First coercive-control appeal under 2018 act

In People (DPP) v Kane [2023] IECA 86 Ms Justice Isobel Kennedy considers sentencing in offences involving coercive control, writes Eithne Reid O’Doherty BL.

Trial and sentence

Coercive control is provided for at section 39 of the Domestic Violence Act 2018, which commenced on 1 January, 2019.

DPP v Kane was the first conviction by jury under section 39.

After a 21-day trial, the accused was sentenced in January 2021 to 12.5 years in prison, with the final two years suspended.

The Kane case was reported in the media as ‘Man who stamped on partner’s head and cut her with a pizza slicer jailed for 10 years for coercive control’, and ‘Horror Story: First man convicted of coercive control in Ireland appeals 10-and-a-half-year sentence’.

The appeal was dismissed by Ms Justice Isobel Kennedy on 23 March, 2023.

The offences and the appeal

Coercive control is usually prosecuted in conjunction with other offences, such as assault, criminal damage, sexual assault and public-order offences.

The accused was convicted of coercive control, 12 counts of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997, intimidation contrary to section 41(1) of the Criminal Justice Act 1999, and perverting the course of justice contrary to common law.

Counts 8 and 14 – section 3 assaults causing harm – were challenged due to the consecutive sentencing.

The headline sentence of six years for intimidation contrary to section 41 of the 1999 act was appealed as excessive.

The headline sentence of 7.5 years for perversion of justice was also challenged as unduly excessive, as was the headline sentence for coercive control of 3.5 years.

Proportionality

The offender’s age (52), previous good character and personal circumstances were alleged not to have been given proper and adequate regard in relation to totality and proportionality.

Lastly, the sentence was challenged for failing to balance punitive, deterrent and rehabilitative elements, and failing to give due regard to the mitigating factors in the case, and to the objective of rehabilitation.

Coercive control

Judge Kennedy, in the Court of Appeal judgment, firstly set out the statutory wording of the offence of coercive control under the Domestic Violence Act 2018 (count 1).

The judge relied on the English case of F v M [2021] EWFC 4, Hayden J, where the English Court in considering the comparable section 76 of the Serious Crime Act 2015, stated:

“Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the wider behaviour.”

The court noted that on 22 September, 2019, gardaí received a call from Dr Collins, a consultant in emergency medicine at James Connolly Memorial Hospital, as the doctor feared there was a real and substantial threat to the life of the injured party.

Regarding coercive control, the court noted the injured party’s statement documented that “she was living under the constant threat of violence, waking up daily not knowing if she would be beaten or not, how she would be awoken by the appellant roaring abuse, shouting into her face. She described emotional abuse, that the appellant would insult her, using demeaning, aggressive and abusive language.

“She recalled an incident where she was made to sit in the front room of the apartment unclothed while the appellant berated her. The injured party also described controlling behaviour, that the appellant interfered with her relationship with her family and her access to her friends.

“She stated that the appellant’s behaviour left her meek and submissive and had a serious impact upon her. She described how she was constantly on edge, walking on eggshells, waiting for the next act of violence.”

The statements further documented assaults causing harm that included “burning her foot with a cigarette, grabbing her by the throat and choking her. She described how incidents of this kind were so common that they tended to meld into one another.

“Another incident concerned cutting her face with a pizza slicer, and incidents of punching her to the face. She described ongoing violence on a daily basis and being pulled around the house by her hair.”

The Court of Appeal upheld the approach of the trial judge who identified the aggravating factors attributable to the offence of coercive control, and the assault offences simultaneously, which were: “the breach of trust, the psychological vulnerabilities of the injured party, the prolonged nature of the offending – over a period of some nine months, in the case of coercive control, and 20 months in the case of the assaults – the injuries sustained by the injured party, the repeated attendance at hospital, the demeaning remarks, subjecting her to humiliation by berating her whilst unclothed and the level of isolation. The impact on the injured party was, understandably severe.”

Correctly applied

In reviewing the sentence, the court held that the trial judge correctly applied section 40 of the 2018 act to the assault offences only. 

Section 40(5)(b)(ii) excludes coercive control, as the intimate relationship criterion is a constituent of the section 39 coercive-control offence.

The above approach recognises the offence of coercive control per se, and the dependence of the other offences on established coercion and control.

The assault offences in turn reinforced the coercion and control. The demand, for example, by the accused that the injured party hand over her weekly welfare money to him  was not recorded as a stand-alone offence, but part of coercive control, which intensified the subjugation of the injured party.

Regarding the headline sentence of 3.5 years for coercive control, the Court of Appeal held:

“The appellant subjected the injured party to a campaign of fear, emotional suffering, subjugation, threats of violence, violence plus humiliation, leading to her being fearful, meek, submissive and on edge. His moral culpability was high and correctly found so by the sentencing judge, the harm done to the injured party was significant …”

Consecutive sentencing

The appellant argued that the offences of assault causing harm comprised offences of the same nature in respect of the same victim over a relatively confined period of time and, as such, would ordinarily attract concurrent sentences.

The court noted that “the trial judge approached the entire sentencing process with scrupulous care and diligence”, and “that the discretion to impose consecutive sentences was exercised with reference to the nature of the appellant’s actions and the severity of the assaults”.

Count 8 was that of head-butting the injured party in the face after nasal surgery, and count 14 pertained to the accused stamping on her arm causing a comminuted fracture. When she attended hospital with her arm several days after the assault, strangulation marks were observed on her neck.

The court noted that these assaults were not committed within a relatively short period of time, that the assaults were so frequent so as to meld into each other over a 20-month period, and that he was sentenced to seven years on counts 8 and 14.

Intimidation

The intimidation occurred while the accused was on bail. He threatened to disseminate on the internet sexually-explicit images and videos of the complainant, and to send these images to her father and brother if she did not withdraw her complaint.

The headline sentence nominated by the trial judge was six years’ imprisonment. The maximum sentence is ten years.

The appellant relied on People (DPP) v Lennon [2021] IECA 127, wherein Ms  Justice Donnelly identified four factors that would warrant a headline sentence in the range of 0-5 years for a section 41 intimidation offence of:

(a) isolated incident,

(b) unplanned or sudden outburst,

(c) sole perpetrator, lack of violence or threat of violence,

(d) psychological injury.

The court held that the “offence of intimidation must be informed by what has gone before”, and that it involved some planning, that the accused threatened a person with known vulnerabilities, the material was to go on the internet and to her father and brother, and the aggravating factor was that he was on bail at the time.

This offence attracts a mandatory consecutive sentence.

Perverting the course of justice

The accused, while on remand and after the intimidation had failed, made 245 phone calls to the injured party – including threats of self-harm, that he would be harmed in prison, that she would be arrested, declarations of love, proposals of marriage, she could write and withdraw the complaints, and that he had contacted his sister to get her to influence the complainant.

The appellant focused on the absence of violence or retribution, and that the accused had relied on “less vicious tactics on that occasion, relying on inducements, promises and promoting pity towards his situation”.

The court noted that the maximum sentence for this offence is life imprisonment, that the offending was in the mid-range, and that a headline sentence of 7.5 years was nominated.

The Court of Appeal upheld the trial court’s statement: “This offence was committed by a documented and catalogued attempt to emotional manipulation and psychological blackmail of a woman whose peace of mind had been utterly destroyed and shattered by his physical abuse.”

The Court of Appeal held: “Again, one cannot ignore what has gone before in assessing the culpability of the appellant on this offence. This was committed whilst the appellant was incarcerated for offences relating to the injured party of which he was ultimately convicted, despite his best efforts to avoid prosecution.

“This offence is an affront to the interests of justice; where he had failed to prevent the prosecution through psychological intimidation, he resorted to manipulative mind games to seek to stop the prosecutions.

“His contact with her was nothing short of astonishing – some 240 odd phone calls, many of which were recorded.”

Totality and proportionality

The appellant relied on People (DPP) v Farrell [2010] IECA 30 in submitting that, where a court imposes consecutive sentences, it “must be careful to take account of the overall impact of the sentence, the moral blameworthiness of the accused and the prospect of rehabilitation”.

It was submitted that the suspension of the final two years to promote rehabilitation was not adequate to reflect the principle of totality, and that there should have been an overall reduction ameliorating the total severity of the sentence, followed by a further suspension to foster rehabilitation.

The Court of Appeal held: “When we examine the overall offending in the present case, in order to assess whether the sentence imposed was proportionate with due regard to the principle of totality, it cannot be gainsaid but that the offending in the present case was egregious indeed.

“Even if we leave to one side the offence of coercive control and to look to each of the assault offences, while some may not be as serious as others, some are very serious, and could be said to be at the upper end of seriousness in terms of penalty for section 3 assaults: the choking, the assault resulting in a fracture of the arm, the burning, and the incident where the appellant smashed the injured party’s head against a railing.

“When we then look to the intimidation count, committed while on bail, and the manner in which the intimidation was exercised, this makes the overall offending of a greater order.

“Turning then, to the perverting the course of justice count, it is difficult to see how the overall, ultimate sentence of 10.5 years actual incarceration is disproportionate.”

The court further held that mitigation had been taken into account to include the sole plea of guilty on the second Bill of Indictment (perverting the course of justice), and the personal circumstances of the accused.

Conclusion

The instant case involved offending physical violence that was repetitive. In other cases involving coercive control, physical violence may not be as prevalent or intense, if at all.

Professor Jane Monkton-Smith’s forensic-sequencing model details an eight-step continuum of coercive control that is progressive, and ends in death at step eight.

Judge Isobel Kennedy concludes her judgment: “In the circumstances of these serious, prolonged offences, the nature of the activity, the appellant’s controlling and coercive behaviour, the injuries sustained to the injured party, both physical and emotional, we are not persuaded that the appellant has demonstrated an error in principle and, accordingly, the appeal is dismissed.”