Irish Court of Appeal

You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v O'Mahony [2019] IECA 311 (04 December 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA311.html
Cite as: [2019] IECA 311

[New search] [Printable PDF version] [Help]

Page 1 ⇓

THE COURT OF APPEAL

196CJA/18

The Chief Justice

The President

Kennedy J.

IN THE MATTER OF

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

GARY O’MAHONY

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered on the 4th day of December 2019 by

Ms. Justice Kennedy

1. This is an application brought by the director of Public Prosecutions pursuant to the

provisions of s.2 of the Criminal Justice Act 1993, seeking a review on grounds of undue

leniency of a sentence imposed on the respondent on the 14th June, 2018 in Cork Circuit

Criminal Court. The respondent pleaded guilty to a count of assault causing harm

contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997. The sentencing

judge applied the provisions of the Probation of Offenders Act 1907.

Background

2. By way of background, the assault in question occurred on the 11th November, 2017 at

the Farm in Curraheen, Bishopstown, Cork during the course of a soccer match. During

the match the injured party, one Michael O’Donovan, committed a foul and the referee

intended giving him a yellow card. A few words were exchanged and the respondent,

who was a member of the opposing team punched the injured party on the right side of

his face knocking him unconscious. The respondent walked off the pitch and an

ambulance was called and the injured party was taken to Cork University Hospital. The

injured party suffered concussion, a damaged cheekbone, loose teeth, cuts to the inside

of his mouth and damage to his right eye.

3. The respondent went to Togher Garda Station on the 18th November 2017 and arranged

to speak with members of an Garda Siochána at which point he cooperated fully with the

investigation.

The Sentence

4. In imposing sentence on the 14th June, 2018 the sentencing judge remarked as follows:-

“I suppose Mr O’Mahoney needs to be aware that he is lucky that he is not facing a

much more serious charge and there could have been a much more serious result

of his action on the day. His surrounding circumstances seem to worsened

considerably since this particular incident and it’s admitted that he lost his job as a

result of it. And I am also impressed with the evidence that was given by the

Detective Sergeant in relation to the matter and I am struck by how fair he was to

Page 2 ⇓

the accused man. I think in fairness to everybody, it must be acknowledged that

he has expressed remorse at the earliest opportunity; he did present himself to the

Gardaí. It is said that it is out of character and it would appear form his actions on

the day that he was ashamed of what he had done in the light of the presence of

his young son and, I suppose, that shows a certain amount of insight into the, I

suppose, the seriousness, the gravity of what had occurred at what is supposed to

be a hobby. There are risks associated with soccer and playing sport, but an attack

like that is not acceptable and it is important in light of that to mark it.

So I will mark it and say that it is most regrettable that these types of incident

would occur in – as I say, it’s something that people are supposed to enjoy rather

than possibly have to endure and one needs to be confident that in the kind of

ordinary vicissitudes, if you like, of a soccer match that you would expect to leave

the pitch uninjured, particularly in light of the fact that this was a deliberate

assault. So in all of the circumstances, I take into account that he has one previous

conviction. It seems to be around the same time. I suppose, Mr O’Sullivan, I think

it’s important that you explain to him that the fact that he is before the Circuit

Court is actually much more serious than a section 3 possession. It indicates

perhaps that there is something that your client should examine in his life. I will

mark it by - I will mark the conviction and I will apply the Probation Act under

section 112 (sic) of the Probation Act 1908, but he will not receive any benefit.”

Personal Circumstances of the Respondent

5. During the course of sentencing, the Court heard that the respondent was a twenty-

seven-year old man at the time of offending. He has a nine-year old child and one

previous conviction for the unlawful possession of drugs for his own use for which he was

fined €200. The respondent was a trainee butcher at the time of the offending but

subsequently lost his job and his earning capacity has been reduced as a result. The

Court also heard that the respondent had raised the sum of €2,300 by way of

compensation to be paid to the injured party.

Submissions of the appellant

6. The appellant submits that the trial judge erred in the manner in which he applied section

1(2) of the Probation of Offenders Act, 1907 as it provides for a conditional discharge

whereas in this case the respondent was discharged unconditionally.

7. The appellant submits that given the seriousness of the offence, including that it occurred

during a game of soccer with no opportunity for the victim to protect himself and resulted

in a serious injury, an immediate custodial sentence was required. Therefore, an

unconditional discharge was a significant departure from what the sentence ought to have

been.

8. The respondent submits that the trial judge gave excessive weight to mitigating

circumstances. The plea of guilty must be seen in the light of the evidence linking the

respondent to the crime. I tis accepted that the respondent did co-operate, and the

assault was not pre-planned, but it did happen in the course of a soccer game open to

Page 3 ⇓

members of the public including a child. The respondent did lose his job, but, it is said

that this should be weighed with the financial detriment and interference with the victim’s

job. The appellant further submits that the sentencing judge did not have sufficient

regard to the respondent’s previous conviction albeit a summary matter and the

respondent was not to e excused because of his youth at 28 years of age. The

respondent submits that the sentencing judge did not regard the matter as trivial within

the meaning of the Act of 1907.

Submissions of the respondent

9. The respondent accused characterises the central complaint of the appellant as being that

the sentencing judge went too far in applying the Probation of Offenders Act, 1907. In

reply, the respondent relies on The People (DPP) v. Jagoe [2008] IECCA 128 IN WHICH

THE Court considered an undue leniency appeal where the sentencing judge had applied

the Probation Offenders Act 1907. The Court stated as follows:-

“It has to be accepted that in circumstance if an assault of the nature that occurred

in the present case, it must be very rare indeed that the provisions of the

Probations of Offenders Act would be applied but that does not mean that it may

not be applied by the judge since it may apply in all circumstance or to all offences

that are punishable with imprisonment.”

The Court ultimately decided that the sentencing judge was entitled to come to the view

which he did in applying the Probation of Offenders Act, 1907.

10. In the instant case the respondent accepts that the sentencing judge’s reliance on the

Probation of Offenders Act, 1907 was lenient but it is submitted that it was not unduly so

and did not represent a gross departure from the norm. In this regard the respondent

relies on The People (DPP) v. Stronge [2011] IECCA 79 wherein it was stated that to

establish undue leniency it must be established that the sentence imposed constituted a

substantial and gross departure from what would be the appropriate sentence in the

circumstances, in the absence of guidelines or specifies tariffs for individual offences, such

departure will not be established unless the sentence imposed falls outside the ambit or

scope of sentence which is within the judge’s discretion to impose.

Discussion

11. The principles concerning a review of sentence are well settled commencing with the

decision of the Court of Criminal Appeal in The People (DPP) v. Byrne in 1994. In essence

a court will not intervene in the sentence imposed by the lower court unless the sentence

is a substantial departure from the appropriate sentence. The principles were somewhat

restated in DPP v Stronge in 2011 and it is clear that the disparity in the sentence

imposed and the appropriate sentence must amount to an error in principle before this

Court may intervene.

12. The principal argument advanced on behalf of the Director of Public Prosecutions is that

the application of the Probation of Offenders Act was a significant departure from the

sentence which ought to have been imposed and amounts to an error of principle.

Furthermore, it is contended that the judge erred in unconditionally discharging the

Page 4 ⇓

respondent. The Director also contends that excessive weight was afforded to the

mitigating factors. Whilst the appellant says that an unconditional discharge is not

available to offences tried on indictment, the real focus of the appeal is whether the

Probation of Offender’s Act ought to have been applied at all.

13. It is the position that a conditional discharge may be granted by the Circuit Court and

such requires an accused to enter into a recognisance.

14. We have considered whether the judge erred in applying the Probation of Offenders Act

assuming that his intention was to apply s.2 (2) of that Act, in that regard, he was

entitled to have regard to the factors under the 1907 Act and the relevant provision of the

Act provides as follows at subs. (2):-

“(2) Where any person has been convicted on indictment of any offence punishable with

imprisonment, and the Court is of the opinion that, having regard to the character,

antecedents, age, health, or mental condition of the person in charge, or to the

trivial nature of the offence, or to the extenuating circumstances under which the

offence was committed, it is inexpedient to inflict any punishment or any other than

a nominal punishment, or that it is expedient to release the offender on probation,

the court may, in lieu of imposing a sentence of imprisonment, make an order

discharging the offender conditionally on his entering into a recognizance, with or

without sureties, to be of good behaviour and to appear for sentence when called

on at any time during such period, not exceeding three years, as may be specified

in the order.”

Conclusion

15. This was, without doubt a serious assault. The injuries sustained by the victim were

significant necessitating surgery and which impacted on his studies and career

opportunities. The terms of s.2(2) were expressed disjunctively and so a court may,

while not finding out the facts of a case to be trivial, nonetheless apply the Act if other

factors are present.

16. The instant case, as we have observed involved a serious assault. We do not believe it

was a case on its facts for the application of the Probation of Offenders Act, and so in that

respect we are satisfied that the judge erred in principle. The assault came about in the

course of a soccer match and was unprovoked causing significant injury to the victim.

That an assault takes place in the course of a sporting occasion, such as a football match,

does not take away from the fact that it is nonetheless a criminal act.

17. The application of the Probation of Offender’s Act is a substantial departure from the

appropriate sentence in this instance and so we find the sentence unduly lenient in terms

of s.2 of the 1993 Act

18. We therefore quash the sentence and proceed to resentence the respondent as of today’s

date.

Re-Sentence

Page 5 ⇓

19. In resentencing, we are satisfied that the offence merits a pre-mitigation or a headline

sentence of three years’ imprisonment. However, we will reduce that sentence to one of

eighteen months’ imprisonment in view of the signed plea of guilty, the respondent’s

cooperation with the authorities, the fact that he approached the Gardaí and to the other

mitigating factors.

20. Taking into consideration the effort since to continue with his rehabilitation, the fact that

he has not come to Garda attention since, and to permit of the disappointment factor in

receiving a sentence at this remove from the offence we will suspend that sentence on

the condition that he be of good behaviour for a period of two years.

Result: Allow and Vary