The Court of Appeal quashed a five-year prison sentence imposed on a man convicted of threatening to kill, then resentenced him to five years with the final two years suspended for three years on strict conditions, including cooperation with advised medical treatment and no contact with the victim.
The ex tempore judgment, delivered by Mr Justice Mahon on 9 April 2018, concerned an appeal by Smael Heirouche against a sentence imposed by Cork Circuit Criminal Court on 31 May 2017. Heirouche had pleaded guilty and was convicted on 29 May 2017 of one count of threatening to kill, contrary to section 5 of the Non Fatal Offences Against The Person Act 1997.
The judgment said Heirouche was sharing an apartment with French nationals at 6 James Street, Cork, when he confronted Yann Figare on 15 November 2015. It said Heirouche threatened to kill Figare and made a cutting motion across his own throat. Figare believed he was at risk of being killed. Another resident recorded the incident, including threats against people who were not Muslims. The judgment described the complainant’s disclosure that he was not interested in religion and did not wish to read the Quran as the apparent cause of the aggression.
On appeal, Heirouche argued that the sentencing judge had not adequately considered mitigation, including his guilty plea, admissions in custody, expression of regret, lack of a weapon and mental illness. The Court of Appeal said it was inconceivable that the sentencing judge had not been aware of the plea, given that the case had been adjourned to facilitate it.
The appeal court held that the five-year term reflected the seriousness of what it called a “very real and terrifying threat” and was within the sentencing judge’s discretion. It found no error in the length of the term itself. However, it ruled that failing to suspend any part of the sentence was an error of principle. Suspending part of the term on conditions tied to medical treatment would recognise the guilty plea and provide an incentive to cooperate, the court said.
At the appeal hearing, the court was told Heirouche was involuntarily detained under the Mental Health Acts and was cooperating with and benefiting from treatment. The court quashed the original sentence and imposed five years’ imprisonment, with the final two years suspended for three years. The suspended portion was conditional on entering a €100 bond to keep the peace and be of good behaviour, cooperate with advised medical treatment and medical advisers’ requirements, including prescribed medication, and have no contact of any nature with Figare.