The Court of Appeal has dismissed an application by the Director of Public Prosecutions to increase the sentence imposed on Damien McCabe for burglary, false imprisonment and threatening to kill or cause serious harm against a former partner.
McCabe pleaded guilty to all three offences. The Court of Appeal said the sentence imposed by Waterford Circuit Court followed a premeditated intrusion into the victim’s home, armed with items intended to restrain and silence her. The court described burglary as the “gauge offence”, with the other offences aggravating the offending.
The sentencing judge set headline sentences of eight years for burglary and false imprisonment, and six years for the threat offence. After mitigation, the sentences for burglary and false imprisonment were each reduced to five and a half years, with the final 18 months suspended on conditions. The four-year sentence for the threat offence was concurrent, leaving an effective custodial term of four years. The sentences were backdated to the date McCabe entered custody.
The Director argued that the sentences were unduly lenient, citing the intimate-partner aggravating factor under section 40 of the Domestic Violence Act 2018, the planning and forced entry, the violence and threats, and the ordeal’s duration and impact. The sentencing judge had also considered the guilty plea, apology, work history, lack of previous convictions and rehabilitation efforts in custody.
The Court of Appeal said the appropriate headline sentence for the principal offence was between eight and nine years. It held that the sentencing judge’s choice of an eight-year headline sentence, the two-and-a-half-year reduction for mitigation and the decision to suspend 18 months were within the judge’s discretion. The court found there was an evidential basis for suspension to encourage rehabilitation.
The court acknowledged that it might have imposed a higher custodial term if sentencing the case itself. But under the applicable test, the Director had to establish a substantial or gross departure from the appropriate sentence. The court concluded that the burden had not been met and dismissed the application. It did not resentence McCabe or alter the existing orders.