Court of Appeal dismisses DPP's review application for undue leniency regarding a suspended sentence for assault causing serious harm.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

8CJA/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Jordan O’Donovan

Appellant

Judgment of the Court delivered on the 18th day of April 2016 by

Mr. Justice Birmingham

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

review of a sentence on grounds of undue leniency. The sentence sought to be reviewed was one of three years imprisonment with

the final two years suspended subject to conditions which was imposed on the respondent on the 15th December, 2014, in Cork

Circuit Court in respect of a s. 4 assault (assault causing serious harm). The offence in question having occurred on the 27th

December, 2013, at a nightclub in Cork city centre.

2. The background to the offence was that in the early hours of the 27th December, 2013, the injured party, Mr. Mark Flynn, was

present at the Savoy Nightclub in Patrick Street Cork. The injured party approached a group of people who were in the smoking area,

comprising a male and two females and asked them for a light for a cigarette. The male in the group blew out a lighter on a number of

occasions and a verbal exchange between the male that had been approached, who was the respondent in the present application,

and the injured party followed. The verbal exchange then developed into a physical altercation. At the sentence hearing, the

evidence of Detective Garda Colm Greenway, who was the investigating member was that the altercation had been initiated by the

respondent.

3. Following the commencement of the altercation, which was a very brief one, the respondent struck the injured party into the face

with a glass object which he was holding when the incident started. Unfortunately, as a result of this blow the injured party suffered

a very serious eye injury. Initially he was hospitalised for approximately one week. He underwent numerous operations but did not

recover full sight in his eye. Mr. Flynn gave evidence to the sentence hearing about the effect that the assault had on him. It was

made very clear to the court that the assault had a huge impact on his life and indeed on his family. He had prior to the incident been

involved in sports, in martial arts in particular. However, he has not returned to these pursuits fearing that to participate in them

would put the eye at risk. As of the date of the original sentence hearing, which was on the 26th November 2014, it was explained

that the focus of the injured party was not so much on the question of getting his vision back but rather on simply keeping the eye.

4. In terms of the background and personal circumstances of the defendant, now respondent, he was eighteen years old at the time

of the offence, had recently completed the second year of an apprenticeship as a fitter and had no previous convictions. At the

sentence hearing it was accepted by Detective Garda Greenway that there was a genuine level of remorse on the part of Mr.

O’Donovan. The Detective Garda explained that whenever he had contact with Mr. O’Donovan, or with his family, that he was always

asked about how the injured party was progressing. The evidence was that at the time the offence was committed that he was

experiencing difficulties with both drink and cannabis use, but that he had taken this in hand to good effect through the Ashling

Centre/Fellowship House.

5. At the original sentence hearing counsel on behalf of the DPP referred to recent Court of Criminal Appeal case law in relation to s. 4

assaults and in particular referred the Court to the judgment in the case of DPP v Fitzgibbon [2014] IECCA 25. The Court was told

that the DPP saw the offence as falling within the mid range. At that point counsel’s submissions were interrupted by the judge to say

that he was in agreement with the DPP that the case was a mid range offence. The Fitzgibbon case indicated that for a mid range

offence an appropriate sentence before mitigation was one of four years to seven and a half years imprisonment. The Court was told

that the accused had gathered a sum of €6,000 which he was offering to the injured party to go towards his out of pocket expenses.

In part because of this, and in order to allow the injured party consider what his attitude was to the €6,000 that was on offer, the

judge indicated that he was not going to finalise the case but that instead he was going to remand Mr. O’Donovan in custody. He

made clear that there would be a custodial sentence, the length of which would be decided on the 15th December, the remand date.

He commented that the respondent had many things in his favour but the severity of the injury and the use of a glass was such that

there had to be some structured sentence involving a custodial part. Counsel indicated that if Mr. O’Donovan was allowed to take up

employment it would be his intention to address the question of compensation further, but the judge intervened to say that they

were not going to go down that road because he believed that the nature of the injury, the severity of it and the fact that it involved

the use of a glass meant that there had to be some element of a custodial sentence.

6. In the course of his sentencing remarks the Circuit Court judge commented:-

“It was an impulse assault in which the perpetrator had in his hand at the time, the glass, when he struck out and caused

devastating injuries to the victim.”

7. He recited that the victim had been left with no functional use of his eye and that he had black dots appearing in his sight and had

suffered very terribly because of the injury. He referred back to the fact that he had heard from the victim on the previous occasion

and was conscious of how the incident had completely undermined his confidence and how his career path had been devastated.

Turning to the situation of the accused, he commented that he had no previous convictions, was a very young man and said that

these were two significant factors. He said that he was satisfied from the garda evidence and from the probation report that the

remorse that Mr. O’Donovan was expressing was genuine and noted that the appellant put his behaviour down to the amount of drink

that he had taken on the night. The judge commented that this was not an excusing factor but that he did accept that the remorse

was genuine. He referred to the full cooperation with the Probation Service and to the courses that he had undertaken to help with

his rehabilitation and that the Probation Service was willing to work with him. At that stage he commented:-

“It is however an offence at very much the higher level from the point of view of injury, if not methodology or intention of

what one might expect on a s. 3 assault.”

8. Counsel for the prosecution intervened to say “the s. 4 assault judge” to which the judge responded “It’s a s. 4 assault”. The

judge continued, “the results of this are quite devastating and it was done, when all is said and done, the man hit out with a glass in

his hand and that is just not acceptable and because of that – now”. The judge then referred again to the defendant’s work history,

to the testimonials in respect of him and to his ability to work and rehabilitate himself and confirmed that in sentencing he was taking

all that into account. The judge went on to say that notwithstanding all of those factors he had to measure the sentence at three

years, but would suspend the final two years on condition that the accused would, on his release, remain under the care of the

Probation Service for two years.

9. In the course of the original sentencing hearing the judge had indicated that he saw the aggravating factor as the use of a glass,

but did not put that at the upper end of aggravation because the glass may very well have been in his hand rather than it being a

question of him going looking for a glass or similar object.

10. The submissions on behalf of the Director of Public Prosecutions have made the point that the sentence that was eventually

arrived does not fit easily with the approach suggested by the Court of Criminal Appeal in Fitzgibbon. Counsel has also referred to the

judge’s reference to a s. 3 assault on the occasion of the adjourned sentence hearing and while he says that this may have been a

slip of the tongue it may also be an indication that the judge had lost sight of the fact that he was required to sentence for a s. 4

assault. He was also somewhat critical of the judge for confining himself to saying that he agreed with the Director’s position that it

was a mid range offence and not elaborating on this by indicating that it fell into the low or middle or upper section of the mid range.

Equally, it is pointed out, the judge had not indicated where in the available sentencing range of four years to seven and a half years

for a mid range offence, he was placing the starting point before considering mitigation. Counsel said that it was accepted that there

were substantial mitigating factors present, in terms of the youth of the offender, of the fact that there were no previous

convictions, the positive background and work record and the genuineness of the remorse. He accepted that all of these factors

would have justified a structured sentence with part of the sentence being suspended. However, he says that, whether because the

offence was not placed at a sufficiently high starting point in terms of the gravity of the offence or because undue weight was given

to the mitigating factors that were undoubtedly present that the sentence arrived at was unduly lenient.

11. Counsel for the respondent/defendant stresses the facts that were in favour of her client such as the level of cooperation, the

plea, his previous positive record, his youth and the fact that he had assembled a significant sum of money towards the out of pocket

expenses even though the injured party, for understandable reasons, had refused the offer. Counsel for the respondent also points

out that at this stage her client has served his sentence and has been at liberty now for ten months and says that it would be harsh

and indeed unfair to re-incarcerate him at this stage.

12. She points to the fact that her client served the greater part of his sentence in Loughan House open prison and in June of last

year was granted temporary release. More unusually, having been released he returned voluntarily to Loughan House for one week in

order to participate in a meditation programme which it had been identified would be beneficial for him. Counsel for the Director

acknowledges that the fact that the sentence has been served and that Mr. O’Donovan has been released following the completion of

the sentence that was imposed may become a relevant consideration for this Court, but contends that it is an issue that should be

considered only at the second stage of the process when the Court comes to consider the question of the re-sentencing of Mr.

O’Donovan, if it is concluded that the sentence originally imposed was unduly lenient.

13. Counsel for the Director is undoubtedly correct that there have been cases where the Court has indicated that it has found an

error in principle in that the sentence originally imposed was unduly lenient but it has not actually proceeded to re-sentence because

of other intervening events. However, there have also been cases where the passage of time and other intervening events have been

weighed in the balance when the Court considered whether to quash the original sentence. The language of s. 2 of the Criminal

Justice Act 1993 permits both approaches. Section 2, so far as material provides as follows:-

“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 from the day

on which the sentence was imposed.

(3) On such an application, the Court may either –

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.”

The section provides that the Court may quash the conviction or may refuse to do so, but beyond that does not mandate any

particular approach.

14. This was beyond any question a serious offence. The consequences for the victim, Mr. Flynn, who was enjoying a night out with

friends over the Christmas season have been horrendous. This Court agrees with the initial approach of the trial judge which was to

take the view that given the gravity of the offence and the nature of consequences that a custodial sentence was inevitable. As this

case has shown in such stark terms, the use of a glass or bottle or similar object in the course of an assault is very likely to result in

serious and indeed permanent injury. Such assaults involving “glassings” will normally result in a prison sentence. Cases which would

not result in a term of imprisonment actually being served are likely to be wholly exceptional. While the offence was a serious one and

that is not disputed, it was the case that there were significant mitigating factors present as identified by the sentencing judge and

indeed this is properly acknowledged by the DPP. Absent the combination of those factors, a significantly greater sentence would

have been required to be served. Even allowing for the many mitigating factors that were present, the sentence imposed was

undoubtedly a lenient one. The question though is whether it was so lenient that it has to be regarded as one that was unduly

lenient.

15. The approach that courts should take when asked to review sentences on grounds of undue leniency was first addressed in the

case of DPP v Byrne [1995] 1 ILRM 279, which was the first application pursuant to s. 2 to come before the courts. The approach

identified there has been endorsed in a number of other cases including People (Director of Public Prosecutions) v. McCormack [2004]

I.R. 356, People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390 and DPP v. Stronge [2011] IECCA 79, to mention just

some.

16. In Byrne, O’Flaherty J. observed that the onus of proof clearly rests on the Director of Public Prosecutions to show that the

sentence called into question was “unduly lenient”. Secondly, he said “the Court should always afford great weight to the trial judge’s

reasons for imposing the sentence that it is called in question”. In particular, if the trial judge had kept a balance between the

particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced his

decision should not be disturbed. Thirdly, the Court was of the view that it was unlikely to be of help to ask if had a more severe

sentence been imposed it was likely to have been upheld on appeal. Finally, O’Flaherty J. observed that it was clear from the wording

of the section that since the finding had to be one of undue leniency, nothing but a substantial departure from what would be

regarded as the appropriate sentence would justify the intervention of an appeal court.

17. In this case the identification of three years as the appropriate sentence having regard to the mitigating factors present is not

one that can be challenged. At an early stage the judge indicated that he felt this was a case where a structured sentence was

required by which he meant a sentence that would see the accused serving a period of time in prison, but where part of the sentence

would be suspended. In the view of the Court, this was an entirely proper approach by the judge to take and indeed the Director of

Public Prosecutions accepts that this was a case where there was scope for structuring the sentence. The question really then

becomes whether the balance struck between the period to be served and the period suspended was appropriate or whether the

balance struck was so wrong as to render the sentence unduly lenient.

18. In the Court’s view, the judge might well have concluded that a greater portion of the sentence had to be actually served. Had

he decided to suspend only one third or half of the overall sentence then it is unlikely that such a sentence could have been

successfully appealed by Mr. O’Donovan. However, as DPP v Byrne makes clear that is not the issue. In the Court’s view, while a

somewhat more severe sentence might well have been imposed, the Director has not established that the sentence imposed

represented a substantial departure from what would have been an appropriate sentence and in this context that means the minimum

appropriate sentence. In those circumstances, and having regard also to the fact that Mr. O’Donovan has served the sentence that

was imposed upon him and has returned to living and working in the community for the past ten months, and also taking account of

the fact that he is subject to a two-year suspended sentence and will be under the supervision of the Probation Service for a two-

year period, which are matters to which we attach significance, the Court will refuse the application to review the sentence.