Court of Appeal allows DPP appeal, quashing suspended sentence for knife assault as custodial term is mandated.

THE COURT OF APPEAL

Record No. 65CJA/19

The President McGovern J. McCarthy J.

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–

JASON MOORE

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered on the 20th day of January 2020 by Mr. Justice McGovern

1. The respondent was sentenced on 14 March 2019 before O’Kelly J. at Waterford Circuit Court on the following counts:

• Count 1: Assault causing harm to Luke O’Brien on 18 December 2016 at Dungarvan, County Waterford contrary to s.3 of the Non Fatal Offences Against The Person Act 1997;

• Count 2: Production of an article capable of inflicting serious injury to wit a knife on 18 December 2016 at Dungarvan, County Waterford contrary to s.11 of the Firearms and Offensive Weapons Act 1990

2. The offences relate to a knife attack on the victim when on 18 December 2016 the respondent lured his victim to a remote location to carry out a pre-planned and vicious knife attack. The respondent pleaded guilty to both counts on 16 October 2018 and a sentencing hearing proceeded to take place on 14 March 2019 at Waterford Circuit Court whereupon the learned Circuit Court judge imposed the following sentences:

• On Count 1: two years’ imprisonment suspended in its entirely for a period of four years;

• On Count 2: two years’ imprisonment suspended in its entirety for a period of four years to run concurrently with Count number 1.

3. This appeal has been brought by the Director of Public Prosecutions on the basis of undue leniency. The burden of proof rests on the DPP to show that the sentence was unduly lenient and that it constituted such a substantial departure from what might be regarded as an appropriate sentence to justify the intervention of this Court.

4. The offences involved multiple stabbings of the victim and also some head injuries. The victim had been lured to a remote location for the purpose of the assault.

5. There had been a prior homosexual encounter between the accused and the victim and the accused believed that the victim had put out some information on social media identifying him in connection with that incident. Prior to that sexual encounter the accused had been in a heterosexual relationship which had broken down. He is currently in a heterosexual relationship and is the father of a young child.

6. The victim of the assault received six stab wounds to his body and a number of injuries to his head. The accused admitted that he originally intended to kill the victim but when he went to stab him that he did so in a half-hearted way and could not bring himself to do it property. At that point he said he did not want to kill him but wanted to wound him. As the victim escaped he heard the accused warning him that if he told anyone about the earlier sexual encounter that he would find him and kill him and that this was only a warning.

7. The grounds of appeal by the DPP were as follows. The first one was that the sentencing judge erred in principle in imposing a two-year sentence suspended in its entirety for four years. The second ground was that, having regard to the facts of the case, the sentencing judge erred in law and in fact in imposing sentences of two years suspended in their entirety for four years on Count 1, the s.3 assault and Count 2, the s.11 production of an article capable of inflicting serious injury to run concurrently. The relevant facts were: (i) that the respondent armed himself with a knife with the express purpose of stabbing his victim; (ii) the frenzied, and potentially, lethal nature of the attack in which the victim was stabbed multiple times; (iii) the luring of the victim to the location of the attack under false pretences; (iv) the remote location of the attack; and (v) the effect of the attack on the victim

8. Having placed the offence at the upper end of gravity and stated that the appropriate headline sentence was four and a half years, the DPP contends that the sentencing judge erred in law and in fact in reducing the headline sentence, pre-mitigation, to two and a half years by virtue of the fact that the respondent was seventeen at the time of the commission of the offence.

9. The DPP also contends that the trial judge erred in law and in fact in further reducing the headline sentence from two and a half years to six months being an 80% reduction on account of the mitigation factors which were not so exceptional as to warrant such a reduction. This was on the basis that the judge said that he could either arrive at a sentence of six months or he could structure the sentence to give less discount for mitigation and provide for a greater element of rehabilitation, which was the approach that he ultimately took.

10. The DPP also contends that the sentencing judge erred in law and in fact in approaching the sentencing by taking the approach of imposing a two and a half years sentence suspended in its entirety as an alternative to a six month term of imprisonment.

11. It is argued that the judge also erred in law and in fact in attaching undue weight to the mitigation factors in this case and in particular the appellant contends that the sentencing judge erred in law and in fact in placing too much emphasis on the age of the respondent and his personal circumstances which did not warrant the suspension of the sentences imposed in their entirety.

12. This application also raises an issue as to the manner in which the sentencing judge approached the mitigating factors including the respondent’s age and personal circumstances and then separately considered whether all or some of the sentence imposed should be suspended given the respondent’s age and the interests of society and that in so doing this amounted to double discounting by the judge.

13. The final ground of appeal is that the sentencing judge erred in law and in fact in the sentence imposed for what was an extremely serious violent offence involving premeditation and the deliberate luring of the victim to a knife attack at a remote location and the learned sentencing judge, it is contended, failed to have regard to the societal need for a serious deterrent element to the sentence imposed by the court.

14. In the view of this court the trial judge correctly set a headline sentence of four and a half years but he mitigated it to two and a half years on account of the age of the accused who was seventeen at the time and on account of the plea.

15. The transcript shows that the approach of the trial judge was to either deal with the matter by way of a sentence of imprisonment of six months or by way of a suspended sentence in order to provide for a greater element of rehabilitation. I will just briefly quote what the trial judge said on 14 March 2019 at the sentence hearing. He said:

“Taking all of the mitigation factors into account I can arrive at a sentence of six months’ imprisonment or I can structure the sentence alternatively which gives less of a discount for the mitigation but a greater element of rehabilitation. I can thereby arrive at a sentence of two years’ imprisonment but one which I am prepared to suspend wholly for a period of four years and I have then to look at whether society and not just the victim but rather society is best served by Mr.

Moore getting a sentence of six months from which he would possibly for good behaviour be released after perhaps four months or whether it would serve as a better encouragement to him in all the circumstances of this case including his efforts of rehabilitation whether a sentence of two years’ imprisonment which is a real punishment but for which he would have a period of four years

16. It is the view of this court that the sentence imposed of two years suspended for four years was unduly lenient and amounted to an error in principle. There were no wholly exceptional circumstances identified within the meaning of the O’Callaghan case [2015] IECA. At para. 9 of the judgment of the court Mahon J. said:

“In the court's view, an unprovoked assault using a glass on an unsuspecting victim resulting in a very serious injury normally requires the imposition of a custodial sentence, unless wholly exceptional circumstances exist.”

17. It is the view of this court that the same principles would apply in the case of an attack using a knife.

18. The court is of the view that there are no wholly exceptional circumstances identified in this case within the meaning of the O’Callaghan case and that a custodial sentence is mandated by the facts of the case.

19. In the circumstances the court will allow the application of the DPP and quash the sentence. If this court had been sentencing at the time when it in fact occurred, it may well have imposed a sentence of two and a half to three years but allowing for the inevitable disappointment of the accused in having to now face a custodial sentence at this remove, the decision of the Court is to impose a sentence of two years on each count to run concurrently.