The People (DPP) v McMenamy

 
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[2014] IECA 47

THE COURT OF APPEAL

The President

Kelly J.

Hogan J.

[5CJA/14]

Between

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

The People at the Suit of the Director of Public Prosecutions
Applicant
and
Paul McMenamy
Respondent

Sentencing - Assault occasioning serious harm - Undue leniency - Applicant seeking to appeal against sentence - Whether sentence was unduly lenient

Facts: The respondent, Mr McMenamy, inflicted injuries on his then fiancé, Ms Murray on the 5th February, 2012. It did occur to him that he should ring an ambulance. Ms Murray was in grave need of hospital treatment as of that time and it was a very serious aggravating feature that Mr McMenamy did nothing about that until late in the afternoon. Ms Murray was in hospital for months and gradually made a recovery but she is left with significant sequelae of a long-term and probably permanent nature. This was not the first time Mr McMenamy had attacked a girlfriend. The respondent was charged in respect of an assault occasioning serious harm under s. 4 of the Non-Fatal Offences against the Person Act. The matter came to trial and Mr McMenamy pleaded guilty to the s. 4 assault, increasing the value of mitigation. On the 9th December, 2013, the Dublin Circuit Court imposed a sentence of six years imprisonment with the final year suspended on conditions. The applicant, the DPP, applied to the Court of Appeal under s. 2 of the Criminal Justice Act 1993 for the review of the sentence.

Held by the President that the test under s. 2 was not what the Court of Appeal would have imposed if the members of the Court were sentencing the respondent as the onus lies on the Director in accordance with the well-established jurisprudence of the Supreme Court and of the Court of Criminal Appeal. The President held that the DPP has to establish that the sentence is one of undue leniency, meaning that the Court has to be satisfied that, in order to allow the application, the trial judge imposed a sentence that was outside the margin of appreciation. The Court was of the view that if the assault on Ms Murray were the only crime to be considered, the sentence imposed by the Circuit judge fit the category of being located in the zone of acceptability as being a sentence that was legitimately open to the trial judge. However, in view of the previous convictions for similar offences and the callous disregard for the health of the injured Ms Murray in the aftermath of the attack, those were held by the President to have been very serious aggravating features. In those circumstances, the Court was satisfied that the sentence was indeed unduly lenient. The Court had regard to the plea of guilty, testimonials and references, and the respondent's progress in prison in making a decision as to the appropriate sentence to be imposed.

The President held that the sentence that the Court would impose in lieu of the sentence imposed in the court below is one of ten years imprisonment as to which the Court would suspend two years on similar conditions to those that were imposed in the court below. The sentence would be one of ten years imprisonment with two years suspended.

Appeal allowed.

1

This is an application by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993, for the review of the sentence that was imposed on the accused, the respondent to this application, Mr. Paul McMenamy at the Dublin Circuit Court on 9th December 2013. On that occasion, the learned Circuit judge imposed a sentence of six years imprisonment with the final year suspended on conditions.

2

The charge was in respect of an assault under s. 4 of the Non-Fatal Offences against the Person Act, that is, an assault occasioning serious harm on Ms. Nicola Murray who was the girlfriend and partner and indeed fiancé of the accused at the time. The date of the crime was 5th February 2012. On that occasion, the respondent, Mr. McMenamy,...

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