Court of Appeal: Increased sentence for man guilty of violent witness intimidation

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 30
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Aileen Donnelly

The court said that it was satisfied that the four-and-a-half-year sentence imposed by the Circuit Court was unduly lenient and substituted a six-year sentence for the offences.

In reaching this decision, the court noted that witness intimidation was a very serious offence which was directly aimed at impeding the administration of criminal justice.

The court outlined the factors which should be considered when deciding on the severity of the sentence and gave guidance on the different bands of sentencing open to a trial judge.

Background

The defendant, Mr Derek Lennon, had been involved in a motorcycle accident to which the victim was a witness. He was charged and convicted of a minor traffic offence in the District Court but appealed the decision to the Circuit Court. On 2 October 2018, the night before the de novo trial, the victim heard a bang off his porch door and the clang of metal on the ground. When he looked outside, he saw a shadowy figure and the defendant’s motorcycle in the driveway. The defendant lived roughly 3 minutes from the victim’s home. Although the defendant was interviewed by Gardaí about the incident, he was released without charge. The victim failed to attend the Circuit Court the next day, out of fear.

The defendant returned to the victim’s house on the night of 13 November 2018. The victim heard banging noises which set off his house alarm. When he investigated the driveway, he saw the defendant standing outside his house. The victim went outside and saw that Mr Lennon was holding a two-by-four wooden plank. During a short conversation, the defendant made comments such as “you won’t be testifying,” and that he would break the victim’s legs. The victim said he was terrified.

The defendant attacked the victim, hitting him several times with the wooden plank. The defendant was heard saying “you are dead now. You made a big mistake and you are going to pay for this.” The assault only stopped when a Gardaí car drove past the scene. The victim suffered lacerations on his face, which left permanent scars. About €1600 damage was caused to the victim’s teeth, as well as minor damage to his house.

The impact on the victim was considerable. The victim had “lost confidence in certain aspects of his life” and was suffering anxiety attacks which required counselling. He also suffered from paranoia, difficulty in sleeping, mood swings and heightened stress. Some neighbours no longer wished to be associated with him after the incident.

Mr Lennon subsequently pleaded guilty to assault causing harm and witness intimidation. The court noted that the defendant had 72 previous convictions and determined that the chances of rehabilitation were low. It was also submitted by counsel that Mr Lennon had a drink problem, abused prescription drugs and that he was intoxicated on the nights in question. The judge decided that the headline sentence for the offences was “six or seven years” and, allowing for mitigation of a guilty plea and letter of apology, sentenced the defendant to four-and-a-half years’ imprisonment. The judge said that the sentence was for the assault and that he took the witness intimidation into account. The Director of Public Prosecutions appealed the decision, claiming it was unduly lenient.

Court of Appeal

The Court of Appeal held that the trial judge erred in the manner in which he sentenced the defendant for the offences. Ms Justice Aileen Donnelly said it was unsatisfactory that the trial judge had failed to give a definite headline sentence. Moreover, the court noted that it was unclear if the trial judge considered the intimidation offences to be worse than the assault, because he identified a headline sentence that was greater than the maximum imprisonment for assault causing harm.

The court said that witness intimidation, which carried a maximum sentence of 15 years, was the more serious offence. The court also found that the assault was actually part of the witness intimidation. As such, the trial judge erred in his approach by giving a global sentence for the assault charge.

In considering the proper sentence in the case, the court said that there were several factors to be considered to assess the gravity of the offence. The court said that intimidation at a person’s home or work was particularly serious and the overall conduct of the intimidator was an important factor. If a person was actually deterred from giving evidence, then this would be an aggravating factor. Further, the extent to which a criminal enterprise is involved may also make the intimidation more serious.

Having identified the different aggravating factors to the offence, the court produced a chart which outlined the types of intimidation which might be attract low-range, mid-range and upper-range headline sentences. Applying these principles to the case, the court said that eight years was the appropriate headline sentence for the second witness intimidation charge. The court said that the second intimidation was very serious as it was carried out with planning and followed a previous incident of intimidation. The defendant used a weapon and issued significant threats to the victim. It occurred at the victim’s home. The only matters that saved it from being in the highest range of offences was that Mr Lennon acted alone and that it was only a road traffic offence which was frustrated, the court said.

The court also imposed a five-year sentence for the assault and a 3-and-a-half-year sentence for the first intimidation, which were to run concurrently. The court decided to apply a 25 percent reduction in the sentence due to the Mr Lennon’s early guilty plea.

Conclusion

The court allowed the appeal for undue leniency and, after apply the reduction for mitigation to the offence, imposed a six-year sentence on the defendant.