THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
159/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court (ex tempore) delivered on the 7th day of July 2016, by
Mr. Justice Sheehan
1. This is an appeal against sentence.
2. On the 12th June, 2015, the appellant was sentenced to four years imprisonment for an assault causing harm to his grandfather in the family home. The final year of that sentence was suspended subject to a number of conditions:
(i) that he enter into a bond in the sum of €100, to keep the peace and be of good behaviour for a period of two years following his release from prison,
(ii) that he agree to be managed while in prison by the visiting psychiatric team,
(iii) that he engage with addiction services while in prison and agree to be subject to regular drug screening.
(iv) that suitable accommodation be available to him on release alongside a structure to monitor the taking by him of his medication.
(v) liberty to apply.
3. The appellant then appealed against that sentence and his grounds of appeal have been helpfully categorised by his counsel as follows:
1. The sentence imposed was excessive and the learned sentencing judge failed to adequately take into account the mitigating factors and the reports relied on by the appellant. The appellant also submits that the learned sentencing judge erred in law and in fact in taking into account opinions expressed in reports prepared by the Probation Service namely, the opinions of Dr. Wright and Dr. O'Neill.
2. The learned sentencing judge erred in law and in fact by determining that the appellant had displayed little capacity to manage himself in the community and little ability to work with the Probation Service.
3. The learned sentencing judge erred in law and in fact in imposing a sentence on the basis of avoiding anticipated future offending by the appellant.
4. The learned sentencing judge erred in law and in fact in imposing the suspended portion of the sentence on preconditions that the appellant is himself powerless to achieve and are uncertain and unworkable.
4. In order to assess these grounds of appeal it is necessary to consider them in light of the background to the offence and the personal circumstances of the appellant.
Background
5. A trial date had originally been set for the 11th November, 2014. Depositions had been taken in the District Court on the 29th July, 2014, at the appellant’s request. The injured party David Crowe, the grandfather of the appellant, gave his evidence on deposition. On the 22nd October, 2014, the appellant pleaded guilty in the Dublin Circuit Criminal Court to a count of assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. Sentencing was adjourned until the 4th December, 2014 on which date Sergeant Wogan gave evidence to the effect that the appellant had been living with his grandfather in the family home on the 17th October, 2013, which he also shared with his mother. The family home was owned by his grandfather.
6. The court heard that the injured party’s date of birth is the 28th April, 1918 making him almost 95 years on the date of the assault. In or about midnight between the 16th and 17th October, 2013, the injured party had locked up the house and was sleeping upstairs, when suddenly the appellant came into his room. He stated that the appellant had had a mad look in his eyes and out of the blue he started boxing him on the head and face. He said that the appellant produced a scissors to him and he fell to the ground and that when he did fall to the ground, the appellant kicked him in the head and face.
7. The appellant’s mother came in and saw what was happening and started roaring and shouting and trying to hold the appellant back. The appellant was pushing her aside but she eventually managed to get him out the door and she locked it. She saw that the appellant had a scissors in his hand. She took the scissors off him and told him to go upstairs, which he did.
8. There was blood all over the floor and the injured party managed to get into the bedroom locking the door and holding the handle. The injured party did not remember saying anything to the appellant and did not see the attack coming. He thought that the appellant was determined to kill him and that he had lost control.
9. The injured party was terrified. He was brought by ambulance to St. Vincent’s Hospital. There were visible lacerations and bruising to the right side of his face. His jaw and cheek were very swollen and bruised and there was blood coming from his right ear. His upper back, chest and arms were badly bruised and he had small cuts on his body and back.
10. The court had the benefit of a victim impact statement which outlined that following the attack, the injured party was reluctant to leave his home. As a direct consequence of the attack he now lives alone and is nervous about people getting into his home. The attack caught him totally unawares and he never expected the appellant to do what he did.
11. In the course of the sentencing hearing before the Circuit Court judge a number of psychiatric reports and two probation reports were presented to the court.
12. At the time of sentence the appellant was 33 years old and had eight previous convictions. He is a single man with no children and is not in a relationship. At the time of the offence he had been living in the family home which as the court has already noted was his grandfather’s home. The only other occupant of that home being his mother.
13. The appellant has a history of drug and alcohol addiction and has had intermittent engagements with the psychiatric services over a number of years. With respect to his mental state at the time of the offence, there was a report before the court from Dr. Stephen Monks who in the course of that report concluded as follows:
“All sources of information available from clinical records and the book of evidence are strongly indicative that Mr. Crowe’s actions at the time of this assault were directly influenced and driven by active psychotic symptoms. He was exhibiting many signs of psychotic illness including the delusional belief that his grandfather and mother had been replaced by imposters and were persecuting him. Mr. Crowe did say at a later point to Garda Wogan that his grandfather was a good man and that he was sorry for assaulting him.”
14. In the course of the appeal hearing before us which took place in the absence of Mr. Crowe who was ill at the time and unable to attend court, it became clear that there was no realistic possibility of the terms of the suspension being met.
15. We adjourned our judgment in this matter from time to time in view of Mr. Crowe’s inability to attend due to illness and today we note that Mr. Crowe has progressed to the extent that he is deemed well enough to attend court.
16. We also note the additional submission that has been made on behalf of Mr. Crowe by his counsel to the effect that even if this Court decides to impose a sentence of four years imprisonment in lieu of the original sentence it might still consider suspending part of the final portion of that sentence.
17. We have also to day received a further report. This report is from a consultant psychiatrist Dr. Mullaney who concludes in that report that the appellant is still seriously unwell and in need of continuing treatment in the Central Mental Hospital. As things stand Mr. Crowe has a release date in January. In our view it is important that the appellant’s own family namely, his grandfather and his mother know with certainty what his release date is. Equally it is undoubtedly important for the doctors in the Central Mental Hospital to have ample time to make the appropriate plans for Mr. Crowe’s ongoing treatment. No doubt he himself will also benefit from clarity.
18. Accordingly notwithstanding the additional submissions of his counsel, this Court will refuse his application for what effectively amounted to a reduction in the sentence that had originally been imposed on him. We will set aside the original sentence and in its place impose a sentence of four years imprisonment. In view of the medical evidence before us, we will not suspend any part of that sentence. The court will backdate the sentence to the same date that the Circuit Court backdated the original sentence.
