The Court of Appeal has rejected a Director of Public Prosecutions appeal seeking to have a sentence for a serious assault found unduly lenient, ruling that the legal threshold for intervention had not been met.
In an ex tempore judgment delivered on 8 December 2014, the court said the sentence was lenient but did not amount to a substantial departure from the norm. The respondent, Gerard Howe, had completed the sentence by the time of the appeal.
Howe had been sentenced on 2 July 2013 after pleading guilty to an offence under section 3 of the Non-Fatal Offences Against the Person Act 1997. The sentence was three years and six months, with the final two years suspended, leaving 18 months in custody. Section 3 carried a maximum sentence of five years.
The judgment said the assault happened in a fast-food restaurant in Dublin city centre on 19 April 2009. After an initial disagreement and altercation downstairs, the injured party, identified in the judgment as Mr Fowler, returned to his seat upstairs. Howe then slashed Fowler’s face with a blade several times. The wound was four inches long and required 19 stitches, leaving a noticeable scar. The weapon was never found. The court was told Fowler had made a very good recovery.
The Director argued that the time Howe served in custody was too short. The court accepted the sentence was lenient, but said the sentencing judge was entitled to consider mitigating factors: Howe’s guilty plea, youth at the time, admissions to gardaí, cooperation with the investigation, assistance in identifying himself on CCTV, an apology to Fowler’s family the following day and subsequent good behaviour. The judgment also noted that Howe had no criminal record at the time and had not since come to adverse Garda attention.
The court compared the case with The People v Hunter, which also involved a facial slashing but, as described in the judgment, had more serious consequences and involved an older accused with a bad criminal record who pleaded not guilty and showed no remorse. The appeal court concluded that the differences and the mitigating factors meant the Director had not established the substantial departure from the norm required under the test in The People (DPP) v Byrne.
The court therefore dismissed the undue-leniency challenge. It did not alter the sentence, which had already been completed.