About this case:

• Citation:
  [2025] IESC 53
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Ms Justice Iseult O'Malley

Delivering the leading judgment for the Supreme Court, Ms Justice Iseult O’Malley observed that s.40 of the Domestic Violence Act 2018 “should not be applied in an overly literal manner — it should not be understood as implying that such cases are less serious. What the section requires is a sentence which reflects fully the additional harm to the victim arising from the breach of trust, any resulting trauma and any added culpability of the offender.”

Background

The appellant came to Ireland in 2022. He then entered into a relationship with the victim, Ms Malone, and began living with her and her teenage son.

On the night of the offence, the couple went into Dublin city centre in Ms Malone’s car. As they walked back to the car, they had an argument during which the appellant slapped her across the face, which act was witnessed by a bystander.

The appellant then grabbed Ms Malone, smashed her face against the car and forced her into the boot of the car. A witness filmed the altercation on his phone and contacted gardaí.

Ms Malone was in the boot for approximately 10 minutes while the appellant drove to a different location, where he was witnessed manhandling her out of the boot. After further assaults, the victim drove on while continuing to punch Ms Malone in the stomach and ribs.

The appellant allegedly told Ms Malone to wipe the blood off the window and punched a hole in the windscreen with his fist. The appellant was observed assaulting Ms Malone again in the Grangegorman area. When apprehended by gardaí, the appellant appeared drunk.

The events lasted one hour and 40 minutes in total, during which the victim claimed that she had been in fear of her life.

The appellant pleaded guilty at his arraignment and evidence was heard on 22 November 2023. It was accepted that the appellant was of Libyan nationality and had a conviction for arson in Germany.

The Circuit Court accepted that the appellant had some diminution of responsibility on his part and had a serious drug and alcohol problem. The trial judge also identified aggravating factors, such as a breach of trust and violence toward the person who had extended her home and heart to the appellant.

The trial judge believed the false imprisonment charge to be the more serious charge, and taking the count of assault causing harm into consideration, nominated a headline sentence of five years for false imprisonment, reduced to three years due to the appellant’s mitigating circumstances.

On appeal, the Court of Appeal found that the sentence did not reflect the aggravated nature of the offending and would have been more appropriate if assault causing harm was not being taken into consideration and if s.40 of the Domestic Violence Act 2018 was not engaged.

In those circumstances, the Court of Appeal determined that the appropriate headline sentence was eight years, discounted by two-and-a-half years for mitigating factors.

The appellant was granted leave to appeal to the Supreme Court on the proper approach to sentencing in respect of the offences of the kind committed having regard to inter alia the intimate relationship between the parties, and the proper application and operation of s.40. The panel also considered that it would be in the interests of justice to clarify sentencing practice in the area.

The Supreme Court

Having considered the relevant statutory context, the Judicial Council’s report on the application of s.40, and the submissions of the parties, Ms Justice O’Malley analysed general sentencing principles, the “headline sentence” model and s.40 of the 2018 Act.

As to headline sentences, the Court considered that sentencing judges should set a headline figure after assessing the gravity of the offence, which includes the harm caused and the culpability of the accused, with the personal circumstances of the accused and any mitigatory features then being taken into account.

Turning to s.40, the Court observed that same is a “victim-centred provision” which does not prescribe any form of mandatory punishment but simply provides that an offender with a specified connection to the victim is to be punished more severely than would otherwise be the case, explaining that the additional psychological harm arising from the existence of the relationship “justifies the requirement for additional punishment” and that if the evidence in an individual case demonstrates that no such additional harm was caused, then the exception in s.40(5) may be engaged.

Finding that best practice is to take account of s.40 in the assessment of the gravity of the offence concerned, Ms Justice O’Malley was satisfied that it is not necessary, “and might be positively undesirable” for a trial court to specify what increase is applied to a defendant’s sentence by reason of s.40.

In this regard, the judge considered that this approach could result in an “unintended and unplanned creation of a grid system of sentencing, in which set tariffs are applied in set circumstances” and that same “would be at odds with the jurisprudence to date, which takes the view that sentencing is the outcome of an individual process focussed on the individual crime and the personal circumstances of the offender”.

Ms Justice O’Malley opined that “what matters is that the trial judge must focus attention on the overall harm caused by the offence, including the harmful consequences of the fact that it was committed in the context of a past or present intimate relationship, and on any relevant aspect of culpability”, and specified that the section should be referred to expressly as part of the assessment of the gravity of the offence, so that the parties and the appellate court can know that it has been taken into account.

Declining to give a formal guideline judgment on sentencing for false imprisonment due to the multiplicity of circumstances in which the offence can be committed and the fact that its purpose is generally entwined with other criminal activity, the court observed that the consideration by the sentencing court should always include the context and purpose of the offence, the means used (including gratuitous violence beyond restraint), the duration and conditions of the deprivation of liberty and the vulnerability of the victim.

The court also noted that factors identified in the Sentencing Council of England and Wales Guideline will be relevant, but that care must be taken to avoid “double counting” where more than one offence is involved.

As to the taking of offences “into consideration”, Ms Justice O’Malley concluded that there is “no intrinsic legal invalidity attaching to an order of this kind” and that where a sentencing court does take an offence into consideration in respect of a victim who has been subjected to offences of different kinds, “the ‘free ride’ impression should be avoided either by the imposition of separate penalties or by making it very clear that the ultimate sentence does, in fact, take account of the offence in question”.

Turning to the result in the appeal, the court was satisfied that the false imprisonment at issue was a means of facilitating another crime and so it would be “entirely artificial” to disaggregate the two offences.

Ms Justice O’Malley was unconvinced that the false imprisonment offence was at the lower end of any scale of offending and agreed that the real problem with the trial court’s sentence was that the headline sentence was simply too low to mark the seriousness of the appellant’s actions and did not take sufficient account of the assault causing harm offence or the import of s.40.

The court further observed that it was clear from the victim’s evidence that she was suffering with ongoing distress and fear and found herself questioning “everyone and everything”, and in those circumstances, the court found that the sentence imposed by the Court of Appeal was appropriate.

Conclusion

Accordingly, the Supreme Court dismissed the appeal.

The appellant will be surrendered to Germany in respect of his arson conviction when he has completed his sentence in respect of his offences against Ms Malone.

DPP v Soufiane Mountassir [2025] IESC 53