Court of Appeal: Increased sentence for man who stabbed partner four times in the back

Delivering judgment in the case, Ms Justice Aileen Donnelly held that the sentencing judge was correct to identify the maximum five years as the headline sentence for the offences. However, the court placed too much emphasis on the mitigating factors in the case. As such, the Court of Appeal determined that the correct sentence was four years imprisonment with the final three months suspended on terms.

Background

The defendant, Mr Keith Malone, had been out drinking in the pub with friends. He was later joined by the complainant, who was the mother of Mr Malone’s one-year-old daughter. When they returned home, an argument broke out.

During the argument, the defendant stated “I could stab you. My mother knows I could stab you.” He then took a knife from the kitchen drawer. The complainant attempted to escape through a locked front door and was stabbed in the back four times by Mr Malone.

The complainant said she thought that she was dead and pleaded with the defendant to stop. It was said that “something clicked with him” and he said “What are you after making me do to you.” The defendant took the complainant to their neighbours and an ambulance was called. The defendant was said to be visibly intoxicated.

Subsequently, the defendant was arrested and cautioned by Gardaí. He exercised his right to silence and did not enter into signed pleas. However, he later pleaded guilty to the charge of assault causing harm and the charge of production of an article.

The complainant spent 19 days in hospital following the attack. She suffered a collapsed lung, a penetrating liver injury and an undisplaced fracture in her rib. She also outlined her terror during the incident, thinking she was going to die and leave behind her children. 

Once out of hospital, the complainant developed fear and anxiety. She was afraid to leave the house. She was told that “one more inch” would have killed her. Further, her older teenage children were also affected by this incident.

The sentencing judge outlined the aggravating factors, including the viciousness of the assault, the serious injuries, the breach of trust, the intoxication of the defendant and the use of a weapon. The defendant also had previous convictions for assault and possession of a knife. As such, the court identified a headline sentence of five years imprisonment, which was the maximum under the legislation.

The court held that mitigating factors included that the defendant assisted in the aftermath, abided by bail conditions, cooperated with the Probation Service and had pleaded guilty. The court reduced the sentence by three years and four months before reducing the sentence again to take account of an early plea of guilty. As such, the court sentenced Mr Malone to three years’ imprisonment. The court also suspended the final three months of the sentence.

Court of Appeal

The DPP appealed the sentence on the grounds that it was unduly lenient. In particular, it was said that the headline sentence was correct but the reduction to account for mitigating factors was so great as to amount to an error in principle. It was submitted that the final sentence was manifestly inadequate having regard to the serious nature of the assault.

It was argued that the sentencing judge applied too much weight to the defendant’s guilty pleas which were not made at the earliest opportunity. It was noted that while the defendant was not caught “red-handed,” the evidence against him was very strong. The judge applied a discount of 33 percent which was at the top end of discount for guilty pleas (see People (DPP) v Molloy [2016] IECA 239).

Ms Justice Donnelly began by outlining the well-established principles on undue leniency applications (see People (DPP) v Stronge [2011] IECCA 79). It was noted that undue leniency involved the DPP proving that the sentence constituted a substantial or gross departure from the appropriate sentence. The sentence had to fall outside the scope which was within the judge’s discretion to impose.

The court held that the sentencing judge was correct to place the offending at the highest scale of assaults contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. The nature of the offences meant that the five-year maximum sentence was warranted as a headline sentence.

The court went on to say that the mitigation provided by the judge was “at the maximum amount that it is generally appropriate to deduct for mitigation relating to a plea of guilty.” It was incumbent on the judge to take account of the circumstances and timing of the plea, the court said.

In the present case, the defendant waited for the books of evidence before pleading guilty and had exercised his right to silence at the interview stage. These factors went to the “value” of the plea and should have been taken into account, the court held.

The court held that other mitigating factors were not significant in the case. It had been argued that the defendant had assisted the victim after the attack. However, this had to be viewed in a context of victim-blaming in the immediate aftermath. He also had to be talked into handing the baby over after the incident.

The court noted that the sentence was reduced twice by the judge, who took off a further four months for the early plea and suspended the final three months on conditions. This meant that there was an overall 45 percent reduction in the sentence. While sentence reduction was not a mathematical assessment, the reduction was not justified in the circumstances and was not proportionate to the gravity of the offending.

The final sentence was a substantial or gross departure from the sentence that ought to have been imposed, having regard to the fact that there were limited mitigating factors. The court held that the proper sentence was four years imprisonment. It was also held that the defendant had engaged in rehabilitative courses in custody and therefore the final three months were suspended.

Conclusion

The appeal was allowed and the sentence was increased to four years’ imprisonment with the final three months suspended.