Court of Appeal dismisses appeal against sentence for assault causing harm, upholding trial judge's discretion on severity.

THE COURT OF APPEAL

Record No. 5/2019

Birmingham P.

Kennedy J.

Donnelly J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

ALICE BYRNE

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on the 2nd day of July, 2019 by Ms. Justice Donnelly

1. This is an appeal against severity of sentence. The sentence under appeal is one of four years’ imprisonment, with the final year of

the sentence suspended, imposed on 17th December, 2018 in the Circuit Criminal Court in Dublin. That sentence was imposed

following the entry of a plea of guilty to a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the

Person Act, 1997. The sentence was made consecutive to a sentence of nine months’ imprisonment imposed in respect of a burglary

offence, which was imposed on the same day.

2. The burglary offence was committed on 1st October, 2015. In relation to that offence, the Circuit Court heard that the appellant,

along with her son and others, entered a domestic dwelling, whilst the householder was at home. They committed criminal damage

with baseball bats. The Court heard that the appellant’s role was to secure entry to the property and to “direct operations”. Her son

had been in a relationship with the daughter of the householder.

3. In relation to the assault count, the victim was an in-patient in James Connolly Hospital and on 13th August, 2017, she was

outside the hospital, smoking. She saw the appellant approach her and she appeared to be arguing with a man. The appellant

engaged the victim in conversation and then walked away. At that stage, the man who had been with the appellant came over and

apologised to the victim for the appellant’s behaviour before, in turn, walking away. Some minutes later, the victim saw the appellant

involved in assaulting the man on the roadway. She then came back, shouting “what did you say to my fella?” The victim said that

she had said nothing. The appellant then “went for her, full tilt” as the man sought to hold her back. The appellant got free from the

man and “launched at” the victim. An assault followed which was described in these terms:

4. The injured party said she got kicked or punched in the stomach and was reduced to the foetal position on the ground. She said

that the accused kept kicking her and kicking her. She said that the appellant was so strong that she was like the ‘Incredible Hulk’

with strength and rage. The injured party said that at one stage, she managed to get up and stuck her leg out in self-defence and

connected with the appellant. She said that the male who was with the appellant managed to eventually get her off the victim. The

victim said that at this stage, she was aching all over and felt disorientated. She said that she was blacking out. She said that she

could not see and that she literally dragged herself through the hospital door and she described “just the feet kicking me, I really

thought I was going to die. I’ve been kicked by racehorses before and this was worse”.

5. The appellant was arrested in the grounds of the hospital by a member of An Garda Síochána after she was identified to him as

having been involved in an assault.

6. In terms of the appellant’s background and personal circumstances, at the time of the offence, she was 43 years of age, she was

the mother of three children, the youngest of whom was eight years old. She had 21 previous convictions recorded, four for theft,

two for assault and the Court heard she was on bail at the time of the second offence in relation to the burglary offence. The trial

judge’s approach to sentencing was to identify a headline sentence of five years and to mitigate it in the way described. In relation

to the burglary charge, a sentence of three years with two years of the sentence suspended was initially indicated, but this was

reduced to one of nine months having regard to the principle of totality.

7. The nine-month sentence is not under appeal. It is appropriate, however, to consider that sentence in circumstances where the

sentence was handed down by the sentencing judge taking into account the principles of totality and proportionality when dealing

with both sentences.

8. So far as the victim in the present case is concerned, she had been attending a counsellor since the assault. She said her life had

changed, she had panic attacks, she had been very depressed, her marriage had really suffered, she had no confidence, she felt very

humiliated at the injuries to her face. She had suffered lacerations around her eye which had required stitches. She had an orbital

fracture in terms of the eye. She said her nose was running on the left hand side, she had no feeling in her nose, her left upper lip

and teeth. She had to have two operations on implants because one had burst in the course of the assault and became infected. She

described two months of pure hell between those operations.

9. The appellant relied on two grounds of appeal:

10. The first ground was that the sentencing judge should not have placed the offence on the high end of the highest scale which

recommended a maximum of five years for the index offence. The appellant submitted that where she was unarmed, with no weapon

of offence forming any part of the assault and the offence was not premeditated, the headline sentence should not have been as

indicated.

11. It must be pointed out that this is not a case where a maximum sentence was actually imposed. That situation would be reserved

for facts among the worst reasonably imagined variations of the offence. In this case, the trial judge did not impose the maximum

sentence but indicated it as the headline amount for her pre-mitigation sentence, the maximum sentence was then reduced in light of

the personal circumstances and the other mitigation aspects.

12. The appellant, however, took issue, with the headline sentence of the maximum five years. Counsel on her behalf relied upon a

number of decisions which the Court has considered in the course of this appeal.

13. Counsel relied on DPP v Corbett [2015] IECA 174 which was an assault on a medical worker in a hospital. In Corbett, some of the

factors were similar such as the location of the offence in a hospital, but the facts were otherwise very different. The assault

consisted of a single blow. In this case there was a sustained attack involving kicking to the head/face area. This was also a case

where the trial judge was obliged to consider the aggravating factor that the offence was committed whilst the appellant was already

on bail for other offences. In so far as there was an attempt to argue that only a premeditated assault with the use of a weapon

carries a maximum sentence in a s.3 assault, this is not the true position. Section 3 assaults can vary significantly. There may be

cases where they are borderline s.4 (intentionally or recklessly causing serious harm) cases, but for whatever reason a prosecutorial

decision was made to only prosecute under the lesser s.3 offence.

14. A number of factors taken together, or even individual factors, may tip the balance in favour of identifying the maximum as the

headline sentence for an assault causing harm. Undoubtedly in this particular case given the seriousness of the injuries, the location

of the offence, the ferocious and lengthy nature of the assault and the aggravating factor of it being committed on bail, this offence

was quite correctly placed at a headline sentence of five years.

15. The second ground was that the trial judge had failed to attach sufficient weight to the significant mitigating factors present in

the case including, but not limited to, the views of the Probation and Welfare Service who had provided reports to the sentencing

court and also a report from a psychologist concerning the appellant. It was also submitted that the trial judge failed to attach

adequate or sufficient weight to the fact that the appellant was genuinely remorseful and apologetic for her actions and also the

appellant referred to her guilty plea.

16. In her sentencing remarks, the trial judge had given a full account to all of the mitigating factors applicable to this case. It is

indeed true to say that this appellant has had a very difficult background and had on numerous occasions been the recipient herself

of serious violence. Her counsel referred to the fact that she was at the hospital herself on the day she committed the offence to

support a friend who was at the hospital who had been raped. It is however difficult to see how that may be considered a mitigating

factor – it may be an explanation but it can hardly be said to mitigate the ferocious and unprovoked attack she launched at another

patient in the hospital.

17. Counsel for the appellant pointed to Corbett and other cases (DPP v Hynes [2016] IECA 102, DPP v Dowdall and Dowdall [2018]

IECA 122, DPP v Mindadze [2016] IECA 337) to state that, in fact, a further deduction for mitigation should have been taken into

account. Counsel referred to in particular the rehabilitative prospects outlined in the Probation Report.

18. It must be readily acknowledged however that, the hope for rehabilitation outlined in the psychological report was quite apparent

in the trial judge’s decision to suspend one year of the four year sentence. It also must be said that the experienced sentencing

judge structured the burglary sentence and indeed the present sentence when taking together with the burglary, so as to take into

account the totality principle.

19. The sentencing judge took a view on the extent of the mitigating factors. Having considered all of those matters, this Court is of

the view that this was a sentence which was within the margin of her sentencing discretion where she had given sufficient credit for

all the relevant mitigating factors.

20. There was no error in principle in this case and the Court therefore must dismiss the appeal.