People (DPP) v Mountassir: Operationalising s.40 Domestic Violence Act 2018 and Validating the Practice of Taking Offences into Consideration

People (DPP) v Mountassir: Operationalising s.40 Domestic Violence Act 2018 and Validating the Practice of Taking Offences into Consideration

1. Introduction

The Supreme Court decision in People (Director of Public Prosecutions) v Mountassir [2025] IESC 53 is a major sentencing judgment in Irish criminal law. It serves two distinct but interconnected functions:

  • It clarifies how courts must apply s.40 of the Domestic Violence Act 2018 when sentencing for “relevant offences” committed in the context of intimate relationships.
  • It confirms the legality, scope and limits of the widespread practice of “taking offences into consideration” (TIC) when sentencing for multiple offences.

The appeal arose from an unduly lenient sentence review. Mr. Soufiane Mountassir pleaded guilty in the Circuit Court to false imprisonment of his then partner, Ms Malone, with an associated charge of assault causing harm taken into consideration. He received a three-year sentence. On the DPP’s application under s.2 of the Criminal Justice Act 1993, the Court of Appeal increased the effective sentence to five and a half years, having found the original sentence unduly lenient.

The Supreme Court granted leave to appeal on two questions of general public importance:

  1. The proper approach to sentencing serious offences of this kind when committed in the context of an intimate relationship, including operation of s.40.
  2. The proper application and operation of s.40 of the Domestic Violence Act 2018.

At the Court’s own initiative, a third systemic issue was added: the validity and correct use of the practice of “taking offences into consideration”.

1.1 Factual background in brief

Within months of arriving in Ireland in June 2022, the appellant formed a relationship with the victim, moved into her home and lived with her and her teenage son. On the night of 13 November 2022, after a row in Dublin city centre driven by jealousy, he:

  • Slapped her in public, knocking off her glasses.
  • Forced her against the boot of her car, shoved her into the boot and drove away.
  • Kept her confined for about 10 minutes, then manhandled her into the passenger seat and continued to detain her in the car.
  • Over about an hour and forty minutes, repeatedly punched her, smashed her head off various parts of the car, ripped her clothes and jewellery, and threatened her not to leave the vehicle.

Multiple bystanders observed parts of the ordeal, contacted Gardaí and one filmed the boot incident. Gardaí located the car; the victim was found bloodied and extremely distressed. She suffered significant bruising and swelling and ongoing psychological trauma. The appellant had consumed alcohol and drugs, initially tried to blame the victim or an intervening bystander, and later offered inconsistent partial admissions to a psychologist.

1.2 Procedural history

  • Circuit Court: The trial judge:
    • Identified a headline sentence of five years for false imprisonment.
    • Took the assault causing harm into consideration rather than imposing a separate sentence.
    • Reduced the headline to three years for mitigation (early plea, difficult background, addiction, remorse, foreign national in custody).
    • Backdated the sentence to the date of remand.
    She noted s.40 but did not clearly explain its concrete effect on the headline sentence.
  • Court of Appeal (DPP v Mountassir [2024] IECA 317):
    • Held the original sentence was unduly lenient.
    • Stated that a five-year headline would have been appropriate if (a) the assault had not been taken into consideration and (b) s.40 did not apply.
    • Added:
      • 18 months to reflect s.40 (intimate relationship aggravation), and
      • 18 months to reflect taking the serious assault into consideration.
      arriving at an eight-year headline.
    • Allowed 2½ years for mitigation, producing a final sentence of 5½ years’ imprisonment.
  • Supreme Court: Dismissed the appeal, but used the opportunity to:
    • Set out a principled approach to s.40.
    • Refuse to issue guideline bands for false imprisonment, while offering general guidance.
    • Confirm the legality and proper limits of the TIC practice.

2. Summary of the Judgment

2.1 Core holdings

  1. Section 40 of the Domestic Violence Act 2018
    • s.40 is a mandatory statutory aggravating factor whenever a “relevant offence” is committed against a current or former intimate partner (a “relevant person”).
    • It must be treated as part of the assessment of gravity (harm and culpability) when setting the headline sentence, not as a separate post-hoc add-on.
    • The judge must expressly refer to s.40 and demonstrate that the sentence is higher than it would be if the victim were not a relevant person.
    • However, the court is not required to specify numerically how many months/years are being added for s.40; sentencing remains a holistic exercise.
    • s.40 is constitutionally permissible: it rests on a rational, victim-centred assumption that offences in intimate relationships generally cause additional psychological harm and may involve increased culpability (abuse of trust, exploitation of vulnerability).
    • The “exceptional circumstances” proviso in s.40(3) allows disapplication only where that underlying assumption is genuinely displaced on the evidence.
  2. False imprisonment sentencing and guideline judgments
    • False imprisonment is too factually diverse and often inextricably linked with other crimes (assault, sexual violence, “tiger kidnappings”, extortion) to lend itself to a rigid guideline or tariff judgment.
    • The Court therefore refused to adopt structured bands or ranges (including those proposed by reference to the new England and Wales guideline).
    • Nonetheless, the Court:
      • Reaffirmed the orthodox Irish “headline sentence” methodology.
      • Identified key factors in assessing gravity in false imprisonment cases (purpose, duration, conditions of detention, associated violence, vulnerability of the victim, planning, etc.).
      • Contrasted high-end organised/extortion cases (e.g. “tiger kidnappings” with very long sentences) with low-end, short and unplanned incidents involving less harm.
  3. Taking offences into consideration (TIC)
    • The modern Irish practice of taking offences into consideration after conviction (imposing a sentence on a “lead” count and formally noting that others are “taken into consideration”) is not unlawful.
    • This practice is distinct from:
      • The statutory s.8 Criminal Justice Act 1951 procedure (uncharged admitted offences, now largely moribund due to 1997 DPP-consent requirement), and
      • The UK “TIC” practice, which also concerns uncharged offences, and from “no separate penalty” / “lie on the file” orders.
    • Key constraints:
      • It cannot be used for offences carrying mandatory penalties (per DPP v Scott Grey).
      • Where there are multiple victims, separate sentences (usually concurrent) should be imposed to avoid the perception of a “free ride”.
      • Where multiple offences of different types are committed against a single victim, either:
        • separate sentences should be imposed, or
        • it must be made very clear that the global sentence genuinely reflects all the offending.
      • If an offence is “taken into consideration” in sentencing for another, there must be a real uplift in the global sentence for that conduct; otherwise concurrent sentencing should be used instead.
    • Orders taking offences into consideration now fall within “any other order made by a court in dealing with a convicted person” for the purposes of s.2 Criminal Justice Act 1993, and so can be reviewed for undue leniency.
  4. Case-specific outcome
    • The Supreme Court rejected the appellant’s characterisation of the false imprisonment as a 10-minute, low-level incident consisting only of locking the victim in the boot.
    • False imprisonment is a continuing offence: the deprivation of liberty lasted the entire 1 hour 40 minutes, through the boot confinement and the subsequent forced detention in the car while the assaults continued.
    • The false imprisonment was used to facilitate prolonged and brutal assaults on a partner who had opened her home and heart to the appellant; the offences were “sustained, humiliating and violent,” involving dominance and abuse of physical power.
    • The original five-year headline was “simply too low”; the Court of Appeal’s five-and-a-half-year final sentence was upheld as properly reflecting:
      • the gravity of the combined false imprisonment and assault,
      • the aggravation under s.40, and
      • the mitigating factors.
    • The appeal was dismissed.

3. Precedents and Authorities: How They Shaped the Decision

3.1 Domestic violence and breach of trust: People (DPP) v F.E.

The Court repeatedly referred to People (DPP) v F.E. [2019] IESC 85; [2021] 1 I.R. 217 as authority that:

  • Violence in the home,
  • Breach of trust,
  • Domination, and
  • A background of abuse

are aggravating features in sentencing. F.E. stands as a key pre-s.40 recognition that domestic and intimate-partner contexts increase seriousness. s.40 builds on this jurisprudence by transforming that judicial understanding into a statutory mandate.

The SGIC Report (discussed below) explicitly cites F.E. to justify treating intimate relationship contexts as aggravating. The Supreme Court in Mountassir endorses that analysis and generalises it across a range of “relevant offences”.

3.2 Headline sentence methodology: M, Renald, Kelly, Farrell and Flynn

The Court’s discussion of headline sentencing draws heavily on a line of authorities:

  • People (DPP) v M [1994] 3 I.R. 306 (Egan J): establish the need to:
    • Identify the range of penalties,
    • Place the particular case on that range based on gravity, then
    • Apply mitigation.
  • People (DPP) v Renald (unreported, 23 November 2001); People (DPP) v Kelly [2005] 2 I.R. 321; People (DPP) v Farrell [2010] IECCA 116.
  • People (DPP) v Flynn [2015] IECA 290: the Court of Appeal synthesised these cases and strongly commended the two-stage “headline then mitigation” structure as best practice, while acknowledging it is not rigidly mandatory.

In Mountassir, O’Malley J:

  • Reaffirms that approach as the modern standard,
  • Emphasises that “gravity” comprises both harm and culpability, and
  • Clarifies how statutory aggravating factors like s.40 fit into this model: they are to be absorbed into the gravity assessment before mitigation, rather than treated as afterthoughts.

3.3 Transparency vs formalism: McC and O’Byrne

Two Court of Criminal Appeal decisions frame the Court’s warning against excessive formalism:

  • DPP v McC [2008] 2 I.R. 92:
    • Sentencing steps need not be “particularised in some formalistic or rigid way”.
    • What matters is that the basis for the sentence is apparent and consistent with proportionality and other principles.
  • DPP v O’Byrne [2013] IECCA 93:
    • Sentencing should not become “overly punctilious or pedantic”.
    • Formulaic checklists are less important than coherent reasoning.
    • Double counting of aggravating or mitigating factors must be avoided.

These cases are used to justify the Court’s refusal to require trial judges to specify precise numerical uplifts for s.40 or other aggravating factors, while still demanding clear reasoning and explicit acknowledgment of s.40.

3.4 Constitutional limits: Ellis v Minister for Justice and equality rationale

In Ellis v Minister for Justice [2019] 3 I.R. 511; [2019] IESC 30, the Supreme Court held that:

  • The Oireachtas may prescribe a penalty for all persons convicted of a specified offence (subject to rationality and proportionality), but
  • It may not prescribe a mandatory penalty that applies only to a subset of offenders defined by background circumstances or personal characteristics (that would encroach on the judicial function under Article 34.1).

In Mountassir:

  • The Court distinguishes s.40 from the unconstitutional provision in Ellis:
    • s.40 does not fix a mandatory or presumptive minimum sentence.
    • It simply instructs courts that, when assessing the appropriate sentence, they must treat the relationship context as an aggravating factor and impose a higher sentence than for analogous non-relationship offending.
  • The Court justifies this differentiation under the constitutional principle of equality by:
    • Identifying a rational basis: offences within intimate relationships generally cause extra harm and often reflect additional culpability (breach of trust, exploitation of vulnerability).
    • Linking the enhanced punishment to those sentencing purposes, rather than to an arbitrary personal attribute.

The Court also analogises to:

  • s.13 Criminal Law Act 1976 (mandatory consecutive sentences for offences committed in custody) upheld in Gilligan v Ireland [2013] 2 I.R. 745; [2013] IESC 45.
  • s.11 of the Criminal Justice Act 1984 (offences committed while on bail or unlawfully at large).

In both, extra punishment is justified because the offending harms the criminal justice system and reflects increased culpability; s.40, the Court says, is similarly justified by the enhanced victim harm and potential culpability.

3.5 Judicial Council Sentencing Guidelines and Delaney

A significant contextual authority is Delaney v Personal Injuries Assessment Board [2024] IESC 10, which cast doubt on the constitutionality of certain aspects of the Judicial Council Act 2019 guideline regime. Because of Delaney, the Judicial Council’s Board could not formally adopt the Sentencing Guidelines and Information Committee’s draft guideline on s.40 as a statutory guideline. Instead, it was published as a non-binding Report.

In Mountassir:

  • The Supreme Court draws extensively on the SGIC’s May 2025 Report on s.40, endorsing its analysis as persuasive guidance, while underlining that it does not have the force of law.
  • The Court’s own elaboration of s.40 largely tracks the SGIC’s reasoning (e.g. emphasis on extra psychological harm, breach of trust, exploitation of vulnerability, and careful treatment of prior patterns of abuse as contextual rather than separate offences).

3.6 Taking offences into consideration: Scott Grey, Higgins, Casey & Casey, and Kennedy v Gibbons

Three strands of authority are important here.

3.6.1 Statutory TIC for uncharged offences – s.8 Criminal Justice Act 1951

  • DPP v Scott Grey [1986] I.R. 317:
    • Interpreted s.8 of the 1951 Act (in its original form), which allowed courts to take uncharged offences into consideration on the accused’s admission.
    • Held that this procedure cannot apply where the principal offence carries a mandatory penalty; if there is no sentencing discretion, there is nothing into which other offences can be “taken”.
  • People (DPP) v Higgins (unrep., 22 November 1985):
    • The Supreme Court criticised (but did not hold illegal) a practice whereby, after multiple convictions on different counts, a trial judge imposed a sentence only on one count and took others into consideration.
    • It emphasised the risk that if the conviction on the “lead” count were quashed on appeal, there would be no sentence left in place for the others.
    • Finlay C.J. suggested that “appropriate sentence should … be imposed on all counts”.

Section 8 was amended by s.9 of the Criminal Justice (Miscellaneous Provisions) Act 1997 to require DPP consent. In practice, both parties informed the Court that the statutory s.8 route is now almost never used.

3.6.2 Academic authority and the modern TIC practice after conviction

  • People (DPP) v Casey and Casey [2018] 2 I.R. 337; [2018] IECA 121 (Birmingham P.):
    • Endorses O’Malley’s view (in Sentencing Law and Practice) that s.8 “was intended solely” for uncharged offences, and that using TIC for offences of conviction is technically outside s.8.
    • Notes modern practice where courts:
      • Impose a sentence on one offence,
      • Take others into consideration,
      • Even though all are offences of conviction.
    • Stresses:
      • Any individual sentence must not be disproportionate to the offence for which it is nominally imposed.
      • The TIC uplift is permissible as long as the statutory maximum is not exceeded.
      • The need to avoid giving victims or offenders the impression of a “free ride”, particularly in spree offences.

3.6.3 Common law development and communis error: Kennedy v Gibbons

In Kennedy v Gibbons [2014] IEHC 67, Hogan J, dealing with the “poor box” practice, held that:

  • Long-standing, widespread non-statutory practices may become part of the common law, even if their origins are obscure.
  • He invoked the maxim communis error facit jus (“common error makes law”) to explain how the poor box jurisdiction had effectively become part of the common law carried forward under Article 50.1 of the Constitution.

The appellant in Mountassir suggested that the TIC practice for offences of conviction might similarly have crystallised as a common law power. The Supreme Court does not expressly adopt the communis error language, but:

  • Accepts that the practice is “deeply embedded”,
  • Finds no intrinsic legal invalidity in it, and
  • Effectively recognises it as part of the permissible sentencing “repertoire”, subject to the constraints the Court sets out.

4. Legal Reasoning in Depth

4.1 Gravity, harm and culpability: the conceptual framework

A central part of the judgment is a careful exposition of the architecture of proportionality in sentencing:

  1. Gravity assessment:
    • Comprises two pillars:
      • Harm caused, risked or intended (physical, psychological, financial, social).
      • Culpability (blameworthiness, responsibility) for that harm.
    • All aggravating factors, including s.40, operate at this stage.
    • The result of this assessment is the headline sentence (also called the “pre-mitigation” sentence).
  2. Mitigation and personal circumstances:
    • Personal factors (early plea, remorse, youth, prior good character, difficult background, mental health, rehabilitation efforts) are then considered to reduce the headline sentence.
    • No numeric values are attributed to each mitigation factor; the adjustment is global.
  3. Totality:
    • Where multiple sentences are imposed, the overall result must not be disproportionate to the total offending.
    • This may require:
      • Concurrency or partial concurrency,
      • Structured consecutive sentences, or
      • Use of TIC / “no separate penalty” approaches.

The Court is at pains to reject narrow, mens rea-only conceptions of culpability. It adopts the “broader” view that culpability encompasses:

  • Level of intention (intention, recklessness, negligence where relevant), but also
  • Factors affecting control, insight and fairness in blaming (e.g. age, mental illness short of insanity, coercion, learning disability), and
  • Aggravating features showing deliberate exploitation or maximisation of harm (e.g. planning, targeting, abuse of trust, preying on vulnerability, use of superior physical power).

In Mountassir, this broader view is crucial to:

  • Explaining why abuse of physical power and breach of intimate trust significantly increase culpability.
  • Distinguishing reduced culpability cases (e.g. where genuine mental disorder or coercion is present) from serious domestic violence cases where the offender’s moral responsibility is high.

4.2 Section 40: A victim-centred statutory aggravating factor

4.2.1 Scope of s.40

Section 40 applies when:

  • The offender is being sentenced for a “relevant offence” (broadly: physical or sexual assaults; threats; harassment and stalking; disclosure of intimate images; violent or threatening offences including some robbery and burglary; and attempts/participation in such offences).
  • The victim is a “relevant person”: a current or former spouse, civil partner, or intimate partner (cohabitation is not required).

Where it applies:

  • The fact that the offence is against a relevant person must be treated as an aggravating factor (s.40(1)).
  • The court shall impose a higher sentence than it would if the victim were not a relevant person (s.40(2)).
  • This duty is disapplied only where “exceptional circumstances” justify it (s.40(3)).

4.2.2 The SGIC Report and its adoption

The SGIC’s 2025 Report is at the heart of the Court’s reasoning. The Court endorses its key propositions:

  • The relationship context usually:
    • Increases harm because of:
      • Deeper and longer-lasting psychological trauma.
      • Betrayal of assumed love, trust, and care.
      • Impacts on the victim’s sense of safety in their own home, ability to parent, and social/economic stability.
      • Barriers to disclosure and potential hidden patterns of abuse.
    • May increase culpability, where:
      • The offender knowingly exploits the victim’s emotional, physical, financial, immigration or social vulnerability.
      • The offender has created that vulnerability (e.g. isolating the victim, controlling finances).
  • Sentencing courts should:
    • Treat s.40 as integral to the gravity assessment, not as a bolt-on.
    • Expressly mention s.40 in sentencing remarks.
    • Not double-count factors which already form part of the substantive offence or are separately charged.

4.2.3 No requirement to quantify the uplift

A central point of contention was whether courts must specify the exact uplift attributed to s.40 (e.g. “without s.40 I would have imposed 4 years; with s.40 I impose 5½ years”).

The Court rejects making such arithmetic a requirement, for several reasons:

  1. Legislative silence and existing practice:
    • The Oireachtas did not require quantified uplifts in s.40, unlike some foreign statutory schemes.
    • Irish courts do not assign numeric weights to individual aggravating/mitigating factors in general; introducing this for s.40 alone would be anomalous.
  2. Risk of grid-like sentencing:
    • Requiring specific quantification would invite arguments over whether an uplift should be 9 vs 12 months, 18 vs 24 months, etc.
    • Appellate courts would be pushed towards a quasi-tariff, number-driven harmonisation, undermining flexibility and individualised justice.
    • Trial judges might perceive appellate arithmetical comments as binding tariffs, leading towards an implicit “sentencing grid” inconsistent with Irish constitutional sentencing jurisprudence.
  3. Practical implausibility of the hypothetical “no relationship” scenario:
    • In many s.40 cases, the very motivation and pattern of the offence is inseparable from the relationship (revenge, control, jealousy, punishment for leaving, etc.).
    • Positing a clean hypothetical where the same offence, with the same dynamics, is committed by a stranger is often artificial or impossible without changing the offence qualitatively.

However, the Court insists on:

  • Explicit reference to s.40 in sentencing remarks.
  • Reasoning that makes clear the relationship context was treated as aggravating and that the headline sentence is higher than in non-relationship counterparts.
  • Recognising that, in some other relationship-based contexts (e.g. parent–child, sibling), breach of trust and trauma may be equally grave even though s.40 does not formally apply; these cases may legitimately attract sentences equivalent to or higher than s.40 cases.

The Court suggests that, conceptually, it may be useful to consider a hypothetical accomplice who is not in a relationship with the victim. Instinctively and as a matter of law, the intimate partner’s sentence should be higher due to the added harm and culpability through breach of trust, even if the conduct is similar.

4.3 Refusal to issue a guideline judgment on false imprisonment

The Court aligns with the Court of Appeal (and comparative jurisprudence from New Zealand and England and Wales) in refusing to create structured sentencing bands for false imprisonment. The reasons are:

  • The “infinite variety” of factual scenarios: extortion, gang debt-collection, sexual offences, domestic abuse, random violence, protest-related conduct, etc.
  • The near-ubiquity of associated offending:
    • False imprisonment is rarely a standalone offence.
    • Often it is a means to another criminal end (beatings, robbery, sexual offences, “tiger kidnappings”, etc.).
    • Many of the suggested aggravating factors (weapons, threats, harm) are themselves separate offences.

The Court therefore:

  • Declines to adopt the English Sentencing Council’s kidnapping/false imprisonment guideline, or to transplant its harm/culpability categories.
  • Rejects the appellant’s proposed three-band 0–5, 6–10, 11–15 year scheme and the de facto cap at 15 years, observing that:
    • The Oireachtas has set a maximum of life imprisonment for false imprisonment.
    • Some false imprisonment cases (e.g. involving torture, prolonged hostage-taking, serious sexual or physical harm) could legitimately require very long sentences.
  • Instead, offers high-level guidance:
    • At the top end:
      • Planned group operations, using weapons and threats, to extort money, such as bank official “tiger kidnappings”, can attract sentences in the mid-to-high teens and beyond (e.g. 18 years, 40 years in the O’Hare case, combining multiple serious counts).
    • At the low end:
      • Short, unplanned incidents with limited restraint, no weapon, minimal violence and strong mitigation may attract sentences as low as about three years or less, sometimes partly suspended (McCann).
    • Relevant factors in all cases include:
      • Purpose and context (e.g. facilitating assault vs extortion vs protest).
      • Duration and conditions of detention.
      • Degree of violence and use of weapons.
      • Planning or sophistication.
      • Number of offenders and victims.
      • Victim’s vulnerability (age, disability, isolation, relationship).

4.4 Legality and structure of “taking offences into consideration”

After reviewing historical common law, s.8 of the 1951 Act, and foreign practice, the Court concludes:

  • The legislature’s codification in s.8 never extinguished the courts’ wider common law powers to structure sentences in multi-count contexts.
  • The modern Irish TIC practice in cases of conviction is:
    • Functionally similar to a “no separate penalty” order known in England and Wales, because:
      • There is a conviction on the TIC count.
      • No autonomous custodial or financial penalty is imposed on that count.
    • Lawful, provided the global sentence on the lead offence genuinely reflects the totality of the offending, including the TIC offences.

The Court emphasises a number of operational points:

  1. Mandatory penalties excluded:
    • Where the principal offence carries a mandatory penalty, TIC cannot be used (per Scott Grey).
    • The sentencing judge has no room to “load” the mandatory penalty to reflect other offences; these must be separately charged and sentenced.
  2. Lead/gauge offence identification:
    • The “lead” offence for sentencing should be the one that is most serious in fact, not simply the offence with the highest statutory maximum.
    • The factual seriousness, including context, harm and culpability, dictates which count serves as the gauge for the global sentence.
  3. Risk of “free rides”:
    • The Court echoes Casey in warning that TIC can create the impression:
      • To victims, that their experiences were discounted, or
      • To offenders, that some offences attracted no real consequences.
    • This risk is heightened:
      • Where there are multiple victims.
      • Or where offences are qualitatively different (e.g. sexual violence plus fraud).
    • Best practice:
      • Impose separate sentences (usually concurrent) for offences involving different victims.
      • Similarly, separate sentences should normally be imposed where one victim suffers distinct categories of offence (e.g. false imprisonment and sexual assault), unless it is made very clear that the global sentence comprehensively reflects all conduct.
  4. Appealability and transparency:
    • Because “sentence” in s.2 Criminal Justice Act 1993 includes “any other order made by a court in dealing with a convicted person”, orders that offences are taken into consideration form part of the reviewable sentencing package.
    • Therefore, DPP undue leniency reviews and defence appeals can properly address whether the TIC use was appropriate.

In short, TIC is preserved as a legitimate, flexible tool to:

  • Respect the totality principle,
  • Avoid unnecessary complexity in sentencing (especially where indictments have dozens of counts), but
  • Only on condition that it is used sparingly and transparently, without diluting the reality that each serious offence has been punished.

4.5 Application to Mr Mountassir’s case

4.5.1 Characterisation of the offending

The appellant’s key framing was that:

  • The false imprisonment component was a 10-minute incident of placing the victim in the boot.
  • Everything else should be treated essentially as separate assault.
  • Within comparative false imprisonment jurisprudence, his case fell in the lower band.

The Supreme Court decisively rejects this framing:

  • False imprisonment is a continuing offence. The deprivation of liberty persisted from the moment the victim was forced into the boot until Garda intervention at Grangegorman, about 1 hour 40 minutes later.
  • Moving the victim from the boot to the passenger seat did not restore her liberty; she was still compelled to remain in the car under threat and repeated violence.
  • The false imprisonment was an integral means by which the sustained assaults were perpetrated and prolonged, not an isolated preliminary act.

The Court therefore endorses treating the false imprisonment and the continuous assaults as one composite episode of serious offending, with TIC used to avoid double-counting but to capture all harm within an appropriately elevated headline sentence.

4.5.2 Harm and culpability in this case

  • Harm:
    • Physical: multiple blows to face and body, head smashed off interior fixtures, extensive bruising and swelling.
    • Psychological: the victim described profound and ongoing anxiety, fear in her own home, difficulty leaving the house, and a fundamentally changed sense of self.
    • Humiliation and degradation: being forced into the boot of her own car in public; being assaulted and threatened in an isolated, dark place.
    • Temporal dimension: the ordeal lasted nearly two hours, not a transient flare-up.
  • Culpability:
    • Prolonged, repeated violence rather than momentary loss of control.
    • Dominance and coercion: exploitation of superior physical strength, commands not to flee, continued assaults despite pleas to stop.
    • Abuse of trust: the victim had invited the appellant into her home and life; he repaid that by a brutal, terrorising attack.
    • Post-offence conduct: attempts to blame the victim and others in Garda interview undercut the claimed remorse.
    • Intoxication: significant drug and alcohol use disinhibited him but, as the Court and SGIC note, self-induced intoxication is not a mitigating factor.
    • Psychological background: some PTSD-like symptoms and a history of trauma; these could explain but did not excuse or significantly diminish responsibility in a case exhibiting such deliberate dominance and coercion.

4.5.3 Undue leniency and final sentence

The Supreme Court agrees with the Court of Appeal that:

  • A five-year headline for false imprisonment, even before adjusting for s.40 and the TIC assault, was “simply too low” given:
    • The duration of detention.
    • The level and persistence of violence.
    • The intimate relationship context and resulting trauma.
  • The Circuit Court’s three-year final sentence failed to:
    • Mark adequately the seriousness of the combined false imprisonment/assault episode.
    • Demonstrate any clear uplift for the TIC assault.
    • Demonstrate the required uplift for s.40.

The Court of Appeal’s approach – effectively:

  • Five-year baseline if this were false imprisonment alone, without TIC assault and without s.40.
  • +18 months for s.40 (relationship aggravation).
  • +18 months for the TIC assault (reflecting the combined conduct).
  • 8-year headline, then -2½ years for mitigation = 5½ years final sentence.

is upheld as a “correct assessment of the various factors in the case”. The Supreme Court underscores that the 18-month figures are illustrative in this case only; they are not prescribed tariffs or default uplifts for future s.40 or TIC scenarios.

5. Impact and Future Significance

5.1 Sentencing in domestic and intimate-partner violence cases

The most immediate impact of Mountassir is on sentencing practice for domestic and intimate-partner offences:

  • Judges are now clearly instructed that:
    • Offences against intimate partners are presumptively more serious than comparable offences against strangers or acquaintances, because of extra psychological harm and potential extra culpability.
    • s.40 must be expressly mentioned, and the relationship context must drive an increase in the headline sentence.
  • Defence lawyers must:
    • Address s.40 explicitly in submissions, including (if arguable) why “exceptional circumstances” might justify disapplication (e.g. an unusual case where the relationship context genuinely does not add to harm or culpability).
    • Understand that generic pleas of prior good character in intimate-partner cases will be treated with caution, given the frequency of hidden abuse patterns.
  • Prosecution lawyers can:
    • More confidently seek uplifts in headline sentences by reference to s.40, pointing to breach of trust, vulnerability, isolation, impact on children, etc.
    • Use Mountassir to challenge sentences where s.40 is not mentioned or its effect is opaque.
  • Victims’ advocates and support organisations:
    • Gain a clear affirmation from the Supreme Court that the law recognises the distinctive and profound harm of domestic and intimate-partner abuse.
    • Can encourage victim impact statements to highlight relationship-based harms explicitly (loss of trust, fear in the home, impacts on children, economic control).

5.2 Clarified status of non-statutory guidance and SGIC Reports

Mountassir shows that:

  • Even where formal statutory guidelines cannot be adopted (post-Delaney), SGIC Reports can be highly influential and function as quasi-guidance.
  • Courts at all levels may reasonably rely on SGIC analyses as respected, research-based articulations of sentencing principles.

This provides a practical route for judicial self-guidance, even if the constitutional status of binding guidelines remains contested.

5.3 False imprisonment jurisprudence

While no tariff is set, the Court:

  • Confirms that life imprisonment remains a meaningful maximum for the most extreme cases.
  • Locates serious, planned, financially motivated false imprisonments (e.g. “tiger kidnappings”) firmly towards the top end of the scale.
  • Positions domestic-relationship false imprisonments with serious violence – like Mountassir – clearly in the mid-to-upper range, well above short, low-harm incidents.
  • Reinforces the need to see false imprisonment in context:
    • Purpose (e.g. facilitating assaults) and other associated offences.
    • Cautions against over-reliance on numeric comparators from past appellate cases, given their selective nature and the “unduly lenient” threshold.

5.4 Standardisation of TIC practice

Practically, the decision will drive:

  • More conscious and explicit reasoning when offences are taken into consideration, especially:
    • Identification of the lead offence.
    • Articulation that the global sentence is higher because of the TIC count(s).
  • Greater caution in using TIC instead of concurrent sentences where:
    • There are multiple victims, or
    • Factually distinct categories of offences (e.g. sexual and financial).
  • More scope for DPP review applications and defence appeals that challenge whether:
    • TIC has been misused to minimise apparent accountability, or
    • Conversely, whether the uplift has improperly double-counted conduct already reflected in the base offence.

6. Complex Concepts Simplified

6.1 What is “false imprisonment”?

False imprisonment is an unlawful, total restraint on a person’s freedom of movement. In practical terms:

  • If someone is prevented from leaving a place against their will, without lawful authority, that is false imprisonment.
  • It is a “continuing” offence: it continues until the person regains their liberty (escapes, is released, or is rescued).
  • Moving a victim between locations while still restraining them does not break the offence into separate pieces; it is one continuous false imprisonment episode.

6.2 What is a “headline sentence”?

A headline sentence is the theoretical sentence the judge considers appropriate before taking into account personal mitigation:

  • It is based purely on the seriousness of the offence: harm caused/intended and the offender’s culpability.
  • Aggravating factors (including s.40) are used to move the headline up; mitigating factors are not yet applied.
  • Once the headline is fixed, mitigation (plea of guilty, remorse, age, etc.) can reduce it to the final sentence.

6.3 What does “unduly lenient” mean?

In an application by the DPP to review a sentence under s.2 Criminal Justice Act 1993:

  • The Court of Appeal does not ask simply whether it would have imposed a different sentence.
  • Instead, it asks whether the sentence:
    • Falls outside the range of sentences reasonably open in the circumstances,
    • Because of an identifiable error of principle (e.g. mis-assessment of gravity, failure to consider an aggravating factor like s.40, excessive mitigation, etc.).
  • Only if the sentence is a substantial departure from the norm will the court intervene and re-sentence.

6.4 What is “taking an offence into consideration” (TIC)?

In this modern Irish sense:

  • The accused is convicted on several charges.
  • The court:
    • Chooses one (or a few) as the “lead” offence(s) and imposes a sentence on that,
    • Formally notes that other specific offences are “taken into consideration” when setting that sentence.
  • The idea is that:
    • The global sentence is higher than it would be for the lead offence alone,
    • Even though the court does not separately pronounce a sentence on the TIC counts.

This is conceptually similar to a “no separate penalty” outcome. It is intended to simplify sentencing in multi-count cases while still ensuring that the additional offending is reflected in the sentence.

6.5 What is s.40 of the Domestic Violence Act 2018 doing in practice?

At its simplest:

  • If:
    • You commit a specified offence (assault, threats, harassment, etc.), and
    • The victim is or was your intimate partner (or spouse/civil partner),
  • Then:
    • The judge must treat the relationship as making your offence more serious.
    • The judge must give you a heavier sentence than you would have received if the victim were a stranger or casual acquaintance, unless there are exceptional circumstances.

The Court explains why: harm is worse (betrayal of trust, impact on safety and self-worth, often long-term trauma), and culpability may be greater (abusing a position of intimacy, exploiting vulnerability).

7. Conclusion: The Significance of DPP v Mountassir

People (DPP) v Mountassir is a significant modern sentencing judgment for several reasons.

  1. It firmly embeds s.40 as a central, mandatory part of sentencing for domestic and intimate-partner offences.
    • Courtrooms must now:
      • Expressly identify s.40 when it applies.
      • Explain how the relationship context aggravates harm and/or culpability.
      • Set higher headline sentences in such cases than in otherwise similar non-relationship cases.
    • The decision thus reinforces a victim-centred understanding of domestic violence, aligning statutory language with modern judicial and societal appreciation of its gravity.
  2. It protects proportionality and judicial discretion against over-formalisation.
    • The Court refuses to turn s.40 into a fixed numeric uplift or to impose rigid bands for false imprisonment.
    • Sentencing remains an individualised, holistic exercise grounded in harm and culpability, rather than a formulaic points system.
    • This aligns with earlier constitutional case law on the separation of powers and equality in sentencing.
  3. It clarifies and legitimises the practice of taking offences into consideration.
    • The Court accepts TIC as a valid common law sentencing tool, akin to “no separate penalty”, but:
    • Insists on its careful and sparing use, especially where multiple victims or distinct offence categories are involved.
    • Ensures that TIC can be the subject of appellate scrutiny as part of the overall “sentence” under s.2 Criminal Justice Act 1993.
  4. It situates false imprisonment within a nuanced, context-sensitive sentencing framework.
    • The offence is recognised as carrying a potential life maximum for the most egregious cases.
    • The Court illustrates a wide spectrum of seriousness, from low-end impulsive incidents to highly planned, violent, organised criminal conduct.
    • Domestic false imprisonment with serious violence, as in Mountassir, is clearly placed in a serious category that warrants substantial custodial sentences.
  5. It upholds the Court of Appeal’s enhanced sentence as a proper application of these principles.
    • By affirming the five-and-a-half-year sentence, the Supreme Court signals the level of seriousness with which such conduct should be treated.
    • It underscores that earlier sentencing approaches that understated the harm of intimate-partner abuse, or treated it as akin to “lovers’ tiffs”, are no longer acceptable.

In combination, these features make DPP v Mountassir a leading authority on:

  • How Irish courts are to treat domestic and intimate-partner violence in sentencing,
  • The operational meaning of s.40 of the 2018 Act, and
  • The lawful structure of multi-offence sentencing where some offences are taken into consideration.

It will likely be cited repeatedly in future sentencing, review and appeal decisions dealing with domestic abuse, false imprisonment, and the mechanics of complex sentencing exercises.

Case Details

Year: 2025
Court: Supreme Court of Ireland

Comments