Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 84

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Neutral Citation: [2008] IECCA 84

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Hanna J.

[Record No. 268 CJA/07]

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

V

GAVIN GUINAN CAHILL

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered the 9th day of June, 2008 by Kearns J.

This is an application brought on behalf of the Director of Public Prosecutions for a review of sentence under Section 2 of the Criminal Justice Act 1993.

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On 10^th December, 2007 in Dublin Circuit Criminal Court Gavin Cahill was sentenced to three years imprisonment with two years of that sentence suspended in respect of an offence of assault causing serious harm contrary to Section 4 of the Non-Fatal Offences Against the Person Act 1997.

The facts out of which this incident arose are truly shocking. On the night in question, 25^th September, 2005, Mr. & Mrs. Darren Ward were walking along Moyne Road in Drimnagh with two friends when Mr. Cahill, accompanied by some other person, approached these people and developed some sort of incident with them. Efforts to break away from these two people who were behaving offensively resulted in Mr. Cahill lunging at Mr. Ward with a six inch blade and causing a very severe injury to Mr. Ward.

Mr. Ward didn't initially realise how badly injured he had been, but fortunately there was a taxi nearby and the taxi driver, as a good citizen, stopped and as a result, although he was bleeding severely, Mr. Ward was brought in the taxi to hospital. Mr. Cahill tried to stop the taxi moving away from the scene and threatened to slash the tyres of the taxi. The taxi driver succeeded in getting away and brought Mr. Ward to St. James's Hospital. He was treated as an emergency case there and it was noted that he had a single stab wound in the left iliac fossa region which

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measured some two to three centimetres in length and was associated with marked surrounding tenderness.

He was treated with advanced trauma life support principles. His airway was supported with high flow oxygen, and intravenous access was obtained in both ante-cubical fossa. He was commenced on fluid resuscitation and with one unit of 0 negative blood. A full emergency team were on hand, fortunately. A general surgical team, an anaesthetic team and a cardio-thoracic team were called at once. He was brought to the operating theatre where he underwent an exploratory laparotomy and had a surgical stabilisation of a severe intra-abdominal haemorrhage. This injury has been described in a very brief report from the consultant in Emergency Medicine, Miss Geraldine McMahon, as a life-threatening injury, consistent with a history of being stabbed with a six inch blade knife. This was how Mr. Ward's night ended up, a night he had gone out to enjoy as he was perfectly entitled to do with his wife and his friends.

Obviously, in looking at the sentence that was imposed in this case the Court is mindful of the criteria laid down in the Byrne case and the various cases mentioned by Mr. O'Lideadha. The Court must obviously take into account everything that was drawn to the attention of the sentencing judge and this Court does not lightly intervene to substitute a sentence where an experienced judge has provided a reasoned basis for the sentence which he imposed.

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The grounds upon which the application is brought are essentially four. Firstly, this assault involved the use of a knife and it was submitted that the use of knives is the scourge of the streets of Dublin and indeed other cities in this country at the present time. It was pointed out that this man went out on the night in question with two knives strapped to his leg, so that this was not a case where, when some incident arose, he broke away from the incident and went off to return to the incident backed up with a knife. He went out with two knives on the night of the incident.

Secondly, although he is still only thirty years of age Mr. Cahill has some twenty-nine previous convictions, two of which are for assault and two for possession of some other pointed instrument, although it has been said and stated without contradiction today that the two implements were not knives. The Court has been left in the dark as to what the actual implements were. It is suggested it may have been a screwdriver or something of that sort, but in any event there are at least two convictions for assault and two for possession of implements under the Firearms Acts.

Thirdly, it is urged on behalf of the Director of Public Prosecutions the severity of the injury in the instant case demanded a far greater sentence and fourthly and perhaps most importantly this was a completely unprovoked, vicious attack, on a citizen of this City who was going about his business and on his way home. Counsel invites the Court to take the view that either treated separately or cumulatively the learned Circuit

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Court judge failed to adequately take into account these factors in arriving at sentence.

The Court has no doubt that the application being brought on behalf of the Director is quite correct and that there was a failure on the part of the sentencing judge to adequately reflect these four different aspects of this case in formulating his sentence and further that the level of sentence imposed represents a very substantial departure from what is appropriate in this case.

The recent decision of this Court in DPP v. Stephen Kelly has provided guidance in cases where knives have been used indicating ranges of severity for offences of this nature. It has to be said that this particular attack, for all the reasons mentioned, is at the very upper end of seriousness of crime. It is fortunate that Mr. Ward didn't die as a result of this attack. It is a case where in the view of the Court a ten year sentence could certainly have been imposed on the facts of the case.

However, that said, the Court must equally take into account that Mr. Cahill did plead guilty when the case came to court and secondly that he did make a payment of money which was accepted by the victim.

The Court has therefore decided that the appropriate sentence in this case is a sentence of eight years.

That is not the end of the matter because Mr. O'Lideadha has adumbrated to some considerable extent the rehabilitative aspect of this

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case and has stressed that Mr. Cahill has worked extremely hard since the time of this offence on his alcohol problem. The Court is also aware of the fact that he and his partner had a baby born in February, 2008. There was an early plea in this case and there was a payment of compensation. I have already referred to some of those matters, but in the circumstances the Court is disposed to suspend three years of the eight year sentence but otherwise the sentence will effectively be one of five years. The full sentence will be eight years but the final three years will be suspended on the same terms.