THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J.Record No: 164CJA/2015
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
RESPONDENT
Judgment of the Court (ex tempore) delivered on the 18th day of January, 2016 by Mr. Justice Edwards
Introduction
1. This is a case in which the respondent was initially charged on indictment with three offences, namely assault causing harm contrary to s.3 of the Non Fatal Offences Against the Person Act, 1997; violent disorder, contrary to s.15 of the Criminal Justice (Public Order) Act 1994 and burglary, contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001. He was co-accused with three other persons, with whom he was said, and it is acknowledged that he was, acting in common design. The joint trial of three of the four involved, i.e., this respondent, a Mr Richard Sweeney and a Mr Stephen Coogan was due to commence on the 25th of November 2014. The fourth co-accused, a Mr Keith White, had absconded and it is understood that to date he has not been located. On the said date the respondent offered a plea to the violent disorder count, and this was accepted by the appellant on the basis that the evidence at the sentencing would be advanced on a full facts basis. On the same date the co-accused, Richard Sweeney, entered a similar plea, and this was also accepted by the appellant on the same basis. It is understood that Mr Stephen Coogan has also pleaded guilty to violent disorder on a similar basis.
2. Following arraignment, the cases of the respondent and Richard Sweeney were then adjourned to the 10th of March 2015 for sentencing, with a direction that reports, including a probation report, be prepared in respect of the respondent (and indeed Mr. Richard Sweeney). The case of Mr Stephen Coogan was not ready to proceed immediately, and he still awaits sentencing.
3. Following the sentence hearing on the 10th of March 2015 the respondent was sentenced to two years imprisonment to date from the date on which he went into custody. The co-accused sentenced on the same date, Richard Sweeney, also received a two year sentence but in his case the final six months was suspended.
4. The appellant now seeks a review of both sentences on the grounds that they were unduly lenient. However, this judgment deals only with the case of the respondent.
The facts of the case
5. On 24th February 2014 the respondent, accompanied by Richard Sweeney, Keith White and Stephen Coogan, entered as a trespasser the home of a Mr. William White at 22 St. Marys Terrace, Belturbet, Co. Cavan between the hours of 9 p.m. and 11 p.m. Mr. White was then aged fifty nine years and he lived alone, and was a somewhat vulnerable individual. However, he was a person who was held in high esteem in community in which he lived. On the night in question the respondent and the three other men pushed through Mr. William White’s unlocked kitchen door. Mr. White was hit to the top of his head with a steel object - he thought it was his own fire poker - by one of the men who was wearing a dark hoodie. Another man had a knife and called William White “a fucking paedophile” and said that he would cut his throat. He put the knife to the left hand side of Mr. White’s face and inflicted a stab wound to his face. Mr. White said that he pulled the hoodie of the man with the knife. Mr. White said he knew this man to see. The prosecution have contended that this accused was the man who had the knife and who threatened to cut Mr White’s throat and who inflicted the stab wounds to his left jaw. During garda interviews these matters were put to the appellant and he denied them. This is an important detail in the light of one of the submissions made in the case and I will be returning to that.
6. Mr White fell on to a couch in the course of being assaulted, and from there to the floor and all four men started kicking him while he was on the ground. One of them told him that they would put hot ash on his belly. He was further threatened that they would him into his fireplace in which there was a fire lighting at the time. In addition a bucket was placed over Mr White’s head at one point. Mr. White gave an account that he men kept kicking him around his head and they told him they were going to kill him. Mr White got up off the ground and managed to push his assailants out of the way and escaped from the house through the scullery. He was covered in blood and he thought he would die. Once he got away from his assailants, he sought assistance from his neighbours who called the gardaí.
7. A number of gardaí attended the scene and described Mr. White as bleeding badly from a cut to the head. Mr. White subsequently received medical attention and was found to have sustained the following injuries. He had a large laceration to his scalp measuring six to seven centimetres with jagged edges, and a stab wound to his left mandibular region as previously stated. He further had bruising and swelling over his left mandibular region. He had multiple other bruises and superficial lacerations to his head and face. He had an abrasion on his chest. He had injuries to his right hand and in particular complained of pain over the fourth and fifth fingers with bruising over the ring finger. He also had a graze to his right knee.
8. Mr White was taken to hospital, and while there had a CT scan which showed that he had deviation of the nasal septum to the right with fractures of the nasal bone. The CT scan also disclosed extensive soft tissue injuries with a large hematoma in the left facial and cheek muscles and it disclosed extensive oedema over the mandibular region and across Mr. White’s scalp extending to the [left] ear.
9. Mr. White did not wish to make a victim impact statement but in many respects the physical injuries just listed speak for themselves. It is beyond peradventure that Mr White was also psychologically traumatised.
10. Although one of the men had called Mr. White a paedophile there was no basis in truth or in fact for this claim. On the contrary the garda evidence was that Mr. White is held in high esteem by his local community and is very involved in that community, and he is not the subject of any complaint or suspicion in respect of child sexual abuse.
11. In terms of other evidence in the case there was evidence that Mr. Doyle had eight previous convictions. For the most part they were for road traffic matters but he also had convictions for criminal damage, for theft, and for handling stolen property. He had served one prison sentence of two months imprisonment in Wheatfield prison. There were no previous convictions for crimes of violence.
The sentencing judge’s remarks
12. The trial judge had previously dealt with the case of Mr. Sweeney and had imposed a two year sentence on Mr. Sweeney and had suspended the last six months of that sentence. This is relevant information for the purpose of contextualising certain of the sentencing judge’s remarks when dealing with Mr. Doyle. Having described the facts of the case the sentencing judge said:-
“This case is a little bit different than Mr. Sweeney’s case because in Mr. Sweeney’s case there was quite a positive probation and welfare report. Now I have a probation and welfare report here on Mr. Doyle and it is not so positive. In the case of Mr. Sweeney I heard evidence of his involvement in the community and in his - and his efforts to try and turn his life around. I have no such evidence here other than the fact that this young man is good at football. I think a Mr. O’Dwyer in the Sweeney case came and gave evidence about the fact that he had worked with young people in the Limerick area and he was hopeful that Mr. Sweeney would reform, if you like, under his wing, if you could put it like that.”
13. He goes on to describe the particular circumstances of the Sweeney case. He then says:-
“I gave Mr. Sweeney two years in jail and I suspended, I think, six months of it on the basis that he was making an effort and that things were being put to me and were put to me such as would encourage me, perhaps not the DPP, but would encourage me to give him a chance and to give him a bit of light at the end of the tunnel to see would he turn his life around. In other words it is a matter for him as to what he does with his life into the future.
In this case, as was the case in Mr. Sweeney’s case, the aggravating factors are drink, to a certain extent -- and I mentioned it at the time with Mr. Sweeney’s case and I’ll mention it again -- peer pressure. This was a concerted effort by four people with various different areas of involvement.”
“But there was peer pressure there clearly that if one was involved there were all involved and it would be traitor-like if they backed down on their enterprise half way through. So there is a certain amount of peer pressure which I- it’s an aggravating factor. The level of violence involved was just way over the top. A 59 nine year old man and these all young fellows in their 20’s using pokers and knives. The mitigating factors are as they always are in most cases and that is the plea of guilty, which has saved the State a great deal of expense and time and of course the fact that we don’t have to put Mr. White through having to give evidence of all the things that had happened to him, bearing in mind his now delicate situation in coping with living in the community and his fear of something else like this happening. I am not going to take revenge on Mr. Doyle for what he did. It is not my place to do that. I will punish him for it.”
14. The sentencing judge then went on to refer to the contents of the probation report and to Mr. Doyle’s personal circumstances and he concluded;-
“So, I am afraid, Mr. Doyle, you stand out as a little bit of an exception to Mr. Sweeney and consequently in your case I propose to sentence you to a longer period in prison than Mr. Sweeney. Mr. Sweeney had six months suspended of a two year sentence. I am sentencing you to two years imprisonment on this particular count with no suspension of any part of it and such credit as needs to be given to you for such time as you have served will be given to you by the governor.”
Submissions
15. The appellant in this case seeks a review of the sentence of two years imprisonment imposed on Mr. Doyle on the grounds that it was unduly lenient. It is specifically submitted that the sentencing judge erred in law in failing to attach appropriate weight to the aggravating circumstances in the case.
These are identified inter alia as being:
that the assault was planned and pre mediated;
that the respondent and his co-accused’ were operating in a gang or a group;
that the incident involved the use of weapons to injure and frighten the victim including a knife and a poker;
that the victim lived alone and was vulnerable and was attacked in his own home.
that the victim was threatened with having his throat cut and, as I have already mentioned, with having hot ashes poured over him, and with being put in the fire;
that the victim suffered significant physical and psychological injuries;
16. It was also submitted that the sentencing judge erred in law in attaching undue weight to such mitigating factors as existed in the case. It was further submitted that the sentencing judge had departed from best practice in failing to locate the offence on the spectrum of seriousness for offences of this type and in failing to have appropriate regard to the range of sentences appropriate to such offences in his approach to sentencing. It was contended that the sentence ultimately imposed failed to reflect the seriousness of the offence, the circumstances in which the offence was committed and the physical and psychological harm done to the victim.
17. In responding to those submissions, it was submitted on behalf of the respondent that the sentencing judge took full account of all the circumstances of the case and arrived at a sentence that was both proportionate and appropriate and in accordance with law. It was accordingly urged upon this Court that we should not interfere with the sentence imposed and should not conclude that it was unduly lenient.
18. It was further submitted on behalf of the respondent that in considering whether the sentence imposed was unduly lenient, that we should not approach the matter on the basis that any specific action was attributable to Mr. Doyle in the course of the incident. It was emphasised that Mr. Doyle was accepting responsibility for everything that occurred on a joint enterprise basis but that he does not accept, and has never accepted, that Mr. Doyle was the producer and wielder of the knife. It was further urged that if this Court were to hold that the sentence was unduly lenient, leading it to quash the existing sentence and proceed to a re-sentencing, the Court should again, in any re-sentencing exercise, not approach the matter on the basis that any specific action was attributable to Mr. Doyle in the course of the incident.
Discussion.
19. The jurisdiction to review a sentence on the grounds that it was unduly lenient derives from s. 2 of the Criminal Justice Act 1993, which (to the extent relevant) provides:
2.—(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.
(2) An application under this section shall be made, on notice given to the convicted person, within 28 days, or such longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on which the sentence was imposed.
(3) On such an application, the Court may either—
20. The provision in question has been considered by the Supreme Court in The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R.356, amongst other cases. In that case Barron J. stated:
“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error of principle.
Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon those two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered.”
21. This Court has considered the submissions on both sides in this matter, and it accepts the submission made by counsel on behalf of the respondent that his client’s case should not be considered on the basis that he was the possessor and wielder of the knife. The Court accepts that in pleading guilty to violent disorder he was accepting responsibility on a joint enterprise basis for all that occurred, but that he did not, and still does not, accept that the prosecution’s contention that it was he who brought the knife with him and that he had produced and wielded the knife and injured the victim with it in the course of the attack. It seems to this Court that in circumstances where the evidence in that regard was not accepted, and there was no “Newton” hearing, it would be unjust to consider the case on the basis that this appellant was the producer and wielder of the knife. Accordingly, in considering the evidence we have approached the matter simply on the basis that he accepts responsibility on a joint enterprise basis for all that occurred but that no individual action is specifically attributable to him.
22. That having been said, the Court is satisfied that the s. 2 test is well satisfied in the circumstances of this case and that the sentence imposed was unduly lenient. The offending behaviour in this case was a gross violation of both the home, and the person, of a vulnerable man who was utterly undeserving of such callous treatment. He was wrongly branded a paedophile by his assailants. The evidence from An Garda Siochána was that any such suggestion was completely groundless, and that on the contrary, Mr White is respected and regarded with affection within his community and by his neighbours, who have been outraged that he should have been subjected to the savage attack perpetrated upon him by the respondent and his co-offenders. Mr. White was viciously assaulted, in his own kitchen, by four persons in the course of which he was struck forcibly on the head with a metal bar, had a knife placed to his face, was then stabbed in the face, was threatened with having his throat cut, was felled to the ground, and was further threatened while on the ground that he would have hot ashes from the adjacent open fire poured over his stomach and that he would be placed in the fire, and he had a bucket put over his head. In addition he was violently kicked all over his body while he was on the ground. Mr White was left with significant physical injuries. Quite apart from his physical injuries he was greatly traumatised and psychologically upset by the attack. He is left in fear, and his self confidence and sense of security in his own home has been destroyed.
23. The Court notes that the offence of violent disorder commands potential penalties ranging from non-custodial options up to imprisonment for a maximum of ten years. We consider that this was a bad case and one that called for a substantial custodial sentence. This incident of violent disorder, when considered in terms of the moral culpability of this perpetrator, and the harm done, was properly to be located as meriting a custodial sentence in the middle of the range between zero and ten years imprisonment, before application of mitigation.
24. In terms of mitigation, the only very significant mitigating circumstance was the plea of guilty. The respondent has a number of previous convictions, albeit none for crimes of violence. He has been assessed as being of moderate risk of re-offending. The court notes that the respondent also claims to be remorseful. However the Probation Report indicates that when interviewed by the gardaí his initial attitude displayed little empathy for his victim, and indeed little insight into just how badly the victim had been affected. He seemed to regard the attack as having been justified by his belief that the victim was a paedophile, and only began to display remorse when informed that he was mistaken in that belief. The Court accepts that he has since indicated that he now, belatedly, regrets what happened and that he wishes that he could turn the clock back, and we will treat that as providing some further mitigation.
25. It goes without saying that even if the respondent had in fact been correct in his belief that the victim was a paedophile such a circumstance would not in any way have justified the perpetration of this attack. As it happens, however, the victim was a decent and utterly innocent man.
26. In the circumstances this Court is satisfied that the sentence of two years, after application of mitigation, imposed by the sentencing judge represented a substantial departure from the norm. It was simply too light in the circumstances of the case, and must be regarded as representing an error of principle. The Court will therefore quash the sentence of two years imposed by the court below as being unduly lenient, and proceed to sentence the respondent afresh.
27. In accordance with established jurisprudence counsel on both sides were invited to place before the Court any additional matters that they might wish to have taken into account in the event of the Court having to proceed to a re-sentencing.
28. It has been urged upon the Court by counsel for the respondent that he has been getting on well in prison, and now enjoys enhanced status and is working in the laundry. In addition he has been doing a number of FETAC level 3 computer courses, and has started an anger management course. The Court takes these new circumstances into account.
29. In this Court’s view the seriousness of the offending behaviour in this case, measured with reference to the respondent’s moral culpability and the harm done, merits a sentence of five years imprisonment before application of mitigation. Affording as generous an allowance as it can for the relevant mitigating circumstances, the Court will suspend the final two years of the headline sentence of five years imprisonment. Those final two years will be suspended for a period of five years from the appellant’s release from custody. The proposed suspension is subject to the appellant entering into a bond to keep the peace and be of good behaviour, and the other usual requirement to engage with, and submit to supervision by, the Probation Service for the duration of the suspended period. Accordingly the net custodial sentence that the appellant is being required, at this point in time, to actually serve is a sentence of three years imprisonment, and it will date from the date on which the respondent first went into custody in respect of this matter.
