Court of Appeal: Man who repeatedly punched pregnant woman in car he was trying to steal has sentence increased

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The Court heard that the man had not given the pregnant woman any opportunity to get out of the vehicle, had repeatedly punched her in the face while driving at speed in Dublin City Centre, and when arrested he was found with a syringe in his possession that was said to have been for the purpose of threatening or intimidating people.

Finding that the original sentence was unduly lenient, Justice Edwards allowed the appeal brought by the Director of Public Prosecutions and proceeded re-sentence the man.

Background

In May 2014, Mr Mei Bing Zheng and his wife Ms Xiaoling Zhou had parked their car in Dublin, when Mr Zheng went to the parking metre behind the car to get a ticket, leaving his key in the ignition and his wife in the passenger seat. Ms Zhou was seven and a half months pregnant at the time.

Stephen Comey got into the car, and proceeded to drive forward, leaving Ms Zhou no chance to get out of the car. Ms Zhou was said to have been crying and begging Mr Comey to stop the car, when he punched her several times on the right side of her face – causing her glasses to dig into her face. Ms Zhou was unable to jump from the car because she was so heavily pregnant, and was screaming for help from passers-by.

Two members of the Gardaí observed the car being driven erratically and at high speed, and proceeded to pursue the vehicle. The Court heard that the Gardaí witnessed a number of blows being inflicted on Ms Zhou by Mr Comey. The car eventually came to a halt and Mr Comey was arrested upon alighting the vehicle. In Mr Comey’s possession, the Gardaí found a “syringe with a substance in it” which was believed to have been for the purpose of threatening potential victims.

In July 2015, Mr Comey pleaded guilty to:

1.Unlawful seizure of a vehicle contrary to s.10 of the Criminal Law (Jurisdiction) Act 1976;

2.Assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act 1997;

3.Possession of a syringe with intent to injure or to threaten or intimidate, contrary to s. 7(1) and (7) of the Non-Fatal Offences Against the Person Act 1997.

At his sentencing in February 2017, Mr Comey was sentenced to three and a half years imprisonment backdated to the time of his arrest in May 2014. The balance of his sentence was suspended from February 2017, with conditions.

In the Court of Appeal, the Director of Public Prosecutions sought a review of the sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.

The DPP submitted that the sentence did not reflect the serious factual background to the offences. In particular, the DPP emphasised the dangerousness of Mr Comey’s driving which resulted in damage to several parked cars, and the potentially catastrophic consequences for the victim and other road users. Furthermore, the DPP said that “the sentencing court failed to take adequate account of the fact that assaulted Ms. Zhou numerous times from the point at which he got into the car to the point at which he was apprehended by Gardaí”, and made no effort to allow Ms Zhou to get out of the car.

Unduly lenient sentence

In the Court of Appeal, Justice Edwards identified the maximum sentences for each of the offences:

1.up to fifteen year’s imprisonment for unlawful seizure of a vehicle

2.up to five year’s imprisonment for assault causing harm

3.up to seven year’s imprisonment for possession of a syringe with intent to injure or to threaten or intimidate

Best practice he said, required the sentencing judge to consider the nature and intrinsic moral culpability of the offending behaviour and harm done, and make an initial assessment as to where on the scale of penalties the offence should be located; identify aggravating and mitigating factors; and then identify a headline sentence.

Justice Edwards was satisfied that the sentencing judge had not considered the punches, dangerous driving, threats to kill, or his previous convictions for similar crimes as aggravating the unlawful seizure. Furthermore, Justice Edwards said that the sentencing judge had not considered the fact that the offence had taken place during the currency of a suspended sentence.

Justice Edwards said that it was a grave crime which could not have been satisfied by a headline sentence of three and a half years. Justice Edwards explained that the sentencing judge was required to have regard to all three of the principle objectives of sentencing, namely retribution, deterrence and rehabilitation, and to balance them with care. She was entitled to form the view that rehabilitation should be prioritised over the other two in the circumstances of the case, but she was nevertheless obliged to properly assess the gravity of the case before deciding on how best to give effect to the penal objective of rehabilitation.

Re-sentencing

Satisfied that the failure to determine an appropriate headline lead to an unduly lenient sentence, Justice Edwards identified headline sentences of seven years for unlawful seizure, three and a half years for the assault and three and a half years for the possession of a syringe. Allowing mitigation for his guilty plea, his personal circumstances (including the adversities in his early life, his mental health and his addiction issues), and his attempts at rehabilitation; Justice Edwards said that to reflect this, the Court would discount eighteen months from the seven-year sentence, and nine months from each of the three and a half year sentences.

In addition, Mr Comey was entitled to credit for the thirty one and a half months that he spent on remand.

In all of the circumstances, the net sentences imposed were five years and six months imprisonment for unlawful seizure, and two years and nine months imprisonment for both the s.3 assault and the possession of a syringe.

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