THE COURT OF APPEAL
Record No. 99/2015
Birmingham J.
Sheehan J.
Mahon J.
Between/
The Director of Public Prosecutions
Respondent
Appellant
JUDGMENT (ex tempore) of the Court delivered on the 13th day of June 2016 by Mr. Justice Mahon
1. The appellant pleaded not guilty at Galway Circuit Criminal Court to a charge of assault causing harm contrary to s. 3 of the Non Fatal Offences against the Persons Act 1997. Subsequent to the commencement of the trial, on 3rd December 2014, the appellant changed his plea to guilty. He was sentenced on 26th March 2015 to four years imprisonment, with the final twelve months of that sentence suspended for a period of three years. The appellant has appealed against his sentence.
2. On 25th March 2012 the appellant assaulted Mr. Eamon Folan with a car jack causing a compound fracture in his left arm requiring internal fixation and the insertion of a metal plate. The assault occurred moments after Mr. Folan had approached him in relation to a row the previous day between their sons. The court was told that the appellant had been holding the car jack when approached by Mr. Folan in connection with work he was then engaged in, and had not armed himself with the implement for the purposes of effecting the assault.
3. The appellant’s grounds of appeal include the following-
(i) The learned sentencing judge rated the offence at too high on the gravity scale.
(ii) The learned sentencing judge failed to attach sufficient weight to a number of mitigating factors in the case, including the admission of guilty, the expression of remorse, the interval between previous offences and the fact that the offences were committed in a state of rage or anger.
(iii) The learned sentencing judge failed to afford sufficient consideration for rehabilitation.
(iv) The learned sentencing judge failed to adequately consider the suitability of alternative sentencing options, including a suspended sentence, community service order, a fine or a compensation order.
(v) It was also contended that the learned sentencing judge erred in deciding not to adjourn the case to enable the appellant benefit from anger management therapy and counselling.
4. The victim of this assault suffered psychologically as a result of the incident. He has suffered a number of physical difficulties from his arm fracture injury, including wasting of his arm, the locking of his wrist, lack of power and pain. He suffered insomnia, depression and a lack of interest in various sporting and leisure activities.
5. The appellant is aged in his early forties and is un-employed. He has a number of previous convictions dating back to 2000. These include convictions for assault, criminal damage, possession of a flick knife, unlawfully entering a building and public order offences. Prior to this offence, his most recent previous conviction was in June 2006 for a s. 3 assault, in respect of which he was given a 240 hours Community Service Order. In May 2003 he received an eight month sentence for criminal damage and, separately, a six month sentence for two s. 2 assaults, criminal damage and public order offences. There was a period of approximately six years prior to the commission of this offence during which the appellant had remained out of trouble.
6. The learned sentencing judge, in the course of sentencing the appellant, described the assault as “severe”. He placed the offence at the highest point on the scale of gravity for this type of offence. He noted the appellant’s plea of guilty and his expression of regret and remorse. He noted an offer of compensation of €3,000, which the victim of the assault declined to accept. He identified the aggravating factors as the previous record of criminal convictions, including multiple convictions for crimes of violence, and the use of what he described as a deadly weapon in the course of the assault. He also noted the probation report’s reference to the risk of re-offending being at the high end of medium, and the other reservations expressed in the course of that report about future conduct.
7. The learned sentencing judge expressed his view that he did not think it was in the interests of justice to adjourn the sentencing for the reasons suggested by the appellant’s counsel. He was criticised for failing to attach sufficient weight to the appellant’s active involvement in reconciliation work in relation to a serious ongoing feud between certain families within the travelling community. He has continued in his mediation work within prison in relation to feuding amongst members of the travelling community serving time in prison.
8. The court was urged to find as an error of principle on the part of the learned sentencing judge his decision to place the offending at the highest point of the gravity scale for, in particular, the following reasons:-
(i) the appellant was approached by Mr. Folan. It was not a case of the appellant seeking out or pursuing Mr. Folan;
(ii) the car jack which was used by the appellant to strike Mr. Folan happened to be in his hand at the time Mr Folan approached because of the work he was then engaged in. It was not in any way picked up by the appellant for use as a weapon;
(iii) the car jack, albeit was used as an instrument with which to inflict injury, was not a weapon in the more common use of that term. It was not a knife or a pole for example
and
(iv) the incident was a ‘one blow’ assault. The appellant did not follow on, having disabled Mr. Folan with the single blow from the car jack, to further assault Mr. Folan.
9. The court, in allowing the appeal, finds that these submissions are credible and are matters which the learned sentencing judge ought to have attached greater weight and in so doing place the offending at closer to the end range of the gravity scale. Had such been done the appropriate sentence, before mitigation, would have been in the region of three years, rather than the four years identified by the learned sentencing judge
10. It remains for the court to re-sentence the appellant as of today. That sentence will be three years. The court will suspend the final nine months of the three years to provide for the various mitigating matters, most of which were identified in the court below. While the very belated plea of guilty deserves only minimal recognition because I arose only after Mr. Folan had given evidence and had been cross examined, there are other quite compelling mitigating factors, not least the appellant’s efforts to mediate and end a serious feud between certain traveller families which has been the cause of significant concern both within the traveller community and with the gardaí. It is very much to the appellant’s credit that he is continuing to assist in resolving inter traveller feuding within the prison system and which efforts are recognised by the prison authorities. The court has also been provided with a lengthy and impressive letter from the appellant in which he describes his ongoing efforts at conflict awareness and resolution within the prison, as well as his remorse for the assault on Mr. Fallon.
11. The nine month suspended element of the three year sentence will be suspended for a period of three years, post release, on condition that the appellant enters into a bond in the sum of €100 to keep the peace and be of good behaviour.
