s2 v s5 NFOAP 1997

Dylan123

If x threatens to kill y, and y believes the threat is imminent this is classified as a s2 assault. If the threat is not imminent, but y still believes it to be true this then would be classified as a s5 assault.

So what I am wondering is; why then would the first scenario be s2 when the max sentence is 6 months and a worse offence than the second scenario which is classified as a s5 assault, which offers on summary conviction a maximum of a 12-months sentence.

Even why would the Gardai charge someone under s2 for threats to kill - when the title of s5 is threat to kill?


That is according to a model answer from a previous exam question

johnnyskeleton

Dylan123 wrote: »

If x threatens to kill y, and y believes the threat is imminent this is classified as a s2 assault. If the threat is not imminent, but y still believes it to be true this then would be classified as a s5 assault.

What makes you think that? Any threat to kill or cause serious harm can be prosecuted under s.5. The intention for s.5 is not just that y believes it, but that x intends y to believe it. The intention for a non physical assault under s.2 is slightly different, that x intentionally or recklessly causes another to believe it.

The only threat that would be prosecuted under section 2 is a treat to cause force short of serious harm or death. It is arguable, but unlikely, that a threat to cause harm e.g. "I'll break your leg" could be prosecuted under section 3.

Dylan123 wrote: »

Even why would the Gardai charge someone under s2 for threats to kill - when the title of s5 is threat to kill?

Do you have an example of this? Most likely it would be where the threat was believable only insofar as it was a threat to assault, not to cause harm.

Dylan123

Sure the example is the previous exam question:
Q5 March 2010: (I hope its ok to post this previous exam question...if not i can delete it)

Gavin, aged 22, and Mary, aged 20, were both students at
university. Gavin asked Mary to be his girlfriend but she
refused, saying that 'she would never go out with a guy like
him'. Gavin's feelings were hurt by this rebuke. He decided to
take matters into his own hands. One evening as Mary walked
home alone from the library, Gavin grabbed her and threw her
to the ground. After pulling her hair and hitting her head off the
ground a number of times, he threatened to kill Mary. He then
groped her breasts for a minute or so before running off in the
direction of the library. During the entire ordeal, Mary was too
shocked and frightened to offer any resistance.

johnnyskeleton

Where is it said in that example that he would be charged under section 2 only for the threat to kill?

Dylan123

Paragraph 8.
I just sent you a private message as i believe we are not allowed to distribute model answers from one of the colleges.

johnnyskeleton

I don't know what course you are doing or what materials you are using, nor do I particularly want to comment on it.

However, the premise of your argument appears to be wrong. I don't see any reason why a threat to kill would be classified as a section 2 assault if it was made with the intention that the other person believe it would be carried out. Nor do I think that if a threat to kill is imminent that it would fall out of section 5.

Quite simply they are two different offences. A non physical assault under s.2 is done when someone creates an impression that they are about to assault another knowingly or recklessly. It doesn't have to be a threat to kill. On the other hand, if a garda wanted to prosecute someone for saying "I'll kill you" under section 2 then they could do so if they wished. Most likely, it would be because although they said "I'll kill you", in the circumstances it only made the other party apprehensive of a minor assault (i.e. people say "I'll kill you" all the time, but don't always mean murder or cause serious harm).

If you want to refer to the legislation that is fine, but if you've a problem with your lecture notes, you should contact your lecturer.

MagicSean

Dylan123 wrote: »

Sure the example is the previous exam question:
Q5 March 2010: (I hope its ok to post this previous exam question...if not i can delete it)

Gavin, aged 22, and Mary, aged 20, were both students at
university. Gavin asked Mary to be his girlfriend but she
refused, saying that 'she would never go out with a guy like
him'. Gavin's feelings were hurt by this rebuke. He decided to
take matters into his own hands. One evening as Mary walked
home alone from the library, Gavin grabbed her and threw her
to the ground. After pulling her hair and hitting her head off the
ground a number of times, he threatened to kill Mary. He then
groped her breasts for a minute or so before running off in the
direction of the library. During the entire ordeal, Mary was too
shocked and frightened to offer any resistance.

In this example Gavin could be charged with both offences. It doesn't have to be either one or the other.

johnnyskeleton

k_mac wrote: »

In this example Gavin could be charged with both offences. It doesn't have to be either one or the other.

Not to mention boobie touching contrary to section 2 of the Criminal Justice (Rape)(Amendment) Act, 1990.

1922

johnnyskeleton wrote: »

Not to mention boobie touching contrary to section 2 of the Criminal Justice (Rape)(Amendment) Act, 1990.

is it?? i thought boobies were non sexual???

johnnyskeleton

1922 wrote: »

is it?? i thought boobies were non sexual???

A friendly gesture, like shaking someone's hand or giving them a firm pat on the bottom.

Bosco boy

Dylan123 wrote: »

Sure the example is the previous exam question:
Q5 March 2010: (I hope its ok to post this previous exam question...if not i can delete it)

Gavin, aged 22, and Mary, aged 20, were both students at
university. Gavin asked Mary to be his girlfriend but she
refused, saying that 'she would never go out with a guy like
him'. Gavin's feelings were hurt by this rebuke. He decided to
take matters into his own hands. One evening as Mary walked
home alone from the library, Gavin grabbed her and threw her
to the ground. After pulling her hair and hitting her head off the
ground a number of times, he threatened to kill Mary. He then
groped her breasts for a minute or so before running off in the
direction of the library. During the entire ordeal, Mary was too
shocked and frightened to offer any resistance.

Aggravated sexual assault imo