Court of Appeal: Wholly suspended sentence for stabbing man in the back was not unduly lenient

About this case:

• Citation:
  [2019] IECA 1
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Background

In April 2015, Mr Daniel Smith got into an argument with Mr Jamie Walsh at a house they were drinking in together with two girls. Mr Walsh said that he had punched Mr Smith during the argument, and that then Mr Smith left the room – returning with a kitchen knife and stabbing Mr Walsh twice in the back.

When Mr Smith was arrested later that night, he responded to questions with “no comment”. The Court heard that Mr Smith had turned 18 a few weeks before the incident, and that he had consumed cocaine and eight cans of alcohol on the night.

Mr Walsh had been stabbed in the arm and posterior chest wall. His injuries made it difficult for him to breathe; he had 600ml of blood in his chest, requiring a chest drain; and the right lower lobe of his lungs had completely collapsed. Mr Justice Edwards said that Mr Walsh was exposed to a substantial risk of death as a result of the surgery required, but that he went on to make a full recovery.

An Exceptional Case

In Waterford Circuit Criminal Court, Mr Smith pleaded guilty to a count of causing serious harm contrary to Section 4 of the Non-Fatal Offences Against the Person Act 1997.

The sentencing judge said that the use of a knife was an obvious aggravating factor. He also said that it was clear Mr Smith was not acting in self-defence and was instead retaliating to being punched – stabbing Mr Walsh without any warning or opportunity to protect himself. The sentencing judge said that it was a cowardly act.

The sentencing judge agreed with the Director of Public Prosecutions that the offence was in the medium range of severity and placed it at the lower end of that range, finding the appropriate sentence five years imprisonment.

Mr Smith’s guilty plea at the earliest opportunity was identified as a mitigating factor, and he had no previous convictions. He was assessed as very low risk, prosecuting garda acknowledged that the incident appeared to be out of character, and the court accepted that he had changed the course of his life after becoming a father and being the sole breadwinner in the family unit. He expressed remorse and offered €1,000 in compensation to Mr Walsh. In the circumstances, the sentencing judge reduced the five years to three years.

The sentencing judge said that Mr Smith’s case was exceptional, in that he had a very positive probation report, had become abstinent from substances and decreased his alcohol consumption. The sentencing judge accepted that the incident was isolated, that he had very full insight into what he did and had genuine remorse. As such, the sentencing judge said that society was best served by Mr Smith’s sentence being suspended for five years – but that if he was found in public with a knife in his possession at any stage, the matter would be brought back, and the suspended portion of his sentence activated.

Court of Appeal

In the Court of Appeal, the DPP sought a review of Mr Smith’s sentence on the grounds that it was unduly lenient given the offence carried a maximum possible sentence of life imprisonment. The DPP submitted to the court that suspending the entirety of the sentence represented an error of principle.

Mr Justice Edwards said that the Court of Appeal in The DPP v (Anne Marie) Byrne [2017] IECA 97 (approving the approach of the NSW Court of Appeal in R v Zamagias) set out the following considerations a sentencing judge must have regard to when deciding whether a sentence is suspended entirely:

• (i) The nature of the offence committed;
• (ii) The objective seriousness of the criminality involved;
• (iii) The need for general or specific deterrence;
• (iv) The subjective circumstances of the offender.

Mr Justice Edwards was satisfied that these issues were all properly considered by the sentencing judge. Although the sentence was indeed very lenient, Mr Justice Edwards was not persuaded that it was so lenient as to be unduly lenient: the probation report could not have been much more positive; Mr Smith had only just turned 18 a few weeks before the offence and he was a first time offender; it was noteworthy that he had taken steps to address his alcohol and substance abuse issues; the case took over three years to get to court and he did not offend in that interval; and a further year had passed since sentencing, in which he stayed out of trouble.

In all the circumstances, Mr Justice Edwards said that the sentencing judge suspended the sentence in whole in the legitimate exercise of his discretion in light of the evidence, and in pursuit of the penal objective of incentivising continued rehabilitation.

While accepting that there was no single mitigating circumstance in Mr Smith’s case which could be characterised as exceptional, Mr Justice Edwards said that cumulatively they were sufficient to meet the required threshold and dismissed the appeal.

• by Seosamh Gráinséir for Irish Legal News