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Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Carlisle [2019] IECA 357 (12 November 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA357.html
Cite as: [2019] IECA 357
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THE COURT OF APPEAL
[246/18]
The President
McCarthy J.
Kennedy J.
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
MARK CARLISLE
APPELLANT
JUDGMENT (Ex tempore) of the Court delivered on the 12th day of November 2019 by
Birmingham P.
1. This is an appeal against severity of sentence. The sentence under appeal is one of seven
years and six months imprisonment that was imposed on 26th July 2018 in the Dublin
Circuit Criminal Court. It was imposed in respect of a count of a violent disorder and the
sentence was to date from that day. A count of assault causing harm was taken into
consideration.
2. The sentence was imposed following a conviction by a jury on counts of violent disorder
and assault causing harm. The trial had related to events on 12th October 2015 at
Captain’s Road, Dublin.
3. Following his conviction, the appellant lodged an appeal against conviction and sentence.
At an earlier stage, this Court, differently constituted in part, dismissed the appeal against
conviction. In the course of giving the decision on the conviction aspect, the background
facts were set out in some detail and it is not proposed to repeat that exercise here
today.
4. However, to briefly summarise, the evidence at the sentence hearing was that on Sunday
12th October 2015, the injured party, a Mr. Mark Conway, was making his way home to
his parents’ house on Captain’s Road when he encountered a group of five or six young
men. A bottle was thrown at him, after which he was then in contact with his brother,
Derek Conway, who had been a short distance behind him. Derek Conway received a
punch to the face, and when he got up, he saw a group of males in the garden, kicking
his brother, Mark. Derek Conway gave evidence that the males were stamping on his
brother’s head. As he approached the garden, the males began to move away and then all
of them, bar one, ran away. This male, who remained, continued to deliver eight to
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twelve kicks to his brother while he was on the ground. This lasted some ten seconds.
This individual then ran away. It was the prosecution case that it was Mr. Carlisle who
was the one individual who remained behind
5. In terms of the injuries sustained by the injured party, the sentencing Court was told that
he had sustained a base of the skull fracture with inter-cranial haemorrhage and that
there was extensive facial trauma. The Court heard that having initially been released
from hospital, he was subsequently readmitted to the Emergency Department with a
seizure caused by low blood sodium levels and that that led to a diagnosis of Diabetes.
The Court was also told that he had developed an overactive bladder and that he had
developed Anxiety Disorder as a result of it.
6. In terms of the appellant’s personal circumstances, he was 28 years old at the time of the
sentence hearing, his date of birth being 22nd September 1989. He had 109 previous
convictions recorded, and of note is that there were relevant convictions involving
violence, from the Circuit Court. These included assault causing harm. Strikingly, there
were three violent disorder convictions, there were convictions for threats to kill, assault
on a Peace Officer and possession of firearms in suspicious circumstances. At the time of
the trial, the appellant had been serving a sentence of five years imprisonment in respect
of a violent disorder offence and that sentence expired on 27th May 2018. The appellant
had been on bail for that offence at the time when the instant offence was committed.
The fact that this offence was committed while on bail must, by statute, be regarded as
an aggravating factor.
7. In terms of his background and personal circumstances, more generally, he had, at one
stage, been a talented boxer. He had been a Dublin, Leinster and All Ireland Champion at
different age groups. However, interest in boxing had waned as alcohol became a greater
feature of his life. He also had a work record, having worked as an apprentice plasterer in
his father’s business, a business which unfortunately failed during the years of recession.
8. As to the grounds of appeal that have been advanced, it is submitted that the judge erred
in fixing the headline sentence at ten years, the maximum, or certainly setting the
headline at a figure very close to that. He did not did not do that explicitly, but it is said
that it was clearly implicit in how he approached the sentence. It is also argued that the
judge erred in failing to have regard to the 5-year sentence that had just been served and
to the effective consecutive element. It is said that in so doing, the judge did not have
regard to the principles of proportionality and that imposing a seven and a half year
sentence, on top of and following from a sentence of five years, that that gave rise to an
overall sentence that was disproportionate. It is said that the judge should have
suspended some of the seven and a half year sentenced in order to incentivise
rehabilitation in respect of a man who had a very difficult history with alcohol.
9. In response, the DPP points out that the appellant is in fact serving a 3-year sentence for
a firearms offence which was imposed on 27th May 2018, and that the current sentence
runs concurrently with that, and that this is a matter which has to be taken into account.
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The DPP says that the sentence imposed was a proportionate and appropriate one for an
offence of this gravity.
10. In the Court’s view, this was a very serious offence indeed, committed by someone with a
very significant criminal record, including directly relevant previous convictions. For our
part, we cannot identify any error on the part of the trial judge. Indeed, particularly if one
has regard to the concurrent 3-year sentence, we cannot see how the sentence actually
imposed could, in all the circumstances, be regarded as a severe one, still less, as an
excessively severe sentence.
11. In the circumstances, we dismiss the appeal.
Result: Dismiss