Court of Appeal quashes sentence for insufficient mitigation and reduces term to 7.5 years. Appeal allowed on sentencing severity grounds.

THE COURT OF APPEAL

[98/2017]

Birmingham J

Mahon J

Hedigan J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MELISSA WHELAN

APPLICANT

JUDGMENT of the Court delivered on the 11th day of May 2018 by Mr. Justice Hedigan

1. The applicant appeals against the severity of the sentence imposed upon her in this matter. She was sentenced to a total period

of 12 years’ imprisonment, three years of which were suspended for a period of 12 years in respect of one count of assault causing

serious harm contrary to s. 4 of the Non-Fatal Offences against the Person Act 1997. The applicant also pleaded guilty to two counts

of theft contrary to s. 4 of the Theft and Fraud Offences Act 2001, both of which were taken into consideration.

2. The applicant was born on 8th January 1991. She grew up in a dysfunctional household in which her father was serving a life

sentence and her mother had serious alcohol addiction difficulties. She has four young children from an abusive previous relationship

who are being cared for by her former partner’s parents and she has a history of substance abuse.

Background

3. The circumstances of the case are that on 6th May 2015, the applicant and the injured party attended at a ground floor apartment

at Knock Hill, Ennis Road, Limerick where there were a small number of other individuals in attendance at an impromptu house party.

They were known to each other for a short time before this incident occurred. The injured party had been involved in a very serious

road traffic accident in 2012 in which he sustained head injuries but had substantially recovered by the time this assault occurred.

During the night, Gardaí were called to the premises twice on foot of complaints made by neighbours in relation to noise and on each

occasion they left, having dealt with those complaints.

4. The injured party is described as being of a placid disposition and it appears he spent the evening watching television and chatting.

There is some suggestion that at some point during the evening, he may have hugged one of the other individuals at the party. It

appears that he spent most of the evening drinking on the couch. At some point during the night while he was sitting on the couch,

the applicant suddenly assaulted him by striking him on the nose with a bottle. She then punched him in the face several times, and

when he ended up on the ground, she kicked him several times as he lay on the floor. At the end of the assault, she dragged the

injured party outside into the patio area, and upon her return decided she was going to leave, but changed her mind and continued

drinking. It appears that the other individuals at the party believed the injured party had left and gone home of his own accord.

5. At 7am the next morning, a neighbour, having spotted a young man lying on the ground outside, rang the Gardaí. When the gardaí

arrived, they found the injured party unconscious and in a seriously injured state. He was removed by ambulance to University

Hospital Limerick, but because of his injuries he was transferred to Cork University Hospital where he was operated on due to

significant swelling of the brain. He suffered a cardiac arrest and was operated on a second time two days later. He was kept in an

induced coma for a period to allow him to heal. On emerging from this, he was left with significant impairment in respect of his swallow

and speech as well as having suffered from significant memory loss. He spent six weeks at the National Rehabilitation Centre in Dun

Laoghaire before being discharged home into the care of his family.

Submissions of the Applicant

6. The learned sentencing judge erred in fact and in law in assessing the offence before the court as being of such severity that it

warranted a sentence of 12 years’ imprisonment before any mitigating factors were taken into consideration. The Director of Public

Prosecutions expressed the opinion that the case lay at the upper end of the scale of seriousness as enunciated in the case of DPP v.

Fitzgibbon [2014] IECCA 12. The upper end of the scale set out in that case would attract a sentence of 7 and a half to 12 and a

half years’ imprisonment. It is argued that the trial judge erred in fixing the severity of the sentence practically at the very top of

that scale. The applicant refers the court to a number of cases considered to be good comparators. Ultimately, the applicant submits

under this heading that the learned sentencing judge erred in placing the case at the upper end of the upper range of the Fitzgibbon

range and that it should have been more appropriately dealt with as a case lying in the middle of the upper range.

7. The learned sentencing judge erred in fact and in law in that he failed to attach sufficient weight to the mitigating factors in the

case, in particular the applicant’s early guilty plea. As a result of inadequately balancing the aggravating factors and the mitigating

factors, the sentence produced was excessive and disproportionate. The applicant argues that she presented herself at a Garda

station less than 24 hours after the offence occurred. In custody, she made admissions, which it was conceded were helpful in the

overall context of the case. She indicated that she would not be contesting the matter and would enter a guilty plea. She entered

this guilty plea at the earliest opportunity on 8th November 2016. This spared the injured party the ordeal of trial. At sentence, a

handwritten letter was produced to the court expressing great remorse and shame for her actions and setting out her hopes for

rehabilitation and to be a better mother to her four young children. It is argued that while the learned sentencing judge did make

reference to the mitigating factors, his judgment lacks the clarity referred to by Clarke J. in Fitzgibbon in that he made no reference

to which mitigating factors he had in mind when suspending a portion of the sentence or whether the suspension of three years was

to be a suspension encompassing all mitigating circumstances. It is argued that contrary to the express hope, as expressed in the

judgment of Clarke J, the Court of Appeal was left to guess or infer what the reasoning of the sentencing judge was. It was submitted

that the early guilty plea on its own ought to have been reflected in a three-year suspension. Thus the sentence seems to have

ignored all the other mitigating factors. The sentence imposed was too severe in all the circumstances and the learned judge erred in

his assessment of the severity of the offending and in the reduction appropriate for the many mitigating factors involved.

Respondent’s Submissions

8. The factual situation set out by the applicant is accepted by the respondent. The respondent notes the unprovoked nature and

the savagery of the attack upon the victim. She notes the huge physical impact upon him and refers the court to the victim impact

statement prepared by the victim’s cousin, Simon Reynolds. In the submission of the respondent, the sentencing judge correctly

identified the significant aggravating factors to be found in this case. It acknowledged that the sentencing judge could have

approached the matter in a different way. It has however been repeatedly stated that sentencing is not a mechanical process. It is

clear that the sentencing judge reflected the mitigating factors by suspending the final three years of a sentence of 12 years’

imprisonment. The sentencing judge was presented with a very serious s. 4 harm case. It is submitted that the sentence is

proportionate to this very serious crime. The sentencing judge was entitled to impose the sentence appealed against and in so doing

kept within the margin of his discretion. The respondent, in oral submissions in court, accepted that the plea in this case was a very

valuable one. It was also accepted that there were other mitigating factors which were very significant in this case.

Decision of the Court

9. It is clear from the transcript of the sentence hearing that the learned sentencing judge gave very careful consideration to this

case. There is no doubt that it was a very serious offence with catastrophic consequences for the unfortunate victim. He was a very

vulnerable victim, having only recently recovered from a serious car accident in which he had sustained head injuries. The court

agrees with the approach adopted by the learned sentencing judge in arriving at a headline sentence of 12 years. The learned

sentencing judge went on to deal with the mitigating factors in the case. Firstly he identified the plea of guilty and noted that it was

indicated at an early stage. He noted that the case may not have been the easiest of trials to prosecute and that the plea was of

huge benefit to the victim and his family. All of this is undoubtedly correct. Being of such value, mitigation in respect thereof ought

normally to be no lower than 25% and possibly as high as 30% depending on the circumstances of the case. It might well be arguable

that the value of this plea was close to the top end. The court, however, is of the view that in the circumstances of this case, it

ought not to have fallen below a figure of 25%.

10. It is correct that the learned sentencing judge did not distinguish between the allowance given for the early plea and the other

mitigating factors that the judge identified. He did, however, identify these as an acceptance of her culpability, expression of deep

remorse and in that regard noted the letter that had been written by her in which she seemed to express a genuine and deep remorse

in respect of her involvement in the assault. He noted also her personal history and that she had had a very troubled upbringing in a

dysfunctional family unit and that she was involved in criminality at an early age. He noted also the fact that she was the mother of

four young children and expressed a natural anxiety to try and be united with them at some stage. The learned sentencing judge

noted her relative youth. He also noted a good prospect of rehabilitation and that she had been making very good use of her time

while in custody. She was taking several Leaving Certificate subjects and was also engaging with the other services available to her

while in prison.

11. A 3-year reduction from the headline sentence of 12 years amounts to a 25% reduction. As noted above, the court considers

that the plea of guilty in the circumstances of this case should not have attracted a mitigation less than 25%. That, however, is all

that was allowed in this case by way of mitigation. The learned sentencing judge thus does not appear to have taken into account

any of the other mitigating factors which the respondent considers to be very significant in this case. Because the learned sentencing

judge did not distinguish between what he allowed for the various mitigating factors here by way of setting the reduction figure for

the sentence and then identifying the other mitigating factors and allowing for them, this Court is unable to ascertain just exactly

what was intended. It seems to the court that some allowance must be made for all the other mitigating factors in addition to the

25% allowance for the very valuable plea of guilty in this case. It seems to the court that there is thus an error in principle in the

approach that the sentencing judge took, and in that regard, this Court will quash the sentence and proceed to resentence the

applicant. As noted above, we agree with the headline of 12 years and would allow a reduction of 3 years from that figure in respect

of the plea of guilty which is a 25% reduction. We must sentence as of today's date and to this end we have been furnished with and

have carefully considered the very impressive updated testimonials furnished on her behalf. Taking everything into consideration, we

consider that the other mitigating factors outlined above should attract a further reduction of 18 months. This will result in a

reduction from the headline of 12 years by 4 and a half years leaving in place a sentence of 7 and a half years. The 4 and a half

years will be suspended subject to the same conditions imposed by the Circuit Criminal Court.