The Director of Public Prosecutions v Mountassir (Unapproved)

Factual and Procedural Background

This case is an appeal in the Supreme Court arising from an application by the Prosecutor under section 2 of the Criminal Justice Act 1993 to review a sentence on the ground of undue leniency.

The Defendant had been convicted in the Circuit Court of serious offences arising out of a single incident involving the Defendant’s then intimate partner. The offences included false imprisonment and assault. The victim was a “relevant person” and the offences were “relevant offences” within the meaning of section 40 of the Domestic Violence Act 2018, so that the intimate-partner relationship was a statutory aggravating factor for sentencing purposes. No “exceptional circumstances” within section 40(3) were argued.

The Circuit Court judge sentenced the Defendant on the false imprisonment count and took the assault into consideration rather than imposing a discrete sentence for that offence. The Prosecutor sought review of that sentence in the Court of Appeal on the basis that it was unduly lenient, including because of the way the assault had been treated and the approach to the statutory aggravation under section 40 of the 2018 Act.

The Court of Appeal held that the Circuit Court sentence was unduly lenient, resentenced the Defendant, and imposed (among other things) a significant uplift to reflect the assault taken into consideration and a further uplift to reflect the statutory aggravation under section 40. The Defendant appealed to the Supreme Court. In the present judgment, authored by Judge Collins, the Supreme Court dismisses the appeal, agrees that the original sentence was unduly lenient, and upholds the approach of the Court of Appeal while clarifying the correct interpretation of section 40 and the limits of the practice of taking other offences into consideration at sentencing.

The full factual background and the parties’ detailed arguments are contained in a separate judgment of Judge O’ Malley, which this judgment expressly adopts but which was not provided in the materials to be summarised.

Legal Issues Presented

1. How section 40 of the Domestic Violence Act 2018 operates in sentencing for “relevant offences” against “relevant persons”, in particular:
   • whether the intimate-partner relationship must always be treated as an aggravating factor, and
   • whether sentencing courts are required to make explicit in their rulings the additional element (“uplift” or higher headline sentence) attributable to section 40(2), as distinct from other aggravating factors.
2. The scope, legal basis, and limits of the power of criminal courts to take other offences into consideration when sentencing for a “predicate” offence, especially:
   • whether section 8 of the Criminal Justice Act 1951 applies only to uncharged offences,
   • whether there is any non‑statutory power to take charged or convicted offences into consideration, and
   • in what types of cases and subject to what constraints courts may lawfully adopt that practice.
3. Whether, applying the correct interpretation of section 40 of the 2018 Act and the law on taking offences into consideration, the Circuit Court sentence was unduly lenient and whether the Court of Appeal’s resentencing order should be affirmed.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
[2019] IESC 30; [2019] 3 IR 511	Previous Supreme Court decision in which a different statutory sentencing provision was “condemned”. The present judgment notes that section 40 of the Domestic Violence Act 2018, which does not fix any particular uplift or mandate a custodial sentence, is materially different from that provision.	Used to distinguish section 40 from a more rigid and constitutionally problematic sentencing regime previously struck down, and to support the conclusion that section 40 is a permissible legislative model of “statutory aggravation”.
[2000] 2 Cr App R (S) 71	Decision of the Court of Appeal in another jurisdiction concerning racially aggravated offences with higher statutory penalties. Initially indicated that sentencing judges need not state the sentence that would have been imposed absent the racial aggravation.	Cited as background to later authority which reversed that approach and required transparency about the “unaggravated” sentence, supporting an analogous requirement of transparency in applying section 40.
[2001] 1 Cr App R (S) 5	Case on a statutory provision requiring a sentencing court to treat racial aggravation as an aggravating factor and to state in open court that the offence was racially aggravated.	Relied on to illustrate how a legislature may oblige courts both to treat a factor as aggravating and to acknowledge that explicitly in sentencing, by analogy with section 40’s statutory aggravation.
[2001] 2 Cr App R (S) 73	Court of Appeal endorsed advice that, when sentencing for racially aggravated offences with enhanced maxima, the judge should state what the sentence would have been without the aggravation, to promote transparency.	Used to support the proposition that, for statutory aggravating factors like section 40, sentencing judges should normally either identify a specific uplift or clearly nominate a higher headline sentence attributable to the statutory aggravation.
[2006] EWCA Crim 256	Explains the rationale for allowing offenders to have other offences taken into consideration: it permits them to “wipe the slate clean”, benefits the public by resolving additional offences without separate trials, and reflects the traditional practice regarding uncharged offences.	Cited as part of the historical and comparative explanation of why taking other offences into consideration developed at common law and why its rationale is focused on uncharged offences rather than offences already prosecuted to conviction.
[1986] IR 317	Supreme Court decision on section 8 of the Criminal Justice Act 1951 in the context of revenue offences. Held that: section 8 applies only where the court can genuinely take admissions of further offences into account in fixing punishment, section 8 cannot be relied on where the predicate offence carries a mandatory penalty, and taking an offence into consideration does not amount to a conviction and ordinarily did not bar later prosecution until section 8(2) altered that position.	Used to derive several limits: courts cannot take other offences into consideration when sentencing for, or by taking into account, offences carrying mandatory penalties, and cannot use section 8 where they cannot meaningfully adjust the sentence. Also supports the view that courts cannot take into consideration offences outside their jurisdiction.
Unreported Supreme Court decision, 22 November 1985	Concerned a defendant convicted by a jury on multiple counts where sentence was imposed on one count only and the others were taken into consideration.	Cited for the statement that appropriate sentences should be imposed on all counts on which an accused is convicted, and that it is undesirable to dispose of convicted counts merely by taking them into consideration. This underpins the general principle that each offence of conviction should normally attract a discrete sentence.
[1952] WN 244	Authority referred to in connection with whether a sentence must be increased when serious offences are taken into consideration.	Used, together with [1986] IR 317, to show that while courts may increase sentences to reflect offences taken into consideration, there is no absolute rule that any such sentence must be significantly increased merely because a serious matter has been taken into account.
[1953] 1 WLR 1014	Case indicating that offences carrying mandatory penalties, or mandatory consequences such as automatic disqualification, cannot properly be taken into consideration instead of being separately prosecuted and sentenced.	Relied on, alongside [1986] IR 317, to support the principle that offences with mandatory penalties or mandatory collateral consequences must not be dealt with by taking them into consideration.
[2001] 4 IR 160	Court of Criminal Appeal decision in a manslaughter case where a special criminal court took other serious, uncharged offences into consideration under section 8 of the 1951 Act with the Prosecutor’s consent.	Described as an orthodox use of section 8 (as amended in 1997). Cited to show that, although the trial court could have increased the sentence to reflect very serious offences taken into consideration, the appellate court held that there is no requirement that a sentence be increased significantly, or at all, solely because a serious matter is taken into consideration, especially in light of the high threshold for finding undue leniency.
[2018] IECA 121; [2018] 2 IR 337	Court of Appeal leniency appeal concerning a “spree” of burglaries and related criminal damage. Emphasised: the preferable practice is to impose a sentence for each offence of conviction rather than taking such offences into consideration, and using the expedient of taking offences into consideration risks creating a perception that the offender is getting a “free ride”.	Relied on to reinforce the principle that offences of conviction should usually attract discrete sentences and that taking offences into consideration, especially in multi‑count cases, should be used sparingly to avoid undermining victims’ perception that their cases have been properly marked in sentencing.
(2010) MBCA 115; [2011] 2 WWR 630	Decision from another jurisdiction cited for concern that taking offences into consideration may allow offenders a perceived “free ride” on some offences.	Used to support the Court of Appeal’s and Supreme Court’s warnings that taking offences into consideration, particularly serious ones, can undermine public and victim confidence if not carefully limited.
[2021] IECA 30	Court of Appeal leniency appeal where serious witness‑intimidation offences had been taken into consideration while a sentence was imposed for a lesser assault. The court: expressed doubt about the permissibility of taking into consideration offences to which the accused had pleaded guilty, and held that the most serious offences should not be disposed of by being taken into consideration.	Used to affirm that serious offences, especially crimes of violence and offences against the person, should ordinarily attract separate sentences and should not be dealt with merely by being taken into consideration, particularly where those offences are more serious than the predicate offence.
[2022] IECA 233	Court of Appeal leniency appeal involving a drugs offence and a separate money‑laundering offence. Held that: section 8 of the 1951 Act does not apply where the offence to be taken into consideration is a charged count on the indictment, and where such an offence is not directly related to the predicate offence, it should attract a discrete sentence. The judgment also indicated that courts have a non‑statutory power to take directly related offences into consideration, though without clearly identifying its source.	Cited both to confirm that section 8 is confined to uncharged conduct and to show the current appellate understanding that any wider, non‑statutory practice of taking charged offences into consideration must be tightly confined to directly related offences.
[2014] IEHC 67	High Court decision on the long‑standing “court poor box” practice. Found that the practice was so widespread and entrenched that it formed part of the common law, by reference to the principle communis error facit ius.	Invoked by analogy to discuss whether the modern practice of taking charged offences into consideration could be justified as an embedded feature of the legal system, but the Supreme Court notes that the analogy is imperfect and that the taking‑into‑consideration practice does not share the same historic pedigree.
[2025] EWCA Crim 455	Decision in another jurisdiction concerning a form of juvenile detention order where an additional weapons offence was expressly taken into account when fixing a minimum term for murder.	Cited as a “special case” and as an example of how, in that jurisdiction, a “no separate penalty” or similar approach is generally reserved for offences of very low seriousness, with this case noted for its particular sentencing framework.
[2019] IESC 85; [2021] 1 IR 217	Supreme Court decision explaining that where offences against the same victim are separated in time, that separation may justify the imposition of consecutive, rather than concurrent, sentences.	Used to support the guideline that offences of violence or offences against the person committed against the same victim at different times should generally attract separate sentences and are, if anything, candidates for consecutive rather than consolidated treatment, subject to totality.

Court's Reasoning and Analysis

1. Statutory aggravation under section 40 of the Domestic Violence Act 2018

The Court begins by analysing section 40 of the Domestic Violence Act 2018. Section 40(1) provides that, where a court is sentencing for a “relevant offence”, the fact that the offence was committed against a “relevant person” (a spouse, civil partner, or current or former intimate partner) must be treated as an aggravating factor. Section 40(2) goes further, requiring the court to impose a sentence “greater than that which would have been imposed” if the victim were not a “relevant person”, unless section 40(3) applies. Section 40(3) permits disapplication of that requirement only where there are “exceptional circumstances” justifying it.

The Court emphasises that this places a clear statutory obligation on sentencing judges: for any “relevant offence” against a “relevant person”, the intimate‑partner relationship must be treated as an aggravating factor and, absent exceptional circumstances, it must result in a higher sentence than would otherwise have been imposed. The legislature has thereby determined that such offending is inherently more serious and ordinarily warrants more severe punishment, both to reflect its gravity (including its particular societal impact) and to deter similar conduct. This legislative judgment does not require factual proof at the sentencing hearing; it is encoded in the statute itself.

The judgment situates section 40 within a broader statutory pattern. Various other enactments identify specific aggravating factors and require that they lead to higher sentences, such as offences committed on bail, repeated harassment, offences connected with criminal organisations, offences under trafficking or information‑systems legislation carried out by public officials or involving misuse of data, smuggling behaviours that endanger or exploit victims, and hate‑motivated offending. While these provisions differ in their scope and the nature of the aggravating factor, they share a common structure: a designated factor must be treated as aggravating and, save in exceptional cases, must yield a sentence greater than would otherwise have been imposed.

At the level of principle, the Court holds that the legislature is entitled to make such judgments. As regards the present statute, it was open to the legislature to decide that certain violent and sexual offences are inherently more serious when committed against a current or former intimate partner, particularly in light of the disproportionate impact on women and the broader societal harm.

The Court stresses that section 40 does not prescribe any particular quantum of uplift, nor does it mandate or even presume a custodial sentence. In that respect it is unlike the more rigid sentencing provision previously condemned by the Supreme Court in the decision reported at [2019] IESC 30. The relationship between offender and victim, and the role of that relationship in the offending, will vary considerably from case to case; thus the appropriate overall sentence remains a matter for the sentencing judge, within the general principles of sentencing.

2. “Exceptional circumstances” and the threshold for disapplying section 40(2)

The Court adopts the view, also expressed by the Sentencing Guidelines and Information Committee, that “exceptional circumstances” under section 40(3) cannot be exhaustively defined and that the concept itself denotes a high threshold. The Court considers it “difficult to see” how an exception could arise where the intimate relationship is a relevant feature of the offending conduct. Conversely, where the intimate relationship is only incidental—for example, where it had long ended and was not the reason the victim was targeted—the court might conclude that disapplication of section 40(2) is justified.

Where a sentencing court does rely on exceptional circumstances to disapply section 40(2), the Court insists that it should state that fact and identify the circumstances relied on. In the present case, it is undisputed that the offences were “relevant offences” against a “relevant person” and it was never suggested that there were exceptional circumstances. The relationship between offender and victim was central, not peripheral, to the offending. Accordingly, the Circuit Court was obliged to impose a sentence greater than that which would have been appropriate had the victim not been a “relevant person”.

3. Required sentencing methodology under section 40

The Supreme Court holds that sentencing judges must not only comply with section 40(2) but do so in a way that transparently demonstrates compliance. The Defendant, the Prosecutor, the victim, and the public have a legitimate interest in understanding the actual impact of section 40(2) on the sentence imposed, and appellate courts require such clarity in order to review sentences, whether for undue leniency or severity.

The judgment identifies two main ways of giving effect to this requirement:

• The court may adopt a specific “uplift” method, identifying the baseline sentence absent the section 40 aggravation and then stating the additional amount imposed because of that statutory factor; or
• The court may nominate a higher headline sentence—such as by placing the offence in a higher band or at a higher point within a band—expressly by reference to section 40(2).

In either approach, something more than a bare reference to section 40, or a general statement that it has been taken into account, is required. Because the legislature has mandated that a greater sentence be imposed where the statutory aggravation is present (absent exceptional circumstances), that factor must be treated differently from ordinary, non‑statutory aggravating factors and must be made visible in the structure of the sentence.

The Court draws support by analogy from sentencing practice in another jurisdiction, where statutory aggravations, including racial or religious hostility, require judges to state what the sentence would have been without such aggravation. It respectfully disagrees with the view, expressed in the main judgment of Judge O’ Malley, that it is unnecessary or even undesirable for sentencing courts to specify the increase attributable to section 40, holding instead that effective implementation of section 40(2) “necessarily implies” a structured and transparent approach.

4. Statutory and non‑statutory bases for taking offences into consideration

The Court next addresses the long‑standing practice of “taking offences into consideration” when sentencing. It observes that section 8 of the Criminal Justice Act 1951 is the only statutory basis for doing so, and that historically, at common law, the practice was limited to uncharged offences that an offender admitted when being sentenced for another offence. The classic rationale is that this allows an offender to “wipe the slate clean” and confers public benefits by resolving additional offending without separate trials.

The Court notes that section 8(1) by its terms applies when a person “on being convicted of an offence, admits himself guilty of any other offence…”. It makes no reference to guilty pleas or verdicts on other charges, and section 8(2), which bars later prosecution of offences taken into consideration, would be nonsensical if applied to offences already resulting in conviction, as those offences could not be prosecuted again in any event. Historical sources also confirm that taking an offence into consideration is not a conviction and, before section 8(2), did not bar future prosecution.

In addition, the 1997 amendment to section 8 introduced a requirement for the Prosecutor’s consent. That requirement is coherent in relation to uncharged offences or offences charged but not yet tried, since the Prosecutor might prefer a separate prosecution or consider the offence too serious for disposal by way of being taken into consideration. By contrast, making the taking of already‑convicted offences contingent on Prosecutor consent would raise serious constitutional concerns and is difficult to reconcile with the statutory language and structure.

Despite this, courts in practice have treated section 8 as covering a broader range of situations and have, in some cases, apparently acted on an assumed non‑statutory power to take other offences into consideration, including charged offences and offences resulting in conviction. The Supreme Court finds the legal basis, scope, and limits of any such non‑statutory power “entirely unclear”. It notes that, in the present appeal, the Prosecutor was not asked to consent to the assault being taken into consideration, and no discussion of section 8 occurred at sentencing; thus section 8 could not be relied upon.

5. Analysis of case law on taking offences into consideration

The Court conducts a detailed survey of the authorities:

• The unreported 1985 Supreme Court decision is cited for the proposition that appropriate sentences should be imposed on all counts on which an accused is convicted by a jury; it criticises the practice of sentencing on only one count and taking others into consideration as “undesirable and unsatisfactory”.
• The 1986 Supreme Court decision at [1986] IR 317, dealing with betting offences and section 8, confirms that section 8 applies only where the court can genuinely adjust the sentence (thus not where a mandatory penalty applies), that it cannot be used in relation to offences outside the court’s jurisdiction, and that taking an offence into consideration is distinct from recording a conviction.
• The Court of Criminal Appeal decision at [2001] 4 IR 160 is characterised as an orthodox application of section 8 (post‑1997 amendment), where uncharged serious offences were taken into consideration with Prosecutor consent. The decision makes clear that, while sentences may be increased to reflect such offences, there is no rigid rule requiring any particular increase.
• More recent Court of Appeal decisions ([2018] IECA 121; [2021] IECA 30; [2022] IECA 233) emphasise that:
  • sentences should usually be imposed for each offence of conviction,
  • taking offences into consideration, particularly serious or stand‑alone offences, should be used sparingly,
  • taking the most serious offences into consideration while sentencing for lesser offences is erroneous, and
  • section 8 does not apply to charged counts; any power to take charged offences into consideration must be non‑statutory and confined to directly related offences.
• The Supreme Court also contrasts this situation with the “court poor box” system, which a High Court decision found to be so entrenched as to have become part of the common law; by contrast, the practice of taking charged offences into consideration lacks such historic pedigree, though data show it has become common in recent decades.

On the basis of this survey, the Court concludes that, since its amendment in 1997, section 8 is effectively a “dead letter” for circumstances like those in the present case, and that any non‑statutory practice of taking charged or convicted offences into consideration must be tightly constrained.

6. General principles and limits on taking offences into consideration

The Court articulates a set of principles to govern the non‑statutory practice of taking other offences into consideration (apart from the statutory regime in section 8 of the 1951 Act):

1. Jurisdictional competence: A court may only take into consideration an offence within its sentencing jurisdiction. This will not usually pose difficulty where the offence to be taken into consideration is already before the court.
2. Mandatory penalties for the predicate offence: A court may not take other offences into consideration when sentencing for an offence that carries a mandatory penalty, because it cannot genuinely adjust the sentence in light of those other offences.
3. Mandatory penalties for the offence taken into consideration: A court may not take into consideration an offence that itself carries a mandatory penalty or mandatory collateral consequences (such as disqualification), as doing so would avoid those mandatory outcomes.
4. Sentencing ceilings: A court must not take other offences into consideration if, due to sentencing limits on the predicate offence, it cannot impose a sentence that appropriately reflects the overall totality of the offending.
5. Relative seriousness: The court must identify the most serious offence before it (based on actual culpability and harm, not simply statutory maxima) and impose a sentence on that offence. Only less serious offences may be taken into consideration, and even then subject to the above constraints.
6. Minor and regulatory offences: There is no objection in principle to taking into consideration minor or regulatory offences likely to attract only financial penalties.
7. Serious offences generally: Serious criminal offences—those likely, if considered alone, to warrant significant custodial sentences—should normally attract separate sentences and should not be disposed of by being taken into consideration. This is especially true for crimes of violence and offences against the person, including sexual offences.
8. Multiple victims: Where offences of violence or offences against the person are committed against multiple victims, separate sentences should be imposed for each victim. Taking serious offences against different victims into consideration risks victims feeling that their cases have been discounted and is inconsistent with modern conceptions of victims’ rights, even if an uplift is expressly applied in relation to another victim’s sentence.
9. Same victim, separated in time: As a general rule, offences of violence or offences against the person committed against the same victim but separated in time should not be dealt with by taking some offences into consideration. In many circumstances, temporal separation may justify the imposition of consecutive sentences. An exception may arise where numerous similar offences over a prolonged period are addressed via representative counts, with the remaining offences taken into consideration, provided the overall sentence truly reflects the totality of the offending.
10. Totality and sentence structure: Imposing separate sentences for multiple offences need not increase the overall effective sentence. Courts can structure concurrent and, where appropriate, consecutive terms to meet the totality principle while still marking each offence with its own sentence.
11. Multiple offences within a single incident: Where, as in the present case, multiple serious offences against the same victim occur as part of a single incident, there may be somewhat greater scope for taking one or more offences into consideration, provided the above limits are respected.
12. Transparency: Whenever a court decides to take other offences into consideration, it should state that clearly and ordinarily indicate whether an uplift has been applied and, if so, its magnitude. While there may be practical exceptions (for example, where there is a multiplicity of similar counts), as a general rule the court should explain how offences have been taken into consideration. The failure to do so in the present case is described as an error.

The Court grounds these principles in the basic starting point that, where an offence is proved or admitted, the court should record a conviction and impose an appropriate penalty, save in the limited statutory circumstances (such as certain probation orders) where a conviction may properly be withheld.

7. Application to the present case and assessment of the sentence

Turning to the particular sentence under review, the Court agrees with Judge O’ Malley that the Circuit Court sentence was unduly lenient. The original sentencing judge elected to sentence on the false imprisonment count and to take the serious assault into consideration, without clearly explaining the impact of that decision or the operation of section 40 of the 2018 Act.

The Court accepts that, in the specific circumstances—multiple serious offences against the same victim arising out of a single incident—the decision to take the assault into consideration was not necessarily unlawful, particularly as neither party asked the Supreme Court to intervene on that aspect alone. Given the guidelines outlined above, this approach lies close to the limits but is not so clearly wrong as to call for corrective intervention by the Supreme Court in this appeal.

The Court approves the Court of Appeal’s resentencing. It notes that the Court of Appeal:

• added a significant but proportionate uplift to the sentence on the false imprisonment count to reflect the seriousness of the assault taken into consideration, and
• imposed a further appropriate uplift to reflect the statutory aggravation under section 40, in circumstances where the intimate‑partner relationship was central to the offending and no exceptional circumstances were present.

The Supreme Court reiterates that section 40 does not authorise any across‑the‑board tariff or mechanistic uplift; each case must be assessed individually. In this particular case, however, the uplifts applied by the Court of Appeal were considered appropriate and proportionate.

Holding and Implications

The Supreme Court’s core ruling is that the appeal should be DISMISSED and the order of the Court of Appeal AFFIRMED.

For the parties, the direct consequence is that the Defendant remains subject to the higher sentence imposed by the Court of Appeal, including the explicit uplifts for the assault taken into consideration and for the statutory aggravation under section 40 of the Domestic Violence Act 2018.

Beyond the immediate case, the judgment clarifies important aspects of sentencing law. It confirms that:

• for “relevant offences” against “relevant persons”, sentencing courts must treat the intimate‑partner relationship as an aggravating factor and must, absent exceptional circumstances, impose a sentence higher than would otherwise have been imposed;
• courts must structure and explain their sentences in a way that makes the impact of section 40 transparent, typically by identifying a distinct uplift or a higher headline sentence attributable to the statutory aggravation; and
• any non‑statutory practice of taking offences into consideration, outside the strict statutory regime in section 8 of the Criminal Justice Act 1951, is permissible only within confined limits and subject to clear safeguards, particularly in relation to serious offences and offences involving multiple victims.

The decision thus provides authoritative guidance on both the operation of section 40 of the Domestic Violence Act 2018 and the proper, limited use of taking offences into consideration in sentencing. The judgment’s implications lie primarily in shaping future sentencing practice; it does not purport to create new offences or to alter existing statutory maxima, but rather to clarify how courts must approach statutory aggravations and related sentencing techniques.