Court of Appeal dismisses appeal against sentence for false imprisonment with suspended term due to serious violence and prior record.

THE COURT OF APPEAL

[126/2017]

Birmingham P.

Edwards J.

McCarthy J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

v.

MICHAEL LYNCH

APPELLANT

JUDGMENT (Ex tempore) of the Court delivered on the 19th day of July 2018 by Birmingham P.

1. This is an appeal against severity of sentence.

2. The sentence under appeal is one of 10 years imprisonment with the final year two years of the sentence suspended that was

imposed in the Circuit Court in Cork on 10th May 2017. The sentence was imposed following a conviction after trial on 13th February

2017, the offence being one of false imprisonment.

3. The background to the case is that the accused picked up the victim, a former girlfriend of his, at the train station in Cork. She

asked him to drive her to her father’s house, but instead, the appellant drove her to a home that they had shared for a period at

Inchigeelagh. On the drive, she kept asking him to let her out; to stop the car and to drive her home and he refused.

4. At Inchigeelagh, he detained her from 2am until the following evening when she succeed in escaping. In her victim impact

statement, she refers to being detained for some 24 hours, but it may in fact have been somewhat slightly less than that. She

describes the fact that during her detention, he was coming at her with knives, a machete, and threatening her with what he was

going to do with her with boiling water.

5. The house where the false imprisonment occurred was an unusual one, in that it has only a front door and no back door. That front

door was locked. During her detention, he called her names such as tramp and whore and he was beating her across the hip with a

machete. In the house, was a photo of Marilyn Monroe, a long photo, and he cut that photo with the machete and this served to put

the victim in fear. The period of false imprisonment came to an end when the accused’s landlord came to the property to discuss rent.

This provided the victim with an opportunity to escape through a back window, which she did, and she then ran to the landlord’s

house which was close by.

6. In terms of the appellant’s background and circumstances, he was born on 30th August 1991, and so was 36 years of age at the

time of the sentence hearing. The Court heard that his upbringing was a very difficult one indeed. In recent years, he has lived a

nomadic, homeless existence. At the time of the sentence hearing, he was serving an effective 4-year sentence for a s. 3 assault

and had a release date of 24th September 2018. All told, he had 15 previous convictions. Of these, 11 were for road traffic matters;

two for public order matters, but significantly, two were for s. 3 assaults. Both assaults involved former girlfriends. One assault

involved the use of boiling water into which sugar had been added. That matter came before the Court of Appeal which increased the

sentence on foot of an undue leniency review from one of two and a half years to one of five years, but with the final year

suspended.

7. The issue raised in this appeal relates to a contention that the judge did not have proper regard to the report of a psychiatrist, Dr.

Francis John Kelly. The defence place emphasis on the fact that the report indicated that the psychiatrist was of the view that Mr.

Lynch had a genuine and credible ambition to avoid reoffending. The psychiatrist, in the report, had also expressed the view that Mr.

Lynch represented a low risk of harm to others.

8. However, it must be said immediately that that opinion was far from unqualified because the psychiatrist said that he believed that

Mr. Lynch represented a low risk of harm to others if he had some stability in his housing; if he had psychological support in the

community and if there was structure to his day and if there was an avoidance of alcohol. The qualifications are significant in a

situation where the psychiatrist had recorded that he had been told by Mr. Lynch that he had been living a nomadic, homeless

existence in recent years and had reported a history of alcohol abuse. The investigating Garda, when giving evidence on the

sentencing hearing, had referred to the chaotic life lived by Mr. Lynch, referring to the fact that he was living in a car for periods.

9. Significantly, the paragraph of the report which expressed the view that he represented a low risk of harm to others in the future

concluded as follows:

“He tells me his past offending behaviour, apart from the current conviction, relates to driving-related offences.”

The reference to “current conviction” is presumably a reference to the sentence that Mr. Lynch was serving at the time of interview

by the psychiatrist. It is of note that dealing with the expression of belief that Mr. Lynch was at low risk of reoffending, counsel on

his behalf in the Circuit Court had commented that “there were a few buts”, though that was what was in the report.

10. In fact, as we have seen, what Dr. Kelly was told about the extent of Mr. Lynch’s prior offending was incorrect. Mr. Lynch had in

fact two previous convictions for assault causing harm, and significantly, both of those were committed against women, against

former girlfriends, and one, at least, the matter to come before this Court on foot of the undue leniency review application was a

particularly outrageous offence involving an assault with boiling water to which sugar had been added.

10. Insofar as the judge in the Circuit Court is criticised for not having had appropriate regard to the psychiatrist’s report, it is of

some significance to note that it was in fact the judge who sought out a psychiatric report. While it is true that the judge referred to

the fact that the report had addressed the issue of fitness to plead, which he obviously regarded as odd given that the report was

against a background of a concluded trial and a conviction, the judge did comment that the report went into a lot of detail. Further

exchanges with counsel showed that the judge was fully cognisant of the contents of the reports and raised issues such as the

relevance of dyslexia and what educational opportunities might be available in the prison. The judge noted that the then accused,

now appellant, was doing well in the structured environment of prison and that caused the judge to muse as to what he had to do to

transfer that stability.

11. Overall, the Court does not believe that the criticisms of the judge for not having regard to the psychiatrist’s report are well-

founded. It is in fact clear that the judge paid considerable attention to the report, including referencing the fact that it indicated

that there was no remorse; no insight in the harm that had been done and that there was an element of self-justification. It is the

case that the report was undermined somewhat by reason of the fact that it was based on false information which had been provided

and there is also the fact that there was no probing of the details of the recorded conviction for violence, and so, it appears that the

full extent of the violence involved in the earlier incident was not factored in.

12. There remains for consideration whether the sentence imposed fell outside the available range. This Court cannot regard the

offence in question as anything other than very serious. Given the prior history of violence, in one case, particularly appalling violence

directed towards women, it is a very disturbing offence indeed. The offence here was committed against a woman with particular

vulnerabilities and, as the sentencing judge pointed out, that was a fact that was well known to Mr. Lynch. It was an offence that

was committed by someone with a highly relevant prior record. The sentence hearing followed on a contested trial. The sentencing

judge’s remarks that the person he was dealing with is a dangerous man, well capable of doing damage to others, particularly girls or

girlfriends, were points that were well made. Obviously, this was an offence committed by this offender which had to be met with a

significant sentence. The Court imposed what was a significant sentence, but structured it by suspending the final two years.

13. This Court cannot conclude that the sentence imposed fell outside the available range, nor can it identify any error in principle.

14. In the circumstances, the Court must dismiss the appeal