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THE COURT OF APPEAL
[2025] IECA 106
Record No. 3/2024
Edwards J
McCarthy J
MacGrath J
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
BETWEEN/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
APPLICANT
-AND-
DAMIEN MCCABE
RESPONDENT
JUDGMENT of the Court delivered by Mr Justice McCarthy on the 7th day of February 2024
1. This is an application pursuant to section 2 of the Criminal Justice Act 1993 for a review of sentence on grounds of undue leniency of the sentence imposed on the 12th of December 2023 in Waterford Circuit Court. Damien McCabe, 'the respondent' herein, was indicted on three counts: one count of burglary, contrary to section 12 (1)(b) of the Criminal Justice (Theft and Fraud Offences) Act 2001; one count of false imprisonment, contrary to section 15 (1) of the Non-Fatal Offences Against the Person Act 1997; and one count of making a threat to kill or cause serious harm, contrary to section 5 of the Non-Fatal Offences Against the Person Act 1997. The respondent pleaded guilty to all counts on the 7th of June 2023. The respondent was sentenced to post-mitigation sentences of five years and six months' imprisonment, with the final 18 months suspended on terms, in relation to the counts of burglary and false imprisonment and was sentenced to a post-mitigation sentence of 4 years' imprisonment on the count of making a threat to kill or cause serious harm.
Factual background
2. We will now outline the facts. One Detective Garda Thomas Manton gave evidence before the sentencing hearing that, at approximately 6:52 p.m. on the 18th of March 2023, gardaí at Waterford Garda Station received a report regarding a suspected incident of domestic violence at an address on Morrison's Road in Waterford City. Two gardaí were dispatched and, upon arriving at the scene, they spoke to a witness who informed them that she had witnessed a lady, referred to as 'the victim' herein, being aggressively dragged into a house by the hair whilst screaming for help. She identified the house in question to the gardaí, who subsequently knocked on the door but received no response. One of the gardaí requested permission to forcibly enter the home. Another witness approached the gardaí and identified the lady who lived in the house as the victim and informed them that the victim had previously told him that she was having problems with her ex-partner. At this point, the victim fell out of the door of the property. She was covered in blood and screaming. The gardaí entered the property and observed the respondent sitting on a couch, smoking a cigarette. The evidence was that the respondent was surrounded by blood spatters, both on the floor and on his clothing, and clumps of the victim's hair were on the couch beside him and in the hallway.
3. The victim later made a statement to gardaí, the details of which were outlined in the evidence of Detective Garda Manton at the sentencing hearing. In her statement, the victim recalled that, on night of the incident, she was walking home when she observed the respondent, her former partner, whom she had recently broken-up with. The victim returned home as she was expecting a call at her house. She heard somebody at her front door and when she opened the door, she discovered the respondent. In her statement, the victim said that the respondent claimed that he had come to her house to say, "sorry". The victim attempted to close the door, but the respondent wedged his feet in the door and forced entry to the house by pushing the door back into the victim. There was evidence of a struggle between the victim and the respondent, during which the victim broke two fingernails, and that the respondent had forced the victim into the sitting room. Referring to events in the sitting room, the victim stated:
"[the respondent] had me in the middle of the floor. He then put me into a head lock with his left hand and started bashing me with his right hand. He said during this, 'look what you're making me do, look what we may to you, you know I fucking love ye'. I got myself down on the floor facing towards the fire. He got down and put his two knees on top of my chest, he kept bashing me with his two fists. I tried to put up my hands to protect my face but he kept hitting them anyway and kept hitting me. He was hitting me with a closed fist and never opened his hands once. While he was doing that I said, 'okay, okay, I'll stop'. He then let me get up and sit down, but he was still standing with his knees against mine cornering me on the couch so I couldn't get up. I sat down and asked for a fag and said, 'calm down, let's sit down and talk'."
4. Detective Garda Manton gave evidence that, at this point, the victim managed to get a cigarette and subsequently made a run for the front door, but the respondent prevented her from escaping by grabbing her by the hair and top and she sat down again in an effort to appease the respondent. The victim made another unsuccessful attempt to escape after which, she said that:
"[the respondent] hit my head off the wall in the hallway, so I sat on the ground behind the front corner and sat there for around 10 or 15 minutes and I could feel the blood running down my face. He was standing very close to me; his feet were touching my legs. He bent down and said, 'I'm sorry baby'. I asked him for a glass of water and inhaler which he didn't get me. I then started shouting get me water, he told me to stop shouting."
Evidence was given that the respondent turned up music which had been playing in an effort to conceal the noise the victim was making.
5. In her statement, the victim described the respondent dragging her into the sitting room again and stating: "If you keep shouting [REDACTED], I'll kill you", after which he reached for some duct tape; however, when the victim pleaded with him, and promised that she would not shout, the respondent did not put the duct tape on her. The respondent had pulled the victim up and forcibly placed her on the couch when there was a knock on the door. The victim described the subsequent events as follows:
"I tried to get back up but he pushed me back down into the couch. He then grabbed the big, long red cable that had black going through it. He then said if I screamed that he would kill me. I said, 'I won't'. He then wrapped the red cable around my neck twice but never tightened it. He kept a hold of it while they were banging the door. I told him I loved him, that I was after falling out the back or something, that's what I'd tell whoever was at the door. I said to him whatever I just said to play along. I then made a run for the door and got out to the gardaí."
6. The respondent was arrested and detained pursuant to statute at 7:25 p.m. on the night of the incident and made admissions regarding much of the offending behaviour during subsequent interviews, but he did not make admissions regarding threats to kill. When asked during interview about whether his actions were premeditated, the respondent said: "Yeah". The respondent admitted that he had formulated a plan on the night—which extended to purchasing cable ties from a nearby store in advance of the incident. The respondent has no previous convictions.
Victim impact
7. The sentencing judge had the benefit of a victim impact statement, which was read in court by the victim, during which she stated, inter alia, the following:
"On the night in question, I thought I was going to die and I relive this every night. The injuries I sustained such as bruising, broken nails, bruising to my head and my eye have all healed. Also, he pulled out some of my hair, but it's the mental wounds I feel will never heal. Since the incident I am on two inhalers, one to stop me panicking and one to help me breathe. I had to take medication to get through the last week or two. With the court date getting closer, I was not able to return to the house as I didn't feel safe there and have since moved into a new house."
Personal circumstances of the respondent
8. The sentencing judge (as do we) had the benefit of a probation report relating to the respondent, dated the 31st of October 2023. Following two interviews with the respondent, and a review of the book of evidence relating to this case, the author of this report identified several risk factors predictive of domestic violence relating to the respondent, including: "incidents of physical abuse, distorted way of thinking about domestic violence such as minimisation of personal responsibility and lack of insight regarding the impact of his behaviour on the victim". In addition to displaying a limited level of accountability for his behaviour, the report states that the respondent denied premeditation for the offending behaviour despite clear evidence to the contrary. The report further notes that the respondent presents with alcohol issues, although this is denied by the respondent. The author observed that the respondent had admitted to drinking between ten and twelve pints on the day of the incident: he denied this amounted to heavy drinking. Elsewhere, the report notes that the respondent admitted to drinking "quite heavily" on a daily basis, and that his alcohol use was a contributing factor to the breakdown of his previous marriage (during which his ex-wife obtained a barring order). The report concluded that the respondent was suitable for supervision by the Probation Service and recommended several conditions for any such period of supervision.
9. At the sentencing hearing on the 25th of May 2023, counsel for the respondent handed in a letter of apology written by the respondent for the victim to the Court. We have not been furnished with a copy of this letter; however, counsel for the respondent did read the letter to the victim during the sentencing hearing. We cannot, due to its length, set out the interaction between counsel and the victim in extenso. It suffices to say that, in the letter, the respondent offered the victim an apology for his behaviour and for the harm it caused her and promised to stay away from her in future. It appears from the transcript that, in this letter, the respondent stated that the events on the evening were "totally out of character [for him]". The sentencing judge directed counsel for the respondent to the portion of the probation report in which it was stated that a barring order had been obtained against the respondent, and counsel confirmed that this referred to a domestic violence order which had been obtained by the respondent's ex-wife. The sentencing judge suggested that this revelation cast doubt over the credibility of the respondent's claim that the incident was out of character for him, and suggested that the respondent may have come to the adverse attention of an Garda Síochána previously.
Sentencing remarks
10. Having regard to the aggravating factors in this case, the sentencing judge noted that because the victim had been in an intimate relationship with the respondent, she is a 'relevant person' within the meaning given to that term by section 40 of the Domestic Violence Act 2018. The judge also had regard to the harm done, and its effect on the victim, as set out in her victim impact statement.
11. Regarding aggravating factors relevant to the count of burglary, the judge observed, inter alia, that the offending behaviour was:
"... aggravated by the fact that [the respondent] obtained entry to the house by deception. He turned up on the false pretence that he wished to apologise telling her that, "I came up to say sorry" while all the while he had pre prepared cable ties and duct tape in order to subdue his victim."
The judge also noted the savage nature of the beating inflicted by the respondent upon the victim, observing that he had pulled out clumps of the victim's hair, punched her in the face with closed fists, and denied her use of her inhaler with knowledge of her vulnerability in that regard. Considering all those factors, the sentencing judge was satisfied that the burglary was in the upper mid-range of gravity and set the headline sentence at 8 years' imprisonment.
12. Regarding the count of false imprisonment, the sentencing judge identified the aggravating aspects of the respondent's behaviour as follows:
"There is clearly pre meditation, he arrived with the paraphernalia to subdue his victim, cable ties and a pre cut length of duct tape. He violently beat his victim to prevent her making good her escape. On one occasion he hit her head off the wall of the hallway when she tried to get out of the house. I also find it aggravating that he turned up the volume of the music so as to drown out the sounds of her screaming. The duration of the ordeal is also an aggravating factor, it clearly went on for at least 20 minutes according to her evidence."
Having regard to those factors, the judge was satisfied that the offending behaviour was in the upper mid-range of gravity and identified a headline sentence of 8 years' imprisonment.
13. Finally, regarding the count of threat to kill or cause serious harm, the sentencing judge noted that this count related to threats made by the respondent that he would kill the victim if she did not stop screaming, and noted that:
"... this threat was made all the more realistic by the violence that he had displayed towards her and it was evident from the evidence of the gardaí who arrived that the victim was found in a very bloodied condition and there was blood and hair found throughout the hallway and sitting room. It was also made more realistic by the presence of the cable ties and the duct tape, and the wrapping of a red cable around her neck which she said was wrapped around twice although she acknowledged that it had not been pulled tight. The effect on the victim was that she believed she was going to die."
Having regard to this, the judge nominated a headline sentence of six years' imprisonment on that count.
14. The judge noted the presence of several mitigating factors, including: the respondent's early guilty plea; the apology offered to the victim; his good work history and positive reference from his former manager; and his lack of previous convictions. The judge also noted what was stated in the probation report that the respondent presented with alcohol issues, but he did not regard this as a mitigating factor. The judge also acknowledged that the respondent was taking the opportunity to work whilst in prison. On the basis of the available mitigating factors, the judge reduced the headline sentence on the counts of burglary and false imprisonment by two and a half years, leaving a "net sentence" of five and a half years' imprisonment. On the count of a threat to kill or cause serious harm, the judge reduced the headline sentence by two years to leave a net sentence of four years' imprisonment.
15. The sentencing judge then had regard to the efforts made by the respondent toward rehabilitation since entering custody. The probation report might be best described as 'mixed' so far as the respondent's admissions of wrongdoing are concerned; however, the trial judge further took into account several certificates that had been provided to him which demonstrated that the respondent had engaged in various workshops focusing on rehabilitation including (most importantly in the present context) a course focused on "alternatives to violence". The sentencing judge was satisfied that the respondent was, inter alia, "clearly somebody who appears to be anxious to turn his life around", and, in recognition of this and to encourage him to continue his efforts toward rehabilitation, he suspended the final 18 months of the sentences imposed on the counts of burglary and false imprisonment on terms. The terms attached as conditions to the suspension included, that he attends any therapeutic programmes deemed suitable or necessary by the Probation Service and that he engage in offence focused work in order to challenge his attitudes and his limited accountability for his offending behaviour. All sentences were to be served concurrently and were backdated to the date the respondent went into custody.
Grounds of appeal
16. The applicant relies upon the following grounds: -
1. The learned sentencing Judge erred in principle in imposing five and half year concurrent sentences on the Respondent on the Counts of Burglary and False Imprisonment with the final eighteen months suspended for eighteen months, and a four year sentence on the Section 5 threat to kill contrary to Section 5 of the Non Fatal Offences against the Person Act 1997, leaving an effective custodial sentence of four years, which sentences were unduly lenient in all the circumstances.
2. Having regard to the aggravating factors in the case, and in particular:
(i) The statutory aggravating factor of section 40 of the Domestic Violence Act 2018 for offences against a relevant person, being a former partner;
(ii) The offences were committed at the home of the victim;
(iii) The Defendant knew the property was occupied and specifically targeted the victim;
(iv) The Defendant tried to gain entry by deception on the pretext of apologising to his former partner whom he had recently broken up with;
(v) The forced entry;
(vi) The significant pre-meditation involved;
(vii) The Defendant had come armed with cable ties and pre cut duct tape to subdue his victim if necessary;
(viii) Violently beating the victim to prevent her escaping or raising the alarm;
(ix) The threats to kill the victim if she screamed and the wrapping of a cable around her neck;
(x) The duration of the ordeal lasting approximately 20 minutes;
(xi) The false imprisonment only ended when the Gardaí attended the property having been contacted by a concerned citizen;
The learned sentencing Judge erred in law and in fact in imposing a headline sentence of eight years.
3. The learned sentencing Judge erred in law and in fact in imposing a headline sentence of eight years for the Burglary offence.
4. The learned sentencing Judge erred in law and in fact in imposing a headline sentence of six years for the Section 5 Threat to kill or cause serious harm offence.
5. The learned sentencing judge erred in law and in fact in attaching undue weight to the limited mitigating factors in the cases. In particular, the learned sentencing judge erred in law and in fact in placing too much emphasis on the plea of guilty and the personal circumstances of the Respondent which did not warrant the reduction from the headline sentences of two and a half years made.
6. The learned sentencing judge erred in law and fact in reducing the headline sentence of eight years on the False imprisonment and Burglary Counts by two years and six months for the limited mitigating factors and then suspending a further eighteen months of those sentences, leaving an effective custodial sentence of four years on those Counts, which amounted to an excessive discount of 50% on the headline sentence.
7. The learned sentencing Judge erred in law and in fact in the sentences imposed for what was a shocking ordeal involving significant pre meditation and planning, attending at the victim's home armed with cable ties and pre- cut duct tape to falsely imprison her, the use of serious violence and which had a profound impact on the victim.
8. The learned sentencing Judge failed to have regard to the societal need for a serious deterrent element to the sentences imposed by the Court.
We think it appropriate to deal with all grounds together as there is a degree of overlap.
17. Both parties referred the Court to the aggravating factor provided for in section 40 of the Domestic Violence Act 2018, as amended, ('the 2018 Act') which (broadly speaking) provides that violent offending will be aggravated by the fact that the victim is, or has been, in an intimate relationship with the offender. Counsel referred the Court to a number of authorities including: The People (DPP) v. Connor [2020] IECA 255; The People (DPP) v. Farnan [2020] IECA 256; The People (DPP) v. Sutton [2020] IECA 280; The People (DPP) v. D.C. [2022] IECA 327; The People (DPP) v. Curtis [2024] IECA 101; The People (DPP) v. Byrne [2024] IECA 107; The People (DPP) v. Keogh [2024] IECA 132; and The People (DPP) v. I.A. [2024] IECA 178. The authorities of Connor, Farnan, and Sutton concern offending against intimate partners which occurred before section 40 of the 2018 Act came into effect and we do not propose to deal with these cases in detail; however, we find the more recent cases to be of some assistance. We deal with these below.
18. Section 40 of the 2018 Act, insofar as it is relevant to this appeal, provides:
(1) Where a court is determining the sentence to be imposed on a person for a relevant offence, the fact that the offence was committed by the person against a relevant person shall be treated, for the purpose of determining the sentence, as an aggravating factor.
(2) Subject to subsection (3), where subsection (1) applies the court shall impose a sentence which is greater than that which would have been imposed if the person against whom the offence was committed was not a relevant person.
[...]
(5) In this section—
[...]
"relevant offence" means—
[...]
(b) any offence which involves violence or a threat of violence to a person [...]
[...]
(6) In this section, a person is a "relevant person" in respect of another person if he or she—
(a) is the spouse or civil partner of that other person, or
(b) is not the spouse or civil partner of that other person and is not related to that other person within a prohibited degree of relationship but is or was in an intimate relationship with that other person.
The 2018 Act applies here to all offences. We now turn to the relevant authorities.
19. D.C. concerned an application for review of sentence on grounds of undue leniency where the respondent was convicted on several counts including aggravated burglary, assault causing harm, criminal damage, and making a threat to kill or cause serious harm with a further count of producing an article taken into consideration and sentenced to five and a half years' imprisonment with the final year suspended.
20. The offences in D.C. concerned an incident which occurred at the home of the complainant (who was an ex-partner of the respondent's). In the early hours of the morning in question the respondent gained access to the complainant's home armed with what was described as "a mini axe or sickle-like sharp adapted hook object" and threatened and assaulted her. The respondent had sent the complainant a series of menacing text messages prior to his arrival at the property. There was a violent altercation in the bedroom during which the respondent kicked the complainant's chest, following which the respondent sexually assaulted her by digitally penetrating her vagina and attempting to penetrate her mouth, rectum, and vagina with an object. The respondent threatened the complainant during the incident stating: "You don't know how lucky you are, you could have got a belt of his, I mightn't give you the chance to - and I'll back on the hour every hour". Towards the end of the protracted incident, the respondent struck the complainant with the aforementioned implement causing her lip to bleed and swell.
21. The Court agreed with the Director that the trial judge erred in nominating a headline sentence of 6 years for the aggravated burglary and was satisfied that this was a substantial departure from the appropriate sentence in the circumstances. The Court stated that the gravity of the aggravated burglary offence was increased by the fact that the respondent entered as a trespasser and physically and sexually assaulted an ex-partner. Accordingly, the Court quashed the sentence imposed on the aggravated burglary offence and proceeded to re-sentence.
22. In re-sentencing Kennedy J. stated at para. [49] that:
"In imposing sentence for the aggravated burglary, we consider the appropriate notional sentence to be one of 9 years' imprisonment, this is in circumstances where s. 40 of the Domestic Violence Act, 2018 has application to a number of the offences charged and the fact that the offences were committed against a relevant person is a relevant factor. In other circumstances, we may have considered a notional sentence of 8 years absent this provision."
23. The offending was, in our view, aggravated by the sexual assault element, which poses a difficulty in using the case as a comparator; however, as an aggravated burglary it might be described as an offence with such similarity to the present as affording some assistance. The Court reduced the sentence of 9 years to one of 8 years in light of the mitigating factors and suspended the final 2 and a half years on terms.
24. In Curtis the respondent pleaded guilty to a number of counts of assault causing harm and a count of false imprisonment (further counts of making a threat to kill or cause serious harm, criminal damage, and production of an article were taken into consideration) and was sentenced to concurrent sentences of 2 years and 6 months' imprisonment, with the final 12 months suspended on terms. This court held that the sentences were unduly lenient.
25. The offending behaviour concerned three separate incidents which spanned four different dates. The first incident occurred at a hotel and involved the respondent kicking the injured party (who was his partner at the time) to her face and temple ten or eleven times, striking her with his fist, and threatening her with a glass bottle. The second and third incidents occurred at the property where the injured party and respondent were residing. The second incident involved events which occurred over a protracted period spanning two days during which the respondent punched and kicked the injured party, choked her, spat on her, locked her in a bathroom for a period, and threatened her with a knife. This incident ceased when the injured party managed to lock the bedroom door and subsequently escape to a common area as the respondent attempted to break down the bedroom door. During the third incident the respondent repeatedly punched and kicked the injured party, strangled her and squeezed her throat. The false imprisonment count was not, in that case, a mere aggravating factor in the context of the assaults (and brief restriction of movement in many of the cases, in truth, are intrinsic to assaults).
26. Again, this case poses difficulty as a comparator because notwithstanding the multiplicity of offences, the mitigating factors as evidenced, inter alia, by the course of events subsequent to the judgment on appeal were exceptional—the appellant's dismal, disadvantaged, personal history from childhood had given way to progress towards rehabilitation and some hope for the future.
27. In I.A. the offender was convicted of offences of assault causing harm contrary to section 3 of the Non-Fatal Offences against the Person Act 1997 ('the 1997 Act'), production of an article capable of inflicting serious injury contrary to section 11 of the Firearms and Offensive Weapons Act 1990, a threat to kill or cause serious harm contrary to section 5, and false imprisonment contrary to section 15, both of the latter contrary also to the 1997 Act. The offences occurred on the 13th of February 2019 shortly after the entry into force of the statutory provisions to which we have referred above. The judge nominated a headline sentence of 3 years' imprisonment in respect of the assault charge (all other offences being taken into account) and thereafter imposed a sentence of 2 years and 6 months the final 6 months whereof was suspended for 18 months on terms.
28. On the occasion in question the appellant and the offender were present in injured party's home with her consent and whilst there she was severely assaulted by the accused. The injuries suffered were significant: the injured party had to be taken to hospital by ambulance and her primary injuries were to the nasal area.
29. This, again, is of little assistance as a comparator. The matter was contested, and the accused was described as someone with a moderate risk of committing further intimate partner violence. According to the probation report, he minimised his responsibility. The trial judge took the view that the accused was cooperative with the investigation (although it's not clear how that could be so since he contested the matter—any supposed cooperation must have been set at nought because of that). This Court took the view that the headline sentence identified gave rise to an error in principle as failing to reflect the aggravating features and was unduly lenient. Thereafter the court proceeded to re-sentence and a headline sentence of 4 years was identified. He was sentenced to a term of imprisonment of 3 and a half years (whereof 6 months was suspended).
30. In Keogh, the offender's wife was assaulted no less than three times over a period of months (giving rise to charges, inter alia, of assault causing harm contrary to section 3 of the 1997 Act) but the first and second occurred prior to the entry into force of section 40 of the 2018 Act. He was also charged with false imprisonment. He pleaded guilty after a jury was sworn. A barring order was obtained by the victim after the first incident, but it was breached. A plea was entered, and accepted by the prosecution, to one count in respect of section 3 on a so-called full facts basis whereby the Court was imposing sentences for all three. The main aggravating features were the multiplicity of offences and the provisions of section 40 of the 2018 Act, and the fact of the breach of the barring order. The mitigating factors were minimal. Burns J. set out the trial judge's remarks about the latter as follows:-
In dealing with the aggravating and mitigating factors in the case the judge stated:
"[...]
In terms of mitigation, I accept that you have pleaded guilty, although it was not at the earliest opportunity. I accept that you have no prior convictions. Whilst you denied everything to An Garda Síochana, I was told. I accept that you have cooperated with the probation and welfare services, although they still would view you as being of moderate risk and having potentially limited insight in your wrongdoing. The fact that you have now started to undergo counselling, I view as a mitigating factor, although you couldn't be described as being proactive in that regard and it seems that your attendance for counselling is only as a consequence of your attending at the Probation and Welfare Services. I accept that your apology, that you have offered here in Court goes someway in mitigation and from listening to you, I would accept that certainly insofar as the relationship with your sons is concerned, it's a genuine apology and that you are anxious and keen to repair the relationship between you and your sons, if at all possible to do so. It's urged upon me that you have been paying maintenance in the sum of €50 per week per child since you left the home in March 2019. I don't view that as a mitigating factor, but had you not done so, I would have viewed it as an aggravating factor. You are obliged by law, in any event, to maintain your children."
31. The accused was sentenced to a term of imprisonment of 3 years, the final 12 months whereof was suspended for a period of 12 months on terms. The judgment of this Court does not indicate whether or not a headline sentence had been identified. The appeal was dismissed.
32. Byrne concerned an extension of time for appeal against conviction. The appellant had pleaded guilty to offences of assault causing harm contrary to section 3 of the 1997 Act, a count of threatening to kill or cause harm contrary to section 5 the 1997 Act, and a count of false imprisonment also contrary to section 15 (1) the 1997 Act, and a count of production of an article contrary to section 11 of the Firearms and Offensive Weapons Act 1990. The applicant was sentenced to 7 years' imprisonment (the final 2 years whereof were suspended) on the false imprisonment count. Whilst the thrust of the decision pertained to the principles applicable when addressing applications for extension of time there are references to the merits: in particular (as we understand the judgment) the applicant's position was that the judge was wrong that the false imprisonment count was the most serious—we understand that the applicant's contention was that the false imprisonment aggravated the section 3 offence with the consequence that the reality of the offending was an assault and sentence should have been approached on that basis. Even though the period of false imprisonment was brief the Court, implicitly at least, rejected this proposition so far as merits were relevant to the application. On a number of the authorities the argument that the core or primary offence was assault causing harm contrary to section 3 might have been well-founded, but not on the facts of Byrne. The Court does not appear to have reached a conclusion upon that point, but, by definition, it must have been relevant in deciding the extension of time (which was refused). We refer to Byrne primarily for the sake of completeness: it is perfectly possible that in relation to an offence of domestic violence the main or gauge offence might well be false imprisonment, depending on the facts.
33. In the cases to which we have referred in detail and indeed, we think, in the others mentioned above, the reality is that the main or principal offence at the core of the offending (with the exception of D.C. and Byrne) was considered to be assault causing harm (subject in one case to a charge only of common assault which did not detract from the fact that assault lay at such core). Thus, in approaching sentence the judges were confined in practice to the statutory maximum of 5 years (as it then was) even if other offending capable of attracting a higher penalty was part thereof: these were regarded as aggravating the assault. That is not the position here.
34. Here all which occurred flowed from the premeditated intrusion into the victim's home, armed with items for restraining and silencing her. It seems to us, accordingly, that the trial judge rightly identified the burglary as the gauge offence. Apart from the intention of inflicting violence by the entry the other charges (for example, that of false imprisonment) were aggravating factors and intrinsically necessary to the gauge offence. We need not reprise the aggravating and mitigating factors here having referred above to the facts in some detail.
35. In many of these cases the extent of violence, both aggravating and mitigating factors and the charges laid vary so much it is difficult to see a norm. We are left, ultimately, in any re-sentencing to fall back on our experience with very little assistance from comparators. We do emphasise that as time has passed, especially since the entry into force of section 40, the courts have developed a deeper understanding of domestic violence cases.
36. Our approach must be governed by the principles elaborated in The People (DPP) v. Stronge [2011] IECCA 79 as applied since it was decided: to put the matter shortly the Director must show that the sentence imposed constitutes a substantial or gross departure from the appropriate sentence such that an error of principle is established; otherwise, we cannot intervene. To this must be added the necessity to appreciate that a trial judge is afforded a margin of discretion or appreciation in the exercise of, inter alia, sentencing powers and, further, if there is an evidential basis for it, the power to suspend a portion of a sentence within discretion. We think it appropriate also to say that there may well be cases where an unduly lenient sentence can emerge as the end result of a process which gives rise to a wholly or partly suspended sentence even if the judge has approached the matter correctly. A sentence and, in particular, the carceral element thereof may be disproportionately low merely because of suspension in whole or in part thus giving rise to an error in principle.
37. We must emphasise yet again: the principles elaborated in Stronge and applied for many years mean that even if we consider the sentence a lenient one, we cannot interfere unless it is held to be unduly lenient—which is a different thing. We emphasise that the burden of proof is on the Director to show this fact. Sentencing is not an exact science. Notwithstanding what we consider may be a lenient sentence, as here, it may well be that such sentence is within the judge's margin of discretion. The appropriate headline sentence in this case, having regard to all aggravating factors, is 8–9 years. We ourselves might have started at a higher headline sentence than 8 years but the identification of 8 years as a headline is within that margin of discretion.
38. We have also repeatedly emphasised that margin of appreciation in cases where a portion of a sentence has been suspended, if there was an evidential basis for doing so—indeed suspensions generally can only be contemplated where there is an evidential basis therefor.
39. Here, proceeding as we do on the basis that the headline sentence nominated was within that margin, we think that having regard to the early plea and such mitigating factors, though limited, as existed it was also within his margin of discretion to afford a period of 2 and a half years for mitigating factors and to arrive accordingly at a sentence of 5 and a half years.
40. The real matter in debate here must be the fact that a carceral sentence of 4 years followed from the suspension of 18 months of that sentence of 5 and a half years. There was a rational basis on the evidence for the suspension of part of that sentence to encourage rehabilitation as had taken place up to the time of sentence. We do not think, accordingly, that the burden imposed on the Director to show that, because of that period of suspension, the ultimate carceral period was unduly lenient has been discharged. Had we been dealing with the matter at first instance or de novo in this Court we might well have imposed a sentence which involved a higher carceral period.
41. We therefore dismiss this application.