The decision arose from an appeal where a victim sent private messages to the defendant stating that he was happy the man did not receive a custodial sentence for a severe assault.

Delivering judgment in the case, Ms Justice Iseult O’Malley outlined the guiding principles for ad misericordiam pleas and examined the effect of compensation on a trial judge’s approach to sentencing. It was held that compensation may be a mitigating factor in a case but it should not be used as a basis to avoid a custodial sentence where one was merited.

Background

In August 2016, the defendant was on a night out when he encountered the victim. The men did not know each other. Following a brief exchange with no sign of aggression on either side, the defendant punched the victim. The victim was rendered unconscious.

The defendant initially left the scene but returned to put the victim in the recovery position. The victim suffered a bleed on the brain and required surgery. The plaintiff suffered life-altering physical and psychological injuries as a result of the unprovoked attack.

The assault was captured on CCTV and the defendant was later interviewed by gardaí. He did not make any admissions and claimed to have poor memory of the night in question. The defendant was eventually charged with assault causing serious harm and brought a preliminary application to have the charge dismissed. This application was unsuccessful.

As such, it was only on the date of trial that the defendant pleaded guilty to the offence based on recklessness rather than intention. In mitigation, the defendant outlined that he was 20 years old at the time of the offence. He worked as a welder and had since become a father, which had positively impacted his life. A probation report showed that he was at a low risk of reoffending.

Further, the defendant offered €5,000 in compensation to the victim, with a further €10,000 to be provided within a year if he was able to earn it (i.e. if he avoided a custodial sentence).

The trial judge ultimately identified a headline sentence of six-and-a-half years. The court concluded that there was a very high level of mitigation in the case and sentenced the man to four years which was fully suspended pending the payment of €10,000 within two years.

Critically, following the judgment, the victim contacted the defendant on social media and outlined that he was satisfied that a custodial sentence was not imposed. It was said that the victim did not hold any ill will towards the defendant.

The DPP appealed the sentence on the grounds of undue leniency. The Court of Appeal held that the proper sentence was four years with only the final three years suspended, notwithstanding that the messages were presented to the court. The defendant appealed to the Supreme Court, arguing that the messages from the victim were relevant to mitigation in the case.

Supreme Court

Ms Justice O’Malley began by stating that the two primary issues in the appeal for undue leniency related to the relevance of the attitude of the victim and the offer of compensation. In DPP v. R. O’D. [2000] 4 I.R. 361, where it was held that the views of the victim were generally limited to the effect that the crime had on their lives and victims were not permitted to advocate for a harsh sentence. However, a victim could put forward an ad misericordiam plea for leniency which could be taken into account in appropriate circumstances.

The court also held that offers of compensation were a traditional feature of the sentencing process. It was noted that section 6 of the Criminal Justice Act 1993 allowed a court to make an order for compensation to the victim for injuries or losses and this did not have to be voluntary. However, there was also scope for a defendant to make a voluntary offer of compensation as well.

It was held that the impact of the statutory provision for compensation was unclear. Ms Justice O’Malley noted case law in which the courts leaned against combining imprisonment with the payment of money (see People (DPP) v. McLaughlin [2005] 3 I.R. 198; People (DPP) v. McCabe [2005] IECCA 90). The court emphasised that compensation should not be used to simply “buy off” a custodial sentence (see The People (DPP) v Lyons [2014] IECCA 27).

In Lyons, it was said that a section 6 compensation order might be appropriate for minor offences in the District Court, but when applied to serious indictable offences, a compensation order should only be made in addition to a custodial sentence. It was also noted that the payment of compensation should not be a term of a suspended sentence (People (DPP) v Doherty [2022] IECA 201).

Ms Justice O’Malley also considered the Criminal Injuries Compensation Scheme and EU law on compensation for victims of crime. It was noted that the State had an obligation to provide for fair and appropriate compensation for victims of violent crime (see Doyle v. Criminal Injuries Compensation Tribunal [2020] IECA 342).

In the instant case, the court held that the issue of an ad misericordiam plea did not arise in this case because the victim did not put any view before either the Court of Appeal or the trial judge. In fact, the evidence showed that the victim felt that the appropriate sentence was a matter for the court. The messages to the defendant were an “extremely generous way” of extending good wishes for the future. The messages were sent after sentencing and were not intended to be put before a court, it was held.

While a voluntary offer of compensation was a relevant mitigatory factor, it does not preclude a custodial sentence. Otherwise, the principle of equality before the law was imperilled, the court said. Some cases were simply too serious to allow compensation to outweigh a sentence of imprisonment.

The court held that the statutory provision for a compensation order was not clear whether such an order was punitive or compensatory. It was said that a compensation order under the 1993 Act could give rise to unintended difficulties. Principally, it was problematic because such orders blended the criminal and civil law jurisdictions, the court said.

Such orders for compensation could be made without the benefit of the procedural machinery available in a civil claim and with little or no evidence, the court said. In cases where a custodial sentence was warranted, the blurring of the criminal issue of sentence and the civil issue of compensation could risk a court not achieving the purposes of either jurisdiction.

As such, section 6 orders should only be made where the quantum of damage and the means of the offender were reasonably ascertainable. Finally, if a voluntary offer of compensation is made which a trial judge felt reflected a show of responsibility or remorse, this offer should not be converted to a section 6 order. To do so would deprive a defendant of the mitigatory element of a voluntary offer.

Conclusion

The court dismissed the defendant’s appeal on the grounds that the messages to the defendant did not constitute a plea for leniency by the victim. As such, there was no error in principle from the Court of Appeal decision on sentencing.

The People (at the suit of the Director of Public Prosecutions) v. Duffy [2023] IESC 1