THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
191/16
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court (ex tempore) delivered on the 4th day of October 2016 by
Mr. Justice Birmingham
1. This is an appeal against severity of sentence. The sentence under appeal is one of three years imprisonment with the final fifteen months suspended that was imposed in the Dublin Circuit Court on the 29th June, 2016, in respect of an offence of violent disorder.
2. The incident which gave rise to the charge occurred on the 23rd July, 2014, in the Temple Bar area of Dublin at approximately 5.00 am. The incident involved a confrontation between a group of young people, seven or thereabouts in number, some male and some female and a young Brazilian man who was relatively recently arrived in Ireland. The incident that developed was an exceptionally serious one. The injured party was able to give only a very limited account, he refers to being punched to the head and face by a male and that then his next memory was of waking up in hospital, to which he was brought by ambulance. His wallet, ID card (a Brazilian ID card), bank cards and €20 had gone missing.
3. In a situation where the injured party could give only limited assistance a great deal of garda time and energy was applied to harvesting CCTV footage of which there was a very great deal, which is not surprising given the location of the incident. The footage left no room for doubt about the seriousness of the incident or about the very significant role played by the appellant. The investigation garda who viewed the entirety of the footage told the Circuit Court that it showed the appellant, whom she categorised as the main assailant delivering fifteen kicks to the head of the injured party. The incident involved kicks and stamps.
4. The level of aggression and violence was such that it would not have been surprising had the injured party sustained very serious long term injuries, but fortunately that did not occur. He did however suffer two black eyes and a swollen nose and face. His ribs and stomach were very sore. He missed a week from college and of particular concern to him was that he was prevented from looking for a job by reason of his appearance and that meant that he had difficulties funding himself as he pursued his studies. There was also psychological impact and it was explained to the court how the incident had resulted in nervousness and loss of confidence on his part. The first garda on the scene had referred to her observations that the injured party’s head was “dented in, completely dented in”.
5. As part of the investigation Ms. D was arrested on the 20th August, 2014. When questioned she said that she did not remember the incident. However when shown footage she identified herself and said that she was sorry. To her credit she followed up on those admissions with an early plea. Again in terms of her background and personal circumstances, her date of birth was the 6th July, 1998. She had just turned sixteen years at the time of the incident and was just short of her eighteenth birthday when she was sentenced. Her age was the central aspect of the sentence hearing and indeed of this appeal. In the Circuit Court her counsel made clear that what he was seeking on her behalf was a suspended sentence, which would then hang over her head and before this Court, counsel was quite upfront in making clear that what he was seeking was that the court would suspend the balance of the sentence.
6. At the time of the sentence hearing she was living with her mother in the north inner city and a number of other members of the extended family were all living in the area. In all she had accumulated 26 previous convictions which included four convictions for a s. 2 assault, five for violent behaviour in garda stations, seven for threatening and abusive behaviour in public and four for obstruction of a police officer. These were all recorded on the same day in the children’s court on the 6th May, 2015 and on that occasion she was placed on a probation bond for one year. In the Circuit Court the defence were anxious to establish that since February 2015, there had been an improvement in her behaviour and this was accepted by the garda who agreed “she hasn’t come to that much garda notice”. The garda also was prepared to accept that she was taking steps to control what had previously been grossly excessive consumption of alcohol. It is to be noted that at the time of sentence hearing, she was four and a half months pregnant.
7. During the course of the sentence hearing, the judge was addressed in relation to the provisions of the Children’s Act, these submissions were very much to the fore in the judge’s mind, it would appear, when he came to sentence. He addressed the issue in these terms:-
“Now obviously the appropriate provision of the Children’s Act has been opened to me. That basically in sentencing a child the paramount purpose in sentencing is to achieve reform and the question I have to decide can her reform be achieved without a custodial sentence. Mr. Rea’s, (defence counsel) chief submission to this Court is that I should not impose upon her a custodial sentence by reason of the mitigating factors such as her early plea, her cooperation, her admissions, her expression of remorse and the fact that she is taking steps to reform herself and her particular circumstances in life. He tells me and he submits to me that it is unlikely that she will re-offend in this way in the future. Now I have to obviously take these submissions and its chief submission to me in relation to custodial sentence seriously, because it is not in the interests of this Court or society that parties such as Ms. CD be imprisoned unless there is a purpose in imprisoning her. But in this case by reason of what she did and her record, it seems to me that she cannot be reformed without undergoing a prison sentence or a term of custody. It seems to me that this will bring home to her and in a very practical way that what she did was seriously inappropriate. It seems to be from the evidence that it is quite lucky that the injured party in this case was not seriously injured. It seems the description given by the gardaí or what he looked like on the night is indicative of a very violent beating. So therefore I cannot succeed to the submissions made by Mr. Rea in relation to a non custodial sentence and I think the appropriate sentence in this case is a term of detention of three years.”
Then he went on to suspend fifteen months of that sentence.
8. Following on the imposition of sentence in the Circuit Court there was an application in relation to the appeal at a management list in this Court seeking a bail hearing or alternatively an early hearing of the appeal. The court on being told of the young age of the appellant and of her youth at the time of offending facilitated the parties with a very early hearing. The court also permitted an up to date probation report to be prepared, and it must be said that while that report becomes directly relevant only if an error in principle is established, that it shows that she has been using her period in custody since the sentence hearing constructively. The court will return to this aspect later.
9. The court agrees with the approach of the trial judge in focusing on the question whether it was possible to avoid custody. The court cannot conclude that he erred in taking the view that so serious was this offence, committed as it was by someone with a significant record that custody was inevitable. Indeed given the number of serious aggravating factors that were present such as the fact that the offence was carried out by a group, that it was entirely unprovoked, that the appellant was the main assailant in the group or certainly one of main assailants in the group, the fact that the injured party was struck while on the ground, that the appellant struck the victim in the head, that the incident involved kicking and stamping, that the appellant appeared to come into contact with the victim fifteen times, and that the incident had physical effects and psychological effects on the victim, though thankfully not involving long term damage, the sentence could indeed be regarded as lenient. Certainly it was a sentence that took full account of all those factors that were present in favour of the appellant, such as but not limited to her age, her upbringing difficulties as evidenced by the involvement of Tusla, the indications of an improvement in her behaviour and so on. All in all though the court finds itself unable to identify any error in principle and so it must therefore dismiss the appeal.
10. The court will just turn briefly to the up to date probation report and the court is going to ask the registrar to make a copy of that up to date probation report available to the prison Governor and to the Director of the Irish Prison Service.
