Court of Appeal dismisses appeal against suspended sentence for serious harm, upholding trial judge's discretion based on special reasons.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No : CJA 109/16

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

ANN MARIE BYRNE

Respondent

Judgment of the Court delivered by Mr. Justice Edwards on 23rd March 2017

Introduction

1. On the 6th of May 2014 the respondent pleaded guilty before Galway Circuit Criminal Court to a single count of causing serious

harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997.

2. On the 13th of April 2016 she was sentenced to five years imprisonment, suspended in its entirety for a period of twelve months

upon conditions which included a requirement to keep all appointments with the Probation Service and to comply with all lawful

directions from her Probation Officer.

3. The applicant now seeks a review of this sentence on the grounds that it was unduly lenient.

The circumstances of the offence

4. On the evening of the 1st of July 2013 the respondent was drinking in The Plots Park, Woodquay, Galway City with friends. There

she met the injured party, Helena Flaherty. At around 5.50 p.m. an argument ensued between the two after the respondent began

taunting the injured party about her weight. The situation became violent. The altercation ended with the injured party lying on her

back and the respondent sitting on her chest. The respondent proceeded to bite the injured party’s bottom lip, removing 9 square

centimetres of tissue which dropped in the grass.

5. The injured party was taken to University College Hospital, Galway. Though the lower lip tissue was found in the grass and

transported to the hospital within minutes of the injured party’s arrival, it could not be reattached by surgeons.

6. Dr. Deirdre Jones, the injured party’s treating surgeon, said that she regarded the injury as “extremely serious”. The injured party

was at risk of blood borne infections such as hepatitis and HIV, but luckily did not contract any such infection. She said the injured

party was “very distressed” by the incident, which left her lower lip and gingiva exposed. Though Dr. Jones and her colleagues were

able to reconstruct the lower lip without major difficulty, the injured party “will have very significant [permanent] scarring in her

lower lip” and Dr. Jones predicted that the shape of the injured party’s face would be permanently changed.

7. The Gardaí at the scene of the incident shortly after it had occurred. They identified the respondent as having been possibly

involved and Garda William Dineen cautioned the respondent with a view to asking for her account as to what had happened,

whereupon she immediately admitted her involvement and apologised. She was taken to Galway Garda Station and when interviewed

there was fully co-operative and was very forthcoming with the truth.

The impact on the victim

8. In a victim impact statement read to the Court by Ms. Flaherty, she told the Court that the incident had changed her life

completely. She has permanent nerve damage resulting in numbness. She now has trouble pronouncing words and has to be careful

when eating as she sometimes bites her lip. She told the Court she could not eat solid food for a month after the incident. She is very

self conscious about her appearance and spends a lot of time trying to hide her injury using make-up. The injury was slow to heal and

affected her relationship with her children, who she avoided for a time as she did not want to frighten them. She also described how

she gave her terminally ill mother a fright when she saw her first.

9. She told the Court that the assault had changed her life and that she believed it would affect her for the rest of her life. She

stated that she was going to have reconstructive plastic surgery to see if her lip could be improved. She was waiting on an

appointment for surgery, and was going through various preliminary medical tests in advance of it. She stated that she has a

tightness in part of her face, that she has a slight speech problem manifesting itself as a lisp, and she has a tendency to bite her

injured lip when eating meals. She has nerve damage in her remaining lower lip which is numb, and this affects her ability to consume

hot drinks.

10. Counsel for the respondent communicated a public apology to the injured party on behalf of his client at the conclusion of her

evidence, to which the injured party did not respond.

The respondent’s personal circumstances

11. The respondent was born in 1974 in Dublin where she was raised. At some point in her adult life she moved to Athenry, Co.

Galway but has since moved back to the greater Dublin area. At the time of the assault she was a single mother to three children –

one of whom was a young adult, the other two of whom were young teenagers. She has since given birth to two more children and

lives with their father, her partner, in local authority housing in Mulhuddart.

12. She had no previous convictions or history of violence.

13. The respondent has bipolar disorder, and is under the care of Blanchardstown Mental Health Services. In that regard the

sentencing judge was provided with a number of medical reports, including reports from her General Practitioner and from her treating

psychiatrist. She receives a monthly visit from a psychiatric nurse and takes a cocktail of medication a number of times a day. She

was subjected to abuse as a child by a relative who is now deceased. At the time of sentencing she had been abstinent from both

alcohol and drugs for some time and her record of dealing with the probation services was positive. She had been fully co-operative

and had expressed remorse for her actions.

14. At the time of the initial Probation Report the appellant was in homeless accommodation. However, by the date of her sentencing

she had moved to secure accommodation. She had presented as being someone who was motivated to deal with her offending

behaviour and the main issues of concern highlighted were her alcohol and drug use, strained family and personal relationships, mental

health issues, financial pressure and lack of involvement in training and employment.

15. She appeared to be getting her life together. The probation report concluded that she was at a moderate risk of reoffending, but

noted that she had reduced her risk in areas they had highlighted by attending the Tallaght Probation Project and completing a

number of programs there, such as Anger Management, Anger Control and Alcohol Awareness programs. She had also had specialised

counselling in relation to serious historical abuse. She continued to attend the project’s Women’s Support Group which had helped to

support her in areas such as her mental health issues, education and homelessness.

16. She was assessed as suitable for continued support from the Probation Service. The latest report available as of the date of

sentencing concluded:

“If the Court wishes for Ms Byrne to be supervised by the Probation Service the following conditions would be helpful in

supporting her make the long term changes in her life, that will ensure that she does become involved in a violent incident

again.

Ms Byrne will:

Attend all appointments with the Probation Service.

Attend all appointments and courses at the Tallaght Probation Project, including offence related work, as

directed by her probation officer.

Engage with mental health services and comply with medical treatment as directed by medical staff.

Abstain from drug and alcohol use and engage with addiction services as appropriate.”

The sentence

17. In arriving at a sentence of five years imprisonment suspended in its entirety, the sentencing judge agreed in the first instance

with a submission from counsel for the applicant that the case fell into the mid range, on the parameters set out in The People

(Director of Public Prosecutions) v Fitzgibbon [2014] IECCA 12, namely that the gravity of the offence merited a custodial sentence in

the four year to seven year band. However, the sentencing judge rated it as falling at the top end of that range thereby meriting a

headline sentence of seven years.

18. He then went on to identify other relevant factors, noting that the finalisation of the matter had been adjourned from time to time

for a considerable period “to see if the problems that the accused has could be identified with any degree of finality and certainty”.

He then added:

“I'm satisfied that the accused has co-operated in this procedure and has taken steps that suggest to me at least that

she's committed to tackling the issues that she has. She remains a moderate risk of reoffending and I'm just basically

drawing this from the conclusion of the Probation and Welfare Service in the most recent report, dated the 2nd of April

2016. But she has reduced her risk in the areas highlighted. She will require continued engagement with the health and

probation services if she is, and it's a social comment more than anything else, if she's to, to get out of the cycle in

which she has found herself and get on to a different road. I can't see how the interests of justice would require me to

impose an immediate custodial sentence and I'm not certain that the interests of justice would be served by that in the

circumstances. So, what I propose to do, bearing in mind the all the mitigating factors that have been outlined to me

and bearing in mind the gravity of the offence, is to impose a five-year sentence of imprisonment. I intend to suspend it

in its entirety for a period of five years. This is aimed to be a it has a dual purpose. First of all, it's to act as a deterrent

to the accused and to other persons who might consider engaging in this type of unlawful violent conduct and as an

incentive for the accused to continue to engage with whatever services are available to her in order to continue her

path to rehabilitation.”

The Applicant’s submission

19. The applicant asks that the sentence be adjusted on the basis that it was unduly lenient, and argues that the sentence of five

years suspended in its entirety represented a substantial departure from what would be regarded as the appropriate sentence, such

as to justify the intervention of this Court.

20. In her written submissions, counsel for the DPP firstly submits that the sentencing judge failed to adequately reflect the

seriousness of the offence in the sentence imposed. Serious harm in this case was foreseeable and an aggressor who bites a victim’s

face runs a very high risk of causing serious disfigurement. The applicant contends that the respondent’s actions were indicative of

an assault calculated to cause serious harm in a deliberate manner. In that regard reliance was placed on the judgment of Clarke J. in

The People (Director of Public Prosecutions) v Fitzgibbon [2014] IECCA 12, where he stated at paras 8.12 – 8.14:

“First, it must be emphasised that the severity or viciousness of the assault by virtue of which a victim has suffered

injury must always be a highly significant factor … It does, of course, have to be acknowledged that there is not always

an exact correspondence between the severity of the attack and the degree of injury suffered. Sometimes, though no

thanks to the assailant, a person who is subjected to a particularly vicious attack luckily escapes with relatively minor

injuries … While some regard must, nonetheless, be paid to the consequences of the assault much greater weight will

obviously attach to those consequences where they are such as might reasonably be expected to flow from the nature

of assault concerned or at least are not wholly disproportionate to the assault.”

21. Counsel for the applicant further submitted that the sentencing Judge erred in principle in that he failed to give he failed to give

any or any adequate weight to the very significant effect on the victim of the acts of the respondent. The crime had had a very

serious impact on the victim. The Court was referred to the dictum of Charleton J. in The People (Director of Public Prosecutions) v.

P.H. [2007] I.E.H.C. 335, where at paragraph 18 he stated that “[i]f the victim had been badly traumatised by a crime, the

precedents show that a sentence should take this into account too.”

22. Finally, the appellant submits that the sentencing judge erred in principle in failing to impose an immediate custodial sentence. In

elaboration on this it was submitted that the sentencing judge gave undue weight to the mitigating factors in the case, and in

particular the evidence of the respondent’s medical history of psychiatric difficulties and addictions and the conclusion of the

Probation and Welfare Service in its final report dated the 2nd of April 2016. While the final probation report concluded that she was

at a moderate risk of reoffending, she was initially assessed being at a moderate risk, and this assessment had remained the same

throughout her engagements with the probation services.

The respondent’s submission

23. The respondent firstly relies on a number of principles identified in The People (Director of Public Prosecutions) v. Byrne [1995] 1

I.L.R.M. 279, these are, namely: that the DPP bears the onus of proof in showing that the sentence was unduly lenient; that an

appeal court should always accord great weight to the trial judge’s reasons for imposing the challenged sentence; that different

criteria apply to prosecution applications to have a sentence reviewed on the grounds of undue leniency than to defence appeals

against the severity of a sentence; and that nothing but a substantial departure from what would be regarded as the appropriate

sentence would justify the appeal court’s intervention. The respondent further relies on passages of O’Malley, Sentencing Law and

Practice (Round Hall, 3rd Ed., at pp 895 and 896) to the effect that the onus is on the DPP to show that the sentence “was well

below any acceptable standard of punishment for the particular standard of punishment for the particular offence even if none of the

“classic” errors in principle … could readily be identified.” It was correctly submitted that these principles were affirmed by the Court

of Criminal Appeal in the judgment of Hardiman J. in The People (Director of Public Prosecutions) v. de Paor & Zdanowski [2008] IECCA

137.

24. The respondent submits that the sentencing judge had the benefit of a number of probation reports, a certificate from Cuan

Mhuire dated the 27th of May 2014 attesting to the respondent’s attendance there for addiction treatment and reports from the

respondent’s GP and psychiatrist. He was also made aware that the respondent had obtained permanent accommodation, had

recently given birth, was pregnant again and had made efforts to address her addiction issues. The sentencing judge was also made

aware that the respondent was a first time offender, had had not come to Garda attention in the three year period since committing

the offence and had no history of violence. Further, the sentencing judge heard that the respondent had immediately accepted

responsibility.

25. No attempt was ever made to minimise the seriousness of the offence. Rather, counsel for the respondent submitted to the

sentencing judge that this was an exceptional case which fell to be determined on its own particular facts. It was urged upon us

that, as had been emphasised in Byrne, great weight should be accorded to the trial judge’s reasons for imposing the sentence he

did, and that he was uniquely in position to determine the just and appropriate sentence.

Analysis and Conclusion

26. As we have repeatedly emphasised in numerous judgments, the exercise of sentencing generally involves a two stage process.

The first stage involves assessing the gravity of the offence, with reference to culpability (including aggravating factors tending to

increase culpability and mitigating factors tending to reduce culpability), and the harm done, and determining where on the scale of

available penalties the offence should be located before account is taken of any mitigating factors not already taken into account as

bearing on culpability. In this way the sentencing judge determines on a headline sentence in the first instance.

27. The second stage involves discounting from the headline sentence arrived at in the first stage for any mitigating factors not

already taken into account, such as a plea, previous good character, age, remorse, co-operation, restitution, a good work record,

adversities in the accused’s person’s life and life history, public service or positive contributions to society, good works, efforts at

rehabilitation and any other relevant circumstances capable of going to mitigation. In this way the Court endeavours to arrive at a

just and proportionate ultimate sentence.

28. However, that fairly simplistic explanation of the process may represent less than the full picture in that subset of cases where a

sentencing judge finds it appropriate to consider the possible suspension of the entirety of a nominated headline sentence. In that

situation a subsidiary issue arises for consideration within the second stage of the overall process, namely whether the suspension of

the entirety of the sentence could be appropriate at all in the circumstances of the case, and some issues already considered in the

first stage may again become relevant in the context of that subsidiary issue.

29. It was a little unclear from counsel for the applicant’s written and oral submissions as to what part of the sentencing process the

applicant was seeking to impugn in complaining that the sentence imposed failed to reflect the seriousness of the offence, and the

harm done to the victim. She did not discriminate between the analysis required in the first stage, and that required where the

subsidiary issue to which we have referred arises in the second stage. We will therefore address the application as though both

aspects of the process were being impugned.

30. Counsel for the applicant complains that the sentence imposed fails to reflect the seriousness of the offence, and the harm done

to the victim (which by any yardstick was very significant indeed). The difficulty, however, with that complaint, if it is to be treated

as relating to the first stage, is that the sentencing judge readily adopted prosecuting counsel’s suggestion that the case fell to be

located within the mid range on the available scale, i.e., between four and seven years, and indeed the sentencing judge decided,

properly in our view, to locate it at the upper end of the mid range and determined on a headline sentence of seven years. It is hard

to see how, in circumstances where the sentencing judge agreed with counsel for the applicant’s submission on gravity, the applicant

can now legitimately complain about the headline sentence. In fairness to counsel for the applicant she did at one point during the

oral hearing of this appeal appear to concede that the seven year headline sentence could not be regarded as being a departure from

the norm.

31. However, for the avoidance of any doubt, we are satisfied that, in determining that the headline sentence should be seven years,

the sentencing judge did not depart from the norm.

32. In those circumstances, the focus must be on counsel for the applicant’s second complaint, namely that too much discount was

granted for mitigation. Her case, in essence, was that this was a case in which, notwithstanding the available mitigation, the

respondent should have been required to serve some time in custody, and that to have entirely suspended the sentence was

inappropriate and a clear departure from the norm.

33. The offence in this case was subject to discretionary punishment. However, we recognise that some offences will be so serious

that they effectively carry a presumption against the suspension of a custodial sentence in its entirety. That is certainly true in the

case of rape offences, s.15A drugs offences, certain firearms offences and egregious crimes of violence. However, even in such cases

existing jurisprudence indicates that a wholly suspended sentence can be imposed in cases where there are special reasons of a

substantial nature and particularly exceptional circumstances. Examples are to be found in The People (Director of Public

Prosecutions) v. McGinty [2006] IECCA 37; The People (Director of Public Prosecutions) v. Alexiou [2003] 3 I.R. 513; The People

(Director of Public Prosecutions) v. Jervis and Doyle [2014] IECCA 14 and The People (Director of Public Prosecutions) v. Flanagan

[2015] IECA 94.

34. The present case was very serious, and it cannot be gainsaid but that a sentence involving an immediate custodial element would

represent the norm absent special reasons of a substantial nature and particularly exceptional circumstances. The amount of any

custodial sentence to be served would obviously depend on the available mitigation, and it might be the case that where the available

mitigation was substantial, as it was in this case where there had a been an early plea, genuine remorse, significant co-operation, and

the accused was a first time offender, that a quite substantial amount of the headline sentence would be discounted, either by way

of a straight reduction, or by partial suspension, leaving only a modest balance to be actually served.

35. In this case, however, there were additional factors to which we will allude later in this judgment, and these combined with the

more routinely encountered mitigating factors already alluded to, caused the sentencing judge to first consider, and then to decide

to, suspend the entirety of the sentence. The question is: was he right to do so? Before considering the additional factors that may

have tipped the balance in this case in so far as the sentencing judge was concerned, we should say that we adopt as apposite the

following passage from a judgment of the New South Wales Court of Criminal Appeal in a case of R. v. Zamagias [2002] NSWCCA 17,

cited in O’Malley on Sentencing, 3rd ed., at para 22-12, where that court said (at para 32):

"[A] sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a

sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of

course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will

deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than

any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a

suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis,

having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for

general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that,

although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate

case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and

denunciation. In such a case a suspended sentence may be particularly effective and appropriate."

36. It will be clear from this passage that amongst the considerations that a sentencing judge must have regard to, in deciding within

the second stage of the sentencing process on the subsidiary issue as to whether or not the suspension of a sentence in its entirety

might be appropriate in a particular case, are (i) the nature of the offence committed (ii) the objective seriousness of the criminality

involved, (iii) the need for general or specific deterrence and (iv) the subjective circumstances of the offender.

37. In so far as the first two are concerned, while regard will already have been had to these factors for the purpose of assessing

gravity and determining a headline sentence, they come into play yet again for the purpose of determining whether it may be

appropriate in the overall circumstances of the case to suspend the entirety of the headline sentence. To that extent, and without at

this point expressing a view on the merits of the complaint, we would comment that it was entirely legitimate for counsel for the

applicant to seek to complain that insufficient weight had been attached to the general circumstances of the offence (including the

harm done), and its objective seriousness, in considering whether or not a complete suspension of the nominated headline sentence

was appropriate.

38. In evaluating the considerations identified in Zamagias, and any other relevant considerations, no pre-determined weighting ought

to be afforded to any individual consideration. However, that said, considerable weight will always attach to the general

circumstances of the offence including the harm done.

39. In this case, however, there were the additional factors to be considered of the very significant adversities in the respondent’s

life, both at the time of the offence and historically, in particular her strained family and personal relationships, her intermittent

homelessness, her poor financial circumstances, her lack of employment history, her minimal educational and training attainments, and

all of this against the backdrop of her mental health difficulties, and exacerbated by alcohol and drug abuse. Despite all this the

sentencing judge had evidence of a real resolve on her part to address these adversities in her life. As he pointed out there had been

several adjournments to see if the earnest desire to do so that she had expressed would be followed through on, and it was.

40. In addition the sentencing judge had before him the very important evidence that at the date of sentencing the respondent had

only recently had another child and that, indeed, she was pregnant again. This was in circumstances where her previously chaotic

lifestyle had been greatly stabilised.

41. In the judgment of this Court in The People (Director of Public Prosecutions) v.C. [2015] IECA 76, Ryan P. referred to a

defendant’s role in caring for young children, and said:

"It does have relevance … to the question whether imprisoning him would interfere with the rights of the children under

the Constitution or the European Convention on Human Rights. If the result of measures taken by the Court would

jeopardise the children's rights, it would not be permissible to apply or enforce them."

42. While it is true that the fact that a children or children would be impacted by the sending of a parent to prison would not in and

of itself, save in exceptional cases, deter a court from imposing a custodial sentence where it would otherwise be appropriate to do

so, the fact that very young children may be adversely impacted is nonetheless a consideration to be taken into account in

evaluating all the circumstances of the case in the context of determining the subsidiary issue that we have referred to, and the trial

judge in this case was required to do so, and may be assumed to have done so.

43. As pointed out by counsel for the respondent in The People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279, on an

application such as the present, the reviewing court should attach great weight to the reasons given by the sentencing judge for

imposing the sentence that he or she did.

44. In this case the judge specifically identified and was influenced by the fact that this appellant was “committed to tackling the

issues that she has”, and the fact that the Probation Service had expressed a willingness to work with her, and had made express

recommendations. He noted in particular that “she has reduced her risk in the areas highlighted. She will require continued

engagement with the health and probation services if she is, and it's a social comment more than anything else, if she's to, to get

out of the cycle in which she has found herself and get on to a different road. I can't see how the interests of justice would require

me to impose an immediate custodial sentence and I'm not certain that the interests of justice would be served by that in the

circumstances.”

45. In arriving at that conclusion the sentencing judge had, earlier in his judgment, specifically referred to the fact that the case was

at the high end of the medium range on the scale of gravity, and that the harm caused had been of a “bizarre and grotesque” nature,

and that it was such as would “ordinarily warrant an immediate and a lengthy custodial sentence”. He clearly therefore took account

of the circumstances of the crime and the harm done in considering whether the interests of justice in this particular case required

the imposition of a custodial sentence to be actually served.

46. In our judgment the particular circumstances of this case, which cumulatively influenced him to take the step that he did,

comprised special reasons of a substantial nature and were sufficiently exceptional to have allowed him to legitimately exercise his

discretion to suspend the entirety of the sentence.

47. It was undoubtedly a very lenient sentence but in our assessment it was not unduly lenient in the particular circumstances of this

quite exceptional case.