The Court of Appeal has found that a wholly suspended three-year sentence for a serious assault was unduly lenient, but has not yet imposed a replacement sentence.
In an ex tempore judgment delivered on 9 March 2015, the court allowed an application by the Director of Public Prosecutions to review the sentence imposed on Alan Kilmartin. The sentencing judge had suspended the three-year prison term for five years, subject to conditions including keeping the peace and complying with his psychiatrist’s requirements.
The court said Kilmartin pleaded guilty in February 2013 to a series of offences arising from an incident about three years earlier. At the time, he worked as a security guard in the area of the victim’s residence. He went to her home, entered her apartment and attacked her with a metal implement he had brought with him.
The victim suffered head injuries, lacerations and fractures to her fingers. The judgment said a fractured thumb left her with severely restricted movement. She also described lasting effects on her physical and psychological wellbeing, confidence and employment prospects. The court withheld her name and general circumstances at her request.
The sentencing judge had considered the seriousness of the attack, the victim impact evidence and mitigating material. The appeal court accepted that Kilmartin’s guilty plea and psychiatric illness were genuine mitigating features. The judgment also recorded that he had no previous convictions, had lost his job, had been treated for depression and was remorseful. A possible connection to sleep deprivation had been considered but was not established as a diagnosis.
The appeal court said its role was not to substitute its view simply because a sentence was lenient. It had to decide whether the sentencing judge had erred in principle and whether the sentence fell outside the zone of acceptability. It concluded there was no proper basis for a wholly suspended sentence given the severity of the crime.
The court said it would impose an appropriate sentence after hearing further submissions from counsel for Kilmartin. The judgment does not state the replacement sentence or its final terms.