[136 CJA/18]
The President
Edwards J.
McCarthy J.
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
RESPONDENT
JUDGMENT (Ex tempore) of the Court delivered on the 14th day of January 2019 by Birmingham P.
1. This is an application brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 seeking to review sentences on grounds of undue leniency. The sentences sought to be reviewed were imposed on 17th April 2018 in the Circuit in Naas and were imposed in respect of offences of assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997, the offence of abduction of a child contrary to s. 17 of the Non-Fatal Offences against the Person Act 1997, being drunk in charge of a child contrary to s. 9 of the Summary Jurisdiction (Ireland) Act 1908. A sentence of two years imprisonment with the final six months suspended was imposed in respect of the abduction matter and a sentence of 18 months imprisonment was imposed in respect of the s. 3 assault.
2. The background to the application is to be found in the fact that the respondent, Mr. Patrick Lynch, had stood trial charged with a number of offences, and had, on 12th April 2018, been convicted by a unanimous jury in respect of counts of assault causing harm, abduction of a child and the offence of being drunk in charge of a child. The effective sentence sought to be reviewed was a sentence of two years imprisonment with the final six months suspended.
3. The events that gave rise to the prosecution occurred on 7th November 2016. On that day, the respondent, Patrick Lynch, and his then partner, MD, who is the injured party, had been at the dwelling of friends. They had with them Ms. D's infant son who was then just under two years of age. The respondent spent much of the day drinking in a car outside with John Connors who is the ex-husband of Ms. Reilly who was the hostess on this occasion while the injured party and her hostess remained inside. While the visitors were present, the respondent assaulted Ms. D. Ms. D's evidence at trial was that Mr. Lynch assaulted her with a brush handle and punched her in the face while she was holding her infant child. The assault took place in the hall and continued into the bathroom. At one point, Mr. Lynch ran at the door of the bathroom while Ms. D and her infant son were inside and rammed the door with his shoulder. He then assaulted the injured party as she sat on the toilet. During the assault, the injured party had her child in her arms.
4. With a view to bringing the incident to an end, Ms. D left the house that she was visiting. She did so unwillingly in the company of Mr. Lynch, but she left her baby, C, behind. Somewhere near Sallins, the car that was being driven by Mr. Lynch broke down. Ms. D was brought to Naas Garda station by a passer-by. She rang Ms. Reilly who said that she was on the way to Naas Garda station, along with John Connors. As they made their way there, Mr. Lynch drove by and stopped the vehicle he was driving. Mr. Connors placed the baby, C, in the car and Mr. Lynch drove off with him. It is to be noted that Mr. Lynch is not the father or guardian of C, nor does he have any rights of access in relation to him. Ms. D reported what had occurred at the Garda station and Gardaí went to an address at Newbridge Road, Naas, with a view to making contact with Mr. Lynch. Initially, Mr. Lynch was there at that location, but Gardaí were unable to gain access. When they did eventually succeed in gaining access, neither Mr. Lynch nor baby were present. In the course of a telephone conversation, Mr. Lynch threatened Ms. D. The phone was on speaker at the time and conversation could be overheard by others. He threatened her that she would never see her baby, C, again. Thereafter, Ms. D succeeded in again making contact with Mr. Lynch who, on this occasion, agreed to meet her at or near the courthouse provided that no Gardaí were present. Gardaí observed the handover of an unharmed baby C from a distance and then moved in after the handover had occurred. It was noted that Ms. D had experienced swelling and bruising. The papers provided included photos which show the nature and extent of her injuries. In the course of his sentencing remarks, the Judge says that the photos and the evidence showed that the respondent to this application gave his partner a "merciless beating about the face and body".
5. The summary of the evidence that we have set out is taken from the written submissions of both sides. That has been done in a situation where, unusually, the sentence hearing did not involve a summary of the facts of the case. This happened because the Judge took the view that he did not require a summary in a situation where he had presided over the trial. The Court would point out that the provision of a summary, and that this summary should appear in the transcript, is important. Both sides have a right of appeal and that right of appeal is facilitated if the factual background is summarised at the sentence hearing. The Court would hope that this will be the situation in future.
6. So far as the background and personal circumstances of the appellant are concerned, the Court was told that he had been born on 5th February 1980, that he had 148 previous convictions in all which were recorded between 1997 and January 2018. He was the separated father of five children and the youngest of these was seriously disabled. His previous convictions included one for a s. 3 assault, three for s. 2 assaults, one for assault on a Peace Officer, three for obstruction of a Peace Officer and one for violent behaviour in a Garda station. There were convictions recorded in the Circuit Court for burglary and robbery and there was also a large number of road traffic offences, more than 100 of these in all. He was disqualified from driving at the time of the incident the subject matter of the prosecution and now of this review application.
7. The DPP says that the aggravating factors present were:
(i) that this involved an unprovoked assault on his partner;
(ii) the nature of the injuries sustained by the partner;
(iii) the circumstances involving the taking of the injured party's infant son;
(iv) the circumstances involving the return of the infant son only after the passage of time and
(v) the substantial and relevant prior record.
The Director says that there are no real mitigating factors present. On behalf of the respondent, it is acknowledged that the mitigating factors were limited, but it is pointed out that the respondent's early life, and indeed his teenage years, were chaotic. Chaotic was the word that was used during the course of the plea in mitigation.
8. By way of comparator, the Director draws attention to the case of DPP v. MA where a sentence of 12 months imprisonment was increased by this Court to one of four years with 16 months suspended. On behalf of the respondent, it is said that all of the factors contended to be aggravating by the DPP were all matters that were referred to and taken on board by the sentencing Judge. It is said that while the sentence might be regarded as a relatively lenient one, it was not so unduly lenient as to warrant an intervention by this Court. So far as the principles referable to applications to review on grounds of undue leniency are concerned, there is little dispute between the parties, and indeed, those legal principles have not really been in issue since the first such review case, that of DPP v. Byrne. It is accepted that the onus is very firmly on the Director who brings the application and that only a substantial departure from what would be expected by way of the norm would justify an intervention.
9. In the Court's view, this was a serious and disturbing incident. It involved an assault. The sentencing Judge categorised that as a "merciless beating". The assault involved the use of a weapon, a brush. Then, the phase involving the abduction of the infant and the issuing of threats to the child's mother that she would not see her baby again. There was very little available by way of mitigation. The case was contested. The appellant had a poor record with a number of convictions recorded for offences involving violence.
10. In the Court's view, the sentence that was imposed did not reflect the gravity of the offending conduct. The sentences were not just lenient, but were unduly lenient. Accordingly, the Court must quash those sentences and proceed to resentence. In doing so, it resentences as of today's date. We note that we have been informed that there has been contact between the injured party and the respondent even while he has been in prison. We also take into consideration that the fact that the period of incarceration is being increased will be deeply disappointing for Mr. Lynch and it will not be easy for him to deal with that. For that reason, we will impose a sentence somewhat less than we would have imposed had we been sentencing at first instance.
11. The Court will deal with the matter by quashing the abduction sentence and will impose instead a sentence of three years imprisonment, but with the final nine months suspended. The effect of this is that the period to be spent in custody is increased by 50%. In respect of the s. 2 assault, we will impose a sentence of two years imprisonment. The terms of the suspension will be as in the Circuit Court.
