Sheehan J.
Mahon J.
Edwards J. Appeal No.: 186/14
Between
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) delivered on 21st day of April 2016 by Mr. Justice Mahon
1. This is an appeal against a sentence imposed on 4th April 2014 at Castlebar Circuit Criminal Court following conviction on 2nd February 2014 at the conclusion of a three day jury trial.
2. The appellant was found guilty of four counts, being:-
(i) Count No. 1:
Threat to kill or cause serious harm contrary to s. 5 of the Non Fatal Offences Against the Person Act 1997. (In respect of this offence the appellant received a prison sentence of three years, to date from 6th November 2013).
(ii) Count No. 2:
Assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. (In respect of this offence the appellant was sentenced to two years, sentence to run consecutively with the sentence imposed on count no. 1 and concurrently with the sentence imposed in count no. 2).
(iii) Count No. 3:
Intimidation of a witness contrary to s. 41(1) and (5) of the Criminal Justice Act 1999. (In respect of this offence the appellant was sentenced to three years imprisonment, sentence to run concurrently with the sentence imposed on count no. 1).
(iv) Count No. 4:
Contravention of Safety Order contrary to s. 17(1) of the Domestic Violence Act 1996. (This offence was taken into consideration with counts 1, 2 and 3).
3. On 8th June 2013 the appellant contravened a Safety Order contrary to 2. 17(1) of the Domestic Violence Act 1996 and assaulted his wife, Ann Maughan. The appellant and his wife lived together with their seven children. On that date the appellant arrived home and demanded money from his wife with which to gamble. Mrs. Maughan did not give him money and he proceeded to beat her with a handle of a brush about her head, hitting her four or five times. She was bleeding from a cut to her head. He then left the house. Mrs. Maughan called the gardaí and made a statement in relation to the assault.
4. Approximately ten days later, on 17th June 2013 the appellant threatened to kill his wife with a carpet knife stating “Do you see it? I will slice you with it. I will do away with you”. Mrs. Maughan made a statement to the gardaí in which she provided details of the threat. At the time Mrs. Maughan was in bed with two of her young children. She described to the gardaí how the appellant shouted at her and warned her to drop the charges and tell the guards I was telling lies and that if I get him jail that he would kill me. Mrs. Maughan alleged that her husband told her that if he was to go to jail he would serve ten years and that he would do something right to you. She told the gardaí that she was in serious fear for her life and that she believed her husband would kill her.
5. When called to give evidence at an early stage in the trial, Mrs. Maughan maintained that her statements to the gardaí about the appellant assaulting and threatening her were lies. She maintained that stance and the case proceeded with the admission of Mrs. Maughan’s statements into evidence, the learned trial judge having satisfied himself that the statements were made voluntarily and were reliable.
6. Mrs. Maughan declined to make a victim impact statement.
Grounds of appeal
7. The appellant’s grounds of appeal can be summarised as follows:-
(i) The effective overall sentence of five years was excessive and disproportionate, and amounts to an error in principle.
(ii) Insufficient weight was attached to the mitigating factors. It is contended that the learned sentencing judge was wrong in his failure (as stated by him) to identify any serious mitigating factor in the case.
(iii) It was wrong to treat as an aggravating factor the appellant’s lack of remorse in relation to the commission of these offences.
(iv) Insufficient weight was attached to the appellant’s family and personal circumstances.
The sentencing judgment
8. The learned sentencing judge identified and considered a number of factors in the case, particularly relating to the appellant’s background and personal circumstances. He stated that the appellant had a complicated background and has a number of difficulties that remained unresolved. He attempted anger management courses. He took that view that a significant feature in the case was the appellant’s long history of addiction to alcohol, drugs and gambling. He did not accept the appellant’s claim (as made to the Probation Service) that he had ceased drinking some months previously. He noted that the appellant had shown no remorse for his offending behaviour, that he had believed he had done nothing wrong, and that he continued to blame his wife for causing him trouble. He also notes that the appellant carried a high risk of re-offending within twelve months.
9. The learned sentencing judge stated that he could not identify any mitigating factor in regard to this man. He noted his history of previous offending but that a previous conviction for assault occurred some thirteen years previously. He indicated that he would sentence the appellant on the basis that there was no recent evidence of any crime of violence.
10. The learned sentencing judge expressed his view, (and correctly so), that the sentence for the second offence, (the threat to kill), had to be consecutive to the sentence for the first offence, (the assault), as the second offence had been committed by the appellant while he was on bail in respect of the first offence. He expressed his view that the appropriate sentence for this offence was a term of imprisonment of five years, before later imposing the sentence of two years imprisonment.
Decision
11. These offenses were extremely serious. They involved a vicious and unprovoked assault on a defenceless woman; a example of domestic violence of the most serious kind. They also involved threats of extreme violence - in fact a threat to kill his wife - unless she took steps to frustrate or stop his prosecution. Any attempt to interfere by intimidation with the legitimate investigation and prosecution of a crime is an offence of the utmost gravity.
12. One of the submissions made by counsel for the appellant was that the learned sentencing judge did not sufficiently take account of the adverse affect that the prolonged long absence of the appellant while in prison would have on his young children. Undoubtedly, the absence of a parent for prolonged period can, and does, adversely affect children, especially young children. It also imposes on the other parent a host of additional practical problems in dealing with young children. However, while it is properly a factor to be taken into account when considering a custodial sentence, and the length of such a sentence, in relation to the parent of a young child, it should not, save in exceptional circumstances, result in the imposition of a non custodial sentence, or indeed a reduced custodial sentence, in circumstances where a significant custodial sentence is otherwise appropriate with due regard to the seriousness of the offence concerned, and, of course, the personal circumstances of the personal being sentenced.
13. In a recent decision of this court, in the case of DPP v. Counihan [2015] IECA 76, the following was stated:
“The Court holds that the suspended sentence cannot be justified in this case by reason only of the impact that imprisonment would have on the respondent's family, although the Court does not in any way wish to underestimate those effects. The fact is, however difficult it may be to cope without the respondent, many other families of imprisoned people have to face major disruption and problems in coping with children and dependent adults.”
14. It is also suggested that these offences are less serious than they might otherwise have been if committed in the house of a stranger. This is not necessarily so. The house in this case was Mrs. Maughan’s home and a place where she was entitled to feel safe and secure. That right was very significantly breached by the appellant.
15. The court is satisfied that in respect of counts 1 and 3 no error of principle is evident in the sentences imposed, being three year concurrent sentences.
16. In relation to count no. 2, being the threat to kill offence, and probably the most serious of the offences, the sentence imposed was one of two years imprisonment. It was necessarily made consecutive to the three year sentence imposed in respect of count no. 1 as it was an offence committed while the appellant was on bail for that first offence. In the course of his sentencing judgment, the learned sentencing judge identified the appropriate sentence for this offence to be one of five years imprisonment. The court finds no fault with this view. In deciding, however, to impose just two years imprisonment for this offence; it is quite apparent that the learned sentencing judge very fully respected and acknowledged the principle of proportionality and totality, almost to the point of leniency.
17. There is no error of principle evident in the imposition of this sentence.
18. The appeal is therefore dismissed.
19. Notwithstanding the foregoing, the court believes it appropriate to acknowledge the appellant’s considerable and impressive rehabilitation achieved since his incarceration approximately two and a half years ago, and as is apparent from the many certificates of achievements in courses accessed by him while in prison, including in the areas of alcohol addiction and awareness, self esteem and self development, parenting skills and anger management. Undoubtedly all of these will benefit him on release from prison in the not too distant future.
