The Court of Appeal has allowed a Director of Public Prosecutions appeal against the sentence imposed on Gary Burke for assault causing harm, finding that suspending the entire five-year prison term was unduly lenient. The judgment does not specify a replacement sentence or make a further sentencing order in the text provided.
Burke had pleaded guilty to assault causing harm, false imprisonment and attempted robbery. On 21 February 2013, he received a five-year term for the assault count, suspended in full for seven years on condition that he follow Probation Service directions concerning his addiction and its treatment. The Director appealed under section 2 of the Criminal Justice Act 1993.
The court recounted that the victim was walking home alone in Waterford at about 6am on 19 January 2010 when Burke grabbed her from behind near her apartment and dragged her about 300 metres. He threatened her with a knife, although the judgment says there was no evidence he had one. She called 999, held onto a railing and tried to attract help at a nearby door. The attack ended after someone shouted from an upstairs window that gardaí would be called. The incident lasted about seven to eight minutes.
The victim suffered bruising and a cut near her left eye, as well as bruising to her upper skull; the judgment says she may have been left with a scar. Her impact report described difficulty being alone, disrupted sleep, nervousness and loss of confidence. By the time of the report, she had been unable to return to Waterford and was spending most of her time in Dublin.
The appeal submissions argued that the sentence gave too much weight to mitigation and too little to the sustained attack, the threat, the victim’s injuries and the fact that the attack stopped only after a third party intervened. The court also considered the sentencing judge’s probation report, which had not recommended Burke as suitable for community supervision and had raised concerns about his propensity for violence. The report itself was not before the Court of Appeal; the judges had references to it in the sentencing-hearing transcript.
Mitigating material included Burke’s difficult childhood, addiction, expressions of remorse, cooperation with gardaí and guilty plea. The judgment also records that he had 31 previous convictions and had been drug-free since 2011, with evidence of treatment and counselling.
Applying the established test for an undue-leniency appeal, the Court of Appeal held that the Director had discharged the burden of proof. It concluded that the sentencing judge erred in principle by failing to give sufficient weight to the gravity of the offence and its impact on the victim, and by giving excessive weight to mitigation. The court therefore allowed the appeal. The judgment, delivered ex tempore on 20 April 2015, does not set out the next procedural step or a new sentence.