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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v McLoughlin (Approved) [2025] IECA 120 (07 April 2025)
URL: http://www.bailii.org/ie/cases/IECA/2025/2025IECA120.html
Cite as: [2025] IECA 120

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THE COURT OF APPEAL

Neutral Citation: [2025] IECA 120

Record No.: 147CJA/24

Bill No.: CKDP0098/2023

McCarthy J.

Burns J.

MacGrath J.

Between/

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

 

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT

-AND-

DARRAGH MCLOUGHLIN

RESPONDENT

JUDGMENT of the Court delivered by MacGrath J on the 7th  day of April 2025.

1.                  This is an application by the Director of Public Prosecutions ("the applicant") pursuant to s. 2 of the Criminal Justice Act 1993 for a review, on grounds of undue leniency, of sentences imposed on the respondent on the 2nd  May 2024.

2.                  On the 23rd  October 2023, the respondent entered signed pleas of guilty to the following offences:

i.                    Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2021 - count no. 1.

ii.                  Assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 ("the 1997 Act") - count no. 2.

Prior to sentencing, probation, medical and psychological reports were obtained, as were testimonials. The respondent collected €10,000 which was offered to and accepted by the injured party.  

3.                  The sentencing hearing then took place on the 18th April 2024. Evidence of the offending was given by Det. Garda Joe Crowley. A plea in mitigation was made. Sentence was pronounced on the 2nd May 2024. A sentence of imprisonment of six and a half years was imposed, with the final two and a half years suspended for a three year period on the respondent's own bond of €500 and on conditions that 1) the respondent remains under the supervision of the probation services for three years post release, 2) attends all appointments and comply with the directions of his probation officer, 3) that he continues his engagement with counselling services and offence focused work and 4) that he does not come to the adverse attention of An Garda Siochana and that he keeps the peace and be of good behaviour.  The applicant maintains that this sentence was unduly lenient.

Factual Background

4.                  At approximately 1:15am on the 18th October 2022, the respondent and the injured party were involved in an incident outside the Secret Garden Nightclub, Hanover Street, Cork. The encounter was captured on CCTV which showed the respondent attempting to strike the injured party and missing. In the altercation, the injured party is to be seen on CCTV kicking the respondent in the back while he was on the ground.  They were then separated.

5.                  The injured party and a friend then left the area and went in the direction of Grand Parade via South Main Street and Tuckey Street. They were followed by the respondent and another male. The respondent subsequently stated that he gave chase because he believed that the injured party had stolen his phone. Shortly thereafter, the respondent and the injured party were captured on CCTV exchanging blows outside Swoon, an ice cream shop on Grand Parade. The injured party is then seen fleeing in the direction of Daunt Square with the respondent in pursuit. A garda CCTV camera located at the junction of Cornmarket Street and Paul Street captured the injured party running onto Paul Street. The respondent followed him. Both can be seen wrestling to the ground before the respondent got on top of the injured party and assaulted him. CCTV footage shows him kicking and punching the injured party in the body and face. The respondent is then seen taking a phone from the injured party's pocket. He continued the assault while recording it on that phone. He removed the injured party's shoes,  pulled the injured party's trousers down to his knees and attempted to take off his jacket. In the video clip of the assault recorded by the appellant using the injured party's phone, the respondent can be heard instructing the injured party to stop protecting his head. This video records 14 kicks to the injured party's head. Passersby are captured pleading with the respondent to stop assaulting the victim, who lay prone on the ground. These pleas were ignored by the respondent, who continued kicking him in the head and body. The respondent is then captured leaving the scene for a brief period before returning and continuing the assault. The assault lasted approximately 20 minutes. The respondent did not desist until gardai arrived.  Over 250 blows were inflicted on the injured party.  

6.                  The respondent was arrested and conveyed to the Bridewell Garda Station, Cork. Because of his presentation and intoxication, his period of detention was suspended on medical grounds. When interviewed later that morning he was described as being confused. Det. Garda Crowley informed the sentencing judge that the respondent "believed that his phone has been stolen and that... he shouldn't be in the Bridewell or he shouldn't have been arrested". When shown the CCTV footage,  "it dawned on him then the severity of what had happened the night before" and he made admissions. The respondent stated that he had a history with the injured party and his friends and described, as follows, an earlier incident which had taken place in July 2021:

"[The friend of the injured party] is a nice guy, we have had a few altercations with him, where they're shouting the 'N' word at my friend or just causing hassle.  Nothing has happened in a few months.  I hadn't seen them.  A few months ago I went to CUH after they jumped on my head.

This is stated to have occurred on Anglesea St. The respondent was taken away in an ambulance. He did not make a complaint about that incident and no investigation was conducted. The respondent's hospital records, however, were made available to the sentencing judge.

7.                  The respondent was initially charged with assault contrary to s. 3 of the 1997 Act and brought before the District Court. This charge was struck out on the recommendation of the DPP. He was rearrested and charged with assault causing serious harm contrary to s. 4 of the 1977 Act. He signed a plea of guilty in the District Court and was sent forward for sentencing to the Circuit Court, where he affirmed his plea.

The Injuries

8.                  The sentencing judge was provided with a medico-legal report on the injured party's injuries and course of treatment prepared by Dr Frank Leader, Consultant in Accident and Emergency Medicine, dated the 27th February 2023. Ambulance personnel recorded multiple bruises and lacerations to the injured party's head, swelling in the area of the right eye and cheek, blood in both nostrils, and chest wall and upper abdominal tenderness.  He was alert but answering questions less readily than might have been expected. Following his admission to hospital, he was triaged as having sustained a head injury with loss of consciousness and, because of the seriousness of his injuries, transferred to the resuscitation bay. His consciousness level was minimally reduced and examination suggested no immediate threat to life. The injured party's entire face was swollen and bruised, particularly around his right eye, to the extent that the eye itself could not be examined at that time. CT scan examination of the injured party's head and face showed multiple fractures of his right eye socket. He had drooping of his eye muscles/contents into the compartments beneath and suffered a fracture of his nasal bones to either side and centrally. Following review by the maxillofacial surgical team and an ophthalmology specialist, the injured party was prescribed medication and referred to the Ear Nose and Throat specialists for review of his nasal fractures. He was reviewed on multiple occasions in October and November 2022. He experienced ongoing double vision and a cosmetic deformity whereby his right eye appeared sunken in his eye socket. He also had flatness of his right cheekbone. He declined surgery to fix the bone issues, as no guarantees were forthcoming about that surgery. He had experienced some improvement of his double vision at the time of last review.

Victim Impact Statement

9.                  The injured party's victim impact statement was read to the court. The following is an extract from that statement.  

"There's no doubt that the day of the attack was the worst day of my life.  In my opinion, the most difficult thing I have to deal with from this day is only remembering small parts of it.  For many months after this day, my mind was constantly thinking and racing, trying to fill the gaps of what I do and don't remember from my own eyes and memory, not just CCTV footage.  I couldn't sleep, I still get flashbacks of this night.  Seeing my face when I woke up in hospital a few hours after the attack was extremely frightening and upsetting.  I couldn't recognise myself.  With all the fractures in my eye socket and skull, I still don't completely recognise myself to this day.  My face shape and look has been altered.  This is also upsetting and hard to come to terms with.  As my eye has been moved and isn't in its original position, I suffer with double vision and I look in certain directions because my eyes now see from different perspectives, which has changed the way I look too.  This affects me from the moment I wake up in the morning until the moment I go to sleep and will affect me every day for the rest of my life.  The impact that this has had on my family and friends also upsets me.  They were extremely shocked, frightened and saddened from what happened and the damage it has caused.  It wasn't just me who suffered from what happened that night.  In conclusion, the attack that happened on the 18th of October 2022 has severely affected me mentally and will continue to affect me physically.  I will never forget this nightmare".

10.              The respondent has no previous convictions and, at the time of the assault, was a student living with his mother in Cork City. He had mental health difficulties for which he had received treatment a number of weeks before the assault. He was on antidepressants and was under the influence of alcohol on the night.

Submissions to the Sentencing Judge

11.              By reference to DPP v. O'Sullivan [2019] IECA 250 the applicant submitted to the sentencing judge that the offending fell into the exceptional category, attracting a headline sentence of in excess of 15 years in prison.  The respondent, relying on DPP v. Fitzgibbon (No. 1) [2014] IECCA 12 and DPP v. Fitzgibbon (No. 2) [2014] IECCA 25 argued that the offending fell to be considered in the mid-range.

12.              In Fitzgibbon, the victim of a s. 4 assault was aged 16 years. He received 26 punches and 65 stamps to the head, and two stamps to the chest. He suffered serious neurological damage, requiring intubation and ventilation for eight days. A sentence of 15 years with three years suspended was imposed. The Court of Appeal quashed the sentence, finding it to be too severe. Sentencing guidelines were proposed for the offence of assault causing serious harm, with serious offending attracting a sentence of  between seven and a half to 12 and a half years. Counsel for the respondent accepted that while the maximum penalty for the offence has increased, Fitzgibbon was relevant in so far as the applicant's view "is that this is even beyond serious in the exceptional level, as opposed to serious which was accepted by the Court in Fitzgibbon".

13.              The sentencing judge was referred to paragraph 8.12 of Fitzgibbon (No.1), where it was stated that in the determination of the appropriate sentencing range, "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"; and para 8.13 which referred to culpability and provocation:

"The degree of culpability of the accused is also an important factor. An entirely unprovoked attack will, ordinarily, be regarded more seriously than an assault which arises out of an incident, most particularly one which is not, or at least not only, of the perpetrators making. Factors such as provocation can be a legitimate factor to take into account in assessing the seriousness of an assault."

While accepting that there was a high degree of culpability in this case, counsel distinguished Fitzgibbon as there was in this case "an element of provocation" because of the manner in which the first part of the incident had unfolded and also because of the previous year's incident. Counsel submitted that the offending was not in the same class of Fitzgibbon, which was concerned with an unprovoked assault.   He also submitted that it was relevant to culpability that no weapons were involved and that the assault was not committed in the context of other criminality. Further, Clarke J stated at para 8.15 of Fitzgibbon:

"What [the offender's] true motivation was remains a matter of speculation. That he may have had some 'history' with [the injured party] is possible. However, without fully understanding any such history, it is impossible to regard this case as one where any of the circumstances which pre-dated the assault might minimise the severity with which it must be viewed."

Unlike in Fitzgibbon, an explanation was advanced for the assault.  Issues had predated the assault, and counsel submitted that the respondent's offending ought to be looked at in that context.  

14.              As to the fact that the assault had been captured on CCTV, counsel referred to dicta of Clarke J in Fitzgibbon that "many assaults do not occur in the full glare of video cameras" and "[s]entencing should not, however, be excessively influenced by reference to the extent to which there was graphic evidence available" (para 8.16). Counsel also referred to comparator cases considered in Fitzgibbon and  submitted that the decisions shared the "common theme" that the victims in the "serious" category which attracted a headline sentence of between 10 and 15 years had suffered significant permanent injuries.

15.              Counsel for the respondent relied on O'Sullivan and emphasised that there,  catastrophic injuries were caused to the victim. This Court considered the offending  to fall into the mid-range. He submitted that the level of harm done in this case was not at the level of that occasioned in O'Sullivan.  There, the defendant, who was in his late 20s, was socialising with his wife when he became involved in an incident with the injured party. A heavy blow was inflicted by him, likely with a blunt object, to the back of the victim's head. The defendant phoned the ambulance and stayed with the injured party. The consequences of the assault were catastrophic for the injured party. He suffered serious and extensive head injuries, had to be placed in a medically induced coma, sustained significant brain damage, lost the hearing in his left ear and experienced seizures. He lost the ability to walk. The defendant, who had no previous convictions, was sentenced to a sentence of seven years, with the final two and a half years suspended. Birmingham P provided the following guidance:

"Notwithstanding our view that the guidance offered by DPP v. Fitzgibbon requires some refinement at this stage, we think it reasonable to address this appeal by reference to the Fitzgibbon guidelines which were those that were applicable when sentence was imposed. We are in no doubt that this was indeed a mid-range offence and not an offence at the lower end of the mid-range. Gravity is assessed by reference to moral culpability and harm done. In this case, the harm done was very grave indeed and the moral culpability, while not at the very highest point in the scale, was very significant. It was a one-punch assault, but it was a punch delivered to the back of the head of someone who was not expecting it and was wholly unprepared for it. It is to be distinguished from a punch thrown in the course of an argument or a skirmish where, frequently, it would be parried and even if the punch was landed, the likelihood would not be of significant injury being caused. If one were to take the mid-range of the band suggested in Fitzgibbon for mid-level offences, that would suggest a starting point or headline sentence of the order of five and a half years to five years and nine months." (Para. 13)

Sentencing Judge's Remarks

16.               The sentencing judge noted that the respondent had "considerable difficulty" viewing the CCTV footage, and in particular the video which he had taken himself. He also observed that the majority of those present in the courtroom "had to look away given the horrific nature of all that footage". Having had regard  to Fitzgibbon and O'Sullivan,  he stated as follows:

"...given this Court's assessment of the gravity of the case based on moral culpability and the harm done, I'm placing this in the high range and I'm setting a headline sentence of 10 years' imprisonment.  This is not a one-punch case and quite frankly, the CCTV footage accurately illustrates the full extent of the sustained attack over 20 minutes and this Court must reflect that in its headline sentence.  I'm of the view that it cannot fit into the mid-range due to the above reasons and given the sustained and recorded attack".

17.              In addressing mitigation, the sentencing judge took into account the respondent's co-operation with gardai and his early guilty plea. He described this as being of "considerable value to the State and of course the injured party and his family". He reduced the headline sentence to reflect the credit due to six and a half years' imprisonment. Further mitigation was then considered as follows:

"I have fully considered every single report and document and everything that's been tendered on the last date and all testimonials on behalf of Darragh McLoughlin.  And I accept all the mitigation offered on his behalf.  To summarise, Mr McLoughlin has no previous, not known to the gardaí, no garda attention since.  He is a young man, 22 years of age and he has prospects for the future and still will have, no matter what I do.  He has offered a full apology; he is ashamed, and he is appalled by his behaviour.  He had been struggling with mental health difficulties at the time of the incident, including an attempt of self-harm in the weeks leading up to this incident, due to a difficult break-up with his girlfriend.  He is in full-time employment.  He has discharged the sum of €10,000 in favour of the injured party as a token of his regret, which I note is accepted.  He is currently a business degree student, which he has had to defer due to this case and various bail conditions affecting his Erasmus option.  He has attended all appointments with a forensic psychologist and cooperated fully with that process.  Dr Lambe, psychologist, is of the opinion that the defendant at the time was somebody who, among other things, was struggling to regulate his emotions, perhaps has a deep-rooted difficulty with alcohol that he may have inherited and has real feelings of guilt to what he has done to [the injured party].  Psychological testing pointed to depression and traumatic stress symptoms, together with suicidal ideation as prominent for the defendant, with the need for further counselling.  He has attended all appointments with the probation service and cooperated again fully in that process.  He is deemed at low risk of re-offending and a suitable candidate for probation supervision in due course.  The defendant has sought further support from the HSE through Tabor House and also Coolmine in relation to alcohol difficulties.  I have also considered the contents ... of Mr Heffernan's counselling letter and the medical letter confirming his depression and prescribed medication and his attendances for counselling and psychological support.  I've also reviewed the numerous character references from his mother, his godmother, grandfather, family friend Ms Walsh, Mr Tubrid, Ms Ryan and Margaret McLoughlin, maternal grandmother, which all speak to his good nature and character among other things, and I don't doubt it for a second."

In light of this further mitigation, and to incentivise continued rehabilitation, the sentencing judge suspended the final two and a half years of the post mitigation sentence of six and a half years for a three-year period, on the respondent's own bond of €500 and in accordance with the conditions outlined at paragraph 3 of this judgment. Thus, the carceral element of the sentence imposed was four years in prison.

 

Grounds of Application

18.              The application is based on the following grounds:

1.             The sentencing judge erred in law and in fact in failing to initially place the offences on the spectrum of seriousness of offences of this kind, and in failing to have appropriate regard to the range of sentences appropriate to such offence.

2.             The sentencing judge erred in law and in fact in nominating a headline sentence of 10 years.

3.             The sentencing judge erred in law and in fact in reducing the headline sentence by 60%.

4.             The sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors in this case.

5.             The sentencing judge erred in principle in imposing and unduly lenient sentence in all the circumstances.

Submissions of the Applicant to this Court

Grounds 1 & 2

19.              The applicant submits that the sentencing judge erred in the assessment of the gravity of the offending by placing the offending behaviour at the lowest end of the high range as described in O'Sullivan. The nominated headline of ten years was too low, given the gravity of the offence. It fell to be considered within the exceptional range because of the prolonged, sustained and savage nature of the attack. The injured party had been "followed and pursued through the streets of Cork, thereafter chased on foot, knocked to the ground and struck about his person on two hundred and fifty occasions". His clothing was removed and his hand was moved from a protective position. 14 kicks and stamps were directed to his head. The respondent left the scene during the attack for a period of between three and four minutes, only to return and continue with the assault. The harm occasioned to the injured party, as evidenced in the victim's impact statement, is emphasised.

20.              Reliance is placed on dicta in Fitzgibbon (No.1) that notwithstanding categorisation by reference to harm done, the primary focus must remain on the actions of the guilty party. At para. 8.10, Clark J, in addressing sentences for offences at the lower end, mid-range and most serious range of offending, also considered offences of an exceptional nature:

"It must, in addition, be acknowledged that there may be cases which, because of their exceptional nature, would warrant, without mitigation, a sentence above twelve and a half years up to and including, in wholly exceptional cases, the maximum sentence of life imprisonment."

21.              Reliance is also placed on dicta at paras 8.11 and 8. 12:

"It must be emphasised that there may always be special or unusual factors which properly influence the assessment by a sentencing judge of the severity of an offence and the culpability of the offender on the facts of any individual case. The analysis which follows should not, therefore, be taken as in any way excluding the entitlement of and, indeed, requirement on a sentencing judge to take into account any factor which may be material in the legitimate consideration of how to characterise offences of this type by reference to their severity and the culpability of the accused. That being said, it seems to this Court that there are a number of factors which will normally, in accordance with the established case law, play a significant role in any such assessment.

First, it must be emphasised that the severity or viciousness of the assault by virtue of which the victim has suffered injury must always be a highly significant factor....(w)hile 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 occurred or at least are they wholly disproportionate to that assault."

Grounds 3, 4 & 5

22.              It is accepted that, in accordance with the jurisprudence of this Court in DPP v. Cambridge [2019] IECA 133 and DPP v. O'Callaghan [2020] IECA 172, a signed plea of guilty warrants a deduction from a headline sentence of approximately one third. It is submitted, however, that the sentencing judge erred in affording the respondent a total effective reduction of sixty percent by suspending the final two and a half years and that the effect of the period of suspension is to render the "already low nominated headline sentence unduly lenient".

23.              It is submitted that disproportionate weight was afforded to mitigating factors and that by taking into consideration the robbery count without considering whether to impose a consecutive sentence or to consider it as aggravating the s, 4 offence, the sentencing judge failed to impose a sentence which reflected the overall gravity of the offending. While each of the above matters, on its own, might be within the legitimate discretion of the sentencing judge, when combined they led "inexorably" to a disproportionate sentence which departed substantially from acceptable norms.

Submissions of the Respondent

24.              It is submitted by the respondent that the sentencing judge did not err in law or fact in assessing the weight to be attached to mitigating factors, nor did he err in nominating a headline sentence of ten years. Fitzgibbon indicates that a sentencing judge is required to take into account any factor which may be material in characterising an offence. The sentencing judge had regard to Fitzgibbon and O'Sullivan and set the headline sentence in the higher category, having taken into account the gravity of the offence, the culpability of the respondent and the harm done.

25.              The respondent reminds the Court to be cognisant of the cautionary note in the Fitzgibbon regarding the viewing of CCTV footage. The respondent points to the history between the parties, which included a number of incidents instigated by the injured party and which are said to represent an "element of provocation".

26.              It is submitted that a suspended sentence is a sentence. It is put in place to allow well established principles to be attained, such as proportionality and the incentivisation of rehabilitation. A portion of the sentence was suspended to allow the respondent to continue to engage with probation services for a period of three years after his release. If he fails to do so, that portion of the sentence will be re-instated. It is submitted, therefore, that it should not be considered a percentage deduction from the headline, rather a failsafe should the respondent not comply with the post-release conditions. Dicta in DPP v.  Lawlor [2016] IECA 23 is relied upon:

"The effect of that [the suspended portion of the sentence] is that following his release, he will still be subject to a suspended sentence and there will to that extent be a real incentive for him to carry through on his stated intention to reform." (para. 16)

27.              It is submitted that the sentencing judge had due regard for mitigating factors, as he was required to do. The respondent was assessed to be at low risk of re-offending. He had sought additional help from the HSE and Tabor Lodge to address his issues with alcohol. At the time of the assault, the respondent was under the influence of alcohol and anti-depressants and suffered from unaddressed mental health difficulties.

28.              The respondent relies on the dicta of Walsh J in People (AG) v. O'Driscoll (1972) 1 Frewen 351 concerning the well-established principle of sentencing that regard must be had not only to the crime and the circumstances of the individual offender, but also the public interest in rehabilitation:

"The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the Courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case - not only in regard to the particular crime but in regard to the particular criminal."

O'Malley, Sentencing Law and Practice (3rd edn, Round Hall 2016) is also relied upon in this regard:

"The public interest in encouraging offender rehabilitation which, in turn, reduces the risk of recidivism, justifies the adoption of certain measures such as part suspension of prison sentences where there is a realistic possibility that they will provide an incentive to offenders to abstain from further crime. This is now treated as a principle of sentencing, and one on which the present Court of Appeal, ever since its establishment, has laid considerable emphasis. Trial Courts must therefore have regard to this factor, especially when imposing prison sentences, even for very serious offences. Failure to do so may amount to an error in principle." (para. 5-58)

Discussion

29.              Section 2 of the Criminal Justice Act 1993 provides:

"(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the 'sentencing court') on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day on which the sentence was imposed.

(3) On such an application, the Court may either: -

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application."

30.              The onus of proof rests with the applicant. The sentencing judge must be afforded a considerable degree of latitude and this Court must place great weight on his or her reasoning. It is of little assistance to ask whether, if a more severe sentence had been imposed, it would have been upheld as being right in principle, as the test to be applied is not the converse of the inquiry made on an appeal against severity, rather it is to determine whether the sentence is unduly lenient (DPP v. Byrne [1995] ILRM 279, DPP v. James O'Reilly [2007] IECCA 118). Intervention will not be warranted simply because this Court might take a different view of the sentence imposed. Nothing but a substantial departure from what is to be regarded as the appropriate sentence will justify intervention (DPP v. Stronge [2011] IECCA 79, DPP v. McCormack [2000] 4 IR 356).  A clear divergence from sentencing norms must be demonstrated. As was stated in Stronge, in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the scope of sentence which is within the judge's discretion to impose. This Court, therefore, must be slow to intervene. 

31.              With regard to the seriousness of offending under s. 4 of the 1997 Act, and guidance on the range of applicable headline sentencing, this Court stated as follows at para. 8 of  O'Sullivan:

"In the almost  five years since the decision in DPP v Fitzgibbon, quite a number of cases of s. 4 assaults have come before the courts, whether by way of appeals against severity or applications to review on grounds of undue leniency. The experience of the Court is that the upper end of the suggested range for mid-range and upper-range offences imposes excessive constraints on Sentencing Judges. The experience of the courts operating under Fitzgibbon is that an upper limit of seven and a half years for a mid range is too low and a figure of ten years would be more appropriate. Likewise, we are inclined to the view that a figure of twelve and a half  years as a pre-mitigation for high-end offences is too low and should be increased to fifteen years with exceptional cases higher again. We stress, and it is our impression that this is not always fully appreciated, that the guidance was offered in respect of pre-mitigation sentences. In many cases, there will of course be factors present by way of mitigation so that the ultimate sentence imposed will be less than the sentence identified as a headline or starting pre-mitigation sentence. In some cases, there may be very powerful mitigation present in which case the ultimate sentence imposed will, in all likelihood, diverge very considerably indeed from the starting pre-mitigation headline sentence."

32.              The respondent's culpability is very high.  CCTV captured the assault and the infliction of an enormous number of blows to the body and head of the injured party. It is alarming and shocking.  This is compounded by the video recording taken by the respondent on the injured party's phone.  The injured party was in a vulnerable position. No mercy was shown by the respondent who continued to rain down blows on him.  The fact of the recording is an aggravating factor. 

33.              Nevertheless, caution must be exercised where an assault is captured on film. As Clarke J stated in Fitzgibbon, many assaults do not occur in the full glare of video cameras and a sentencing court should not be excessively influenced by the extent of the graphic evidence available. Any such initial alarm and shock experienced at first viewing of video evidence must give way to sober judicial analysis of all relevant factors to be taken into consideration in determining an appropriate and proportionate sentence.

34.              There are a number of factors which, on the authorities,  must be considered in the assessment of culpability. No weapons were introduced. The sentencing judge had regard to this, and in our view correctly so. The trial judge also, again correctly in our view, addressed the mental health difficulties of the respondent and his treatment for same. He also took into account the history between the parties. To the extent that it was suggested that there was an element of provocation, that must, in our view, be viewed in context. The respondent had numerous opportunities to de-escalate and to disengage. On the contrary, he pursued the injured party through the centre of the city before seriously assaulting him.  Notwithstanding the exercise of caution when viewing the video evidence and the background factors referred to, the sustained assault on the injured party, culpability must be considered as being extremely high.

35.              The manner in which the sentencing judge structured the sentence was careful and thoughtful. The role of this Court on this application is limited.  What we must decide is whether the sentence imposed deviated from the norm to such extent that it was not only lenient but that it was unduly so, such that an error in principle arises warranting intervention.

36.              The applicant, in written submissions, contends that the offending falls within the exceptional category of cases which ought to have attracted a headline sentence of in excess of fifteen years in prison.  In argument before this Court, however, it was conceded that if the offending is not in that category, the nominated headline sentence should have been placed at the highest level of the high-end of offending - i.e. 15 years or close to 15 years in prison.

37.              We cannot accept the proposition that the offending in this case, serious as it is, falls to be considered in the exceptional category.  A headline sentence which reflects the court's assessment of the gravity of the offending is to be determined not only by reference to an accused's level of culpability but must take into account the gravity of the harm inflicted. Clearly, as stated, culpability is extremely high. Medical reporting on the injured party's condition from a very early stage, while reflecting and recording very serious injuries which are not to be understated, were not at a level which sentencing courts experience from time to time in terms of their life threatening  or catastrophic nature, nor are they such as to impact on intellectual and cognitive functioning as was the case in some of the authorities cited.  We are therefore satisfied that the pre-mitigation headline sentence does not fall to be considered within the category of exceptional cases attracting a headline sentence of in excess of 15 years in prison.

38.              We are satisfied, nevertheless, that taking into consideration the high level of culpability and the gravity of harm occasioned, notwithstanding the margin of appreciation which this Court must afford the sentencing judge, the nomination of a  headline sentence of 10 years, which is at the highest end of the mid-range or the lowest end of high range offending, is too low and that this had a knock-on effect on the sentence ultimately imposed such as to result in a deviation from the norm and from the guidance provided by this Court in O'Sullivan which has rendered the sentence imposed not only lenient, but unduly so.  We are satisfied that an error of  principle arises, warranting intervention. We are further satisfied that the offending of the respondent falls to be considered in the high-end of offences, not at the lower end of that range, but rather in the middle of this range. In the circumstances, we are satisfied that the nominated headline sentence ought to have been one of 12 and a half years in prison.  The nomination of a headline sentence of 10 years had an effect on the final sentence imposed which, we are satisfied, was not only lenient but was unduly lenient.

39.              We must therefore quash the sentence imposed and re-sentence the respondent. 

Re-sentencing

40.              For the reasons outlined above, given the gravity of the offending measured by the culpability of the respondent and the harm occasioned, in our view, the appropriate headline sentence is one of 12 and a half years imprisonment.

41.              With regard to mitigation, the respondent entered a signed plea of guilty. It is evident that he acknowledged his offending at an early stage when CCTV footage was shown to him in the Garda station following his arrest. The circumstances in which a guilty plea is entered are relevant in the determination of the extent of mitigation from the headline sentence to be afforded to the offender. In DPP v Faulkner [2024] IESC 16  Charleton J addressed the matter as follows:

"It is good sense that both timing and circumstance inform the degree of discount to a sentence which a plea of guilty, or firm indication, deserves. Hence, there are authorities that signing a plea of guilty while an indictable offence is being processed in the District Court may deserve up to a one-third reduction in the headline sentence; The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v O'Callaghan [2020] IECA 172. Nonetheless, every sentence should meet the gravity of the offending, and the principle of proportionality prevails; The People (DPP) v Stubbins [2021] IECA 229. The England & Wales guidelines rule out any analysis by the sentencing judge of the strength of the evidence against an accused. It surely makes sense, however, since s 29 of the 1999 Act in this jurisdiction references circumstances that, as in the case of the offenders in this case, being caught red-handed in the action of burglarising the home of elderly people, somewhat diminishes the mitigation effect of an early indication of a plea of guilty; The People (DPP) v Kenny [2011] IECCA 16.

Circumstances will vary. Definitive indications within an area where the law is being applied sensibly is based on two simple premises, those of timing and circumstance. To those fundamentals will often be added complication. Experience demonstrates that perhaps one-third discount may apply where there is an early indication and the circumstances are such as to enable a real choice on the part of the offender. Later pleas of guilty, perhaps when the foreign witness is demonstrated to have travelled from abroad to take part in the trial, or perhaps after a victim has given evidence, will be deserving of a lesser mitigation; The People (DPP) v McDonnell [2022] IECA 200. No clear or hard rules are either discernible or necessary. The pattern seems to indicate a variable, based on timing and circumstance, from a potential 33% to perhaps as low as 10%; The People (DPP) v Molloy [2016] IECA 239, The People (DPP) v Whelan [2018] IECA 142, The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v TD [2021] IECA 289. While pursuant to the 1999 Act, a plea of guilty does not nullify the authority of the sentencing judge to impose a maximum sentence, ordinarily a plea of guilty will have some value, in the context of the heavy burden of proof born by the prosecution and the need to marshal perhaps reluctant or worried witness and to establish accurate testimony; The People (DPP) v Howlin [2022] IECA 150 ". (paras. 44-45)

42.              The respondent is a young man, now aged 23, whose education and life course have been and will continue to be significantly altered by his conviction and imprisonment. He has experienced mental health struggles and depression. Taking into account the above dicta of Charleton J in Faulkner, we are satisfied that in the circumstances the sentencing judge was correct in his assessment of the significance  of the signed plea of guilty, co-operation with gardai and the absence of previous convictions.  The signed plea was of considerable value, notwithstanding the available CCTV and mobile phone video evidence. In our view, these factors and the other personal circumstances of the respondent, warrant a proportionate reduction from the headline sentence for mitigation in line with the proportion which was assessed by the sentencing judge.

43.              We are therefore satisfied that the appropriate reduction from the nominated headline sentence for mitigation is four years and four months,  resulting in a post mitigation sentence of eight years and two months in prison.

44.              The respondent has shown remorse and has been coming to terms with and  is addressing his issue with alcohol. The court notes and takes into account the contents of the reports of Dr Lambe (Clinical and Forensic Psychologist), Dr O'Keeffe (General Practitioner) and Mr Heffernan (Counsellor and Psychotherapist). It is clear from the letters provided by his mother, grandfather, grandmother, aunt, friends and former employers, that he comes from a loving and caring family and his offending has had a significant impact on them. He has shown

genuine remorse and has provided compensation to the injured party, which has been accepted. The assessment by the Probation Services in their report of the 5th February 2024 is that the respondent is at low risk of reoffending.

45.              The suspension or part suspension of a sentence is not to be regarded as no punishment (see Lawlor) nor, as appears to be suggested in the grounds of application, is it to be considered of no consequence when the final sentence imposed is being considered or assessed. There must, however, be an evidential basis for the imposition of a suspended or part suspended sentence. We are satisfied that there is ample such evidence in this case. In our view, and for reasons somewhat similar to those expressed by the sentencing judge, that in order to facilitate the respondent's continued rehabilitation and reintegration into society, a not insignificant part suspension of the respondent's sentence is warranted. Documents provided to this Court at the hearing of the application demonstrate that since his imprisonment, the respondent has engaged fully in activities within the prison. The Governor's report is positive. He engages well with staff and other inmates.  He has been awarded numerous certificates for participation in courses including those focusing on alternatives to violence and pathways to change. Dr Suin Roche, Staff Grade Counselling Psychologist, has written that the respondent has engaged meaningfully in the programme and has attended all scheduled individual and group sessions.  The respondent has also participated in psychology group sessions on safety and stabilization, MTU Access Service Prison Service lecture series, handball coaching and GAA courses.  He is a young man who wishes to rehabilitate himself and to reintegrate with society on his release from prison.  We are therefore satisfied that it is appropriate to suspend the final two years and two months of his sentence on the same conditions as those imposed by the sentencing judge in order to arrive at a sentence which is just and proportionate.


Result:     Re-sentence

 

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