THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.72/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (Ex tempore) delivered on the 8th day of October 2015 by Mr. Justice Sheehan
1. This is an appeal against severity of sentence.
2. At the Dublin Circuit Criminal Court on the 24th February, 2015, the appellant was sentenced to three years imprisonment in respect of a charge of assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. This followed his plea of guilty a week earlier.
3. The appellant appeals on the following grounds:-
1. The sentencing judge erred in law in failing to construct a sentence which took into account the sentencing goal of rehabilitation.
2. The sentencing judge erred in law in failing to fully take into account the fact that the appellant suffers from a significant illness.
3. The sentencing judge erred in law in failing to fully take into account the appellant’s relative lack of convictions and especially his lack of any convictions for violence.
4. The sentencing judge erred in law in finding that the appellant was under the influence of an intoxicant on the evening of the offence.
5. In all the circumstances the sentence passed by the sentencing judge was unduly severe and excessive.
4. In order to consider these grounds it is necessary to set out the background to the offence, the victim impact report and the personal circumstances of the offender.
Background
5. On the 23rd June, 2012, the appellant went to the Village Inn public house in Clondalkin with his sister where he had a shandy. The victim was there with friends and family members having been in another public house earlier that evening.
6. The victim was at the bar and was seen to engage in what was described as some form of jocular scuffling with his brother. The Court was told that CCTV footage showed the appellant approaching the counter to buy a drink and the victim speaking to him. The appellant then punched the victim in the face. He was completely surprised by this attack and retaliated by punching the appellant in the face.
7. The victim said that he thought that that was the end of the matter but the appellant then grabbed him by the neck and described him as growling in his ear. Security personnel intervened at that point and it was then that the victim realised he was missing a portion of his right ear.
8. The gardaí were called and the appellant was arrested for a public order offence and taken to Clondalkin garda station. He was described by the prosecuting garda as being extremely aggressive at the time of that arrest and he did not give any account then as to what he believed had happened.
9. The victim was taken to hospital where attempts to reattach the severed portion of his ear were unsuccessful. Further cosmetic operations were offered to him, but he was advised that these would be of limited assistance and he declined them.
10. The victim stated that the injury to his ear has caused him significant ongoing difficulties resulting in anxiety and depression. He said that the injury had had an adverse impact on his career prospects and also had had an ongoing adverse affect on him personally.
11. The appellant was subsequently arrested in April 2013 for this offence and told the gardai that he had been on medication at the time for depression. He said that a scuffle had occurred at the bar and that he then went upstairs. He stated that he believed a number of people had attacked him.
The personal circumstances of the appellant
12. The appellant was thrity-two years old at the time of sentencing and recently separated from his long term partner and their child. The sentencing judge was told that he had started using heroin when he was thirteen years old and that this had continued until he reached the age of nineteen when he was diagnosed with Hepatitis C.
13. He was subsequently diagnosed with mouth cancer which had necessitated a number of operations, but was presently in remission.
14. He continued to suffer from depression. The appellant expressed his remorse for the offence in a letter addressed to the Court. He had fifteen previous convictions between 2000 and 2012 which included two for intoxication in a public place, one for drunken driving and one for breach of the peace. The remaining offences related to breaches of the Road Traffic Act which had occurred on two separate occasions.
15. No satisfactory explanation was offered to the Court for the appellant’s attack on the victim, nor was there any explanation for the continuing aggression when the police had arrived to arrest him for the public order offence. While it was to the appellant’s credit that he had committed no offence in the almost three year period between the offence and the date of sentence, the circumstances of this attack insofar as it could be explained to the Court did not warrant a partial suspension of the sentence to encourage the appellant’s rehabilitation.
16. When imposing sentence the judge had stated that the appellant had been intoxicated. It was brought to his attention by the appellant’s counsel that there had been no evidence of this and the judge responded by saying that this would have been slightly mitigating in one sense, but he then went on to say that he apologised if he had misheard or misremembered what occurred, but this did not change his view of the situation.
17. Accordingly the Court finds no error of principle in respect of this particular ground of appeal.
18. The remaining grounds of appeal all relate to a submission that the sentence was excessive, especially in light of the fact that the appellant had no previous convictions for violence and more particularly in view of the fact that the appellant suffered from a significant illness. Counsel for the appellant submitted that these two matters were not adequately reflected in the sentence.
19. In considering the sentence imposed by the sentencing judge, the Court reminds itself that the sentencing judge located the offending behaviour in this case as being at the highest level noting that a s. 3 offence carries a maximum sentence of five years imprisonment. The sentencing judge’s finding that this was an unprovoked attack in which the appellant bit off a substantial portion of the victim’s ear is not in dispute. As a consequence of this attack the victim is permanently disfigured.
20. This Court takes the view that the sentencing judge gave sufficient attention to the appellant’s health problems and also to the lack of relevant previous convictions. The Court agrees with the sentencing judge’s location of the offending behaviour in this case at the highest end of the scale and accordingly upholds the sentence of three years imprisonment. The appeal therefore is dismissed.
