THE COURT OF APPEAL
Record No. 47/2015
Birmingham J.
Sheehan J.
Mahon J.
Between/
The Director of Public Prosecutions
Respondent
Appellant
JUDGMENT (ex tempore) of the Court delivered on the 13th day of June 2016 by Mr. Justice Mahon
1. This is an appeal against a three year prison sentence imposed on the appellant on 17th February 2015 at Trim Circuit Criminal Court following the appellant’s plea of guilty and conviction on 4th November 2014 of one count of assault causing harm, contrary to s. 3 of the Non Fatal Against the Person Act 1997.
2. The victim of the assault was a Mr. Ian Curran. On 7th August 2011 at the Palace Nightclub, Ludlow Street, Navan in Co. Meath, Mr. Curran was bitten on the right side of his cheek by the appellant. He was removed from the nightclub and arrested shortly afterwards.
3. Immediately prior to the assault, Mr. Curran and his wife were standing close to the bar in the nightclub. They observed the appellant dancing suggestively in the immediate vicinity of Mrs. Curran, and rubbing against her. Mrs. Curran initially pushed the appellant away, but he returned at which point Mr. Curran stepped in between the two of them. It was at this point that the appellant leant forward and assaulted Mr. Curran by sinking his teeth into his cheek causing an extensive injury requiring hospital treatment.
4. The victim has been left with a scar on his cheek, which causes him acute embarrassment. For some weeks Mr. Curran was fearful that he might have contracted a virus such as HIV or Hepatitis. Fortunately, he was eventually given the all clear in this respect. In addition to being concerned for his own health, Mr. Curran was for some weeks also fearful that any infection acquired by him would be passed to his wife or young child. By all accounts the incident had, and continues to have, a significant effect on Mr. Curran and his family.
Grounds of appeal
5. The appellant maintains that the learned sentencing judge erred in principle in imposing the sentence of three years in that:-
(i) He failed to give sufficient weight to the probation and welfare report,
(ii) he failed to give sufficient weight to the co-operation of the appellant with the investigation, and his admissions,
(iii) he failed to have sufficient regard to the appellant’s remorse and his early guilty plea,
(iv) he failed to have sufficient regard to the evidence of Gda. O’Sullivan in relation to the current state of the complainant’s physical injuries as of 17th February 2015.
The sentencing judgment
6. The learned trial judge understandably regarded the assault on Mr. Curran to have been one of the utmost seriousness. He described the appellant’s behaviour as shocking and outrageous, and the nature of the assault as being vicious, violent, brutal type of assault and a cowardly type of act. He also remarked on the completely un-provoked nature of the attack. He reviewed in some detail the consequences for the victim of the attack, and his health concerns in the weeks following the incident.
7. The learned sentencing judge took the view that the assault was in the higher range of the offence in terms of gravity. He also reviewed in some detail the appellant’s personal circumstances, and noted his history of drug and alcohol abuse, and of his efforts to deal with this problem. He said he was satisfied that the appellant was taking positive rehabilitation steps in respect of his drug abuse. He also expressively referred to the mitigating factors including his plea of guilty, his co-operation, his expression of remorse, his relatively good work history, his efforts to rehabilitate himself and his personal circumstances.
8. A probation and welfare report dated 16th February 2015 is reasonably positive but stated his risk of re-offending within twelve months to be moderate.
9. The appellant has twelve previous convictions. Most of them are for public order type offences and road traffic offences. He has one conviction for assault causing harm on 7th January 2009.
10. Senior Counsel for the appeal emphasised that the primary focus of the appeal was the failure to suspend a portion of the 3 year sentence. No issue was being taken in relation to the headline sentence of three years.
11. The respondent suggested that having regard to the express references by the learned sentencing judge to mitigating factors, it was evident that these had been fully accounted for in his arrival at a net three year term.
12. As this court has indicated in a number of other appeals, it is preferable that a sentencing judge identifies the sentence he considers appropriate for a particular offence having regard to its location on what is often referred to as the scale of seriousness before then discounting for mitigating factors. In this way accused persons, the victims of crime and the public generally will readily know and appreciate the headline sentences imposed in relation to specific crimes, and any credit or reduction allowed for mitigating factors. Such structuring of sentences should invariably be the norm. It is unfortunate that this did not occur in this case.
13. That said, a custodial sentence of three years is not unduly harsh for what can only be described as a very savage assault, and one with significant consequences for the victim. It is a custodial sentence which almost certainly recognises and provides for the relevant mitigating factors, in circumstances where, had they been absent, a sentence of four years would have been appropriate.
14. No error of principle having been identified in relation to the net custodial period of imprisonment imposed in this case, it follows that the appeal is therefore dismissed.
