THE COURT OF APPEAL
Edwards J Hedigan J McCarthy J 194CJA/17
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
The People (at the suit of the Director of Public Prosecutions)
Appellant
Respondent
JUDGMENT of the Court delivered on the 3rd day of October 2018 by
Mr. Justice Hedigan
1. This is an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act 1993, seeking review of sentence on grounds of undue leniency. The respondent pleaded guilty on arraignment to the first of three counts on the indictment. This count charged him with the production of an article, i.e. a hatchet. Subsequently on the sentence date of 19th of June 2017 pleas of guilty were entered by the respondent to the second count of threatening to kill or cause serious harm contrary to section 5 of the Non Fatal Offences Against the Person Act, 1997) and to the third count of assault contrary to section 2 of the Non Fatal Offences Against the Person Act, 1997.
2. On the 19th June, 2017 the sentencing court had before it a re-entry application relating to a suspended sentence, as the offences in question were committed during the currency of that suspended sentence. A sentence of 4 years with 18 months suspended had previously been imposed on the respondent for the offences of producing a weapon and threatening to kill or cause serious harm. The re-entry application was brought before the sentencing court so that it could decide whether or not to reactivate any part of the suspended portion of the sentence it had imposed on the earlier matter.
3. The respondent was sentenced to 16 months, backdated to the 10th December, 2016 in respect of the second count on the indictment, the threat to kill or cause serious harm. The other two counts were taken into consideration. No order was made on the re-entry application in relation to the re-activation of the suspended sentence.
Background
4. Garda Hetherington gave evidence to the sentencing court concerning the offences in question, which occurred on 10th December, 2016. Ms Linda Devlin, the injured party was then the partner of the respondent, and was living with him and their children at a house of a friend of hers, called Alan, at 8 Sundale Lawns in Tallaght. The family were renting from and living with Alan at this address in order to comply with the conditions of the suspended sentence that had been imposed on the respondent.
5. At some time in the afternoon, Ms Devlin went into a bedroom in the house and asked the respondent for some tobacco. He said he had none, but Ms Devlin found some under a pillow. She took the tobacco and went downstairs. The respondent went downstairs after her, and Ms Devlin was in the kitchen with Alan. The respondent took the tobacco back from Ms Devlin. Some kind of verbal dispute proceeded as between the respondent and Alan. This escalated into a physical fight between the men on the stairs of the house, and Ms Devlin got between them to try and keep the peace. She was concerned at this point for her own safety and that of her children. This incident went on for almost an hour, and Ms Devlin called the Gardaí to deal with it. When the incident between Alan and the respondent calmed down, the respondent became very angry with Ms Devlin for having called the Gardaí. He accused Ms Devlin of ratting on him, and told her that he hated rats and her day would come. Ms Devlin decided at this stage that she would leave the house with her children. Having called the Gardaí to deal with the initial dispute, Ms Devlin called again advising that the Gardaí need not attend. She did not wish for her children to see their father being taken away by the Gardaí. The respondent became more abusive towards Ms Devlin throughout the day. He was rowing with her over calling the Gardaí, and Ms Devlin was angry at him for disrespecting Alan. Later on in the day, she was in the bedroom upstairs and saw a hatchet on the bed. The respondent pushed Ms Devlin out of the room and onto the floor. She fell over and the respondent continued to push into her chest and at her shoulders. Ms Devlin managed to get up and go downstairs and sat in the living room. The respondent continued shouting at her from upstairs, calling her a rat bastard, a dirty dying dog, and a tramp bastard. The respondent came downstairs and said to Ms Devlin, "I'll fucking kill you, I'll split you in half". The respondent had the hatchet raised in the air, and Ms Devlin told him "just go for it, I've no fight left". The respondent then went upstairs, and Ms Devlin went next door to a neighbour. She had left her children with the neighbour who had been left there after the initial incident involving Alan. The Gardaí were called again and when they arrived at 8 Sundale Lawns, they entered the house and called out to the respondent asking him to come downstairs. The Gardaí searched the room and found the hatchet in the bed. The respondent was arrested and taken to Tallaght Garda Station. In the course of his interview with the Gardaí, the respondent stated that it was unusual for him and Ms Devlin to fight as they had done that day. He accepted that he owned the hatchet and that he had it for his own protection.
Personal Circumstances of the Respondent
6. The respondent is 37 years old and was born on 11th May, 1979. He comes from a large family and grew up in the Balinteer area. He did his junior certificate and left school. He has had some painting and decorating jobs in the past. He and Ms Devlin have three children, aged 8, 9 and 10. Mr O'Brien is in loco parentis of another child of Ms Devlin's who is aged 17. The family have experienced periods of homelessness.
7. The respondent began taking cannabis at 13 years old and moved on to heroin. In recent times, he is dependent on cocaine and alcohol. He had inherited some 35,000 euro from his parents' estate and spent the majority of this on drugs. A brother of the accused died in 2014, which affected him badly. The incident in question occurred at the end of a four day binge, and the respondent in interviews admitted to having had a few drinks. He stated that his mind was not in the right place at the time. The respondent has been in custody since December, 2016 and is an enhanced prisoner in Cloverhill.
8. Letters were handed in to the sentencing court from Father Peter McVerry and Noel Dowling of the Merchants Quay project, indicating a willingness to work with the accused towards obtaining a place on a treatment programme on his release. A probation report dated 25th April, 2018 was handed into the sentencing court. Whilst it did not recommend that the accused be considered for residential drug treatment, it commented that the respondent is capable of desisting from offending, noting the period between 2006 and 2013 as being relatively offending free, bar one public order related offence. He was described in the same report as pleasant to deal with.
9. A psychological report was also handed into the sentencing court which commented on the respondent's mental health issues and his borderline learning disability, stating that this was "[a] sad case of a man with a borderline learning disability and with a lifelong substance abuse, veering between alcohol and psychoactive substances, driven by an underlying anxiety and oppressive experience emanating from childhood psychosocial disadvantage".
10. The respondent has 71 previous convictions, the most recent being the conviction concerning the threat to kill and producing a weapon. This related to an incident with his sister over a row to do with the proceeds of their parents' estate. Included in the other convictions are some 36 road traffic convictions, convictions relating to forgery, and one conviction for possession of a firearm in suspicious circumstances from 2005.
The Sentence
11. The learned sentencing judge delivered his sentence as follows:
"What to do about him? It seems he is 37 or 38 now. It's about time he got some sense, but I'm not sure anybody can make him see sense. It's a matter for Mr O'Brien himself at this stage. He's too old. He's had - he's got probation reports, he's got suspended sentences, he's got all types of help and encouragement and it's up to him now, because if he keeps repeating this type of behaviour he'll spend -- I think he'll spend a lot of his life in prison, it's as simple as that. So the sentence I'm going to impose upon him in relation to the threats to kill, which I consider the more serious of the counts […] Count 2. I'm going to impose upon him simpliciter a 16 month custodial sentence and I'm going to backdate that to the 10th December '16 and I'm going to make no order on the previous bill. Thank you.
[…] I thought about probation, but it seems Mr O'Brien, at this stage, is going to have to take care of himself. I think there has been a lot of resources, let's say -- wasted on Mr O'Brien is the wrong way, but applied to Mr O'Brien and they haven't worked. Thank you."
12. The learned sentencing court ruled that the outstanding counts were to be taken into consideration. He set out the following as aggravating factors: the nasty and serious nature of the crimes; the respondent's considerable record of previous convictions; the fact that the last crime that the respondent had been sentenced for was of a similar nature, indicating that he hadn't learned much since being released from prison. Mitigating factors included: the fact that the respondent came before the court on the basis of a guilty plea; his expression of genuine remorse for what he did; the fact that he co-operated with the Gardaí; the fact that the respondent has learning difficulties, mental health issues and struggles with addiction.
Grounds of appeal
13. It is submitted that the sentences imposed on both counts are unduly lenient within the meaning of section 2 of the Criminal Justice Act 1993, and represent a substantial departure from what would be regarded as an appropriate sentence in all the circumstances of the case.
Submissions of the Appellant
14. The learned sentencing judge fell into error in failing to determine where the offence fell on the scale of offending before applying mitigation.
15. The learned sentencing judge failed to take account of the following aggravating factors:
16. In DPP v Patrick Casey [2017] IECA 47, this Court considered the provision of s.11 of the Criminal Justice Act, 1984 (as amended by s.10 of the Bail Act, 1997) substituted in part by section 22 of the Criminal Justice Act 2007 stating that: [….] the legislative policy is that where an offence is committed while the offender is on bail, two consequences should follow automatically:-
1. It is mandatory to make any sentence imposed for such an offence consecutive to any sentence imposed for any offence in respect of which the offender had been released on bail.
2. Offending while on bail must be treated as a separate aggravating factor by the sentencing judge."
16. Whilst the respondent was not on bail at the time he committed the offences in question, they were committed during the currency of a part suspended sentence imposed in respect of almost identical offences, albeit involving other family members in the context of a dispute over the distribution of his parents' estate. This must be considered to be an aggravating factor. The appellant contends that the learned sentencing Judge did not have due regard to this aggravating factor in imposing the 16 month sentence, where no order was made in respect of the re-entry application.
17. Further, DPP v Edward and Patrick Wall [2016] IECA 319 is cited, where this Court stated that there is "a willingness, depending on the circumstances of the case, and as an exception to the rule, to regard a previous conviction for an identical or very similar crime as aggravating".
18. Counsel for the appellant submits that the global sentence imposed by the learned sentencing court in this case represents a departure from the range of sentences appropriate to the offence and the offender such that it should be considered to be unduly lenient. Counsel refers to DPP v Paul McCarthy [2017] IECA 126, where a sentence of 6 years and 18 months suspended was not interfered with by this Court on appeal on grounds of severity of sentence.
19. It is further submitted that the sentence fails to reflect the principles of general deterrence given the seriousness of the offences, the respondents' previous convictions, his pattern of offending and the high likelihood of his re-offending as outlined by the probation officer in the report put before the learned sentencing court. Counsel refers to DPP v M.S . [2000] IR 592, in which Denham J held that sentencing is a process that should involve aspects of retribution, deterrence, the protection of society, reparation and rehabilitation. This sentence does not represent the principles of general or specific deterrence.
Submissions of the Respondent
20. It is accepted by the respondent that it would have been desirable for the learned sentencing judge to have determined where on the scale of gravity the offence fell before applying mitigation. This is the approach as set out by the Supreme Court in DPP v M [1994] 3 IR 306. Further, In DPP v Farrell [2010] IECCA 116, the Court of Criminal Appeal noted that:
"A sentencing court must first establish the range of penalties available for the type of offence and then the gravity of the particular offence, where on the range of penalties it would lie, and thus the level of the punishment to be imposed in principle. Then, having assessed what is the appropriate notional sentence for the particular offence, it is the duty of the sentencing court to consider the circumstances particular to the convicted person. It is within that ambit that the mitigating factors fall to be considered."
21. However, O'Malley in Sentencing Law and Practice (3rd Ed., Dublin, 2016, p 74) has pointed out that: "(…) neither the present Court of Appeal nor its predecessor has gone so far as to say that failure on the part of a trial judge to follow the two-step approach reflected in The People v M (…) and other cases is, of itself, an error of principle. Notwithstanding such a failure, a sentence may still be upheld where it appears appropriate in light of all the circumstances and where no particular error of principle can be identified."
22. Thus it is argued that the learned sentencing judge's failure to follow the two-step approach reflected in DPP v M [1994] 3 IR 306 did not of itself constitute an error of principle. The learned sentencing judge ultimately imposed a sentence which was appropriate in light of all the circumstances and therefore, interference by this Court would not be justifiable.
23. The learned sentencing judge gave consideration to the respondent's previous convictions in delivering sentence. During the course of the sentencing hearing, the learned sentencing judge asked Garda Hetherington to hand into the court a typed document detailing the break-down of the respondent's previous convictions. When delivering his judgement, the learned sentencing judge specifically noted that he "must take into account the fact that he [the Respondent] has a considerable record of conviction".
24. It is clearly apparent from the learned sentencing judge's comments that he was cognisant of and took into consideration the fact that he himself had previously sentenced the respondent for a similar offence, and that the respondent had committed these offences during the currency of that part suspended sentence.
25. Further, the learned sentencing judge specifically noted the fact that the respondent had threatened his partner with a hatchet, and that these were "serious and frightening threats". He further noted the particularly "nasty and serious" nature of the crimes.
26. It is clear that in constructing the sentence, the learned sentencing judge was guided by the principles of proportionality and general deterrence and in doing so, took account of the gravity of the offence as well as the respondent's personal circumstances.
27. It is for the appellant to establish that the sentence imposed by the learned sentencing judge amounted to a substantial departure from the type of sentence which would ordinarily be imposed in a case of this nature. This was set out in D.P.P. v. Byrne [1995] 1 ILRM 279, where it was stated that in order for a sentence to be shown to be "unduly lenient", the following criteria must be established:
"In the first place, since the Director of Public Prosecutions brings the appeal, the onus of proof clearly rests on him to show that the sentence called into question was "unduly lenient."
Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case … he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person concerned, what Flood, J. has termed the ‘constitutional principle of proportionality' (see People (D.P.P.) v. W.C. [1994] 1 ILRM 321) his decision should not be disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask whether, had a more severe sentence been imposed, it would have been upheld on appeal as being right in principle……, the test to be applied under the section is not the converse of the inquiry which is made by an appellate court where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was "unduly lenient."
Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of the reviewing court".
28. The only authority which Counsel for the appellant has referred to in which an accused person was sentenced for committing an offence contrary to section 5 of the Non-Fatal Offences Against the Person Act 1997 is the case of DPP v Paul McCarthy [2017] IECA 126. It is accepted that the accused in that case received a lengthier custodial sentence as compared with the respondent in the present case and that this sentence was upheld on appeal. However, in the absence of pointing to any additional cases in which accused persons were sentenced for threats to kill or cause serious harm, it is submitted that counsel for the appellant has failed to set out the type and length of sentence which is ordinarily imposed in cases of this nature. Accordingly, the appellant has failed to establish that the sentence of sixteen months imprisonment imposed by the learned sentencing judge represents a substantial departure from the norm.
Decision
29. The respondent has a bad record of 71 previous convictions. One of these was for a similar threat to kill. He received a four year prison sentence in this regard in July 2014. 18 months of that sentence was suspended. What makes this offence particularly serious is the fact that he committed it during the currency of the suspended portion of the sentence imposed in 2014. Moreover the offence in respect of which he received that sentence was of a very similar nature to the offence herein. He was released from custody on the 12th April 2016 and committed this offence on the 10th December 2016, a mere eight months later. Clearly that sentence had little deterrent effect on him. It is to be noted that the suspension period of 18 months on this first offence was not lifted.
30. We take into account that he has good supportive reports. He is described as having borderline learning difficulties and certain mental health problems. Doctor Lambe (Psychiatrist) has reported that he expects good progress. The respondent is an enhanced prisoner and has apparently used his time in prison well. The learned sentencing judge was satisfied that he showed genuine remorse. He was released in December 2017 and in the intervening ten months has had no similar incidents. It seems thus that this second sentence may have had some deterrent effect upon him.
31. Nonetheless, considering the very serious nature of this offence and the fact that it was a similar offence for which he received a four year sentence with 18 months suspended in July 2014; that he committed this offence during the currency of that 18 month suspension and just eight months after his release, we conclude that the sentence was unduly lenient and erred in principle in that regard. We will therefore quash the sentence and proceed to resentence.
32. Taking into account the aggravating factors outlined above we identify a headline sentence of five years. Applying the mitigating factors also outlined above, we will reduce that to four years and giving credit to him for his early plea and genuine remorse, we will reduce that to three years. We are conscious of the fact that he has now been at liberty since December 2017 having served 12 months of the 16 months sentence on the 19th June 2017. During this time he has not reoffended. Taking this into account as we usually do and, with the aim of further incentivising his rehabilitation, we will suspend the remainder of this three year sentence for a period of three years upon condition that he continues to engage with the Probation Service and complies with their directions and that he enter into a bond to keep the peace.
