Court of Appeal allows DPP application, holding sentence for unprovoked knife attack unduly lenient.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 113

Sheehan J.

Mahon J.

Edwards J.

58CJA/12

In the matter of Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

v

Anthony Kelly

Respondent

Judgment of the Court delivered on the 4th day of June 2015, by Mr. Justice Sheehan

1. This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for review of the

sentence imposed on the respondent on the 10th February, 2012, on the ground of undue leniency.

2. The respondent was sentenced to four years imprisonment with the final two years of the said sentence suspended for a period of

six years in respect of an offence of causing serious harm. The offence of serious harm involved an unprovoked slashing of the face of

a 21 year old man by means of a knife causing permanent facial disfigurement to the victim.

3. In order to consider this application it is necessary to set out the background to the offence.

Background

4. On the 10th February 2012, the respondent was before Limerick Circuit Court in respect of a number of different matters. The

sentencing judge activated the suspended portion of a sentence for burglary which had been imposed on the respondent on the 27th

April, 2010. The respondent had received a three year prison sentence with the final two years suspended on the usual terms. The

sentencing judge was obliged to activate this two year sentence and order that it be consecutive to the sentence imposed in respect

of four other counts to which the respondent pleaded guilty to upon arraignment. Particulars of the offences in respect of these four

counts are as follows:

1. That on the 13th May, 2011, the respondent robbed another male of approximately €50 in cash and a Nokia

mobile phone at Apartment 2, 23 Catherine Street, Limerick.

2. That on the 14th May, 2011, the respondent robbed a second male of a chain.

3. That on the 14th May, 2011, the respondent intentionally or recklessly caused serious harm to a third male.

4. That on the 14th May, 2011, the respondent stole €5 in cash from a female.

5. These offences occurred in Limerick city between the early hours of the 13th May, 2011, until the early hours of the following day,

Saturday the 14th May, 2011. The background to the first count is that a young male was socialising in Limerick city on the night of

the 12th May, 2011, leading into the early hours of the 13th May, 2011. He became intoxicated and was lured to an apartment at 23

Catherine Street, Limerick occupied by the partner of the respondent. The respondent robbed this man of €50 in cash and a Nokia

mobile phone in that apartment. This offence occurred at around 2.15 am.

6. With regard to the next count, at about 2.40 am on the night of Saturday the 14th May, 2011, another male was walking to his

apartment in Limerick when he was approached by the respondent who he believed was in possession of a knife. The respondent

pulled a chain from this man’s neck and fled into 23 Catherine Street. Shortly after this attack, another male was returning to his

hotel in Limerick city centre when he was stopped by the respondent. The respondent tried to take money from his pockets and so he

pushed the respondent away. At the door of the hotel the respondent slashed this man across the face with a blade inflicting a

serious laceration to the left side of his face under the area of the eye at the upper part of the left cheek. An employee of the hotel

followed the respondent and observed him becoming involved in an altercation with two ladies at the junction of Catherine Street and

Cecil Street. One of these ladies who had confronted the respondent recognised him as the man who had grabbed €5 from her earlier

that night at 1.30 am. The hotel employee observed the respondent enter a house with a yellow door which was later noted to be 23

Catherine Street. The gardaí arrived and the respondent was arrested in the bathroom of this apartment with a blood stained knife in

his possession.

Impact on the victim

7. The victim of the offence causing serious harm was left with a visible scar which runs diagonally across the left side of his face.

The injury was categorised as being as likely to heal leaving permanent scarring which would cause serious disfigurement. He did not

wish to make a victim impact statement. The prosecuting garda stated that this man was afraid to attend court and that he was

trying to get on with his life.

Personal circumstances of the respondent

8. The respondent was born on the 12th July, 1990, and had a number of previous convictions, including convictions for assault and

malicious damage.

9. The Court was told that the respondent was 21 years of age and that at the time these offences occurred he was heavily under

the influence of intoxicants.

10. Counsel for the DPP argued that the sentencing judge had failed to give sufficient weight to the aggravating factors. In particular

the applicant submitted that the sentencing judge failed to reflect the significant aggravating factors, namely the use of the knife,

the nature of the injury inflicted and the lack of any provocation. Counsel relied upon two judgments in this regard:- The People at

the Suit of the Director of Public Prosecutions v. Black (Unreported, Court of Criminal Appeal, 31st July, 2009) and The People at the

Suit of the Director of Public Prosecutions v. Fitzgibbon [2014] 2 I.L.R.M. 116. Counsel for the DPP also submitted that given the

failure by the respondent to abide by the terms of an earlier suspended sentence it was an error in principle to impose a partially

suspended sentence again.

11. Opposing the application, counsel for the respondent noted that the sentencing judge fully took into account the aggravating

factors arising from this offence and referred to “an aggravation of the fact” in that the respondent was “on a rampage”, that the

attack was unprovoked, that the victim was left with a permanent scar and that the offence had been committed whilst the

respondent was subject to a suspended sentence. Counsel for the respondent submitted that the sentencing judge accurately took

into account the mitigating factors including the respondent’s plea of guilty. Counsel also submitted that it was open to the

sentencing judge to suspend the second half of the sentence as in the course of the plea in mitigation reference was made to two

initiatives which might assist the respondent’s rehabilitation and two documentary proposals were furnished on his behalf to that

effect. Whilst counsel for the respondent acknowledged that the sentence imposed was a lenient sentence, it was his submission that

it was not unduly lenient.

12. In the course of his sentencing remarks, the sentencing judge noted that at the time of the offences, the respondent “went on a

rampage, if it can be called that, on two days, on the 13th and 14th of May, 2011, and he appeared to be picking his victims at

random in unprovoked attacks. And in the case of the unfortunate [victim] he has left him with a permanent scar on his left cheek

which he’ll have to live with for the rest of his life”.

13. This Court has considered the submissions of both parties and accepts that the Court should afford great weight to the

sentencing judge’s reasons for imposing sentence and notes the care taken by the sentencing judge in this case.

14. This Court is, however, of the view that the aggravating factors were not given their due weight. The injured party received a

serious facial wound leaving him permanently disfigured. Notwithstanding the clear intention of the sentencing judge to incentivise the

respondent’s rehabilitation, this Court is of the view that the gravity of the offending is not adequately reflected in a sentence that

only requires the respondent to spend two years in custody. Accordingly, the Court holds that the sentence in this case represents a

significant departure from what would normally be an appropriate sentence and holds that the sentence was unduly lenient.