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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- Corbett [2015] IECA 174 (21 July 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA174.html
Cite as: [2015] IECA 174
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Judgment
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THE COURT OF APPEAL Sheehan J. Mahon J. Edwards J. Appeal No. 112/15 The People at the Suit of the Director of Public Prosecutions Respondent - and - Samantha Corbett Appellant Judgment of the Court (ex tempore) delivered on the 21st day of July 2015Iby Mr. Justice Edwards
1. In this case the appellant pleaded guilty on 23rd February 2015 to a single count of assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act 1997 and she was sentenced before Cork Circuit Criminal Court. She received a sentence of three years imprisonment with the final one year of the said sentence suspended conditionally. The appellant now appeals against the severity of her sentence. 2. The circumstances of the crime were as follows. On Saturday 26th July 2014 the appellant was a patient awaiting treatment at The Mercy University Hospital Emergency Department. She was been dealt with by two staff nurses one of whom was a lady called Eithne O’Flynn, and while Ms. O’Flynn was assisting her colleague in attending to the appellant she was punched in the right side of the face by the appellant resulting in her falling underneath a trolley onto the ground. The entire incident was captured on close circuit television and in any event a complaint was made and a witness accounts were given, both by Ms. O’Flynn and others who observed the incident. 3. The gardaí attended at the hospital and viewed the close circuit television and took relevant statements and in due course the appellant attended the Bridewell garda station for the purpose of been interviewed in relation to the assault that had occurred. That interview took place on 1st October 2014. The appellant claimed to have no recollection of the circumstances in which the assault had taken place. It was common case that she was highly intoxicated at the time. However, she readily identified herself in the CCTV footage that was shown to her. She said that “I am denying what happened, but I can’t remember what happened, but if that’s what I done then I am disgusted with myself”. It is accepted by all concerned, and was accepted indeed by the trial judge, that from a very early stage Ms. Corbett both expressed, and demonstrated by her conduct, remorse for her involvement in assaulting Ms. O’Flynn. 4. The assault on Ms. O’Flynn had severe effects on the lady in question. She provided a victim impact statement to the court which is relatively brief and which the court will read out. She says:-
6. The garda did not have much other information concerning the personal circumstances of the appellant save for stating that she had been living for some time in the Mallow area and had recently been availing of a women’s refuge in Cork city. 7. There was a probation report before the court which put some further flesh on the bones of that fairly limited account and the sentencing judge alluded to the probation report in his sentencing remarks. However, the appellant herself gave evidence before the circuit court and provided much contextual detail which was of assistance in terms of the mitigating factors in the case. 8. She told the court, firstly, that she wished to apologise to the injured party. 9. She told the court that she had a long standing alcohol problem arising out of the fact that she had been in an abusive relationship with an ex partner for some time, that she had become pregnant but that prior to her child being born she had decided to address her alcohol problem, had gone to Tabor Lodge and had completed a Tabor Lodge alcohol addiction programme two weeks before her child, Jasmine, was born in February 2014. Unfortunately, the problems arising from the abusive relationship with her ex partner continued and her daughter, Jasmine, was taken into care not long after she was born. There was a nine month interim care order due to expire in June 2015 in the context of the sentencing hearing taking place on 22nd April 2015. 10. The appellant told the court that her long term focus and goal was to get her daughter back. It was put to her that it would be necessary for her to address her alcohol issues and that she had been offered admission to Cuan Mhuire on three previous occasions in the recent past but had not taken up any of those appointments. She offered an explanation for that saying that on the first occasion she was the victim of an assault which prevented her from doing so. On the second occasion she was in Cork University Hospital for a cat scan on her head. On the third occasion she wanted to see her daughter before doing anything and that is why she did not take up the third appointment. 11. Counsel on behalf of the appellant applied to the judge to adjourn the matter to allow the appellant to take up a fourth appointment in Cuan Mhuire so that she could commence a twelve week alcohol residential course to deal with her alcohol abuse. The judge considered that request but determined that he was not in a position to accede to it. In deciding not to do so he referred specifically to the probation report which he noted confirmed that she was at high risk of re-offending and he noted that in the conclusion to that report it was stated that it was a matter of concern that the appellant was not on the bed list for Cork Simon Community. Moreover, the probation officer had stated at the time of writing “I cannot advise as to where she is sleeping at night”. He noted that the probation officer had concluded that it was not possible to make a positive recommendation at that time. He commented that the probation service, being an agency of the court, had sought to induct her into a treatment centre but that she had not been compliant and accordingly the court was not persuaded that that was a course that should be proceeded with at that point. 12. The judge stated that:
19. The second ground of appeal is that the sentencing judge attached insufficient weight to the mitigating circumstances in the case. 20. The third main complaint in the grounds of appeal was that the judge had attached too much importance to the sentencing objective of general deterrence. 21. Finally, the fourth complaint is that there was insufficient consideration of rehabilitation, and that the sentencing judge had erred not adjourning the sentencing hearing to allow the appellant to take up the bed in Cuan Mhuire that had been available to her at the time. 22. Dealing with the first point, namely that the case was rated too highly on the scale of seriousness, the maximum potential penalty for the offence was one of five years imprisonment. Somewhat unsatisfactorily the sentencing judge did not state where on the scale of seriousness he placed the offence before application of the mitigating factors in the case. He merely said that the appropriate sentence in the case was one of three years imprisonment. Unquestionably there were significant mitigating factors in the case. However, it is unclear from the judgment precisely what discount was in fact afforded on account of mitigating factors. That having been said, it is hard to see how there could have been less than two years allowance for mitigation having regard to the available mitigating circumstances. As was pointed out there had been an early plea of guilty, there was genuine remorse, there was a background of significant adversity in the appellant’s personal life and she had a young child who was in care. The appellant also had significant substance abuse, and in particular alcohol dependence problems. 23. It seems reasonable to infer that the judge, who had earlier stated that the case “belongs at the higher end of the scale for an offence of this nature”, had as a matter of likelihood started at or near at the top end of the range, i.e., five years, and had allowed a significant discount in mitigation ending up at three years. 24. However, counsel on behalf of the appellant has made the point that this was by no means the worst manifestation of a s. 3 assault that could have been perpetrated, notwithstanding that it was perpetrated on a front line healthcare worker. He has also made the further points that no weapon was used, that it was a single blow assault and that there had been no pre-meditation. These points are all valid and well made. 25. In the circumstances the court considers that this case was placed at too high a position on the scale of seriousness, and to that extent the trial judge was in error. This Court considers that properly judged the case would have attracted a headline sentence of four years on the scale of seriousness before application of mitigating factors. 26. The court has already indicated that the mitigation available was considerable and that it would have justified a discount of two years in respect of mitigation. So on that basis the headline sentence of four years would have become two years. That is in fact where the sentencing judge ended up because having determined on a sentence of three years after application of mitigation he then went on to suspend the last twelve months of that with a view to incentivising rehabilitation, with the result that the appellant was required to serve a net two year sentence. 27. The court does not quarrel with the sentencing judge’s desire to incentivise rehabilitation by the suspension of a portion of the sentence figure arrived at after due allowance was made for mitigation. However, as the point at which the sentencing judge had started was located too far along on the scale, it meant that even if everything else had been appropriately adjudged the sentencing judge’s final figure which was still going to be too high on account of that initial error. Accordingly the final sentence of two years cannot stand in those circumstances. 28. The court will therefore uphold the first ground of appeal, quash the sentence imposed in the court below, and in due course proceed to re-sentence the appellant appropriately along the lines indicated above. 29. However, before doing so it is necessary to briefly proceed through the other grounds of appeal. 30. The court does not accept that insufficient weight was given to the mitigating circumstances. It is sufficient to say that the trial judge listed in some detail the relevant mitigating factors including the appellant’s co-operation and early plea of guilty, her homelessness, her remorse, the fact that the appellant had a child in care and that that child would be impacted, and also considered very specifically the question of rehabilitation. 31. With regard to the complaint made with respect to general deterrence, this ccurt finds itself in disagreement with the submission made by counsel on behalf of the appellant. Deterrence, both general and specific, is a legitimate sentencing objective. It is a matter of significant importance for the courts to support the important role being played by front line professionals in the caring professions, to quote the trial judge “whether in healthcare, education, the fire service or in criminal justice.” The victim in this case was a staff nurse on duty in an emergency department who was merely attempting to do her job and to assist the appellant who had presented in an intoxicated state for treatment. She was seriously assaulted in an unprovoked and vicious way and such an offence has to be marked with a sentence that will act as a deterrent, not just to the appellant herself but to others. It was entirely legitimate in this court’s view for the sentencing judge to allude to the need to send a message in regard to the unacceptability of such assaults and the court is not therefore disposed to uphold the complaint that this was a case in which the trial judge attached too much weight to the objective of general deterrence. The court simply does not agree with that contention. 32. Finally, with respect to the claim based on an alleged failure to have adequate regard to the sentencing objective of rehabilitation, the sentencing judge was satisfied that this was not an appropriate case in which to allow the appellant to immediately take up the bed that was available to her in Cuan Mhuire. This Court considers that that was a decision entirely within the range of the sentencing judge’s discretion and one that was legitimately open to him on the evidence. Accordingly, it is one with which this Court takes no issue. Moreover, the Court has already noted that the sentencing judge in fact sought to incentivise the appellant’s rehabilitation by suspending the final twelve months of the sentence figure arrived at after due allowance was made for mitigation. Re-sentencing 34. The court has already indicated that it is of the view that, when properly assessed on the scale of seriousness, this case would attract a sentence of four years imprisonment before taking into account mitigating circumstances. 35. The court has already stated also that it accepts that there is considerable mitigation available in this case and it is therefore prepared to discount that four year sentence by a period of two years to take account of mitigation leaving a net sentence of two years imprisonment. 36. However, the court will also follow the lead of the Circuit Court judge by seeking to incentivise rehabilitation by the suspension of a further portion of the balance and it is prepared to suspend some nine months of the remaining two years leaving a net sentence to be served of fifteen months. The suspension will be on conditions. It will be subject to the appellant entering into a bond to keep the peace and be of good behaviour in the sum of €100. It will also be a specific condition of the suspension that the appellant during the remainder of her time in custody continues to engage with the addiction counselling services with which she is presently engaging, and that she follows all of their directions and recommendations in regard to their programme. Further, following her release, it is a condition that she engages with the probation and welfare service and follows all of their directions. The period of suspension shall be for the unserved balance of the sentence of fifteen months imposed on her today, and for a further two years following her release. |