Court of Appeal reduces suspended sentence by extending suspension period to match co-accused sentence due to procedural unfairness.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

22/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Aoife Molloy

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 18th day of October 2016 by Mr. Justice Birmingham

1. This is an appeal against severity of sentence. The sentence appealed is one of four years imprisonment with eighteen months of

that sentence suspended that was imposed in respect of an offence of assault causing harm on the 15th January, 2016, in Dublin

Circuit Criminal Court. Lesser concurrent sentences were imposed in relation to related offences that occurred at the same time.

2. The background facts are that the case related to an incident that occurred on the 11th December, 2014, on the Luas between

the Smithfield and Museum stops. On that occasion, the injured party, who as it happens is a Luas driver, but on this occasion was

travelling as an ordinary passenger with a friend had been out socialising. Also on the tram and in the same carriage were a group of

young people which included the appellant, the co-accused Martin O’Connor who was dealt with by the sentencing judge at the same

time and a further co-accused whose trial was pending at the time of the sentence hearing. The group of young people were drinking

bottles of beer and there was an amount of shouting and cursing going on. The group started to chat to the injured party, but at one

stage a verbal altercation involving the appellant and injured party appears to have developed. As the tram moved away after a

traffic light, the injured party stumbled and fell over and at that point the appellant kicked the injured party as he tried to get up. The

garda witness who was summarising the facts of the case described the contact as being half way between a kick and a push. The

injured party remembers getting what he described as “a boot” and then remembers nothing further. However, there was high quality

CCTV footage that recorded the incident.

3. That footage records the injured party falling over as the carriage jolted and at that point the appellant kicked the injured party as

he tried to get up and when he did get to his feet that the injured party kicked at the appellant. The co-accused then grabbed the

injured party and the appellant grabbed a full uncapped bottle of Budweiser and hit the injured party twice across the top of the

head. Then when she struck him a third time, the bottle smashed and the appellant then tried to stab or jab the injured party in the

face/eye area with the broken bottle and did in fact jab him in the lip. After this incident then the appellant and her co-accused got

off the tram and ran off. The injured party, who was distraught and in a lot of pain, was brought by ambulance to the Mater Hospital,

there he required four stitches to the top of the head, two to another part of the scalp and two to the lips. There was a fractured

bone in the area between the jaw and the eye and that was displaced and comminute and it would seem it was a significant injury.

4. On the 19th December, the appellant was arrested and no admissions were forthcoming at that stage. However, in a situation

where there was high quality CCTV footage and where there was DNA evidence which linked the appellant to the Budweiser bottle

that was found by scene of crime gardaí who examined the Luas carriage charges were laid. In particular the appellant was charged

with the offence of assault causing harm, an offence of violent disorder and a charge of producing an article capable of causing

serious injury during the course of a fight. An early plea of guilty was notified.

5. In terms of the appellant’s background and circumstances, she was born on the 21st June, 1991, and she had seven recorded

convictions, all under the Road Traffic Act. She had been diagnosed with cervical cancer when aged eighteen years of age. Shortly

before this incident she had become pregnant with twins despite having earlier been advised that she was infertile after her cancer.

However, the pregnancy was an ectopic one and the twins miscarried. At the time of the sentence hearing she was undergoing tests

in respect of a possible recurrence of her cancer. The court was told that she had been involved in a number of very abusive

domestic relationships. In these circumstances she had resorted to prescription drugs and alcohol and it seems that she was under

the influence of both of these at the time of the assault.

6. The sentencing court was told of significant steps that had been taken by her after the incident in order to address the problems

in her life and in particular her addiction difficulties and psychological problems. Against that background the judge observed that he

felt that it was unlikely that she would come before the court again. It is also to be noted that the appellant offered compensation in

the sum of €3,000 to the injured party.

7. Having heard the evidence and submissions on the sentence hearing, the judge put the matter back to the following day in order to

consider matters overnight. He then proceeded to impose sentences, four years imprisonment with eighteen months suspended which

is the subject of the present appeal in the case of Ms. Molloy and a sentence of four years imprisonment of which two years

suspended on Mr. O’Connor. This disparity in the sentences imposed is a significant aspect of the present appeal. Mr. O’Connor had

eight previous convictions, but while Ms. Molloy’s were all under the Road Traffic Acts, Mr. O’Connor had public order and criminal

damage convictions.

8. As the facts of the case were presented to the court by the investigating garda, the judge was anxious to assess and measure the

relative responsibility of the two accused. He raised that issue specifically on a number of occasions and the response he got was

that the garda investigation suggested that both accused were equally culpable in the assault. However, in the course of his

sentencing remarks on the following day, the judge commented:-

“. . . it seems to me at the end of the garda evidence, that they were both equally culpable in this unprovoked attack.

However, on reflection when I studied all aspects yesterday evening in compiling this very difficult sentence, it occurred

to me that Aoife Molloy, who I am turning to now, date of birth 1st June, 1991, that she was to a greater extent the

instigator of the violence and certainly participated in even greater extent. She kicked the innocent man on the Luas who

was on a night out and she also, in the use of the bottle, which I will return to later, stabbed him in the mouth requiring

sutures.”

9. The judge then went on to conclude “of the two assaults, this [the Molloy assault] appears possibly marginally worse” and it

appears it was this view that was the basis for the disparity in sentence. The appellant says that this conclusion by the trial judge

was not justified, that indeed it could have been argued that the two male assailants were more culpable as they had attacked the

injured party in concert with bottles after the first assault had concluded. It is argued that at least there should have been parity of

sentences and indeed if anything that a somewhat lower sentence for Ms. Molloy would have been appropriate.

10. This was by any standard a very serious offence indeed. It was an assault carried out by a group on an individual who may have

been somewhat more vulnerable than usual, given that he had been out socialising and it resulted in very significant injuries. Indeed it

appears that those injuries remain with the injured party. It is also an assault that was carried out on public transport and that of

itself is a dimension that adds to the seriousness.

11. In the course of the original sentence hearing, the judge was particularly focused on assigning relative culpability between the

two co-accused before him and as we have seen raised this with the prosecution and the investigating garda.

12. Everyone must have left the court after that initial sentence hearing believing that the case would be approached on the basis

that the two appellants were equal in culpability.

13. The judge then clearly gave matters a great deal of thought overnight. Indeed it must be said that this was a case which the

judge approached with very particular care and anxiety. In the court’s view, the trial judge having come to the view that there was a

distinction to be drawn between the co-accused that it would have been desirable for him to have informed that parties as to the

direction in which he was going and to have provided an opportunity for them and more specifically for Ms. Molloy’s legal team to

dissuade him from that view.

14. The court has to say that the view reached by the trial judge following reflection on the matter was certainly not an

unreasonable one. The use of a broken bottle to the facial area was particularly reprehensible. However, the court feels that in a

situation where Ms. Molloy’s legal team were denied an opportunity to argue that her culpability was no greater or was indeed even

less than that of the co-accused, that it is appropriate that the court should readdress the question of sentence.

15. While there is certainly scope for concluding that her involvement was the greater of the two, it was a case which might well

have been approached on the basis that all were involved and that each supported and adopted the actions of the other. The

mitigation that was available to Ms. Molloy was the greater. There was before the court specific and positive information about steps

already underway in relation to rehabilitation. There was the offer of the €3,000 compensation and there was the exceptional difficult

circumstances in her background to which reference has already been made.

16. In sentencing this Court has had regard to the documentation that was put before it this morning which in accordance with our

usual practice we have looked at once we moved to the re-sentencing phase. There is before us now a report from the Governor of

Dóchas which refers to the fact that “Aoife is on the enhanced regime, that is as opposed to a standard or basic regime, meaning

that her behaviour has been beyond reproach, that she is trusted to such an extent that she is accommodated in the Cedar House

accommodation with minimum staff supervision, that she is polite and civil to her peers, the staff and to the wider multi disciplinary

team in the Dóchas centre”. It does appear therefore that the indications of progress being made that were available to the trial

judge have been reinforced. In these circumstances, the court is of the view that an effective sentence, which is greater than that

given to her co-accused, is not an appropriate one.

17. The court however, is of the view that such was the seriousness of this offence that the court is constrained in the extent to

which it is able to intervene and that there is in fact only a very limited scope for intervention. In all the circumstances of the case,

the court is of the view that the justice of the case will be met if there is an increase in the period of suspension in order to provide

parity with the sentence imposed on the co-accused. In other words we are increasing the eighteen months period of suspension to

two years period of suspension.