British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Conway [2019] IECA 343 (20 December 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA343.html
Cite as: [2019] IECA 343
[New search] [Printable PDF version] [Help]
Page 1 ⇓
Birmingham P.
Whelan J.
Kennedy J.
THE COURT OF APPEAL
Record Number: 165/2019
BETWEEN/
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND –
DECLAN CONWAY
APPELLANT
JUDGMENT of the Court delivered on the 20th day of December, 2019 by Ms. Justice
Máire Whelan
Introduction
1. This is an appeal against severity of sentence. The appellant, Declan Conway, now aged
thirty-seven years, a stonemason of Westport, County Mayo pleaded guilty to a single
charge of assault contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997.
He was sentenced on the 12th July, 2019 by his Honour Judge Rory McCabe at Castlebar
Circuit Criminal Court to a term of three years imprisonment with the final year of the
said term suspended on condition that the appellant enter into a bond and further on
condition that he perform 200 hours of community service within twelve months of the
date of his release.
The circumstances of the assault
2. The injured party and the appellant did not appear to be acquainted. Shortly after
10.20pm on Friday evening the 26th August 2016, the appellant having completed a
day’s work and thereafter engaged in some socialising was dropped off at his home. A
large contingent of about a dozen young males was outside on the driveway of the
adjoining property. The group had been attending a birthday party in the adjoining house.
They were waiting for taxis to convey them to a party. The appellant greeted them as he
headed for his hall door. An individual within the group appears to have been
argumentative and verbally abusive towards the appellant and spoke in a manner which
caused Mr Conway to take offence. A verbal exchange took place. The injured party,
Matthew White, who at the date of the assault was aged eighteen years and a leaving cert
student from Newport, County Mayo, engaged in a verbal exchange with the appellant
which escalated into an altercation between the two.
3. It appears that in subsequent investigations of the assault the Gardaí took statements
from about twelve young men who had been at the premises. One eyewitness recalled
looking up and seeing “Matthew leaning across the wall into Declan Conway’s garden.”
Garda Barrett, the investigating Garda, recalled in her evidence that a statement from
one eyewitness to the assault, Keith Fanning, stated that: -
Page 2 ⇓
“He saw Mr Conway attempt to push him back over…..I went over and told Matthew
to go to the bottom of the road and wait for the taxi. Matthew kept trying to get
over the wall to Declan. I went over and told Matthew to go … to the bottom of the
road and wait for the taxi.”
This eyewitness also stated that “Declan hit the injured party with his right fist. Matthew
fell right back.”
Conduct of the appellant at the scene
4. It appears that the injured party fell badly banging his head on the ground, losing
consciousness and sustaining a head injury. The appellant immediately got a chair and
sat the injured party upon it. He put the injured party in the recovery position. The
evidence before the sentencing judge was that it was the appellant that directed that an
ambulance be called (12th July 2019 p.10 line 29). By the time the ambulance had
arrived, the injured party had regained consciousness, he was bleeding from the left ear.
On arrival at Mayo General Hospital his Glasgow Coma Scale was 15 over 15.
Injuries sustained
5. The injuries suffered by Matthew White were significant. Forty-eight hours after his
admission to Mayo General Hospital, he was transferred to Beaumont Hospital for
treatment of intracerebral haematomas which had increased in size. Thereafter, he was
transferred to the National Rehabilitation Centre in Dun Laoghaire on the 26th
September, 2016. He suffered temporary hearing loss to his left ear and temporal facial
paralysis. He did not require neurosurgical intervention to address his injuries. By the
21st October, 2016, some eight weeks following the assault, the medical evidence
indicates that the facial weakness had almost completely resolved and an audiogram of
the said date noted his hearing had returned to normal. His residual problems were
primarily loss of smell associated with alteration in taste and there was uncertainty as to
the prognosis for his short and long-term memory in respect of which he had experienced
difficulties post the assault. A medical report of Mr Stephen McNally, Consultant
Neurosurgeon, dated the 5th January, 2017 being approximately four months post the
assault states: -
“This gentleman does not have substantial loss or impairment of his mobility of his
body. This gentleman’s main problems are cognitive and it will take time to know if
his ability to learn and his memory returns to normal.”
6. The medical evidence included the report from Beaumont Hospital dated 26th April, 2017
which identified improvements in Mr White’s memory: -
“He does not appear to be having any problems with short term memory in recent
weeks. This gentleman has had no major cognitive changes and his mood is
stable.”
It appears that primary difficulties identified were anosmia, being a total loss of smell
allied to a severe alteration in taste and in respect of which it would appear there had
been no improvement since the injury occurred. The medical evidence indicates that it
Page 3 ⇓
can take up to two years for any smell to return but there is a possibility that Mr White
will have no sense of smell in the long term.
The sentencing hearing of 12 July 2019
7. The appellant had previously entered a plea of guilty to the s. 3 charge.
Victim impact
8. Ms. White, the injured party’s mother, read a victim impact statement into the record of
the court. She outlined that arising from the assault, Matthew White had been absent
from school for nearly four months during the most crucial year of his school life. He
struggled to attend school and experienced a fear of group situations. She outlined to the
court that Matthew suffered long-term memory loss and that since the assault he cannot
smell and had difficulties with taste. She outlined that after the sentencing: -
“He can try to start building a different future for himself without the constant fear
of this day and its outcome but one thing is for sure, Matthew’s life will never be
the same.”
Approach of the sentencing judge
9. The judge characterised the events which led to the assault as follows: -
“… the background to this was a fairly innocuous situation. Words were exchanged
between Mr Conway and a bunch of teenagers and Mr Conway punched Matthew.
He fell to the ground and sustained a head injury. I have no doubt Mr Conway
didn’t intend inflicting injuries of the nature that were sustained when he punched
Matthew, but the injuries were a direct result of being punched.”
He noted that the injuries were very significant and accepted the statement of Ms White
as being clear and stark. From a sentencing perspective he took the initial step of
identifying the appropriate headline sentence, stating: -
“It has to reflect the nature of the offence, the impact on the victim and the
antecedence of the defendant and to my mind this offence stands close to the top
of the scale, bearing in particular the impact on the victim. The headline sentence,
before I consider factors that mitigate the gravity, is four and a half years’
imprisonment.”
10. The sentencing judge then proceeded to identify the mitigating factors as follows: -
“… bearing in mind the plea of guilty, the concrete financial expression of remorse,
allied to what I accept is genuine remorse, the low risk of reoffending that’s been
assessed by the Probation and Welfare Service and the fact that he is a married
man with commitments and a history of employment and an impressive list of
documents that have been submitted on his behalf, the appropriate sentence is
three years’ imprisonment.”
11. The judge then imposed sentence on the following terms: -
Page 4 ⇓
“Because of the complicated nature of his own social obligations and occupational
obligations, what I propose to do by further mitigation is to suspend the final year
of the sentence on condition that he performs and he is suitable to perform it, that
being the assessment of the Probation and Welfare Service, 200 hours of
community service within twelve months of his release. I will suspend…..Twelve
months suspended for a year.”
In effect accordingly, the sentence imposed was a three year sentence with the final year
suspended for twelve months. The appellant was to perform 200 hours of community
service within twelve months of the date of his release from custody.
Grounds of appeal
12. The appellant appealed identifying three key grounds:
Ground 1: The sentencing judge erred in placing the offence close to the maximum
level available thereby attracting a headline sentence of four and a half years
imprisonment.
13. The appellant contends that the headline sentence was unduly severe. Further, that the
sentencing judge failed to take account of the absence of aggravating factors in the
circumstances of the relevant offence. The offence comprised a single punch assault and
there were no elements of continued or aggravated violence. Particular emphasis was
placed on the absence of the use of any weapon, the lack of premeditation together with
the fact that the assault had resulted from an argument that developed spontaneously
with a group of young persons who had congregated at the front of the adjacent house as
the appellant was about to enter his home and was wholly unanticipated.
14. The appellant seeks to rely on the decision of Clarke J. (as he then was) in DPP v
Fitzgibbon [2014] 2 ILRM 116 where he stated: -
“…it must be emphasised that the severity or viciousness of the assault by virtue of
which a victim has suffered injury must always be a highly significant factor.
Subject to the earlier commentary made in this regard, the injuries suffered must
be taken into account. It does, of course, have to be acknowledged there is not
always an exact correspondence between the severity of the attack and the degree
of injury suffered.”
15. The DPP asserts that relevant guidance is to be found in the decision of this court in The
People (DPP) v Gary Burke [2015] IECA 186. That case reviewed the earlier judgment of
importance of the impact of an offence on the victim in determining the appropriate
sentence: -
“It is not the crime committed as a general concept or as being of a particular
class, but the actual offence that the person before the Court committed. This is the
primary determinant of sentence. What is the gravity of the crime that the guilty
person committed? Relevant to this first question is what kind of crime was
committed, what the particular circumstances were, how badly were other people
Page 5 ⇓
affected, was lasting harm done, was there an antisocial element and any other
matters that define severity of this class of offending. There may be features of the
crime that make it more serious or less within this category of crime"
Comparators
as an appropriate comparator. In that case the defendant pleaded guilty to assault
causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person’s Act,
1997 and received an entirely suspended three year sentence of imprisonment in the
Circuit Court. The Court of Criminal Appeal refused to interfere with same on the DPP’s
appeal for undue leniency.
the DPP brought an appeal on grounds of undue leniency of a sentence where the
respondent had been found guilty of one count of assault causing harm contrary to s. 3 of
the Non-Fatal Offences Against the Person Act, 1997 and received a sentence of fourteen
months’ imprisonment in the Circuit Court which was wholly suspended on terms for a
period of four years.
18. The DPP argues that while the use of comparators may be of assistance, their limitations
must be appreciated since each case is unique and turns on its own specific facts. Further,
that the sentencing judge had identified aggravating factors including loss of self-control,
significant injuries and the ensuing impact on victim and his family.
Ground 2: The sentencing judge attached insufficient weight to the mitigating factors
specific to the appellant.
19. It is contended that the sentencing judge failed to properly take account of mitigating
factors of which there were many at a time when he imposed a custodial sentence which
was in all the circumstances unduly severe. The mitigating factors deserving of weight
include: -
(a) His previous good character.
(b) That he was a significant voluntary contributor to his community including his
work over a period of fifteen years with Mayo Mountain Rescue.
(c) The appellant’s timely plea of guilty.
(d) He had a long employment history and was an employer of up to nine
individuals in various capacities in the business in Westport. Inevitably a
custodial sentence of two years duration would adversely impact on the
operation and continued success of the business into the future placing those
jobs in jeopardy.
(e) The sentencing judge did not attach any or any adequate weight to the fact
that nine families were reliant on the appellant and his business for their
income.
Page 6 ⇓
(f) Further, he had married a few weeks after the incident and was the sole
provider in respect of the two children of his marriage both of whom had
been born subsequent to the incident.
(g) He had significant parenting obligations and commitments in relation to his
teenage daughter who suffers severe health problems. He had responsibility
for her care several nights per week. There was evidence before the
sentencing judge that this child’s primary carer struggled to maintain the
care and medical regime for the child. In the circumstances, the court
afforded inadequate weight to the respite care and support afforded by the
appellant in respect of this child, it was contended.
(h) The sentencing judge ought to have considered the appellant’s conduct in the
assault and its immediate aftermath as outlined above.
(i) He made a voluntary cautioned statement to the Gardaí on the 29th August,
2016. That statement was honest and encompassed an acknowledgment
that there had been a confrontation and records his worry and regret
regarding his involvement in the altercation resulting in the serious injuries to
Mr White.
(j) The appellant had furnished an apology including in writing to the injured
party.
(k) He had undertaken significant personal commitments with regard to the
payment of compensation to the injured party and had incurred debts and
liabilities with a bank, a credit union and with his own relatives to enable him
to raise and discharge €20,000 to the injured party as of the date of sentence
with an intention to discharge a further sum based on further borrowings
anticipated to be possible provided the initial loans were repaid.
Performance of these obligations was severely impeded by the imposition of a custodial
sentence. The sentence imposed deprived the appellant of the capacity to discharge his
liabilities and perform his agreement which was contingent upon him earning an income.
Ground 3: The sentencing judge erred in the imposition of an immediate custodial
sanction in all of the circumstances of the case.
20. The appellant relies on the Probation Report which concluded that he had genuine
remorse and displayed insight in terms of the consequences of his actions, had been
assessed at a low risk of reoffending and was assessed as being suitable for community
service.
21. The appellant contends in written submissions, that the trial judge erred in structuring the
sentence by incorporating an element of a custodial sentence together with a community-
based sanction by way of a community service order pursuant to the provisions of the
Criminal Justice (Community Service) Act 1983, (as amended). It is argued that
community service is to be imposed as an alternative to, not in addition to or in
Page 7 ⇓
conjunction with a custodial term and as such the sentence as imposed in its structure
offends the statutory provisions of the Criminal Justice (Community Service) Act 1983,
(as amended).
22. The DPP maintained that the sentencing judge acted entirely within his discretion in
setting the headline sentence of four and a half years, imposing a sentence of three years
and suspending the final 12 months of the sentence in both mitigation and to incentivise
and structure the rehabilitation of the appellant. It is argued that this was well within the
range of sentences available to the sentencing judge and was proportionate to the
circumstances of the offence and the offender in this case.
Discussion
para. 35: “It has always been a judicial ideal to achieve consistency in sentencing…”
24. In The People (DPP) v Fitzgibbon the Court of Criminal Appeal set out indicative bands in
respect of assault causing serious harm and emphasised the role of the prosecution in
offering assistance as to an appropriate sentence, as opposed to demanding a particular
sentence. As was observed by Charleton J. in Mahon “In this regard precedent sentences
are key, as are analyses of relevant bands within which it may be suggested a case might
appropriately be placed.”
“…. Clarke J at paragraphs 3.1 and 3.2, the Court of Criminal Appeal offered the
following guidance as to the proper approach of the parties at sentencing:
‘[A] sentencing judge, having assessed the gravity of the offence and the
culpability of the accused, may seek to place the offence itself at an
appropriate point on the spectrum of offences of that type. Offences can
typically be divided into lower, middle and upper parts of the range … [t]here
is, of course, no necessary formula of words which must be used. It should
also be emphasised … that there may always be exceptional or unusual cases
which do not readily fit into any such range or ranges and where the
sentencing judge will have to engage in a somewhat novel analysis to come
to an appropriate determination as to sentence. However, in most cases, an
offence can, by reason of its gravity and the culpability of the accused, be
placed somewhere along the appropriate range in the manner just identified.
One possible means of converting such an analysis into an actual sentence
involves, as a first step, the sentencing judge determining the appropriate
sentence for the offence itself having regard to where the offence lies along
that range. The sentencing judge is then required, in accordance with the
established jurisprudence, to take into account the circumstances of the
individual accused and make such adjustment (if any) as may be appropriate
to reflect the individual circumstances of that accused. Where, for example,
there are significant mitigating and other personal factors, then a specified
Page 8 ⇓
reduction in sentence and/or a suspension of sentence in whole or in part
may be appropriate to meet those factors.’”
Charleton J. continued at para. 38: -
“The general principles as to how to approach sentencing were set out by the
Supreme Court in The People (DPP) v M [1994] 3 IR 306 through Denham J. She
pointed out that the ‘nature of the crime, and the personal circumstances of the
appellant, are the kernel issues to be considered and applied in accordance with the
principles of sentencing’. This approach she described as ‘the essence of the
discretionary nature of sentencing’. Thereafter, at pages 316-318, the following are
the principles to be taken into account:
‘Sentences should be proportionate. Firstly, they should be proportionate to
the crime. Thus, a grave offence is reflected by a severe sentence. …
However, sentences must also be proportionate to the personal
circumstances of the appellant. … the general impact on victims is a factor to
be considered by the court in sentencing. … Sentencing is a complex matter
in which principles, sometimes being in conflict, must be considered as part
of the total situation. Thus, while on the one hand a grave crime should be
reflected by a long sentence, attention must also be paid to individual
factors, which include remorse and rehabilitation, often expressed inter alia in
a plea of guilty, which in principle reduce the sentence. … In contemplating
the sentences it is appropriate to consider the offences and their nature and
their circumstances, but this is not done for the purpose of determining
whether the appellant should be incarcerated for the future so as to prevent
him committing further offences: he is sentenced solely for the offences
before the court.’”
26. It is worth recalling that Charleton J. in Mahon observed regarding sentences in
manslaughter cases where there is found to be lower culpability on the part of an
accused: -
“Manslaughter cases which fall into this category generally result in the imposition
of a sentence of up to four years’ imprisonment. The lowest sentences within this
range tend to be handed down where culpability is not especially high, but where
the accused is nonetheless at fault, although the case is one without the
aggravating circumstances which may be found in cases falling into the higher
ranges of culpability.”
Community service
27. The sentencing judge imposed a community-based sanction by way of community service
order for a period of 200 hours and this was imposed as a condition for the suspension of
the final twelve months of the three year sentence of imprisonment imposed and in lieu of
service of that part of the custodial sentence only.
Page 9 ⇓
Prof. O’Malley in his text Sentencing Law and Practice (3rd edn., Round Hall, 2016)
states: -
“Community service is available solely as an alternative to custody and must always
indicate the term of imprisonment that it would otherwise deem appropriate.”
28. It is noteworthy that in no sense did the appellant contend that the payment of
compensation in and of itself should impact on the nature or extent of the sentence
imposed. The court was informed that he had taken out a five year loan in respect of
€10,000 and had sought to secure other monies by way of further loans. (p. 6, lines 14 to
17). In that regard it is noteworthy that his counsel unequivocally stated: -
“I want to be quite clear that nothing is ever going to replace the circumstances of
the injury that was sustained by the defendant on the night in question but the
defendant is doing his level best to offer a concrete and practical expression of his
remorse, judge. Again it is acknowledged that the remorse has been expressed in a
frank and honest way by the defendant to the probation officer.”
Conclusions
29. S. 3 of the Non-Fatal Offences Against the Person Act 1997 at ss.2 provides: -
“A person guilty of an offence under this section shall be liable—
…(b) on conviction on indictment to a fine or to imprisonment for a term not
exceeding 5 years or to both.”
30. There was evidence available to the sentencing judge to suggest that this was not an
unprovoked assault.
31. The sentencing judge expressly observed in relation to two offences disposed of 16 and
17 years previously in the District Court “I am discounting them” (p. 13, line 6). Thus the
appellant was characterised by the sentencing judge as a person of good character
without any relevant previous convictions and fell to be sentenced as such.
32. In assessing a section 3 assault for the purpose of identifying the appropriate sentence,
the context of the assault, the surrounding circumstances and in particular the immediate
proximate events which led to it, the severity and nature of the assault and the degree of
injury suffered are all material factors. In the instant case, the sentencing judge expressly
acknowledged that the appellant didn’t intend inflicting injuries of the nature that were
sustained, he noted at p.21 line 11/12: -“… but the injuries were a direct result of being
punched.”
33. The facts suggest that this was an unanticipated altercation between two strangers
prompted by some provocativeness from one or more members of the group which
involved a single punch being thrown which had very severe consequences for the injured
party, Matthew White, by reason of the manner in which he fell banging his head off the
Page 10 ⇓
ground. There was no weapon involved. The evidence showed that the appellant
immediately exhibited concern and went to the rescue of the injured party.
34. We are satisfied that the principles enunciated by Clarke J. (as he then was) in DPP v
Fitzgibbon are particularly apposite in the context of the facts in the instant case where
he stated: -
“…. a relatively minor attack can have severe consequences. A single blow can,
unfortunately, lead to serious injuries. While some regard must, nonetheless, be
paid to the consequences of the assault, much greater weight will obviously attach
to those consequences where they are such as might reasonably be expected to
flow from the nature of the assault concerned or at least are not wholly
disproportionate to that assault.”
35. The injuries to the complainant led the sentencing judge to identify the headline sentence
as four and a half years imprisonment in advance of entering upon a consideration of any
mitigation.
36. Given that the sentencing judge had expressly indicated that he was disregarding
offences committed during the appellant’s youth which had been disposed of years before
in the District Court, it was appropriate to approach the process of identifying the
headline sentence with due regard to the culpability of the appellant as well as the gravity
of the offence.
37. Identification of the headline sentence requires consideration of the gravity of the offence
which is assessed by reference to culpability and the harm done. In assessing an
offender’s moral culpability, aggravating and extenuating factors may be taken into
account. Therefore, in assessing the gravity of the instant offence, factors in addition to
the injuries suffered by a victim required consideration. While the sentencing judge had
observed; “I have no doubt Mr Conway didn’t intend inflicting injuries of the nature that
were sustained when he punched Matthew, but the injuries were a direct result of being
punched”, he failed to accord sufficient regard to the entire context and nature of the
assault. The injuries arose from a single blow struck by the appellant which occurred in
the course of an unforeseen encounter with a group of young persons as he was about to
enter his own home and to attach sufficient weight to the fact and the absence of
aggravating factors.
38. This error in principle resulted in the headline sentence imposed by the Circuit Court
judge being unduly severe.
Mitigation
39. Mitigating factors included that the appellant was a person of good character who had at
all material times been in gainful employment and created employment in a rural
community. He was an individual who, it is clear from the testimonials, had made a
positive contribution to his community by his role as a volunteer and further had
honoured his personal and private obligations particularly towards his disabled daughter
Page 11 ⇓
and had assumed a caring role in connection with her welfare to afford respite to the
child’s primary carer.
40. Imposing a relatively lengthy custodial sentence placed on the hazard the employment
prospects and security income for nine families quite apart from the appellant’s own
dependents being his spouse and two children of his marriage, together with his teenage
daughter. Further, it significantly undermined his capacity to discharge his borrowings
and liabilities incurred for the purposes of making restitution of a meaningful nature to
the injured party, and clearly deprived him of the capacity to secure further borrowings to
make good his commitment to discharge €40,000 over a sustained period of time.
The Sentence
41. In all the circumstances, we assess the gravity of the offence by nominating a headline
sentence of three years imprisonment rather than four and a half years.
42. Having identified a headline sentence, it is necessary to have regard to the mitigating
factors present. In doing so, the court re-sentences as of today’s date.
43. Given the very significant mitigating factors of which there was a very large number,
these warrant a reduction of the identified headline sentence of three years to two years
imprisonment.
44. We have regard to the significant additional material put before us, including, in
particular, testimonials from a large number of individuals and details of the impact of his
imprisonment on his severely disabled child and the implications for her welfare and on
her care.
45. In light of the new additional material furnished and referred to in the preceding
paragraph we are satisfied to suspend the balance of that sentence in order to incentive
rehabilitation.
46. It is noted that the appellant has been in custody since the sentencing hearing.
47. In all the circumstances, the justice of the case warrants that the sentence imposed by
the Circuit Court ought to be quashed and in its place, a substituted sentence of two
years imprisonment with the balance of the said sentence to be suspended forthwith
provided the appellant enters into an immediate bond to keep the peace and be of good
behaviour for a period of two years from this day.
Result: Allow and Vary