Court of Appeal allows DPP review of sentence for undue leniency, increasing term for assault and robbery.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

225CJA/15

In the matter Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

and

Stephen Nolan

Respondent

Judgment of the Court (ex tempore) delivered on the 2nd day of February, 2016 by

Mr. Justice Birmingham

1. This is an application brought by the Director of Public Prosecutions seeking to review a sentence on grounds of undue leniency.

The sentence sought to be reviewed was one imposed on the 29th July, 2015. On that day the respondent was sentenced to a total

of five years imprisonment with the final two years suspended in respect of two separate incidents.

2. The first offence, one of assault causing harm contrary to section 3 of the Non Fatal Offences Against the Person Act, 1997

occurred on the 13th December, 2014. On that occasion the injured party, a Mr. Perkins, was at his home. There had been a house

party and it would seem that considerable quantities to alcohol had been consumed. The injured party left his bedroom and went to a

bathroom and when he returned from there, he found the respondent in his bed. He asked the respondent to get out of the bed and

at that stage Mr. Nolan started to assault the injured party. During the assault, a bottle was used and this inflicted injuries, including

injuries to the head area. The victim had to be brought to the hospital to receive treatment and a victim impact report that was

handed into court indicated that the victim had sustained lacerations and bruising to the body and was left with scarring. Following

the incident, the victim left the house and managed to stop gardaí who were in the area. The gardaí called to the house where the

assault had taken place and found the respondent in the process of cleaning up the evidence.

3. The victim impact report that was put before the Court referred to the fact that Mr. Perkins was left with permanent scarring and

that this was a constant reminder of what had occurred. The victim commented “that not a day went by when he didn’t think of the

assault”.

4. The second offence, which was a robbery offence, occurred on the 1st January, 2015 and it occurred at a time when the

respondent Mr. Nolan was on bail for the earlier offence. On this occasion, the victim in the case had parked his car at Poppintree

Terrace, Ballymun. He was approached by the respondent who said something to him and then proceeded to attack him. This assault,

like the first, was unprovoked. On this occasion Stephen Nolan was using a bottle or part of a bottle as a weapon. Mr. Nolan swung at

the victim several times and the victim tried to defend himself by raising his hands and his hands were slashed with the bottle. The

respondent demanded the keys of the car and at one stage the victim fell to the ground. It was described that the victim “fell to the

ground with weakness”. Mr. Nolan then took the car keys and got into the car. The victim approached his car and tried to retrieve his

keys and was then bitten on the hand by Mr. Nolan who then drove off in the car. A garda came on the scene in response to a call

for assistance and he observed that the victim had a deep laceration to his hand and was bleeding from the head. An ambulance was

called and the victim went to hospital. The attacker had left a mobile phone at the scene and through this Mr. Nolan was identified.

5. In this case, the victim was not anxious to become involved in preparing a victim impact report, but a medical report was made

available to the Court outlining the injuries sustained. This involved lacerations to his ear, his neck and a significant injury to his hand

which required surgery.

6. In terms of the background and circumstances of the respondent, the Court was told that he had 128 previous convictions. Many

of these it must be said were of a minor nature, but he did have a number of previous convictions for offences involving violence,

including two previous convictions for assault causing harm, eight for s. 2 assault contrary to the Non Fatal Offences Against the

Person Act, 1997, a conviction for robbery, a conviction for a threat to kill, two convictions for endangerment, a conviction for

obstruction of a peace officer, ten convictions for s 112 of the Road Traffic Act and eleven convictions for burglary. His first recorded

conviction was back in 2001, and he had spent much of his adult life in custody.

7. At the time of sentencing he was 31 years of age, a single man but in a long term relationship. He has a six year old son. He has

long had a problem with alcohol and has long been engaged in the consumption of both drugs and alcohol. The Court was told on his

behalf that his consumption in this regard had increased when he lost his father to suicide in September 2014.

8. The judge indicated that he was approaching the case as a mid range offence. The Director submits that the judge was in error in

this regard and contends that the offending is at the upper end of s. 3 assaults, involving, as both offences do, the use of a weapon.

Also it is said that the first offence occurred within the sanctuary of the dwelling and that this was a matter of significance. It is

contended that the judge had failed to have full regard to the extent of the trauma sustained and the lasting effect that these

attacks have had on the victims. The Director says that too much weight was given to the plea of guilty. The Director also says too

much weigh was given in a situation where the evidence was very strong and the respondent had little alternative but to plead this

way.

9. On behalf of the respondent, it is acknowledged that these are serious offences and that Mr. Nolan’s record is not a good one. But

it is said that the judge was fully conscious of this and gave effect to it in his sentence and that accordingly it is not appropriate that

this Court should intervene.

10. The jurisprudence that applies in the case of prosecution applications where a review of sentence is sought is at this stage well

established, going right back to the first such case, the case of People v. Byrne [1995] 1 ILRM 279.

11. The Court is satisfied that in this case there was a clear error. The aggregate effect of sentence fails to reflect the gravity of the

offending behaviour. There has been a substantial departure from what would have been an appropriate sentence.

12. The first assault, which was a serious one involving a weapon, was unprovoked and occurred in victim’s home which adds a

further dimension of seriousness. By any standards, it has to be seen as falling in the upper range of s. 3 assaults. The second

incident, where the plea entered was to a robbery count again involved an unprovoked attack with a weapon and the infliction of

injuries. This offence was committed while on bail and this required that the sentence for this offence be consecutive. The Court was

also required to regard the fact that the offence was committed while on bail as an aggravating factor.

13. The defendant’s record is a very bad one. The argument has been made on his behalf that his consumption of both alcohol and

drugs increased following his father’s death. Even if that be so, it cannot be suggested that the offending represents an aberration or

a major departure from the established norm even though it is the case that the offences in this case were significantly more serious

than had been committed previously. Being of the view that an error in principle has been established, the Court is now required to

sentence as of today’s date. In doing so, the Court will have regard to update information put before it to the effect that Mr. Nolan is

progressing well in custody, accessing the various options that are available to him and that he is now on an enhanced regime.

14. The Court also takes account of the fact that the respondent finds himself in a situation where the sentence that was originally

imposed on him is now being increased and recognises that adjusting to this will be difficult.

15. In addition, the Court is of the view that given the established propensity to offend that it is appropriate to structure the

sentence so as to seek to build on the progress that has been made in custody by providing an incentive not to offend and a

deterrence against further re-offending.

16. In addition in a situation where two significant sentences are required and one must be consecutive to the other, the Court will

have regard to the totality principle. In the circumstances, the Court is of the view that the minimum sentence that could be

contemplated is one of three years imprisonment in respect of the bedroom assault and one of four years imprisonment in respect of

the Poppintree robbery. The Court will therefore impose these sentences, but in order to promote the prospect of rehabilitation, the

Court will suspend the final eighteen months on condition that the respondent enter into a bond. So therefore the sentence is three

years imprisonment on count 1, and a consecutive sentence of four years imprisonment on count 2 (that is to say to commence on

the expiry of the count 1 sentence) with the final eighteen months suspended.