THE COURT OF APPEAL
Record No. 198CJA/2017
Birmingham J.
Mahon J.
Edwards J.
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
BETWEEN/THE DIRECTOR OF PUBLIC PROSECUTIONS
APPELLANT
RESPONDENT
JUDGMENT (ex tempore) of the Court delivered on the 8th day of March 2018 by Mr. Justice Mahon
1. The respondent pleaded guilty and was convicted on the 12th January 2017 at the Central Criminal Court of two counts, namely assault causing harm contrary to s. 3 of the Non Fatal Offences Against The Person 1997 Act, and false imprisonment contrary to s. 15 of the Non Fatal Offences Against The Person 1997 Act. On the 6th July 2017 the respondent was sentenced to concurrent sentences of four years imprisonment with the final two years of each suspended for a period of two years on conditions.
2. The appellant seeks a review of the sentences on the ground that they were unduly lenient pursuant to s. 2 of the Criminal Justice Act 1993, which provides as follows:-
2(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Appeal to review the sentence.
(2) An application under this section shall be made, on notice given to the convicted person within 28 days from the day on which the sentence was imposed.
(3) On such an application, the Court may either:-
3. The victim of the assault was approximately thirty years old when the offences were committed on the 14th / 15th January 2012. She was the mother of four children of whom the respondent was the father of two. She and the respondent had been in an on / off, and often troublesome, relationship between September 2002 and shortly before Christmas 2011. On the evening in question the injured party put the children to bed and shortly afterwards went to bed herself and fell asleep. She woke up to find the respondent in her bedroom shouting at her and hitting her in the face and spitting at her. He grabbed her by the throat and pushed her down on the bed and kicked her. The two older children, aged eight and nine, were outside the bedroom door screaming. The respondent had locked the door. A baby in a cot in the bedroom awoke and started to cry and the respondent prevented the injured party from comforting the child. The respondent pulled the injured party by her hair and threatened to kill her. He left the room and locked it behind himself. The respondent then returned to the bedroom, again locking the door, and grabbed the injured party by the neck and pushing her down on the bed where he continued to kick her. She fell unconscious.
4. A neighbour heard the screaming from the house and the gardaí were called. The injured party was taken to Tallaght hospital for treatment. She was later referred to the Sexual Assault Treatment Unit in the Rotunda hospital. She was hospitalised at a later date in relation to her injuries.
5. The respondent was twenty nine years old at the time of the offences. He had thirteen previous convictions, including one for theft. The remaining convictions related to road traffic matters.
6. The injured party was severely traumatised as a result of her treatment at the hands of the respondent. In her victim impact statement she said, inter alia:-
“This had had a detrimental affect on my son who was nine years old at the time and witnessed everything that happened that night. It is something he still carries with him today and he is a very angry and aggressive young boy as a result. He refuses to go to school and doesn’t talk to anybody about what happened. He doesn’t deserve to have to carry this for the rest of his life. This for me is the most hurtful thing about what happened”.
7. The grounds on which this application is brought are:-
(i) The erroneous finding that the learned sentencing judge that the assault was the main offence and the false imprisonment was ancillary to that offence;
(ii) the failure to identify the headline sentence for the false imprisonment and effectively placing it at the lower end of the scale of such offences;
(iii) giving excessive weight to the mitigating factors in respect of both the assault and the false imprisonment;
(iv) understating the aggravating factors in respect of both the assault and false imprisonment;
(v) suspending the final two years of the sentence imposed, and
(vi) failing to give sufficient weight to the impact on the injured party and her children.
8. The learned sentencing judge concluded his judgment in the following terms:-
“The offending as briefly outlined above is very serious indeed and while I have considered community service, I am satisfied that nothing short of a custodial sentence is required to deal with such a violent attack on an entirely defenceless women in the presence of her children. The maximum sentence for the assault is one of five years and the maximum sentence for false imprisonment is life imprisonment. In spite of the fact that the false imprisonment can be far more serious than the assault, I believe the multiple assaults to have been the most serious in the facts of this case.
On the assault charge, having regard to the foregoing, I place the offending at the higher end of the scale in this case. Indeed I place it on the highest, save that there should be some allowance for the plea. I believe the sentence of four years imprisonment to be appropriate. In respect of the false imprisonment, I impose a similar sentence of four years to run concurrently. Having regard to the mitigating factors raised and to Mr. Maguire’s - to Mr. Maguire otherwise not having committed any violent offences, I shall suspend the last two years of the said concurrent sentences on condition that Mr. Maguire should enter a bond…”
9. A sentencing judge has, in general terms, a wide discretion in relation to sentencing. This court will not normally interfere in the manner in which that discretion is exercised save in circumstances where an error of principle is established. An application for a review of sentence pursuant to s. 2 of the Criminal Justice Act 1993 requires, if it is to be successful, proof that the sentence sought to be reviewed was not simply lenient, but was unduly lenient. In DPP v. Stronge [2011] IECCA 79, McKechnie J. usefully summarised the principles that ought to be applied when considering a s. 2 application. They are:-
“(i) The onus of proving undue leniency is on the D.P.P.;:
(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former;
(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge’s discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate;
(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal;
(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of such court is quite different: on a s. 2 application, it is truly one of review and not otherwise;
(vi) it is necessary for the divergence between the sentence imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified, and finally
(vii) due and proper regard must be accorded to the trial judge’s reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made.”
10. The Director has two major concerns in relation to sentences imposed in the court below. Firstly, it is submitted that the decision to suspend 50% of both sentences was itself unduly lenient. No issue is taken with the headline sentence of four years in respect of the assault offence which carries a five year maximum term. Secondly, and perhaps more importantly for the Director, is the contention that the false imprisonment offence, which carried a maximum sentence of life imprisonment, received what was in effect a two year net custodial term. She submits that that sentence was unduly lenient to a very significant degree.
11. It is undoubtedly the case that the events of the 14th / 15th January 2012 were nothing short of a vicious, brutal and violent attack on a defenceless woman in her bedroom in her own home and which commenced at a time when she was asleep in her bed. A particularly disturbing aspect of the incident was the fact that three of the victim’s four young children, and in respect of two of whom the respondent was their father, witnessed, or where in close proximity and within ear shot of what can only have been for them a terrifying experience. The headline sentence for the assault of four years, while not taken issue with by the Director, may indeed have itself been very lenient in the light of these facts.
12. The more difficult issue in this case is that relating to the kidnap offence and the extent to which, arguably, it deserved a greater, or even a substantially greater sentence than that imposed for the assault. Ms. O’Neill B.L. (for the Director) has placed great emphasis on her contention that the learned sentencing judge erred in, as he indeed appears to have done, merely treating the kidnap offence as, as it were, ancillary to the assault offence, and in circumstances where it ought to have been dealt with on its own merits, so to speak, and on a standalone basis.
13. For the respondent it is argued that the assault and the kidnap aspects of the incident were inextricably linked and that the learned sentencing judge was correct to treat both, for sentencing purposes, globally on that basis. Concern was also expressed by Mr. O’Higgins S.C. (for the respondent) with Ms. O’Neill’s submission that the act of locking the bedroom door after the respondent had left the victim’s room for the last time and therefore leaving the victim badly injured in the bedroom on her own with no easy means of escape and preventing anyone from immediately coming to her assistance was an additional aggravating factor. Mr. O’Higgins doubted that this had indeed been the evidence.
14. It does appear in any event from the transcript of the sentencing judgment, and in particular the learned sentencing judge’s summary of the evidence as he understood it that he approached sentencing on the basis that when the respondent had finally left the bedroom he had not locked the door. In those circumstances the court will also adopt that position.
15. Kidnapping offences cover a great variety of situations and are often committed in circumstances where, save for the victim being physically deprived of his or her liberty, there is otherwise little or no violence involved. Often in such cases, it is the fear or threat of violence which is used for coercive purposes, such as, for example, the type of case where a bank employee’s family are kidnapped in order to facilitate a bank robbery. In the instant case the primary purpose on the respondent’s part in entering the bedroom, and which he did in breach of a barring order, was to assault his former partner. It is unclear if he locked and re-locked the bedroom door to prevent his victim escaping, or to prevent the older children intervening to protect their mother, or merely to prevent them witnessing their mother being assaulted. In any event it was an incident which, when considered in it entirety, any right minded person would consider reprehensible and utterly deplorable.
16. The learned sentencing judge appears to have approached sentencing on this global basis, and this court is satisfied, in the particular circumstances of this case, that it was within his discretion so to do, and that doing so did not constitute an error.
17. The court is also satisfied however that the decision to suspend half of each of the two year prison terms was an error. The court takes no issue with the four year headline sentences, and indeed neither would it have done if the headline sentences had been sent at four and a half or five years each. What is clear however is that the mitigating factors, and they were certainly present and required appropriate credit, did not justify a reduction of 50% in the custodial element of the sentences. Ultimately, the court’s focus must be on the net custodial sentence of two years, and it is satisfied that that outcome represents unduly lenient sentences.
18. It is therefore necessary to re-sentence the respondent as of today with due regard to the mitigating factors as identified by the court below and also with regard to any additional factors that have arisen in the period since sentence and while the respondent has been in custody.
19. In this respect this court heard sworn evidence from the respondent on how he has progressed in prison since the commencement of his sentence. It is quite apparent that the respondent has used his time in prison positively, including completing a business start up course which he expects will assist him in securing worthwhile employment on his eventual release.
20. The court’s initial view, following the conclusion of the oral submissions, was that the appropriate sentences should be of concurrent four year terms of imprisonment subject only to the final eight or nine months of those sentences being suspended. However, and in line with its common practice in s. 2 applications where the court deems it necessary to increase a sentence with the consequence that a respondent must belatedly face a lengthier period in custody than was the case previously, and also, having regard to the impressive evidence from the respondent as to how positively he has used his time in prison, it will extend that suspended period to twelve months.
21. The sentences now imposed therefore are concurrent four year sentences with the final twelve months of each being suspended for a period of three years on similar terms to those directed in the court below.
