delivered by Mr Justice McCarthy on the 8th day of March 2022

1 . This is an application pursuant to section 2 of the Criminal Justice Act 1993 for a review on grounds of undue leniency of the sentence imposed on one count of assault causing serious harm contrary to section 4 of the Non-Fatal Offences Against the Person Act 1997. This was the subject of one indictment (Bill No: DUDP0557/2018). The respondent herein pleaded guilty on the 20th of April 2021 and he came before Dublin Circuit Criminal Court on the 15th of July 2021 where he was sentenced to a term of four years imprisonment which was fully suspended on condition that the respondent undertake to pay an additional sum of €10,000 to the injured party within a period of two years (this has been paid and a sum of €5000 was paid at the time of sentence) and enter a bond to keep the peace and to be of good behaviour for four years subsequent to the date of sentencing.

2 . The facts can briefly be outlined. In the early hours of the morning of the 29th of August 2016 in the environs of the old Tallaght village, the respondent and the injured party, Darren Darley, came into contact with each other. CCTV evidence from various locations showed that there was an initial conversation between the parties at approximately 12:35am which lasted for approximately one minute. There was no apparent build-up of aggression arising from the conversation as seen from the CCTV footage and without any given reason the respondent struck a single blow to the injured party who was standing near a third party. This was an unprovoked and unjustified attack on Mr Darley which caused him to fall to the ground and into an unconscious state.

3 . Initially the respondent walked away but moments later he returned to the scene and put the injured party into the recovery position; he then left. Mr Darley was found in a collapsed state shortly afterwards by a member of the public at approximately 12:40am. The injured party was taken to hospital where he had a CT scan from which it was concluded that he suffered a bleed to the brain – a consequent serious brain injury – and required extensive medical treatment. Thereafter he remained in a coma for two weeks.

4 . A victim impact statement was provided by the injured party from which appears the grave effect the assault has had on his life. Mr Darley described his significant difficulties over the period of two years after the assault which included an inability to drive given the risk of seizures. He also suffers from chronic headaches, blackouts and dizzy spells which have led to a number of falls. One such blackout caused Mr Darley to fall down a flight of stairs and suffer injuries to both ankles which required a cast for seven weeks. Mr Darley also described being nervous in public and having lost his confidence – he has been unable to maintain regular employment as a result. Mr Darley has had difficulties paying his bills and he had to leave Tallaght because he did not feel safe there after the incident; his relationship with his young daughter who resides there has been affected. Mr Darley could not continue in business as a result of his injuries and having become homeless as a result of these difficulties he had no recourse other than to stay in shelters and hostels; he could not work as he was sharing a room with three addicts who made it difficult for him to sleep at night. Mr Darley has lost all sense of taste and smell and it appears this is permanent. In conclusion Mr Darley summarised the effects of the assault on him as follows:-

“ I am a shadow of the person that I was before the attack. I have lost all confidence and self-esteem and I have a lot of dark days where I do not want to go on. I have endured a horrible time since the attack especially having to live in the homeless system for 2 years. My relationship with my daughter is not what it was before the attack and I wonder will it ever get to the level it was at before the attack. I still to this day have trust issues when out in a public place as I am always worried of a similar unprovoked attack by a stranger having experienced this once in my life.”

5 . The respondent did not stay at the scene until the arrival of Gardaí and emergency services, nor did the respondent volunteer himself to the authorities thereafter. He was identified on CCTV as the person who struck the blow to the injured party; apparently, he was wearing distinctive clothing...