Court of Appeal: Suspended sentence for woman who bit off another woman’s lip not unduly lenient

About this case:

• Judgment:
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Refusing to alter the sentence, Mr Justice Edwards was satisfied that the woman’s circumstances were sufficiently exceptional to have allowed the sentencing judge to legitimately exercise his discretion in suspending the entire sentence.

Background

In May 2014, Ms Ann Marie Byrne pleaded guilty before Galway Circuit Criminal Court to a single count of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997.

In April 2016 she was sentenced to five years’ imprisonment, suspended in its entirety for a period of twelve months upon conditions.

Circumstances of the offence

In July 2013, Ms Byrne was drinking in a bar in Galway when she met the injured party, Helena Flaherty. An argument ensued between the two after Ms Byrne began taunting Ms Flaherty about her weight, and the situation became violent. The altercation ended with Ms Byrne biting Ms Flaherty’s bottom lip, removing 9 square centimetres of tissue which dropped in the grass.

Though the lower lip tissue was found in the grass and transported to the hospital within minutes of Ms Flaherty’s arrival, it could not be reattached by surgeons.

Ms Flaherty’s treating surgeon, said that she regarded the injury as “extremely serious”, that she “will have very significant scarring in her lower lip”, and that the shape of her face would be permanently changed.

The Gardaí at the scene of the incident, cautioned Ms Byrne who immediately admitted her involvement and apologised.

Galway Circuit Criminal Court

In a victim impact statement, Ms Flaherty told the Court that the incident had changed her life completely, and that she has permanent nerve damage resulting in numbness.

In the course of sentencing, the Court took into consideration Ms Byrne’s personal circumstances. The Court heard that Ms Byrne was a mother of five who had no previous convictions or history of violence. Further, she had been fully co-operative throughout and had expressed remorse for her actions.

The sentencing judge also took into account medical reports describing Ms Byrne’s treatment for bipolar disorder, for which she continued to be under the care of Blanchardstown Mental Health Services.

In suspending the entirety of the sentence, the judge was satisfied that Ms Byrne “appeared to be getting her life together” – the probation report concluded that she was at a moderate risk of reoffending, but noted that she had reduced her risk in areas they had highlighted by attending the Tallaght Probation Project and completing a number of programs there, such as Anger Management, Anger Control and Alcohol Awareness programs.

Court of Appeal

The DPP submitted that the sentence should be adjusted on the basis that it was unduly lenient, and that it represented a substantial departure from what would be regarded as the appropriate sentence.

Placing reliance on the judgment of Justice Clarke in The People (Director of Public Prosecutions) v Fitzgibbon IECCA 12; the DPP submitted that Ms Byrne’s actions were indicative of an assault calculated to cause serious harm in a deliberate manner. As such, the sentencing judge failed to adequately reflect the seriousness of the offence in the sentence imposed. Serious harm in this case was foreseeable and an aggressor who bites a victim’s face runs a very high risk of causing serious disfigurement.

Conclusion

Justice Edwards emphasised that in application’s such as the present, the reviewing court should attach great weight to the reasons given by the sentencing judge for imposing the sentence that he or she did (as per The People (Director of Public Prosecutions) v. Byrne 1 I.L.R.M. 279)

In this case the judge specifically identified and was influenced by the fact that this appellant was “committed to tackling the issues that she has”, and the fact that the Probation Service had expressed a willingness to work with her, and had made express recommendations. He noted in particular that “she has reduced her risk in the areas highlighted. She will require continued engagement with the health and probation services if she is, and it’s a social comment more than anything else, if she’s to, to get out of the cycle in which she has found herself and get on to a different road. I can’t see how the interests of justice would require me to impose an immediate custodial sentence and I’m not certain that the interests of justice would be served by that in the circumstances.”

In arriving at the conclusion that a custodial sentence was not required, the sentencing judge specifically referred to the fact that the case was at the high end of the medium range on the scale of gravity, and that the harm caused had been of a “bizarre and grotesque” nature, and that it was such as would “ordinarily warrant an immediate and a lengthy custodial sentence”.

Thus, Justice Edwards was satisfied that the sentencing judge “took account of the circumstances of the crime and the harm done in considering whether the interests of justice in this particular case required the imposition of a custodial sentence to be actually served”.

“the particular circumstances of this case… comprised special reasons of a substantial nature and were sufficiently exceptional to have allowed him to legitimately exercise his discretion to suspend the entirety of the sentence”.

Although the sentence was undoubtedly very lenient – it was not unduly lenient in the particular circumstances of this quite exceptional case.