Court of Appeal finds sentence unduly lenient but dismisses appeal due to significant delay and lack of re-offending.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

76/CJA/16

In The Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Robert Jones

Respondent

JUDGMENT of the Court delivered on the 6th day of April 2017 by

Mr. Justice Hedigan

Introduction

1. This is an appeal by the Director of Public Prosecutions on the basis that the sentence imposed was unduly lenient. The respondent

entered a guilty plea to the offence of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997

on the 11th December, 2015. The respondent was sentenced by His Honour Judge John Aylmer in the Dublin Circuit Criminal Court on

the 24th February, 2016, to 18 months imprisonment suspended for 18 months. There was also a charge of assault causing serious

harm contrary to s. 4 for which a nolle prosequi was entered.

2. The suspension was on the following conditions. The respondent enter into a bond of €100, keep the peace and be of good

behaviour for a period of 18 months and pay to the victim, within four weeks, compensation of €8,000.

The Circumstances of the Offence

3. In the early hours of the morning on the 20th July, 2014, in the Palace Night-club the respondent struck Mr. Brian Murphy in the

face with a pint glass. It was disputed whether the victim was acting in an “annoying” manner and making provocative gestures

towards the respondent. The injured party denied this but two of the prosecution’s civilian witnesses said there had been prior

interaction between the parties.

4. The glass hit the victim around his left eye. He was taken to St. James’s Hospital for emergency treatment. The incident and injury

resulted in scarring, permanent loss of vision in his left eye and psychological trauma. He underwent five operations under general

anaesthesia. He will need at least one more.

5. A victim impact statement was read to the Court. It included details of the devastating impact the injury had on the victim who

was studying medicine at the time. An updated victim impact statement has been handed into Court.

6. The respondent remained at the scene and was cautioned, arrested and taken to Kevin Street Garda Station. He admitted to

striking the victim. He made admissions both at the scene and at the Garda Station answering all questions put to him. He stated that

the injured party “came close, he made the cut gesture again, that’s when I instinctively threw my right hand at him, I was

completely unaware that I was holding a pint glass at that moment, and after that’s it’s quite a blur, rush of adrenalin”. The

respondent expressed remorse to the injured party several times.

The Respondent’s Personal Circumstances

7. At the time of the incident the respondent was 25 years old with no previous convictions. He had a degree in business and was

working in a bank and taking banking exams. He worked from the age of 16 and put himself through college where he achieved a first

class honours degree. He had €8,000 compensation with him at the sentencing hearing. At the time he was in a relationship and they

were expecting a child in July, 2016. He has since had the baby. As a consequence of his conviction he no longer works in the same

employment but has found work in another similar post.

Sentence

8. In sentencing the learned judge described this as a very serious offence on the upper end of the scale of s. 3 offences. The

injuries were described as “horrific”. The mitigating factors identified were the respondent’s previously impeccable character with no

previous convictions. He had never come to Garda attention and was never likely to. The assault was without premeditation. The

respondent was given the benefit of the doubt in relation to provocation. There was no need for rehabilitation as there is no likelihood

of reoffending. It was noted that there was an offer of compensation to be made from the savings of the respondent and his partner.

It was noted that if allowed to pursue his career the respondent would remain available to provide further compensation. A custodial

sentence would be likely to destroy his career prospects and this would affect the injured party’s ability to recover compensation.

Appellant’s Submissions

9. It was the appellant’s submission that the sentencing judge erred in reducing the offence from the upper end of the scale and

imposing a sentence at the lower end. There was a grave level of violence. The sentence was unduly lenient given the serious injuries

and the use of a weapon.

10. While the sentencing judge identified the appropriate mitigation tendered he gave too much weight to it given the serious nature

of the assault. The wholly suspended sentence was inappropriate where the offence had been deemed to be at the upper end of the

scale.

11. The sentence did not reflect the serious nature of the assault with a weapon and there was no element of deterrence to others.

The Court was referred to the decision in The People (DPP) v. Lyons [2014] IECCA 27 at para. 40 where it was noted that even

though personal deterrence was not a significant factor there should be an element of deterrence to others. It would send the wrong

message to society if this was not reflected in the custodial element and totality of punishment.

12. It was submitted that there was a failure to regard and reflect in the sentence the full extent of the trauma and lasting effects as

outlined in the victim impact statement and medical reports.

13. There was a failure to appropriately consider the level of violence which should have attracted a custodial sentence. The use of a

glass to strike the injured party’s face was an aggravating factor that was not given proper consideration during sentencing.

14. Undue weight was given to the guilty plea. There was very strong evidence against the respondent. It is accepted however that

a guilty plea is always positive mitigation.

15. It was submitted that it was not proper to consider the effect of a custodial sentence on the respondent’s ability to pay

compensation. The Court was referred to O’Malley, Sentencing Law and Practice, 3rd Ed., (Dublin, 2016) at para. 27-11 where the

author states that the payment of compensation in the case of a serious offence should not save a person from imprisonment.

16. The pending civil action was not a matter that should have been taken into consideration. The Court was referred to Lyons at

para. 63 where it was held to be a separate liability that is not a factor in sentencing. The payment of compensation should not

automatically be a factor in mitigation.

Respondent’s Submissions

17. The judge must consider the aggravating and mitigating factors and sentence the individual offender based on the facts and their

personal circumstances as held in The People (AG) v. O’Driscoll [1972] 1 Frewen 351 at 359. The respondent submitted that the

mitigating factors were, in addition to those listed above, the guilty plea, that the respondent remained at the scene, made

admissions, expressed remorse and wrote an apology letter. He stated he felt threatened. In his Garda interview he expanded and

clarified the account he gave at the scene, he answered all questions and cooperated. He had worked to put himself through college

where he did well and secured gainful employment, he was now the father of a newborn baby with his partner and there were

testimonials speaking to his character.

18. The Court was referred to O’Malley where the author referenced a decision from the Supreme Court of South Australia where it

was noted that the appropriate sentence is within a range and that sentencing is not a precise process. It was submitted that the

sentencing court was entitled to identify the offence as at the upper end of the scale but also entitled to give maximum weight to

the mitigating factors. There has been no issue raised about the quality of the mitigation.

19. It was submitted that the appellant’s submission that undue weight was given to the respondent’s guilty plea was unfounded. The

Court dealt with it as a matter of fact not mitigation. It was not mentioned in the mitigating factors listed. The respondent could

complain that the sentencing judge failed to afford credit for it. Further it was the respondent’s actions after the assault which left

him with little scope for a defence. He bolstered the prosecution’s case. His admissions put identity beyond doubt, he was not known

to the injured party, whose sight was affected in the assault and CCTV did not feature. The Court was referred to the comments on

guilty pleas where the offender has provided most of the information for the case against him in The People (DPP) v. Begley [2013] 2

I.R. 188 at 212. It was noted that it must be given serious consideration. Further even when caught red handed a guilty plea

represents a mitigating factor as noted in The People (DPP) v. Cully [2014] IECA 41 at para. 5.

20. The respondent noted the factors which were considered in The People (DPP) v. McCabe [2005] IECCA 79. These included his

being lead to believe a non-custodial sentence would be imposed and that it was hanging over him for almost 3 years. The Court

considered that the time elapsed between the offence and final decision on appeal in The People (DPP) v. C(J) [2014] IECA 1 and The

People (DPP) v. Farrell [2010] IECCA 116 was a factor in refusing to interfere with the sentence imposed as it would be unjust in the

circumstances.

21. It was submitted that the respondent is entitled to expect that the sentence imposed is that which he will have to abide by. This

is consistent with the rule of finality. To interfere would cause hardship particularly if a custodial sentence replaced a non-custodial

sentence. The courts have recognised this hardship and it was considered in The People (DPP) v. Ryan and Rooney [2015] IECA 2 at

para. 30. In that case it was noted that the respondents had been at liberty but were then coming to be imprisoned. The Court

recognised the additional disappointment following an extra period of anxiety and that it was recognised that this was a stressful

experience that might justify some leniency. Moreover, other countries have reduced the new term of imprisonment in recognition of

this. There was also a considerable amount of time since sentencing. The Court held that some significant allowance should be made

for these factors.

Decision

22. There is no doubt but that the events during the night of 20th July, 2014 have had consequences that will live with the

respondent and the victim for the rest of their lives. The victim, Brian Murphy, has not only suffered the catastrophic loss of his vision

in one eye. He has had to endure five operations on his eye and will have another at some later stage. He will go through life with the

ever present danger that any injury to his remaining eye will result in complete blindness. He has however pulled his life together

admirably and has resumed his medical studies in Trinity College, Dublin albeit with some considerable difficulty. For him and for his

family this incident has had devastating and life changing consequences.

23. For the respondent Robert Jones, the consequences have been considerably less devastating. They have however impacted upon

him largely through the criminal process. From being a hard working, successful young man who had educated himself to a first class

degree, good employment, marriage and the birth recently of a first child, he now finds himself at the hazard of a prison sentence.

24. Almost invariably in cases of violence such as herein, the Courts should impose a sentence however mitigated that contains at

least some element of custody. There have however been exceptions to this. A good example may be found in the decision of this

Court dated 23rd March, 2017 The People (DPP) v. Ann Marie Byrne. The judgment at paras. 26 and 27 considers the normal approach

to sentencing as a two stage process, firstly determining the gravity of the offence and secondly discounting from the headline

sentence for any mitigating factors that may be found. The Court went on to state at para. 28 as follows:—

“However, that fairly simplistic explanation of the process may represent less than the full picture in that subset of

cases where a sentencing judge finds it appropriate to consider the possible suspension of the entirety of a nominated

headline sentence. In that situation a subsidiary issue arises for consideration within the second stage of the overall

process, namely whether the suspension of the entirety of the sentence could be appropriate at all in the circumstances

of the case, and some issues already considered in the first stage may again become relevant in the context of that

subsidiary issue.”

25. And later the Court continued at para. 33:—

“The offence in this case was subject to discretionary punishment. However, we recognise that some offences will be so

serious that they effectively carry a presumption against the suspension of a custodial sentence in its entirety. That is

certainly true in the case of rape offences, s.15A drugs offences, certain firearms offences and egregious crimes of

violence. However, even in such cases existing jurisprudence indicates that a wholly suspended sentence can be imposed

in cases where there are special reasons of a substantial nature and particularly exceptional circumstances. Examples

are to be found in The People (Director of Public Prosecutions) v. McGinty [2006] IECCA 37; The People (Director of Public

Prosecutions) v. Alexiou [2003] 3 I.R. 513; The People (Director of Public Prosecutions) v. Jervis and Doyle [2014] IECCA

14 and The People (Director of Public Prosecutions) v. Flanagan [2015] IECA 94.”

26. The Court later referred to a judgment of the New South Wales Court of Criminal Appeal in the case of R. v. Zamagias [2002]

NSWCCA 17 which is cited in O’Malley on Sentencing (3rd Ed.) at para. 22.12. The Court summarised that judgment at para. 36 as

follows:—

“It will be clear from this passage that amongst the considerations that a sentencing judge must have regard to, in

deciding within the second stage of the sentencing process on the subsidiary issue as to whether or not the suspension

of a sentence in its entirety might be appropriate in a particular case, are (i) the nature of the offence committed (ii)

the objective seriousness of the criminality involved, (iii) the need for general or specific deterrence and (iv) the

subjective circumstances of the offender.”

27. In this case the nature of the case was one of a sudden burst of violence that, although it may have been preceded by some

hostile interaction, was unpremeditated. The judge gave the respondent the benefit of the doubt on the issue of provocation but did

consider that the provocation involved did not amount to very much. It certainly could not justify the assault that ensued. The crime

in question was certainly very serious in that it has had the gravest consequences. There can be no doubt but that the need for

general deterrence does arise. Such egregious violence simply cannot be tolerated in any circumstances. The courts must deal

severely with such offences.

28. The Court must consider not just the offence but also the offender. In this case the sentencing judge considered the subjective

circumstances of the offender. As noted above, he has led heretofore an unblemished life. His self education speaks highly of him and

should have made for a very successful career. He has in the circumstances of this incident and its aftermath erected some

considerable challenges to that potential. He is now a married man with a newborn baby. He is in good employment. He has endured

since the events of over two and a half years ago the traumata of arrest, charge and criminal trial. He has had to wait one year since

sentencing to find out whether he will go to jail. These are not inconsiderable events that have befallen him. They are matters that

this Court must consider in this appeal.

29. It might well be considered that the real headline sentence was as found by the sentencing judge to be one of five years

imprisonment. Allowing the very substantial mitigation that is appropriate, it is possible to accept a reduction to 18 months

imprisonment although it must be said that that stretches the mitigation factors in this case to their very limits. However, the

sentencing judge then went further and suspended that 18 months in its entirety. We note the reasons he has advanced for doing so,

and have afforded them great weight. Nevertheless, we have not been persuaded that these in fact justified the far reaching step

taken. We do not consider that the evidence before the sentencing judge disclosed the existence of circumstances that were

sufficiently substantial and extraordinary to have justified a wholly suspended sentence in the respondent’s case. We are therefore

satisfied that the ultimate sentence imposed represented a significant departure from the norm and was unduly lenient.

30. In circumstances where we have found the sentence to be unduly lenient it would be appropriate, in the normal course of events,

to quash the sentence imposed by the court below and for this Court to proceed to re-sentence the respondent afresh. However, we

note with some concern that it has taken thirteen months for this review to come on for hearing. In circumstances where the

respondent would have experienced the initial relief of believing that he had avoided custody, only to have that relief replaced within

a short time with the deflating announcement that the applicant was intent on seeking a review of his sentence, and then having to

endure the inevitable worry and anxiety of not knowing his fate for thirteen further months, we recognise that it would involve a

significantly greater burden of hardship for the respondent to have to go into custody at this point. The question is, in circumstances

where time has moved on, where the respondent has not re-offended, where he is gainfully employed, and where there has been

significant undue delay, does the justice of the case still require that he should have to go into custody? We consider the issue to be

a finely balanced one.

31. While we reiterate that, in most cases of egregious violence such as herein, a custodial element is likely to be required, principally

to reflect the overall gravity of the offence, and in the interests of deterrence, both general and specific, we have come to the

conclusion that the message in that regard will, in the circumstances of this case, be sufficiently promulgated by the Court’s finding

that the initial sentence was unduly lenient, but that it is not necessary at this point to require the respondent to go into custody.

Accordingly, we will not at this stage quash the sentence imposed by the court below and it will be sufficient to simply record our

view that that sentence was, at the time when it was imposed, unduly lenient and a departure from the norm.

32. It is only because the same circumstances no longer obtain as obtained at the date of sentencing, due to the fact that time has

moved on, coupled with our concern that the respondent should not be visited with the additional hardship that we have identified

that was not of his making, that we found the scales tipped very marginally in favour of maintaining the status quo in terms of his

sentence. We must emphasise that, had we been sentencing the respondent at first instance, we would certainly have imposed an 18

month sentence to be actually served.

33. The appeal is dismissed.