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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v Mountassir (Approved) [2024] IECA 317 (19 December 2024) URL: http://www.bailii.org/ie/cases/IECA/2024/2024IECA317.html Cite as: [2024] IECA 317 |
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APPROVED JUDGMENT
NO REDACTION NEEDED
THE COURT OF APPEAL Neutral Citation: [2024] IECA 317 Edwards J. Kennedy J. MacGrath J. IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE criminal justice ACT 1993 Between/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) Applicant V Soufiane mountassir Respondent JUDGMENT of the Court delivered by Mr. Justice Edwards on the 19th day of December, 2024. Introduction 1. This is an application brought by the Director of Public Prosecutions (i.e., "the applicant" or "the Director") pursuant to s. 2 of the Criminal Justice Act 1993 ("the Act of 1993") seeking a review of the sentences imposed on Mr. Soufiane Mountassir (i.e., "the respondent") by the Dublin Circuit Criminal Court on the 21st of December 2022 on grounds that they were unduly lenient. 2. The respondent had faced sentencing on two counts, viz: (i) Count no. 1: false imprisonment, contrary to s. 15 of the Non-Fatal Offences Against the Person Act, 1997 ("the Act of 1997"); (ii) Count no. 2: assault causing harm, contrary to s. 3 of the Act of 1997. 3. In respect of Count no. 1, the respondent was sentenced to 3 years' imprisonment, which was to date from the 13th of November 2022. 4. In respect of Count no. 2, the sentencing court ordered that this was to be taken into consideration with Count no. 1. 5. The basis on which the Director brings her present application is set out in her Notice of Application for Review of Sentence dated the 11th of January 2024. The grounds set forth therein provide: 1. "Failing to nominate a headline sentence which adequately reflected the very serious aggravating factors in the case. 2. Failing to impose a sentence which adequately reflected the very serious aggravating factors in the case. 3. Placing undue emphasis on the mitigating factors in the case, in particular the accused's plea of guilty in circumstances where he was caught red handed and the accused's personal circumstances given the absence of reliable information in relation to same". Factual Background 6. At the sentencing hearing of the 22nd of November 2023, a Garda Conall Walsh gave evidence in relation to the factual background to the respondent's offending. 7. On the 13th of November 2022, the injured party, a Ms. Malone, was in a relationship with the respondent which she described as "moving pretty fast". The respondent had moved in with her and her son from a previous relationship. 8. On the night of the offence, Ms. Malone and the respondent went into Dublin city centre, and as they were walking in a lane off Dame Street the respondent made a remark to Ms. Malone that "I could have any woman", and he then approached two women and as he did so further commented to Ms. Malone that he could have them because "they are more beautiful than you". Ms. Malone responded that she could just go back to her ex. She then asked him to leave and began walking off. However, the respondent followed her. The dispute progressed, and before they reached the parked car in which they had travelled together into the city, Ms. Malone sat down on a wall, whereupon the respondent slapped her across the face with an open hand, knocking her glasses from her face. 9. A male member of the public who witnessed the incident called the respondent a "scumbag" for hitting the victim, and Ms. Malone intervened and told the man "Thank you but just leave it", as she did not want to escalate the situation. 10. The respondent then grabbed Ms. Malone with force and led her back towards her car with a good grip. The respondent forced her into the boot of the vehicle and her face was smacked forcibly off the boot by him. Ms. Malone then noticed she had blood all over her hand and realised it was coming from her nose. It was later established that this occurred on St Audeon's Terrace, which is off St Audeon's Street in Dublin city. 11. The victim claimed that she could not remember exactly what the respondent was saying to her "but it was controlling". She was in the boot for approximately 10 minutes while the respondent drove to a different location. The respondent then stopped the car, went to the boot, opened it, physically grabbed Ms. Malone and manhandled her out of the boot, and then forced her into the passenger seat of the car. It was later established from an independent witness that the location where this occurred was in the Blackhall Street area of the city. 12. The respondent then began punching her in the face, and progressed to grabbing her by her hair and smacking her head off the dashboard, gear stick, steering wheel, and passenger door. Ms. Malone indicated that this happened on multiple occasions. She begged the respondent to stop "but he didn't care and he didn't stop". 13. The respondent started driving again and he was mounting footpaths as he kept punching the victim. He then parked up in the Grangegorman area of the city (where the gardaí ultimately found them) and he continued to punch her. The respondent told the victim to wipe the blood off her face. She did not know when he was going to stop hitting her and until the gardaí arrived she did not think he was going to stop, and she was concerned that he was going to kill her. She indicated that nothing she said was effective to stop him from punching her. 14. At one stage the respondent punched the windscreen of the car, breaking the windscreen, which damage was observed by the gardaí on their arrival. 15. The respondent ripped the victim's shirt and kept punching her in the stomach and ribs. He also ripped a necklace from her neck and a watch from her arm. He warned her in a threatening manner not to get out of the car. She was fearful and felt trapped because he had hit her so many times in the face and had also winded her. She was in fear for her life. The respondent had parked the car in a place she described as being dark, where no-one was around, and she felt the respondent had gone there in order to "do damage to her". 16. The incident had lasted one hour and forty minutes in total. 17. The sentencing court heard that several members of the public had witnessed aspects of what had occurred and had made reports. 18. There was evidence that at around 1 am on the date in question, a gentleman contacted An Garda Síochána and reported that he had heard a woman shouting on the street outside his home, and further had observed a man, believed by gardaí to have been the respondent, forcing a woman, believed by gardaí to be the victim Ms. Malone, into the boot of a car. He described the man concerned closing the boot really hard on the victims' foot, "like a crazy man". He indicated that this must have been "very sore for her" as the boot had been slammed down with "such force" on her foot. This member of the public took videos of the incident which, albeit that they were not of very good quality, nevertheless depicted what was going on, and these were later provided to gardaí. 19. Yet another member of the public also contacted gardaí, saying that she was a resident of Blackhall street and that, at 1:15 am on the date in question, she had been on her balcony overlooking the street when she saw a car pull in, and observed a man (matching the description of the respondent) go to the boot of the car and pull a woman out of the boot and put her in the passenger seat. She saw him punching her and she could hear faint screams from the woman. At this point she rang An Garda Síochána, but when they arrived at Blackhall Street they found the vehicle had left. 20. A third civilian witness, a resident of the Grangegorman area, was awoken by banging at around 2:30 am, looked out on the street and observed a man (later established as being the respondent) banging on a car which was parked in an (otherwise) quiet and dark area. He described the respondent as being agitated and said he was banging on the boot, and opening it and slamming it shut, and then going to the bonnet and also banging on it. The civilian was suspicious and called the gardaí and ultimately the vehicle was located by gardaí on foot of this call. 21. Gardaí arrived at the scene in Grangegorman at 2:39 am, and upon arrival found the vehicle and saw the victim sitting in the passenger seat, and the respondent in the driver's seat. They noted that the victim's face and clothing were covered in blood. There was blood staining all over the inside passenger door and along the dashboard, steering wheel, and gear stick of the car. The car had a punctured wheel. The respondent told the gardaí "he had had a few drinks". Detecting a strong smell of alcohol from him, he was arrested at the scene for being drunk in charge of a vehicle. He was later further arrested and detained on suspicion of falsely imprisoning and assaulting Ms. Malone causing her harm. 22. In an interview, the respondent suggested that Ms. Malone was drinking and consuming drugs, and that she herself had banged her own head off the steering wheel so as to cause the injuries she was exhibiting. At a later point, he suggested that a man who had intervened to try and assist the victim had in fact hit the injured party and inflicted some of the injuries to her. 23. Photographs of the victim in the state in which she was found were furnished to the sentencing court, which showed extensive bruising and abrasions to her face and hands, and blood staining on the injured party's clothing. The Impact on the Victim 24. Ms. Malone gave oral victim impact evidence as follows: "On the 13th of November 2022, me and Soufiane went to city centre. I remember stopping at a shop to get alcohol. It was not much. I think four cans of Gordon's Gin and four lager. We parked beside Corporation Building beside houses. We walked towards Dame Street. We were not arguing, but he was talking with jealousy about silly things. He did not like me wearing my glasses but would get annoyed saying people were looking at me. We turned off Dame Street across from the Spar, down a side road. He walked up to two women and told me he could have anyone he wanted. So, I turned around and said, "I could", and I walked back towards the car. He followed me and we began arguing. This went on for a while, as we stopped a few times. We stopped at the back of Christ Church, facing the flats, still arguing about jealousy, from what I remember. Then I remember him slapping my face and my glasses falling off. This surprised me. I remember a man trying to tell him to stop. They began arguing and the man hit Soufiane and he fell. I begged the man to leave and go home, as I was becoming frightened at this point. I began looking for my glasses. A person helped me find them. Soufiane appeared and told me we should go to the car. We began walking to the car, and when we got to it, he smashed my face on to the boot of the car, which resulted in blood all over my face. I felt instant fear as he opened the boot and forced me inside. He kept starting and stopping the car. I had no idea what was happening. The car stopped, he opened the boot, took me out and began punching me, forcing me into the passenger seat. He continued to punch me into the face while driving erratically, even driving on the footpath. He was full of anger. The car stopped at some point. He continued to punch my face and body. I was so scared because I could not breathe from being punched into the side of my body. At one stage he told me to wipe the blood off the window as there was so much. I could not move as I was in shock. I just did what he said and wiped the window. I remember him punching the windscreen with his fists and smashing it. The wheel on the car had been damaged from him driving on the path. He did not stop until he realised he needed to try and fix the wheel. I then remember hearing voices as my door opened. It was the garda. I was still in shock, trying to make sense of what was happening. The garda asked if I wanted to go to the hospital, as there was a lot of blood on me. When I no longer heard Soufiane's voice, I agreed to go. I was taken to hospital, where I was checked over. From that moment my life changed. I have become a different person. I have a lot of anxiety when I am reminded of that night. I struggle to leave the house alone; I question everyone and everything. I am afraid in my own home. When I first met Soufiane, he was so charming and kind to me, we began a relationship straightaway. He moved in almost immediately. He spoke good English as that is my only language. He spoke about being able to speak at least five other languages. He told me he had been married in Italy for a few years, but they had split up. Thank you.". 25. The sentencing Court further heard evidence that Ms. Malone was taken to a hospital accident and emergency department following the incident, where she received treatment for her injuries. A medical report was furnished to the sentencing court which recorded that upon presentation in the accident and emergency department the victim was noted to have significant swelling and bruising on her face, along with other bruising and soft tissue injuries. Further, tenderness was noted in the areas of her nose, jaw, and spine. Personal Circumstances of the Respondent 26. The respondent is 30 years of age, born on the 24th of April 1993, and is a non-national. The respondent had come to Ireland at the end of June 2022. He told the gardaí that he is a Moroccan national, however, he was unable to give gardaí any evidence to confirm that. A psychologist's report furnished to the court below during the sentencing hearing indicated that he was understood by the rapporteur to be Tunisian. However, in submissions during the sentencing hearing, the respondent's counsel indicated that he was in fact Libyan, but had represented himself to authorities as being Moroccan for the purposes of his International Protection Claim. 27. On the 2nd of October 2023, the respondent pleaded guilty to false imprisonment and a s. 3 assault causing harm when the case was listed for arraignment and as such did not take a trial date. 28. The respondent has a previous conviction for arson in Germany for which he appears to have received a partially suspended sentence of three years and one month. Seemingly he is wanted in Germany to serve an outstanding balance of that sentence and a court in Germany has issued a European arrest warrant ("EAW") to secure his surrender for that purpose. The EAW in question was endorsed for execution in this jurisdiction following which the respondent was arrested on foot of that warrant and brought before the High Court. The High Court has ordered that he be surrendered to the German authorities upon completion of the sentence imposed in this case. 29. The respondent has been in custody on this matter since the 13th of November 2022.
Psychologist's Report 30. On the 18th of December 2023, a psychological report was produced by a Dr. Kevin Lambe, Chartered Clinical Psychologist, following an evaluation conducted by him during November-December 2023. 31. Dr. Lambe opined that the respondent could be said to meet some of the criteria of post-traumatic stress disorder. He notes that the respondent "would have been vulnerable to at least some extent prior to his relationship with Ms. Malone, potentially suffering with untreated symptoms of posttraumatic stress disorder". Sentencing Judge's Remarks 32. On the 21st of December 2023, the judge in the court below passed sentence on the respondent. The sentencing judge noted the factual background of the case as described by Garda Conall Walsh. She commented: "But this remains a really serious assault on a person with whom he was in an intimate relationship, which is described as a loving relationship, and on his counsel's behalf, this man still feels love towards her. But he subjected her to a sustained, humiliating, violent series of offending that went throughout the city centre in relation to this. He falsely imprisoned a woman who had opened her home and her heart to him, in the boot of her own car, and drove her around town. There was a witness who said that he was slamming that door down on her foot. He smashed her head against the windscreen, the steering wheel of the car. The guards described a significant amount of blood in the location when he came to her. It was an utterly humiliating attack upon, as I say, a person with whom he was in an intimate relationship, and it was one that simply has to be marked by a custodial sentence." 33. The sentencing judge identified the relevant aggravating factors in this case, stating: "... the aggravating factors are the huge breach of trust, the violence meted out to his intimate partner who had extended such hospitality to him. To put another human being into the boot of a car and slapping her in public and punching her, and the damage that was done to her, and the impact that that has done to her as well, all of those matters, ...". 34. In relation to mitigation, the sentencing judge made the following remarks: "I take into account the mitigating factors. He has pleaded guilty in early course. He is in custody as a foreigner; prison undoubtedly is difficult. There will be a dearth of visitors or companionship to him. He is from a difficult background. He is remorseful and he is ashamed in relation to this. He has drink and drug problems in relation to it.". 35. The sentencing judge further noted that he was not of previous good character, in circumstances where "he comes before the Court, he doesn't have any previous of this nature, but he does have a previous conviction for a matter of arson.". 36. The sentencing judge further accepted that the respondent had expressed remorse through his counsel at the sentencing hearing, and also in a letter of apology which had been handed in, in which he had contended that he had been under the influence of alcohol, cocaine and tablets at the time of the incident, had totally blacked out and had no proper memory of what had occurred. However, in regard to that, the judge noted that in the account which the respondent had given to his psychologist he had contended that he was trying to protect the victim, and the judge, further noting that aspects of what the respondent had done had been independently witnessed, commented: "it is very hard to see how that fits in with the factual matrix that's there." Accordingly, with respect to the expression of remorse through his counsel, and the letter of apology that was proffered, she remarked: "The Court accepts that as an expression of remorse, although it would appear that there is a diminution in acceptance of responsibility for the actions of the night in question, and the criminal wrongdoing in relation to it." 37. The sentencing judge marked the false imprisonment count, which was Count no. 1, as representing the more serious of the two counts on which she was required to sentence. She decided to impose a sentence for that, and to take Count no. 2, i.e., the s. 3 assault causing harm count, into consideration in doing so. She identified that the maximum penalty in relation to false imprisonment is life imprisonment. The sentencing judge then determined upon a headline sentence of five years' imprisonment. Then, to take account of the mitigating factors in the case, the sentencing judge discounted from that by 18 months and imposed an ultimate post mitigation sentence of three and a half years' imprisonment, backdated to the date that the respondent went into custody, i.e., the 13th of November 2022. Submissions on Appeal Applicant's Submissions 38. The applicant submits that the sentence imposed by the Circuit Criminal Court was unduly lenient, and that it involved a substantial departure from the norm, i.e. what would have been an appropriate sentence in the case. 39. The applicant submits that neither the nominated headline sentence of five years' imprisonment nor the ultimate sentence of three years' imprisonment serves to adequately reflect the aggravated nature of the offending in this case. 40. In support of the applicant's contentions, her counsel referred us to the cases of The People (DPP) v. Byrne [1995] 1 I.L.R.M 279; The People (DPP) v. McGinty [2007] 1 IR 633; The People (DPP) v. Redmond [2001] 3 I.R. 390 on aspects of the Court's undue leniency jurisdiction. These were uncontroversial, and we regard the law governing undue leniency appeals as being well settled. 41. We were then further referred to a number of comparators, viz; People (DPP) v. Maguire [2018] IECA 71; People (DPP) v. Lewis [2022] IECA 231; People (DPP) v. Brady and Tate [2018] IECA 341; People (DPP) v. Dowdall [2018] IECA 122; People (DPP) v. Stefan Schaufler [2020] IECA 299; People (DPP) v. Niepogoda and Laaki [2018] IECA 338; People (DPP) v. Philip Byrne [2024] IECA 107; and People (DPP) v. Donal O'Hara [2019] IECA 111. 42. These will be reviewed later in this judgment. 43. Counsel for the applicant submitted that the fact that the offence involved both an abduction and a prolonged and serious assault in the context of an intimate relationship, warranted a significantly increased sentence. It was submitted that this was a case in which s. 40 of the Domestic Violence Act 2018 ("the Act of 2018") was engaged. In that regard both counts on the indictment were "relevant offences" and the victim, with whom the respondent was in an intimate relationship, was "a relevant person". This had been brought to the sentencing judge's attention, and while she did reference the fact that the respondent was in an intimate relationship with the victim in her sentencing remarks, there was nothing to indicate that the headline sentence had been increased on account of this factor. In counsel's submission, "to not allow for this in the sentence imposed", i.e., the requirement in s. 40 of the Act of 2018 to 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, "was an error in principle". Further, and in any event, the headline sentence was just too low to a significant extent in the applicant's submission, and that having led to an ultimate sentence that was outside the norm, was a sufficient error of principle in itself. 44. The applicant further submitted "that while a review of comparator cases in false imprisonment case indicates that there is, indeed, a broad range of such offending, it is clear that the offence must necessarily be regarded as serious". Respondent's Submissions 45. The respondent submitted that the sentencing judge considered all the factors and circumstances of the case and having assessed those factors and circumstances, she imposed the appropriate sentence having regard to the particular offences before her and the relevant circumstances of the accused person. 46. The respondent has in turn referred us to the following comparator cases: People (DPP) v. I.A. [2024] IECA 178; People (DPP) v. Cameron Curtis [2024] IECA 101; People (DPP) v. Keogh [2024] IECA 132; ; People (DPP) v. Stephen Connor [2020] IECA 255; People (DPP) v. Sutton [2020] IECA 280; People (DPP) v. Mathew Kelly [2019] IECA 11; and the People (DPP) v. Robert Maguire [2018] IECA 71. Again, these will be reviewed later in the judgment. The case of Mathew Kelly was presumably included for its possible relevance to the assaults in the present case. There was, however, no false imprisonment in that case. 47. The respondent in his written submissions sought to distinguish the case of O'Hara on which the applicant had placed much reliance, on the basis that it had not involved domestic violence. The same had been true in the case of Dowdall. 48. The respondent submitted that the sentence at issue was a "carefully considered and thought out and structured sentence". 49. The respondent further submitted that this Court ought to: "give great weight to the sentencing court's interpretation of the relevant circumstances, [ the sentencing judge] having heard the evidence at first hand. The Court can also place great reliance on the experience of the learned trial judge who deals on a regular basis with criminal cases and sentencing matters. As stated by O'Flaherty J. in Director of Public Prosecutions v. Power [Unrep CCA 3 March 1997], "it is important that we reiterate that the judge occupies the central position when it comes to imposing sentence". Court's Analysis & Decision 50. Both sides having referred the Court to a considerable number of comparators, it is necessary to review these. In doing so we reiterate remarks that we have made frequently on previous occasions to the effect that comparators are only of very limited value and must be approached with caution. See in that regard People (DPP) v. Maguire [2018] IECA 310 at paras [97] and [98]; People (DPP) v. K.C. [2019] IECA 126 at para [93]; People (DPP) v. D.M. [2019] IECA 147 at paras [28] - [30]; People (DPP) v. Flynn [2020] IECA 294 at para [59]; People (DPP) v. Dunne [2021] IECA 189 at para [26]; and People (DPP) v. B.O'S [2023] IECA 84 at para [67]. Comparators relied upon by the Applicant The People (DPP) v. Maguire [2018] IECA 71 51. At the outset it should be stated that this case is also relied upon by the respondent. 52. This was an undue leniency review. In this matter the respondent pleaded guilty before the Central Criminal Court to two counts, namely assault causing harm and false imprisonment. He was sentenced to concurrent sentences of four years imprisonment with the final two years of each suspended for a period of two years on conditions. 53. The circumstances were that the victim of the assault was approximately thirty years old when the offences were committed. She was the mother of four children of whom the respondent was the father of two. She and the respondent had been in an on / off, and often troublesome, relationship for close on a decade. On the evening in question the injured party put the children to bed and shortly afterwards went to bed herself and fell asleep. She woke up to find the respondent in her bedroom shouting at her and hitting her in the face and spitting at her. He grabbed her by the throat and pushed her down on the bed and kicked her. The two older children, aged eight and nine, were outside the bedroom door screaming. The respondent had locked the door. A baby in a cot in the bedroom awoke and started to cry and the respondent prevented the injured party from comforting the child. The respondent pulled the injured party by her hair and threatened to kill her. He left the room and locked it behind himself. The respondent then returned to the bedroom, again locking the door, and grabbed the injured party by the neck and pushed her down on the bed where he continued to kick her. She fell unconscious. A neighbour heard the screaming from the house and the gardaí were called and went to the victim's assistance. She was hospitalised for a time for physical injuries and suffered severe psychological trauma. 54. The respondent was 29 years old and had thirteen previous convictions mainly for road traffic offences. None were for offences of violence. The sentencing judge was satisfied that a custodial sentence was required stating: "On the assault charge, having regard to the foregoing, I place the offending at the higher end of the scale in this case. Indeed I place it on the highest, save that there should be some allowance for the plea. I believe the sentence of four years imprisonment to be appropriate. In respect of the false imprisonment, I impose a similar sentence of four years to run concurrently. Having regard to the mitigating factors raised and to Mr. Maguire's - to Mr. Maguire otherwise not having committed any violent offences, I shall suspend the last two years of the said concurrent sentences". 55. The Director contended that the sentence was unduly lenient on the basis that excessive credit had been afforded for mitigation, such suspension of 50% of the headline sentences was unjustified. The Court of Appeal agreed and substituted concurrent four year sentences with the final twelve months of each being suspended for a period of three years. With respect to the false imprisonment offence specifically, the Court of Appeal made these observations: "Kidnapping offences cover a great variety of situations and are often committed in circumstances where, save for the victim being physically deprived of his or her liberty, there is otherwise little or no violence involved. Often in such cases, it is the fear or threat of violence which is used for coercive purposes, such as, for example, the type of case where a bank employee's family are kidnapped in order to facilitate a bank robbery. In the instant case the primary purpose on the respondent's part in entering the bedroom, and which he did in breach of a barring order, was to assault his former partner. It is unclear if he locked and re-locked the bedroom door to prevent his victim escaping, or to prevent the older children intervening to protect their mother, or merely to prevent them witnessing their mother being assaulted. In any event it was an incident which, when considered in its entirety, any right minded person would consider reprehensible and utterly deplorable.". People (DPP) v. Lewis [2022] IECA 231 56. This case involved a severity appeal by an appellant who had pleaded guilty to a count of possession of a knife, a count of unlawfully interfering with the control of a motor vehicle and a count of false imprisonment. He was sentenced to 4 years' imprisonment on the first two matters and 6 years' imprisonment in respect of the false imprisonment offence. All sentences were imposed concurrently. The appeal against severity was confined to the sentence imposed for the false imprisonment offence. 57. The facts as established in evidence were that at 7:15 pm on a summer evening the injured parties, a Mr. G and a Ms. D, were having a cigarette outside their vehicle in a carpark in Cork City Centre when they were approached by the appellant who asked them for a light. He had difficulty lighting his cigarette as he was wearing yellow washing up gloves. The couple became nervous and got into their vehicle. At this stage, the appellant opened the back passenger door of the car and jumped into the back seat and, as a consequence, Ms. D jumped out of the car in fear. The appellant produced a knife which was described as being approximately 15 centimetres in length with a black handle which he pointed at the driver, Mr. G. The appellant told Ms. D to get back into the car or else he was going to stab Mr. G. He repeated the threat. Ms. D believed the appellant would carry out this threat and feigned a panic attack. As a result of this, the appellant fled the scene on foot. 58. The appellant, who was 20 years of age, had been highly intoxicated at the time. He was identified from CCTV evidence and later arrested. He made full admissions and contended that he was remorseful. He had 31 previous convictions including three for possession of knives as well as convictions for assault causing harm, possession of drugs, criminal damage, violent disorder and public order matters. 59. In sentencing the appellant, the judge at first instance nominated a pre-mitigation headline sentence of nine years imprisonment in respect of the false imprisonment count, and he discounted from this by three years to take account of mitigating circumstances. 60. The appellant contended that the headline sentence of nine years was excessive, but the Court of Appeal rejected this. In doing so, it took account of a number of comparators to which it was referred by the appellant and these were reviewed by Kennedy J. in her judgment. The comparators in question were People (DPP) v. Halligan [2010] IECCA 17, People (DPP) v. Maguire [2018] IECA 71, People (DPP) v. Freeman [2018] IECA 312, People (DPP) v. Michael Cummins [2018] IECA 413 and People (DPP) v. Michael Cummins [2020] IECA 42. In upholding the headline sentence of nine years, the Court of Appeal noted that there had been two injured parties detained against their will, there was evidence of premeditation in the purchasing of the knife and of the washing-up gloves earlier on the day (which had been captured on CCTV), the knife and gloves had been used in the very frightening ordeal to which the injured parties were subjected, the incident itself, although short lived, had been terrifying and had had a profound impact on the victims, and the appellant had had the presence of mind to dispose of incriminating items in various locations in the aftermath (again captured on CCTV). Finally, he was a man with relevant previous convictions for possession of knives. 61. Subsidiary arguments suggesting insufficient discounting for mitigation, alleged failure to make adequate provision for rehabilitation, and failure to backdate the sentence were also rejected. People (DPP) v. Brady and Tate [2018] IECA 341 62. These were also appeals against severity of sentences involving two accused who each received 12 year sentences of imprisonment in respect of offences of false imprisonment and robbery, along with concurrent sentences of 10 years imprisonment in respect of arson and seizure of a motor vehicle. The final three years were suspended. In the case of Brady his sentences were made consecutive to a sentence that was reactivated on the same day. 63. The facts were that the injured party, a man in his early 50s, drove his vehicle to Clonmel, County Tipperary where there was a festival taking place. Having consumed some alcohol, and, not wishing to drive while perhaps over the limit, decided to sleep in his vehicle that was parked in a carpark in the town centre. Having locked himself into the car, he fell asleep. Thereafter, he was awoken by a bang. Turning to his left, he observed a male standing at the passenger window brandishing a large hunting knife. The male hit the window with the knife, cracking it. On his right-hand side, the injured party observed another male attempting to kick in the window of the car with his foot. The window broke. The male on his left demanded that he get out of the car. At first, the victim declined to do so, but following repeated kicks and blows on both windows, he did get out. 64. The evidence was that one of the two males, believed to be Tate, demanded that the victim hand over the car keys. When the injured party refused, Tate came at him and swung his fists. A struggle ensued. In the course of the grappling that followed, the injured party was cut on the face and Tate said, "you'll have a scar on your face". At that stage, Brady delivered a punch to the face and head of the injured party causing him to fall to the ground. When the victim was on the ground, he was kicked into the body by both attackers. One then said, "throw him into the boot". The two attackers then picked him up and bundled him into the boot. The car took off, travelling at high speed, and was driven to a wooded area approximately half an hour's drive from Clonmel near Bansha. In the course of the journey, the car was crashed outside Cahir. When the car was halted, the injured party was asked to hand over his watch, and then when he refused, he was attacked by both individuals with punches thrown to the head and face. Brady later admitted to gardaí kicking the injured party in the face while he lay on the ground, and acknowledged that "no, the poor man didn't stand a chance". The injured party was left by his attackers in a rural location. Although injured he made his way to a nearby house and the householder phoned the gardaí who in response attended at the scene. 65. The injured party had sustained soft tissue injures to his face and also a dislocation of his right shoulder. The dislocated shoulder required surgery which involved a bone graft and he had to have extensive physiotherapy thereafter. 66. The perpetrators having left the scene in the already crashed car, drove to Templenahurney in Bansha where the car then broke down. At that point they burnt out the car, and made good their escape. However, sometime later, Tate was apprehended in connection with another matter and while in Garda custody admitted to involvement in this crime. Later still Brady voluntarily surrendered to gardaí in connection with the matter. 67. The appellant Brady was 23 years of age at the time of sentencing and had 25 previous convictions including for attempted robbery, possession of knives, public order offences, criminal damage, theft and assault. The attempted robbery conviction had been prosecuted on indictment and he had received a sentence of four years imprisonment with the final two years suspended. The offences for which he was being sentenced on this occasion were committed during the currency of the said suspension. 68. The appellant Tate was 19 years of age at the time of sentencing and had 23 previous convictions including for sale and supply of drugs, s. 2 and s. 3 assaults, and burglary. He was on bail in respect of an assault matter at the time of committing the offences for which he faced sentencing. 69. Both accused were said in evidence to be addicted to drugs and alcohol. 70. In imposing sentence, the sentencing judge at first instance did not see fit to differentiate between the two men in all the circumstances of the case. 71. The appeal was advanced on two grounds. Firstly, it was complained that the sentencing judge had been wrong not to differentiate between the two accused. Secondly, it was complained that, notwithstanding the seriousness of the offending, the post mitigation sentences, were simply too high. In support of the latter contention, reliance was placed on two comparators namely, People (DPP) v. Dowdall [2018] IECA 122 and People (DPP) v. Niepogoda and Laaki [2018] IECA 338 (both of which will be specifically considered later in this review). 72. The Court of Appeal considered the sentencing judge's decision not to differentiate between the two accused to have been justified. With regard to the second complaint, however, the Court of Appeal concluded that the sentences that had been imposed were out of line with sentences to be expected for offending of this type, and out of line to such an extent as to require the court's intervention. It substituted sentences of 10 years imprisonment, with the final 3 years suspended, in respect of the false imprisonment and robbery offences and in lieu of the sentences of 12 years imprisonment, with the final three years suspended, imposed in respect of those offences in the court below. It should be noted that in re-sentencing the appellants the Court of Appeal observed that "the headline or pre-mitigation figure could indeed have been one of 12 years and certainly could not, under any circumstances, be one less than 10 years." People (DPP) v. Dowdall [2018] IECA 122 73. In this matter the appellants (a father and son) appealed the severity of sentences imposed upon them by the Special Criminal Court of 12 years (in the case of the first named appellant, the son) and 8 years (in the case of the second named appellant, the father) for false imprisonment. There were other offences on the indictment for which lesser sentences were imposed at the appeal focused on the sentences for the false imprisonment offences. 74. The circumstances were that the injured party had responded to a website advertisement of the sale of the first appellant's BMW motor bike. The injured party attended the first named appellant's home where he examined the motor bike, and subsequently agreed to purchase it subject to being able to organise a loan from a credit union. 75. Three days later the first appellant invited the injured party to dinner in his home. He picked him up at approximately 7.30 p.m. on the day in question and they arrived at the first appellant's home approximately twenty minutes later. On arrival he was forced into a garage attached to the house, and tied with cable ties to a chair by the second appellant. He was then questioned at length in relation to alleged acts of dishonesty carried out by him. The appellants were convinced the injured party was attempting to obtain the first appellant's bank details with a view to accessing the account and defrauding him and that he was not genuinely interested in purchasing the motor bike. The complainant was then subjected to a brutal assault punctuated with menacing threats of being maimed or killed in an effort, apparently, to persuade him to admit to a plan to defraud the first appellant. The complainant's head was shaved and there were repeated instances of a tea towel being placed over his face and water being poured onto the tea towel, a practice commonly referred to as "water boarding". He was told he would be chopped up and taken to Northern Ireland, that he would be buried in the mountains, that his head would be burnt on a stake and that a pliers would be used to remove knuckles from his hands. A pliers was produced by the first appellant (who was wearing a balaclava) and moved close to the victim's hands in support of that threat. The victim was told that the appellants were members of the IRA and that the first appellant was a close friend of two prominent Sinn Féin politicians. He also overheard the appellants and a third person discussing aloud what they were considering doing to him including feeding him to dogs, chopping him up and placing him in cellophane bags and storing him in the boot of a BMW. The complainant was threatened that he and his family, including his parents, would be dead within forty-eight hours if gardaí were alerted following his release. The victim was eventually released without having been further physically harmed beyond that described. He was, however, severely traumatised by this ordeal. 76. The appeal focused on two issues, namely (1) a view taken by the Special Criminal Court that a Newton hearing, which had been conducted in the course of the sentencing hearing at the request of defence counsel, had been unnecessary, that it had further traumatised the victim and that it undermined contentions of remorse on the appellants' part; and (2) that the Special Criminal Court had been wrong in contending that the length of the victim's ordeal, which was established in the course of the Newton hearing to have been two hours rather than three hours, was a matter of irrelevance. 77. The Court of Appeal upheld both complaints and allowed the appeal. In resentencing the appellants, the Court of Appeal adopted the same headline sentences as in the Court below, namely one of 14 years imprisonment in the case of the first named appellant and 11 years imprisonment in the case of the second named appellant. However, in the case of the first named appellant it discounted from the headline sentence by 4 years leaving a net sentence of 10 years imprisonment, with the final 2 years of that then being suspended to incentivise rehabilitation. In the case of the second named appellant, it discounted from the headline sentence by 4 years, leaving a net sentence of 7 years imprisonment, with the final 3 years of that then being suspended to incentivise rehabilitation. People (DPP) v. Stefan Schaufler [2020] IECA 299 78. This was a severity of sentence appeal. In this matter the appellant pleaded guilty to a number of serious offences arising out of a single but ongoing incident that occurred on the 20th of June 2018 and into the 21st of June 2018, in the property he had rented from the 81-year-old victim of these offences. The appellant was sentenced in the Court below as follows: i. In relation to Count 1, causing serious harm, fifteen years imprisonment with the final six years suspended; ii. In relation to Count 2, false imprisonment, fifteen years imprisonment with the final six years suspended; iii. In relation to Count 3, robbery, seven years imprisonment; iv. In relation to Count 5, unauthorised taking of a vehicle, two and a half years imprisonment. 79. All sentences imposed were to run concurrently and were backdated to the 26th of June 2018, the date of the arrest of the appellant. 80. The circumstances were the appellant resided in a rented property in Carton Point, Sligo and was a tenant of the victim. On the day in question, the appellant and the victim met at the property at the appellant's request, as he had told the victim that there was a leak in an upstairs bathroom. The victim went upstairs to inspect the leak but there was no leak. The curtains were drawn in the room and the appellant directed the victim to sit on the bed and demanded money from him. The victim stated he had no money but could get money. The appellant then drew an iron bar which he had in his hand, and he hit the victim a number of times across the head and his back. The appellant took the victim's bank cards and demanded his PIN number for the card. The victim was subsequently tied up; his two legs and his two arms were tied. The victim's phone was smashed, his hearing aids were dislodged, and his glasses were knocked off. The appellant locked the bedroom door and left the victim. 81. The victim was subsequently reported missing. He was discovered by members of An Garda Síochána who went to the rental property. They found that the back door of the house was left open and upon entering the house discovered that the upstairs bedroom was locked. Having broken into the room, the victim was discovered lying on the floor. He was disorientated and his face was covered in blood. The victim was nearly 29 hours in the room before he was discovered. He was hospitalised for a time; the victim had remarkable swelling on his forehead and face, and he had five lacerations on his face, all of which were deep and the skin surrounding them was bruised and injured. 82. The appellant was 51 years of age and had no previous convictions. 83. The sentencing judge identified the s. 4 offence of causing serious harm and the false imprisonment offence as the most serious offences and observed that the false imprisonment fell to be located near the top of the scale, as did the s. 4 offence. He said that the factors militating against imposing the highest level of sentence available for the offences were that the offences were irrational, were not part of settled criminal activity, and were a first aberration in an unblemished life, although these were relative factors set against the other factors. The sentencing judge therefore nominated a headline sentence of 16 years for these two interrelated but cross-aggravating offences of significant gravity, and went on to impose the same post mitigation sentence of 15 years with the final 6 years suspended on each of them, to be served concurrently inter se. 84. The Court of Appeal was initially concerned as to a possible lack of clarity in how the sentencing judge reached the headline figure of 16 years. The Court referred to The People (DPP) v. Fitzgibbon [2014] 1 IR 627 and identified that this figure exceeded the maximum of 12 ½ years identified in that case, which the guidance indicated should only be exceeded in exceptional circumstances. However, the Court determined that it was possible to infer that the sentencing judge did so because he took the view that the false imprisonment component aggravated the overall offending so significantly that it constituted an exceptional circumstance requiring him to increase the headline sentence. 85. Ultimately, the Court of Appeal dismissed the appeal stating: "An effective sentence of 9 years imprisonment in respect of the offence under s. 4 of causing serious harm, when aggravated by the offence of false imprisonment was, even under the Fitzgibbon guidelines, within the margin of discretion of the trial judge." People (DPP) v. Niepogoda and Laaki [2018] IECA 338 86. These were undue leniency reviews. Both respondents were sentenced in the Circuit Criminal Court in respect of offences of arson, false imprisonment, s. 3 assaults, criminal damage as well as unlawful cultivation of Cannabis. The longest sentences imposed were of six years with one year suspended which were imposed in respect of the counts of false imprisonment. Other sentences imposed were made concurrent. Both respondents had pleaded guilty on the day the case was listed for trial. 87. The respondents were sentenced in respect of two separate courses of offending involving two different victims. The first victim was invited to spend Christmas with the two respondents. He arrived at their home on Christmas Eve, the 24th of December 2014, in response to the invitation. Upon arrival, he was falsely imprisoned, assaulted and threatened. The incident then continued over the following days. This victim was punched all over his body and he was hit with what was described as a samurai knife, in its sheath, and a baseball bat. Thereafter, he was brought to another address, in the boot of a car, having been bound and gagged. The victim was then taken out of the boot of that car and put into the boot of his own vehicle which had been driven there in convoy with the other car. The victim's vehicle was then set on fire with the victim still in the car boot. The victim managed to bite through the remaining duct tape on his mouth in order to free himself. He got out of the boot and the respondents attempted to put him back into the car boot but were unable to do so as a result of the fire which was developing. The respondents then knocked the victim to the ground and started kicking him. He was then brought to a further location at Borris, where the respondents held him over a bridge by his feet and threatened to kill him. He was then brought back to the respondents' property at Borris, where the respondents continued to falsely imprison and threaten him. At one stage, an electric cable was held against his legs, and he sustained electric shocks causing lacerations and burns to both legs. 88. On the 26th of December 2014, this victim escaped through a bathroom window after he was allowed to go to the toilet. Gardaí were alerted; however, the respondents had fled the property before the gardaí arrived at the scene. Gardaí found what looked to be a grow house there and following the obtaining and execution of a search warrant, located some sixteen Cannabis plants. The victim's car was later found burnt out at Carlow, and the victim's DNA was found in the boot of the respondents' car and also on cable ties from the house. 89. The motivation identified by gardaí for this course of offending was that the respondents had suspected this victim of having stolen cannabis from them. 90. There was a second victim who was separately abducted and assaulted by the respondents, again in circumstances where the respondents suspected him of stealing cannabis from them. On a date in December 2014 or January 2015, the second victim was abducted, brought to a remote location, threatened, and assaulted by the respondents. Then, approximately a year later on the 17th of January 2016, the first named respondent, broke into the second victim's home and assaulted him with a weight bar or a dumbbell. He was assaulted to the left side of the face and hit at least four times with the bar. The second victim told the gardaí that in the earlier incident, the two men had used knives and a wooden hammer in the course of assaulting him. The first named respondent had kicked him to the left side of his face and hit him with his knee. This victim explained that the incident went on for about two hours and that he was put into the boot of the second named respondent's car and was taken to a forest area. On arrival there this victim was brought into the forest. The first named respondent was in possession of a spade. The victim was taken to an area which had been dug up. The respondents then interrogated the victim concerning cannabis they believed had been stolen from them, demanding that they be told the truth and threatening that if they were not told the truth, that they would kill him and bury him there. 91. The first named respondent, a Polish national, was born in 1981. He had four traffic convictions including one for no insurance, but otherwise had no relevant previous convictions. The second named respondent, also a Polish national, was thirty-four years of age at the time of the sentence hearing. 92. In contending that the sentence was too lenient and should be reviewed, the Director said that the sentencing judge erred in saying that a pre-mitigation sentence for the arson was three and a half years and erred in saying that a pre-mitigation sentence for false imprisonment was seven years. The Court of Appeal agreed with these submissions by the Director. The Court was of the view that a pre-mitigation headline sentence for each of these offences could not have been less than twelve years. Upon agreement with the Director that the sentences imposed in the Court below were unduly lenient, the Court of Appeal, in the case of the second named respondent, quashed the earlier sentences and sentences in lieu of nine years on the arson and false imprisonment were imposed. In the case of the first named respondent, sentences of nine years imprisonment were imposed in respect of the arson and false imprisonment and there was a consecutive sentence of twelve months in respect of the later incident involving the second victim. People (DPP) v. Philip Byrne [2024] IECA 107 93. This was an application to extend the time for appealing against sentence. In this instance, the applicant pleaded guilty to one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 ("the Act of 1997"), one count of threatening to kill or cause serious harm contrary to s. 5 of the Act of 1997, one count of false imprisonment contrary to s. 15 of the Act of 1997 and one count of production of an article contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. The applicant was sentenced to a term of seven years imprisonment with the final two years suspended on conditions on the false imprisonment count. A further sentence of three and a half years imprisonment was imposed concurrently on the balance of the counts to which he pleaded guilty. 94. The proposed appeal, if time were to be extended, concerned the sentence imposed on the false imprisonment count. 95. The facts were that the victim was the applicant's wife, and that the offences were committed in the context of a domestic argument which occurred in the presence of a third party, a painter who was working in the house at the time. The applicant threatened to stab the victim, she ran towards the front door, the applicant followed her with a large knife and stabbed her to her abdomen. The painter pulled him from her and tried to assist. It seems that this occurred outside the house. The victim then ran back towards the house. The applicant got away from the painter and put his foot in the door as the victim approached, swung the knife, and stabbed the victim again. The applicant prevented her going further into the house, grabbing her by the hair and swinging the knife again. 96. The painter in his statement said that the front door was locked at this stage, and he saw the applicant through the window with the knife. This was the substance of the false imprisonment count; the applicant prevented the injured party from leaving the house while he perpetrated an assault and issued threats to her. 97. In seeking to persuade the Court that the proposed appeal would have some prospect of success, were time to appeal to be enlarged, it was argued by the applicant that the sentencing judge had erred on the facts of this case in determining that the other offences served to aggravate the false imprisonment count. It was said that the primary offence was that of assault. It was submitted that the false imprisonment offence took a matter of moments and that the case could be readily distinguished from the facts in Schaufler. The Court of Appeal was satisfied that the incident of false imprisonment was a serious one which the sentencing judge was entitled to view in the context of the assault on the injured party. When considering this, the Court noted that: "The injured party was restrained inside the house, while the person, specifically the painter who had intervened was locked outside the house. The level of culpability was high as a consequence as the applicant acted in the knowledge that the person who was trying to render assistance was locked out.". 98. The Court was not therefore persuaded that the proposed appeal had any real prospect of success, and it did not believe that the justice of the case would be served by extending time and thus, refused the applicant. People (DPP) v. Donal O'Hara [2019] IECA 111 99. This was an undue leniency review, where the respondent was sentenced by the Special Criminal Court to a term of three years imprisonment with the final year suspended in respect of offences of false imprisonment and assault causing harm. The sentences imposed in respect of each offence were to run concurrently with each other; however, as they were committed while the respondent was on bail, they were to run consecutive to another sentence that the respondent was serving that had been imposed by the Circuit Court. 100. In this case, one of two victims, a Mr. B, was working in the area of close personal security. This victim was asked to accompany his employer to a meeting at Keatings Business Park, where they met with two men. In the aftermath of that meeting, this victim's relationship with his employer began to deteriorate. On the 9th of June 2015, Mr. B was asked by his employer to attend a further meeting at Keatings Business Park. When they arrived, they went upstairs to an office room with one of the men from the previous meeting and the respondent. Five other men entered the room and prevented Mr. B from leaving. He was told that he was going to be removed from his home, i.e., that he was going to be taken there and that he and his family were to pack their bags and be gone by the end of the day. He was then brought downstairs and placed in one of three vehicles which were waiting, along with three of the men. He was punched and slapped and told that if he failed to cooperate, his life was in jeopardy. The three vehicles then drove back in convoy to Mr. B's home, where they experienced difficulty gaining entry through a wrought iron gate. Another victim, a Mr. R, refused to open the gate and ran off. Mr. B was again threatened and in response told his assailants of a method which would enable them to enter through the gate. Mr. B was then brought to the house where he lived with his wife and son. Another group of men went in search of Mr. R. Mr. B's wife was at home, and she was brought to her bedroom by one of the men who had entered the premises who remained there while she was forced to dress. She was told that she had to pack a bag and that she and her family would be leaving their home that day. Her son, a third victim, was also told that he was not free to leave; he was kept in the kitchen and was told that his family were to be removed from the house. 101. The men who had pursued Mr. R succeeded in locating and apprehending him. CCTV showed an extremely violent assault on Mr. R involving several men with the respondent an active participant. While the assault on Mr. R was taking place, Mr. B was detained and was himself physically assaulted. The incident came to an end following an intervention by another resident of the complex who identified that something untoward was going on. He contacted gardaí who arrived on scene in response to a call. Mr. B was sent out by his assailants with a view to getting rid of the gardaí, having been warned that his life was in danger if he failed to do so. However, the gardaí noted his distress and observed that there were injuries to his face. Mr. B's facial injuries, which arose from the incident, required treatment in the form of sutures to his ear. 102. The respondent was born of the 9th of January 1992, he was 26 years old at the time of sentencing and had a significant number of relatively minor convictions along with some more serious convictions. 103. The sentencing court commented that the offences were aggravated by the fact that they were committed while the respondent was on bail. Concerning the assault causing harm on Mr. R, the sentencing court said that the respondent's involvement was specific and high level. By way of contrast, his involvement in the false imprisonment matters was considered by the sentencing court to be at a more general and lower level. So far as the false imprisonment matters were concerned, the sentencing court felt that the respondent's conduct left him within the lower part of the range for such offences, but as that offence involves a considerably higher starting point than does a s. 3 assault, the sentencing court believed that the appropriate headline sentence for the false imprisonment was a period of four years. Ultimately, a post-mitigation sentence of three years imprisonment with the final year suspended was imposed, both in respect of the false imprisonments and the assaults (to run concurrently inter se but consecutive to a sentence for the earlier matter for which the respondent had been on bail). 104. Agreeing with the Director that the sentence imposed at first instance had been unduly lenient, the Court of Appeal in so concluding took account of a number of comparators to which it was referred by the applicant. The comparators in question were DPP v. Maguire [2018] IECA 71, DPP v. Dowdall [2018] IECA 122, DPP v. Niepogoda and Lacki [2018] IECA 338, and DPP v. Brady and Tate [2018] IECA 341. The Court of Appeal noted that in its view, the offences in this instance were by any standards very serious offences. 105. The Court of Appeal in resentencing the respondent substituted sentences of four years imprisonment, with the final twelve months suspended and again directed that these were to be concurrent inter se but consecutive to the sentence for the earlier matter for which the respondent had been on bail. Comparators relied upon by the Respondent People (DPP) v. I.A. [2024] IECA 178 106. In this case, an undue leniency review, the injured party was visiting the respondent, having previously been in a relationship with him. They had two children together. In the course of having something to eat, the respondent accused the injured party of having an affair. The discussions became heated resulting in a physical altercation during which the respondent punched her in the face and head; kicked her; smashed a glass bottle off a table, held the broken bottle to her neck and threatened to kill her. The injured party attempted to escape into an adjoining room, but the respondent pursued her. He pulled her by the hair; hit her head against the door; and punched her in the stomach. The respondent went to get the broken bottle, but the injured party ran upstairs in an attempt to escape out the main front door. As the injured party opened the front door, the respondent grabbed her by her cardigan and pulled her backward. The respondent then blocked the front door, preventing the injured party from leaving. He continued to punch and strangle her. The injured party managed to dial 999 using a mobile phone, leading to the arrival of gardaí who found the injured party in a state of distress. 107. The respondent faced charges of assault causing harm, producing an article capable of inflicting injury, threatening to kill or cause serious harm and false imprisonment. In the court below, following a contested trial, the sentencing judge found s. 40 of the Act of 2018 to be applicable and sentenced globally, imposing a sentence of two years and six months, with the final six months suspended, on the assault charge with the other offences being taken into consideration. The Court of Appeal found this to be unduly lenient. It said that sentencing on a global basis was an avenue open to the sentencing judge. However, once adopting that course of action, it was incumbent on the sentencing judge to properly reflect the aggravated nature of the false imprisonment offending when imposing sentence on the assault count. The Court of Appeal nominated a headline sentence of four years (the headline sentence in the court below had been three years) and substituted a sentence of three years and six months, with the final six months suspended, for the sentence imposed by the court below. People (DPP) v. Cameron Curtis [2024] IECA 101 108. This case involved an undue leniency review of concurrent sentences imposed, following pleas of guilty by the respondent, of two years and six months, with the final six months suspended, on eight counts of assault causing harm and one count of false imprisonment, respectively, with charges of threatening to kill, production of a knife and criminal damage being taken into consideration. The pre-mitigation headline sentences nominated by the court below had been three years and four months in each case. 109. The facts involved inter-partner violence and engaged s. 40 of the Act of 2018. There were numerous incidents of which evidence was given on a full facts' basis in the course of which the female injured party was, inter alia, accused of being unfaithful to the male respondent and was violently punched, slapped and kicked by the respondent. On one occasion the respondent locked the injured party in a bathroom for 45 minutes, stating he would not release her unless she provided him with the password to her Snapchat account. This was the basis of the false imprisonment charge. In another instance the respondent dragged the injured party, with his arms around her neck from a bedroom to a bathroom and threatened her with a scissors, leading the injured party to believe she was about to die. On yet another occasion, among several more, the respondent strangled the injured party by grabbing her neck and squeezing her throat. 110. The Court of Appeal found the sentences imposed at first instance to be unduly lenient. It increased the headline sentences to five years and the post-mitigation sentences to four years, giving credit for time served and conditionally suspending the balance then remaining (the respondent having fully completed his original sentence and having been released before the review was heard). People (DPP) v. Keogh [2024] IECA 132 111. This was a severity appeal in respect of sentences of three years imprisonment, with the final 12 months suspended, imposed on the appellant for two counts of assault causing harm, with a further count of s. 2 assault and a count of false imprisonment being taken into consideration. In each case, there had been late pleas of guilty by the appellant (i.e., after a jury had been sworn). 112. The appellant and the victim were married. The nature of the assaults causing harm involved felling her to the ground by kicking her into the back, and physically manhandling her, dragging her (including by the hair), throwing her, further kicking her, and bending her fingers. In one instance the injured party required hospitalisation for 24 hours. In another instance following being assaulted she was confined to a utility room for 20 minutes, and this was the basis for the false imprisonment count. 113. The Court of Appeal dismissed the appeal. The judgment does not specifically engage with the false imprisonment count that was taken into consideration, beyond noting as a fact that it was taken into consideration, and implicitly endorsing the approach taken to it by the sentencing judge at first instance. People (DPP) v. Stephen Connor [2020] IECA 255 114. This was an undue leniency review in which the respondent, having pleaded guilty to counts of assault causing harm, false imprisonment, and production of a knife in the course of a dispute received wholly suspended sentences on each count. 115. The essential facts were that on the 5th of May 2018 the victim self-reported in a telephone call to gardaí that she had been recently assaulted. Gardaí attended at her home which she had been sharing for some time with her former partner, the respondent, albeit that they were no longer in a romantic relationship, and they found her in a bloodied and dishevelled state. She reported that she had been assaulted by the respondent, after she had asked him to leave her home following a disagreement over payment of rent and food bills. The respondent had been very drunk. Gardaí observed knives on the floor and some blonde hair in a zip-locked bag which the injured party said had been ripped from her head by the respondent. The injured party's account was that he had held a serrated bread knife up to her in a menacing fashion, had knocked a mobile phone out of her hand and had pushed her up against the cooker. She reached for the phone, but he continued to act in a threatening manner, holding her against the cooker and making stabbing actions to her face and head. The respondent then held her in a corner and began banging her head against a press, holding her head for grip. The injured party said that he cut her face and blood was pouring down her face. She tried to go towards the open door, but he caught up with her. He then started to punch her in her face with a closed fist until she fell to the ground. The assault came to an end only after he punched her so hard that he lost his balance and fell over. She managed to get up again and tried to go towards the gate. At that stage, the respondent walked out the driveway past her. 116. The respondent pleaded guilty at an early stage, had been cooperative and made admissions, had no previous convictions, had expressed remorse and was otherwise of good character. There was psychological evidence that he had vulnerabilities and suppressed anger from childhood experiences of bereavement and illness, and experiences of relationship breakup. Further, he had acknowledged he had a problem with alcohol and since the offence was seeking treatment and attending AA. He was assessed as being at low risk of re-offending. 117. The sentencing judge at first instance identified headline sentences of 3½ years for the s. 3 assault, 2½ years for the false imprisonment and 2½ years for the production of the knife. These were reduced to 2½ years, 1½ years and 1½ years for mitigation, but in circumstances where the respondent was a first-time offender, his conduct appeared to be aberrational and connected with alcohol consumption, and he was taking steps to rehabilitate himself, the sentencing judge went on to wholly suspend all of the sentences upon conditions. 118. The Court of Appeal found the wholly suspended sentences to have been unduly lenient and substituted a global sentence of 2½ years with the final year suspended. There was no separate consideration, or analysis of, the sentencing for the false imprisonment offence specifically. People (DPP) v. Mathew Kelly [2019] IECA 11 119. Again, this was an undue leniency review in which the respondent, having pleaded guilty to s. 3 assault causing harm, received a sentence of 2½ years imprisonment, suspended in full from the Circuit Criminal Court. 120. The judgment of the Court of Appeal sets out that: "On the occasion in question, the injured party was in the vicinity of a crèche which is located close to her home, along with her two-year old daughter whom she was picking her up from the crèche. Indeed, it appears it was the little girl's first day there. It appears that there may have been some tension as the little girl was dropped off at the crèche, but the real difficulty arose at the collection stage. At that point, an incident developed, and in the course of that incident, at a time when the respondent had his daughter in his arms, he put her down and then punched his ex-partner in the mouth with a closed fist. She fell against the window of the crèche and fell to the ground. The respondent then repeatedly punched his partner to the head and body while she was on the ground. The victim impact report also refers to kicking while on the ground. In the aftermath of the incident, the respondent went from the scene to the local Garda station and said there "you may lock me up". The Judge, in the course of his sentencing remarks, described the assault as cowardly, vicious and violent. It is of some considerable importance to note that the injured party had obtained a Safety Order from the District Court in Bray and that that order of the Court was in force at the time of this assault." 121. The injured party suffered a deep laceration to the inside of her lip and swelling and bruising to the temple on the right side of the face, as well as bruising to the leg, thigh, arm and back of the neck. She also had significant psychological sequelae as a result of the trauma. 122. The respondent entered an early plea, had no previous convictions and a good work record. There was a positive testimonial from his employer and there was medical evidence that he suffered from depression and anxiety. 123. In sentencing the respondent, the judge at first instance characterised the case as being "an extremely marginal one". It may be inferred that he was speaking with reference to whether the custody threshold was exceeded, given the respondent's mitigating circumstances and particularly the fact that he was a first-time offender. 124. The Court of Appeal disagreed, found the sentence to have been unduly lenient and substituted a sentence of two and a half years imprisonment with the final 18 months suspended. People (DPP) v. Robert Maguire [2018] IECA 71 (reviewed earlier in this judgment). Discussion 125. The review of the comparators offered by both sides only serves to illustrate the myriad circumstances in which the crime of false imprisonment is committed. There is no typical case. What can be said is that very frequently, although not invariably, it is committed along with other offences and as part of a continuum of events that takes place over a period of time. It is sometimes central to, or is at least a component, in action which is primarily intended to intimidate, as in the cases of Dowdall, Niepogoda and Laaki, and O'Hara respectively; sometimes it is a component action in a spree of other violent offending such as in Lewis and in Brady and Tate; sometimes it is committed in furtherance of a larger criminal conspiracy, such as where a bank official's family is falsely imprisoned in the context of a so-called "tiger kidnapping" (an example would be People (DPP) v. Pascal Kelly [2023] IECA 285, although it is not a case to which either side referred); and regrettably, not infrequently, it features as a component action in intimate relationship violence. This is by no means an exhaustive list. 126. In the present instance the false imprisonments occurred during an incident that lasted an hour and forty minutes in total, and they were committed alongside significant assaults causing harm. Moreover, the context was violence directed towards a partner with whom the assailant (i.e., the respondent) was in an intimate relationship. 127. Sentencing scholars refer to the "cardinal" seriousness of an offence as being a measure of how seriously a particular offence is to be regarded in principle qua other offences in the criminal calendar, while referring to the "ordinal" serious of an offence as being a measure of the seriousness of any one instance of a particular offence qua any other instance of the same offence. While both the offences of false imprisonment and assault causing harm are offences of significant cardinal seriousness, the Oireachtas having opted to provide a range of punishment for the former running from non-custodial options up to life imprisonment, and in the case of the latter from non-custodial options up to five years' imprisonment (increased to 10 years from 01.11.2023, but the increase does not apply in this case as the offending predates 01.11.2023), we think that for sentencing purposes in the circumstances of this case the false imprisonment count would sensibly represent the gauge offence, i.e., the offence that might attract the highest potential penalty in terms of its ordinal seriousness. Sentencing is based on the ordinal seriousness of an offence or offences, rather than their cardinal seriousness, so the fact that one offence charged might have a higher potential penalty than another or others does not mean per se that that offence should automatically be treated as the gauge offence. However, we are in no doubt that in the circumstances of this case it is appropriate that false imprisonment should be treated as the gauge offence. 128. The sentencing judge at first instance also took that approach in that she opted to sentence for the false imprisonment offending only, and to take the assaults causing harm into consideration. The fact that she opted to take the assaults causing harm into consideration is not per se to be regarded as an error (providing that taking them into consideration resulted in some apparent up-lift in the sentence for the false imprisonment). 129. There are, however, other problems with the sentence imposed at first instance. 130. As regards the comparators proffered, we have found these helpful only to a very limited extent. We have examined them to see if they are indicative of any ostensible trend. In that regard, while cases such as Dowdall, Lewis, Brady and Tate, Schaufleur, and Niepogoda and Laaki provided some assistance to the extent of establishing that in assessing the harm associated with false imprisonment, the extent of the traumatisation of the victim, and duration of the ordeal may be important (although by no means the only) relevant factors, we have excluded them in any consideration of whether a sentencing trend is evident specifically in so far as false imprisonment cases are concerned with violence directed towards a partner with whom the assailant was in an intimate relationship. We approached the task with considerable caution because while a small sample of cases was provided, we suspect that it is far from comprehensive and as such cannot necessarily be taken as being reasonably representative. A further need for caution arises in circumstances where many of the cases proffered involved undue leniency rather than severity appeals. As we have explained many times previously, in any case where an undue leniency appeal has been unsuccessful it does not mean that the Court of Appeal necessarily agrees with, much less endorses, the sentence imposed by the court at first instance, rather merely that the threshold for intervention on the grounds of undue leniency has not been met. Of course, if the Court of Appeal has found undue leniency, and has re-sentenced, that may be of some assistance. 131. The cases of Maguire, Byrne, I.A., Curtis, Keogh, and Connor, have all been concerned with false imprisonment committed in the context of violence directed towards a partner with whom the assailant was in an intimate relationship. Having considered them we have been unable, mainly because of the small sample size, to conclude that they evidence any firm trend in so far as the nomination of headline sentences are concerned. 132. In the case of Maguire there was significant associated violence, and the false imprisonment continued for some time, although the exact duration is not apparent from the judgment. It seems reasonable to infer that it was perhaps less than an hour, in circumstances where gardaí responded (we assume promptly), to a report from a neighbour who had heard the victim's screams, and went to the victim's assistance. The headline sentence nominated was four years imprisonment. Importantly, the offending in Maguire predated the coming into effect of s. 40 of the Act of 2018. Arguably a somewhat higher headline sentence would have been nominated if the respondent in that case was being sentenced today having regard to that statutory provision. 133. In Byrne, there was again significant associated violence. The duration of the false imprisonment component of the offending was relatively short, although it undoubtedly added to the victim's trauma. It was a case in which s. 40 of the Act of 2018 was engaged. The headline sentence nominated in that case was one of seven years' imprisonment. 134. In I.A. there was once again significant physical violence in the incident and the false imprisonment dimension, lasting 45 mins, was a further traumatising element to the overall ordeal. In that case s. 40 of the Act of 2018 was engaged, and the headline sentence substituted by the Court of Appeal was one of four years imprisonment. 135. In Curtis the victim having been assaulted on numerous occasions, was on one of these occasions slapped, kicked, and punched for having allegedly been unfaithful to her assailant, and then locked in a bathroom for 45 minutes adding to her trauma. Her assailant faced various assault counts and production of weapons counts and a charge of false imprisonment. At first instance headline sentences of 3 years and four months had been nominated for each offence (there was no differentiation between offences), and these were increased to five years by the Court of Appeal. 136. In Keogh, yet again there was significant physical violence. The duration of the false imprisonment, which involved the victim being confined in a utility room, was 20 minutes. In this instance the Court selected s. 3 assault causing harm counts as representing the gauge offences, and the false imprisonment was merely taken into consideration, so the decision is of little assistance. 137. In Connor, once again the false imprisonment does not appear to have been treated as the gauge offence, and for this and other reasons the decision is of limited assistance. At first instance the accompanying assaults saw the nomination of headline sentences of 3½ years, while 2½ years was nominated for the false imprisonment, and also for production of a knife. At the time of the offending in this case the Act of 2018 had yet to be commenced and so s. 40 thereof was not engaged. Ultimately, however, the outcome was in each case a wholly suspended post mitigation sentence. On appeal, the focus was understandably on the decision to wholly suspend the sentences. In finding the sentences imposed at first instance unduly lenient on account that total suspension had not been justified in the circumstances of the case, the Court of Appeal in re-sentencing imposed a 'global' post-mitigation sentence of 2½ years and did not identify what the appropriate headline sentence for the false imprisonment offence might have been. The decision is therefore of little help in terms of discerning any possible trend. Decision 138. Having considered the comparators proffered, and the submissions of the parties, we find ourselves in agreement with the applicant that the headline sentence was too low to adequately reflect the aggravated nature of the offending in this case, and that it was so to a substantial degree. In the assessment of this Court, to have determined on a headline sentence of five years imprisonment was an error, in circumstances where very serious violence was used, where there were multiple restraint of liberty components to the overall ordeal, where significant trauma was caused to the victim, where the duration of the events lasted as long as it did, where s. 40 of the Act of 2018 was engaged, and where concurrent assaults causing harm were to be taken into consideration requiring some uplift in what would otherwise be the headline sentence for the gauge offence. A five year headline sentence was simply too low in our assessment, and that resulted in an ultimate post-mitigation sentence that was substantially outside the norm. In our assessment this case required nomination of a headline sentence in the range between seven and nine years for the gauge offence, i.e., the false imprisonment. 139. In reaching that assessment we have had regard to the culpability of the respondent which we regard as having been very high. The victim was subjected not just to spur of the moment retaliation or abuse for some perceived slight, but to a protracted ordeal lasting over an hour and forty minutes and committed in several physical locations. Physical violence resulting in injuries was committed in the course of restraining the victim's liberty. There was dominance, coercion and an abuse of the power that comes with the greater physical strength that a male has, all with the context of the existence of an intimate relationship. It was conduct intended to maximise the distress of the victim, to humiliate her and to coerce her submission to the respondent's dominance. Moreover, the actual harm, both physical and psychological, done to the victim was significant. Fortunately, the victim's physical injuries were not ultimately profound (although she bled profusely in the early aftermath and on presentation in hospital was found to be greatly distressed and to be exhibiting numerous contusions, cuts, abrasions, soft tissue and other injuries); but she was also understandably greatly traumatised and continues to suffer the effects of that trauma. 140. We have also taken account of the fact that it was not obvious to us that the sentencing judge at first instance had nominated a higher headline sentence than she might otherwise have done, in application of the statutory sentencing policy mandated by s. 40 of the Act of 2018; or that there had been any uplift in the headline sentence for the false imprisonment offending in circumstances where s. 3 assault causing harm was being taken into consideration by her. 141. While we do not consider that the sentencing judge at first instance exhibited any error in how she discounted for mitigating and personal factors, her ultimate, post mitigation sentence was necessarily rendered not just lenient, but a substantial departure from the norm, on account of the erroneous headline sentence and therefore unduly lenient. We must therefore quash the sentence imposed at first instance and proceed to re-sentence the respondent. Re-Sentence 142. We think that if this offending had not been committed in the context of an intimate partner relationship engaging s. 40 of the Act of 2018, and if assault causing harm were not also being taken into consideration, the offending in this case would merit the nomination of a headline sentence of 5 years imprisonment. However, in a situation where this offending was committed in the context of an intimate partner relationship we consider that in order to give effect to the statutorily mandated sentencing policy set by the Oireachtas in s. 40 of the Act of 2018, we are required, taking into account all the egregious circumstances of this case, to impose a sentence which is a 18 month higher sentence than we would otherwise have imposed. Further, we think than an additional uplift of 18 months is required in circumstances where the assaults causing harm are to be taken into consideration, as we have decided to do. Accordingly, we believe that the appropriate headline sentence must be one of 8 years imprisonment. 143. We will discount by 2½ years from the headline sentence to take account of the mitigating and personal circumstances of the respondent. In so determining we have considered everything that was placed before the court below in that regard, and we have further had regard to a Governor's Report from Wheatfield Prison dated 18.11.2024, which informs us that the respondent's general behaviour is good, that he works as a cleaner within the prison, that he has enhanced privileges status, and that he is polite and gets on well with staff and other prisoners. The report also records that the only visits he receives are professional visits, and we have taken due account of that. 144. The ultimate post-mitigation sentence is therefore one of 5½ years imprisonment, to date from the same date as the sentence imposed by the court below. Once again, the offending involving assault causing harm contrary to s. 3 of the Act of 1997 is taken into consideration. Result: re-sentence
Record No: 9/2024