Irish Court of Criminal Appeal
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Cite as: [2014] IECCA 12, [2014] 2 ILRM 116
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Judgment Title: Director of Public Prosecutions -v- Fitzgibbon Neutral Citation: [2014] IECCA 12 Court of Criminal Appeal Record Number: CCA Ref: 2/12 Date of Delivery: 18/03/2014 Court: Court of Criminal Appeal Composition of Court: Clarke J., Birmingham J., Sheehan J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Error in principle in sentence | ||||||||||||
THE COURT OF CRIMINAL APPEAL [Record No: CCA 2/2012] Clarke J. Birmingham J. Sheehan J.
The People at the Suit of the Director of Public Prosecutions Prosecutor/Respondent and Adam Fitzgibbon Accused/Appellant Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014. 1. Introduction 1.2. On the 10th October, 2011, Adam Fitzgibbon pleaded guilty to a charge of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 ("section 4") ("the 1997 Act"). Some weeks later, on the 21st November, 2011, he was sentenced by Carney J. to a term of 15 years imprisonment with the final 3 years suspended. Adam Fitzgibbon has appealed to this Court against the severity of that sentence. 1.3. In fairness to counsel for Adam Fitzgibbon, it should be emphasised that no attempt was made to minimise or reduce the seriousness of the offence itself. Rather, counsel based his argument on two broad propositions. First, it was said that, notwithstanding the horrific nature of the assault, the sentence imposed is materially out of line with sentences imposed for other comparable assaults causing serious harm. Second, it is said that the sentencing judge, in assessing mitigating and other factors associated with the offence, misinterpreted a number of decisions of this Court and thereby fell into the error of giving, inappropriately it was said, little or no weight to factors which should have been properly taken into account. 1.4. Against the background of that general description, it is next necessary to turn to the circumstances of the offence. 2. How the Offence Occurred 2.2. Adam Fitzgibbon then launched what the Court considers was correctly characterised by counsel for the prosecution as a vicious and frenzied attack on his victim involving 26 punches to the head, 65 stamps on the head and 2 stamps to the chest. The attack lasted over 4 minutes during which time the victim was for the most part lying motionless on the ground and offering no resistance. One witness (there were 11 in all, including the 2 care workers) indicated that Adam Fitzgibbon had said that the victim “had got my friend 35 years, the scumbag c..t”. 2.3. Having been arrested and, in the course of being brought to a garda station, Adam Fitzgibbon said that he “beat the head off him, danced over his head, I beat him all over the place, I will batter them all”. Adam Fitzgibbon also said that the victim “got my friend locked up for life”. 2.4. In the garda station, it would appear that Adam Fitzgibbon characterised the attack as “throwing a few digs and kicks”. He also said that he was “stoned out of his head on vodka and tablets”. On arrest for the purpose of charge, he did, however, say that he was sorry. 2.5. On arraignment on the 10th October, 2011, he entered a plea of guilty. It is next necessary to turn to the circumstances of Adam Fitzgibbon on which reliance was placed on his behalf, both before the sentencing court and this Court. 3. Adam Fitzgibbon’s Circumstances
3.3. It is also important to note that Adam Fitzgibbon was, himself, 17 years of age at the time of the offence. 3.4. Finally, before going on to consider the ruling of the sentencing judge, it is important to note the very serious consequences of the assault on both Kevin Meaney and his family. 4. The Impact on Kevin Meaney and his Family 4.2 Dr. Finn went on to note the longer term effects on Kevin Meaney. These include a “definite disimprovement in his short term memory” resulting in poorer academic performance, “difficulty with small buttons and jewellery clasps”, and “frustrated outbursts” associated with brain injury. His most significant difficulty is described as lethargy, requiring lifts to and from various places and going to bed earlier than boys of his age. She finally noted that the “possible implications of his brain injury may not yet be obvious”. 4.3 In the Victim Impact Statement prepared by his family, his mother recounted feeling “physically sick at the sight of him” on first coming upon him at the forecourt and the devastating effect the scene had on other members of the family who arrived soon afterwards. She also talked of their worries and fears over the next week while her son was placed on a life support machine and the logistical difficulties posed by his transfer to the National Rehabilitation Hospital in Dublin. 4.4 It is her opinion that Kevin Meaney's speech has been badly affected, making him more difficult to understand, as has his handwriting, which is considerably slower. His ability to participate in sporting activities has been significantly affected because of problems with balance and co-ordination and concerns in relation to the consequences of a possible further blow to the head. She also confirmed the ongoing difficulties with memory and fatigue noted by Dr. Finn. A reduced ability to interact with others since the attack was also noted. Concerns exist about his ability to drive, should he wish to do so, his ability to work in many trades which require co-ordination, and his ability to pursue further academic study after his leaving certificate. Kevin Meaney is said to have no memory of the assault. 4.5 The house in which the family had lived for the previous sixteen years was deemed unsuitable for Kevin Meaney's increased needs, necessitating a move. His need for care required his mother to remain out of work and these factors combined to cause financial hardship for the family. The report describes the family as being in agreement that “the brother and son we knew and loved before the attack was just not the same afterwards”. 5. The Trial Judge’s Reasons
5.2 Carney J. then turned to the accused’s dysfunctional background. He noted that, according to the ruling of Geoghegan J. in Director of Public Prosecutions v Stafford [2008] IECCA 15, “this affords little, if any, mitigation”. The mitigating factors the judge expressly refers to are:
6. The Basis of the Appeal 6.2. Thereafter, counsel concentrated on what were said to be two errors of principle in the approach of the trial judge. As noted, the trial judge, placing reliance on Stafford, took the view that Adam Fitzgibbon’s background provided “little, if any, mitigation”. Likewise, it is clear that the trial judge took the view that the decision in Keane required that the influence of drink and drugs afforded “no mitigation in one’s responsibility to society”. 6.3. It was argued that the trial judge had misinterpreted both of those judgments in the sense that the trial judge had taken the view that there were no circumstances in which a dysfunctional background, coupled with the influence of drink and drugs, could amount to significant mitigation. It is clear that the trial judge did not, in fact, place any material reliance on those factors as mitigation in considering the appropriate sentence. The suspension of the final three years of the sentence was stated by the trial judge to have been to take account of the plea of guilty, the lack of previous convictions and the undoubted obligation of the trial judge to provide what he described as a tunnel of hope for future rehabilitation in the particular context of the age of Adam Fitzgibbon at the time of committing the offence. In passing, it should be noted that, in the original written submissions filed on behalf of Adam Fitzgibbon, it had been suggested that the trial judge had failed to adequately reflect those factors in the ultimate sentence imposed. The Court does not consider that a suspension of three years of the fifteen year sentence would be an inappropriate reflection of those factors, taken by themselves, and provided that no other significant mitigation factors were present. 6.4. It appears, therefore, that the issues which arise on this appeal can conveniently be grouped into three. The first is the analysis of sentences for serious assaults, particularly those scrutinised by this Court, and the question of whether the sentence in this case is broadly in line with other such sentences. The second are what are said to be the errors of the trial judge in failing to treat the combined effect of the Adam Fitzgibbon’s background together with drink and drugs (those being said, on the facts of his case, to be at least materially interconnected) as mitigating factors. The third set of issues are those subsidiary points raised in the original written submissions which, of course, would only fall to be decided if the appeal on the two main sets of grounds just noted were to fail. The Court will turn first to certain observations on the overall approach to sentencing. 7. Sentencing Hearings and Appeals – The Proper Approach 7.2. As pointed in Ryan, it is only appropriate for this Court to seek to give guidance on the range of appropriate sentences in circumstances where the Court has available to it sufficient materials to enable it to make an appropriate assessment. It also follows that the extent to which guidance can be given may be dependent on the adequacy of such information and the degree to which it can be regarded as comprehensive. As will become clear, this Court in this case did not have the same degree of information available to it as the Court dealing with Ryan and, thus, the guidance given in this judgment must, necessarily, be more tentative. 7.3 It does also need to be emphasised that a sentencing judge should set out clearly the factors which have been taken into account in arriving at an appropriate sentence and specify the approach adopted in coming to a conclusion as to the appropriate sentence having regard to all of those factors. The Constitution and the law provides both for sentencing by trial judges and an appeal against sentence available to both prosecution and defence. In the case of serious offences tried on indictment, that appeal is to this Court. In order for this Court to exercise its proper constitutional role in reviewing sentences which are challenged, this Court does need the maximum possible clarity as to how the sentencing judge reached a conclusion as to the appropriate sentence to be imposed in all the circumstances of the case. There is no one way in which this needs necessarily to be done. There is no requirement for a sentencing to stick slavishly to any particular method or formula. It is, however, important that this Court, when asked to review a sentence, is not left to guess or infer, to any impermissible extent, what the reasoning of the sentencing judge was. It is to be hoped that the greater assistance from both prosecution and defence to a sentencing judge which this Court has suggested is appropriate, in a further decision delivered by this Court today in Director of Public Prosecutions v. Z, can also enable sentencing judges to specify in clear terms how the sentence in question was arrived at. 7.4 Against that background, I now turn to an analysis of the sentencing cases relied on by counsel. 8. Sentences for Serious Assaults
8.2. In Director of Public Prosecutions v. Hogan (Unreported, Court of Criminal Appeal, 28th April 2003) this Court had to consider an application for leave to appeal against a sentence of 12 years in respect of assault causing serious harm contrary to section 4. The case involved the accused bursting in on the victim in the victim’s dwelling house with such force that the door burst from its hinges. The victim was stabbed multiple times with a Stanley knife including a significant mark being cut into his back. The assault required 99 stitches. It is also clear from reading the judgment of this Court, delivered by Hardiman J., that the Court agreed with the sentencing judge that there were no mitigating factors of any substance. As the Court pointed out having reviewed the factors urged, “none of these factors constitute any form of adequate or significant mitigation”. The Court noted that the sentence was a long one but not one which was unjustified in all the circumstances of the case. 8.3. More recently, this Court has considered this offence in Director of Public Prosecutions v McMahon [2011] IECCA 94 in the context of an offender who by reason of mental illness posed a serious risk of harm to others. In that case, the accused, following a discussion as to the continuing need to take certain medication, stabbed his treating consultant psychiatrist a total of eight times on various parts of his body. He then stabbed another doctor who had responded to the commotion. The stab wounds caused a life-threatening haemorrhage in his treating consultant, who as result of the attack, suffered from a severe form of Post Traumatic Stress Disorder with superimposed depression. The wounds to the responding doctor could also have been life-threatening. The accused in this case was charged with assault causing serious harm contrary to section 4 in respect of the attack on his treating psychiatrist and assault causing harm (s. 3 of the 1997 Act) in respect to his actions relating to the responding doctor. Amongst the relevant factors were the facts that the accused had a previous conviction for manslaughter, and had been released from prison eight months prior to the offences. He pleaded guilty and was sentenced to 10 years imprisonment for the s. 4 offence, and three years on the s. 3 offence to run concurrently. These sentences were not backdated to take into account time spent in custody, which in effect meant a sentence of over 11 years. The DPP appealed on the grounds of undue leniency, arguing that the threat which the accused posed to society necessitated a life sentence. It is noteworthy for present purposes that the Court of Criminal Appeal, at p. 13 of its judgment, stated:-
8.5 In Director of Public Prosecutions v Anthony McDonagh [2010] IECCA 127, the accused was charged and convicted of three counts in relation to a shooting incident - possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act, 1925, as substituted and inserted by s. 43 of the Criminal Justice Act 2006, and as amended by s. 35 of the Criminal Justice Act 2007, possession of a firearm with intent to endanger life contrary to s. 15(a) of the Firearms Act 1925, as amended, and assault causing serious harm contrary to section 4. He was sentenced to 12 years imprisonment on each count, all to run concurrently. However, the aggravating factor of possession of a firearm was present in that case. 8.6. In Thomas O’Malley, Sentencing Law and Practice (2nd ed., 2006), the author also notes in Chapter 16 the decision in Director of Public Prosecutions v O’Brien (Unreported, Central Criminal Court, 28th April 2003) where a man who left his victim brain-damaged following an attack, necessitating full-time care, was sentenced to eight years imprisonment with the final two years suspended. 8.7. The cases reviewed all involve serious assaults. All also involve serious consequences for the victim. All could be said to be, to a greater or lesser extent, at the upper end of the range. As noted by the sentencing judge in this case, the range of sentences available to a judge for this section 4 offence include anything from a suspended sentence to life imprisonment. When faced with such a broad range, it is important that some attempt be made to identify both the factors which are properly taken into account when determining the severity of the offence and the culpability of the accused, and also that guidance be offered on the appropriate ranges of sentence (depending on the severity of the offence in question). As with all criminal offences, the primary focus must be on the extent of wrongdoing and culpability on the part of the accused. 8.8 It is true that the criminal law does have regard to consequences in distinguishing connected criminal offences. For example, murder is distinguished from attempted murder even though the reason why the intended victim was not killed may have nothing to do with the blameworthiness of the culprit. Likewise, the variety of offences involving assault are categorised by reference to the harm done. However, notwithstanding that characterisation, the primary focus must remain on the actions of the guilty party. In the context of section 4 offences, it must, of course, be acknowledged that, in order for such an offence to be committed, serious harm must be caused. In the vast majority of cases that serious harm will be at least a possible or predictable outcome of the assault. Even where the consequences might be somewhat more severe than might have been predicted in the light of the nature of the assault concerned, it will not ordinarily lie in the mouth of a person guilty of assault to place too great reliance on the fact that the consequences were more severe than might have been reasonably predicted. To a significant extent those who commit significant assaults take a chance on the consequences. However, there will always be cases where the unfortunate consequences of an assault are wholly disproportionate to the severity of the relevant assault and, thus, the blameworthiness of the guilty party. For those, or other unusual reasons, there will always be cases where, even without significant mitigation, and notwithstanding the serious consequences of the relevant assault, a non-custodial sentence would still be the appropriate starting point. 8.9 In attempting to give some guidance in respect of offences at the lower end of the range, it should be acknowledged that the authorities to which counsel referred this Court concerned, for obvious reasons, by and large offences towards the upper end of the range. Any guidance given in respect of the lower end of the range must, therefore, be somewhat tentative and will, necessarily, be open to review as further experience and materials become available. 8.10 However, in the absence of such unusual factors, a sentence of between 2 and 4 years would seem appropriate, before any mitigating factors are taken into account, for offences at the lower end of the range. A middle range carrying a sentence of between 4 and 7½ years would also seem appropriate. In the light of the authorities to which counsel referred, and which have been analysed in the course of this judgment, it seems that the appropriate range for offences of the most serious type would be a sentence of 7½ to 12½ years. It must, in addition, be acknowledged that there may be cases which, because of their exceptional nature, would warrant, without mitigation, a sentence above 12½ years up to and including, in wholly exceptional cases, the maximum sentence of life imprisonment. (For an analysis of the circumstances in which the maximum sentence may be imposed, see again the judgment of this Court in Director of Public Prosecutions v. Z.) 8.11 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. 8.12 First, 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 comments made in that regard, the injuries suffered must also be taken into account. It does, of course, have to be acknowledged that there is not always an exact correspondence between the severity of an attack and the degree of injury suffered. Sometimes, although no thanks to the assailant, a person who is subjected to a particularly vicious attack luckily escapes with relatively minor injuries. Likewise, 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. 8.12 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. 8.14 The general circumstances surrounding the assault, including whether it was committed in the context of other criminality, can also be a factor. The use of weapons or other objects likely to make more severe the injuries caused can also be an important factor. As pointed out earlier, there will, doubtless, on the facts of any individual case, potentially be other factors which may need to be taken into account. 8.15 So far as the facts of this case are concerned, no true explanation has ever been given as to why this assault took place. The comments made in the immediate aftermath of the assault by Adam Fitzgibbon as to his motivation appear simply to be inaccurate. What his true motivation was remains a matter of speculation. That he may have had some “history” with Kevin Meaney 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. 8.16 There can be little doubt that the video evidence in this case shows an appalling and vicious assault. It can only be placed at the upper end of the range. However, it does need to be taken into account that many assaults do not occur in the full glare of video cameras. In such cases, all a sentencing judge has to go on are eye witness accounts which may not demonstrate the full ferocity and viciousness of an assault in quite the same way as a video camera can. Sentencing should not, however, be excessively influenced by reference to the extent to which there was graphic evidence available. While the Court agrees that this case is properly placed at the top end of the most serious part of the range, the Court is, nonetheless, not satisfied that this is one of those cases which is so severe or so serious that it must go beyond that range. In those circumstances, it seems clear to this Court that, before considering any question of mitigation, the initial indicative sentence proposed by the trial judge of 15 years was out of line with the generality of sentences reviewed in this judgment which relate to severe assaults with often catastrophic consequences for victims. On that ground alone, this Court is satisfied that the appeal would have to be allowed. 9. Substance Abuse and Background
9.2. The reference to the ruling of Murray C.J. is a reference to the judgment of this Court, delivered by Murray C.J., in DPP v. Keane [2008] 3 IR 177 where, at p. 200, the Court said that “the fact that drink and drugs played a part in the evening in question does not absolve him from his answerability to the law and society”. 9.3. It is important to note that the case with which this Court was concerned in Keane was one which involved an accused with no previous convictions and who was only 18½ years of age at the time the offence was committed. It was clear from the evidence given in that case that the accused had difficulty in recalling the offence itself because of his consumption of drink. It does not seem to this Court that, in Keane, Murray C.J. was laying down a broad principle that the fact that an accused suffers from difficulties with substance abuse cannot be a factor to be taken into account in the sentencing process. Rather this Court was making clear that the mere fact that an offence is committed by a person who is under the voluntary influence of drink or drugs does not, of itself, offer any significant mitigation. If people get drunk and commit offences while they are drunk, then they cannot be heard to use their drunkenness as a mitigating factor. However, that is not to say that, in particular, persons who suffer from a persistent problem of addiction or substance abuse should not have, in an appropriate case, that factor taken into account. There is a world of difference between a case in which a person seeks to rely on the fact that they were drunk to provide some partial mitigation for an offence and one where a person who suffers from substance abuse and, in particular, may be seeking to take steps to deal with their problem although not yet successfully, may seek to offer that as part of the general circumstances which ought to be taken into account. 9.4. The reference by the sentencing judge to the decision of Geoghegan J. in Stafford is again a reference to the judgment of this Court, delivered by Geoghegan J., in DPP v. Stafford [2008] IECCA 15. The full passage, of relevance to the question of background, from that judgment appears at p.13 and reads as follows:-
9.6. To say, as the sentencing judge in this case said, that the combined effect of the judgments of this Court in Keane and Stafford is that drink or drugs and a dysfunctional background cannot be of any great weight seems to the Court to be a significant misreading of what this Court was saying in those cases. This Court went no further than to say that drink, of itself, or drugs, of itself, cannot be a mitigating factor. Likewise, some degree of dysfunctionality in background is not likely to provide a mitigating factor. 9.7. However, that being said, a sentencing court is required to consider, as part of the overall circumstances, whether a persistent problem with substance abuse, most particularly if it could be said to stem from a particularly difficult upbringing, can amount to a factor which can weigh significantly in an appropriate sentencing process on the facts of a particular case. This will be so, as Geoghegan J. pointed out, especially if there are attempts at rehabilitation or, in the view of this Court, where the accused was particularly young at the time of the offence and where there may be a realistic prospect of rehabilitation in the future. 9.8. It appears to this Court that there was an error in principle on the part of the trial judge in failing to consider whether the nature of Adam Fitzgibbon’s problems with drink and drugs stemming from his particularly severe dysfunctional background brought this case outside of the type of case identified in Keane and Stafford where there is a simple reliance on drink or drugs as an excuse or on a less than favourable background as a significant mitigating factor. The Court is, therefore, satisfied that the appeal must be allowed on those grounds as well. In the light of the Court’s findings in this and the preceding section of this judgment, it is unnecessary to consider any of the other subsidiary points raised by counsel. 10. Consequences 10.2. While noting that counsel indicated that, in the event that the appeal was successful, he did not wish to have the opportunity to address the Court again on the question of what an appropriate sentence might be, the Court is, nonetheless, of the view that it would be assisted by hearing submissions from counsel for both the DPP and Adam Fitzgibbon as to what the appropriate sentence should be in the light of all of the circumstances of the case, including such further evidence as may now be put forward, together with the views expressed by this Court in this judgment. 10.3. In the circumstances, the Court proposes to put the case in for further consideration at an appropriate time in the future at which it will hear such submissions. The Court will, therefore, indicate that it will in principle allow the appeal and will determine the appropriate sentence to be imposed in lieu of that imposed by the sentencing judge when it has had the opportunity of considering such submissions and evidence.
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