Court of Appeal quashes sentence for assault causing harm due to failure to apply lenient view on conflicting evidence.

THE COURT OF APPEAL

Record No. 180/2015

Sheehan J.

Mahon J.

Edwards J.

Between/

The Director of Public Prosecutions

Respondent

- and –

Andrew Smith

Appellant

JUDGMENT of the Court delivered by Mr. Justice Mahon on 5th day of July 2016

1. The appellant pleaded guilty and was convicted of assault causing harm contrary to s. 3 of the Non Fatal Offences Against The

Person Act 1997 on 3rd February 2015 at Trim Circuit Criminal Court. He was sentenced on 18th June 2015 to a term of imprisonment

of two years and six months, with the final six months suspended upon entering into his own bond of €200 to keep the peace and be

of good behaviour for a period of six months from his date of release. This is the appellant’s appeal against that sentence.

2. The offence was committed on 27th October 2013. The victim of the assault was the appellant’s then partner, and they lived

together at Walkinstown, Navan, Co. Meath, with their four month old child. On the evening in question, the appellant and his partner

arrived home having spent some time drinking in a local public house. While in the public house, an argument started between the

couple, that argument continued in the public house car park and as they drove home. On arrival at home, the argument descended

into a physical confrontation, in the course of which the appellant bit his partner. She attempted to flee the family home, but was

dragged back into the house by the appellant. She was pushed to the floor of the kitchen whereupon she struck her head on the hard

tiled floor. The appellant allegedly then proceeded to force his partner into a dog kennel, locking her into the kennel for some minutes

before releasing her. The word allegedly is used because this particular incident was strongly denied by the appellant. The victim then

proceeded to lock herself into a bathroom. When she emerged from the bathroom, the appellant pushed her onto a bed and took her

mobile phone from her. The victim then fled the house and hid in a neighbour’s driveway.

3. The victim’s physical injuries were largely superficial, although extensively so. They included a bite mark to her right leg, bruising

over her face, around her eyes, and over her chest, abdomen and right thigh.

4. The appellant made a voluntary statement to the investigating gardaí. He asserted that it was his partner who had precipitated the

argument in the car park, and precipitated the physical confrontation that later ensued. He acknowledged the various allegations

made against him as to the detail of his assault on his partner, but he denied locking her into the dog kennel.

5. In her victim impact statement, the appellant’s partner described the enormous effect the incident has had on her, how she

continues to live in constant fear, and how she continues to be nervous and upset over what occurred.

The grounds of appeal

6. It is contended on behalf of the appellant that the learned sentencing judge erred in principle in:-

(i) Failing to adequately or at all attempt to resolve a conflict of fact which arose on the evidence, in accordance with

the principles outlined in R. v. Newton [1982] 4 Cr. App. Rep, or otherwise.

(ii) Failing to adequately address the public interest in rehabilitating the appellant.

(iii) Failing to have adequate regard to the various mitigating factors, including the appellant’s lack of previous

convictions, his plea of guilty, his expression of remorse, the offer of compensation, his good work record and his relative

youth at the time the offence was committed.

The sentencing judgment

7. In the course of his sentencing judgment, the learned sentencing judge described the incident as a prolonged assault and a horrific

ordeal.

8. The learned sentencing judge referred to a number of mitigating factors, including the fact that the appellant has a young daughter

with the complainant, that he had a very strong work history (the appellant is a qualified motor mechanic), his plea of guilty, his co-

operation with the garda investigation, his admissions, his expression of remorse, his attendance at counselling for anger management

and his lack of previous convictions.

9. The learned sentencing judge described the appellant as having been in a dominant position and that he exploited this position to

the full. He described the complainant as having been in a helpless, hopeless situation during the continuation of this very, very

serious violent vicious and brutal assault.

10. He listed the events which in his view constituted factors which he deemed aggravating, including the allegation that the

complainant was forcibly locked into the dog kennel. Clearly, the learned sentencing judge accepted as true the victim’s account of

this particular incident, and did not believe the appellant’s denial in relation thereto.

Discussion

11. A probation report was prepared in relation to the appellant on 27th May 2015. It placed the appellant in the moderate risk

category of re-offending, and it expressed the view that the appellant was lacking in full insight and responsibility regarding the

offence, and the impact of that offence on his victim.

12. The assault on the complainant was very serious and she was fortunate to have suffered only superficial injury. It was, by any

account, an example of severe domestic violence or abuse. It is all the worse because the couple had an infant daughter at the time,

and the consequences of the assault on the appellant’s partner includes the disintegration of the family unit and the fact that the

victim remains fearful of any further contact with the appellant. It also appears from the probation report that the appellant lacks a

full insight into the events, and their cause.

13. The offence to which the appellant pleaded guilty comprised a number of incidences of assault on his partner, all of which were

individually serious. All were accepted as having taken place by the appellant with the exception of one particular incident. The

matter denied by the appellant concerned the allegation that the victim was forced into an outside dog kennel or cage and locked

into it for a short period of time. While this disputed incident did not result in any physical injury to the victim, nevertheless if it did

occur, it had to constitute a particularly frightening, unpleasant and humiliating incident involving deprivation of liberty. If accepted

by the learned sentencing judge as being true, it had to significantly increase the seriousness of the offence with obvious

consequences for the sentence to be imposed.

14. It appears clear that the learned sentencing judge did accept that the victim had indeed been forced into the dog kennel or cage,

and that he treated this incident as an aggravating factor and proceeded to impose sentence accordingly.

15. It is contended on behalf of the appellant that the learned sentencing judge did not seek to resolve the conflict of fact (as to

whether or not the dog kennel incident occurred), in accordance with the principles outlined in Newton.

16. In Newton, the accused pleaded guilty to sodomising his wife. In mitigation, his counsel stated that his wife had consented to the

act, which, if true, would have resulted in a much lower sentence. The prosecution did not accept that the wife had consented. The

sentencing court, after hearing submissions from both sides, sentenced the appellant to eight years imprisonment. Lord Lane C.J.,

(delivering the judgment of the Appeal Court), held that a sentencing court has three options when dealing with a divergence of facts

between the prosecution’s case, and what is maintained by the accused. The first option is neither relevant or realisticso it is only

appropriate to consider the second and third option. The first of these was that the court would hear evidence from both sides, and

the sentencing judge would then decide the facts, and then proceed to sentence accordingly. This has become known as a Newton

hearing. The second option is that the sentencing judge would hear submissions from the prosecution and on behalf of the accused,

and then come to a conclusion as to the facts.

17. The relevant extract from Lord Lane’s judgment reads as follows:-

“The second method which could be adopted by the judge in these circumstances is himself to hear the evidence on one

side and another, and come to his own conclusion, acting so to speak as his own jury on the issue which is the root of

the problem.

The third possibility in these circumstances is for him to hear no evidence but to listen to the submissions of counsel and

then come to a conclusion. But if he does that, then, as Judge Argyle himself said in a passage to which reference will be

made in a moment, where there is a substantial conflict between the two sides he must come down on the side of the

defendants.

In other words where there has been a substantial conflict, the version of the defendant must so far as possible be

accepted.” (Emphasis added).

18. He went on to state:-

“Where I find there is substantial conflict between the two versions, then it is incumbent upon me, as one would expect

in this country, to take the more lenient view to accept the accused’s version so far as possible and to pass sentence

accordingly.”

19. In this case, as already indicated, neither of the above options was adopted by the learned sentencing judge in order to resolve

the truth or otherwise of the dog kennel allegation, nor indeed it must be said, was either suggested by counsel on either side.

Rather, the learned sentencing judge believed the allegation to be true on the basis of what the complainant had stated and in doing

so rejected the appellant’s denial. This represents an error of principle on the part of the learned sentencing judge.

20. The other grounds of appeal relates to the mitigating factors, and the appellant’s contention that they were not adequately

accounted for. Unfortunately, the learned sentencing judge did not identify what he considered to be the headline sentence by

locating the offence on the gravity scale, before then discounting in respect of the various mitigating factors, some of which carry

considerable weight. Certainly, the fact that the appellant had no previous convictions, and had an excellent work record stand out

as being particularly significant.

21. Courts generally lean against the imposition of immediate custodial sentences for first time offenders, unless the offence in

question is very serious. While this case falls into that category of being a very serious case requiring a custodial sentence for a first

time offender, the fact that the appellant has no previous convictions is nevertheless an important mitigating factor.

22. In circumstances where a Newton type hearing was not conducted in order to resolve the issue as to whether or not the

complainant had been forced into the dog kennel, the learned sentencing judge ought to have excluded this event from his mind and

to have treated it as not having occurred, in arriving at an appropriate sentence for the appellant before then discounting in respect

of the mitigating factors.

23. In these circumstances, it is necessary for this court to sentence the appellant afresh.

24. As has already been stated, the offence was a serious one. Notwithstanding the fact that the appellant is a first time offender, it

requires the imposition of a custodial sentence. The strong mitigating factors also require, in the Court’s view, that the greater part of

that custodial sentence be suspended, particularly in the interest of rehabilitation. The Court will therefore impose a sentence of two

years imprisonment, (with full credit given for time already served), and it will suspend the final fifteen months of that term for a

period of two years on condition that the appellant enters into a bond in the sum of €100 to keep the peace and be of good

behaviour.