THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.Record No. 254CJA/14
The People at the Suit of the Director of Public Prosecutions
Appellant
- and -
Colin O’Callaghan
Respondent
Judgment (ex tempore) of the Court delivered on the 11th day of December 2015 by Mr. Justice Mahon
Background
1. The respondent pleaded guilty, and was convicted, at Cork Circuit Criminal Court in respect of two offences, namely, assault causing harm contrary to s. 3 of the Non Fatal Offences against the Person Act 1997, and production of an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offences Weapons Act 1990. Both offences had been committed on 9th September 2013 at the Catwalk Bar, Princes Street, in the city of Cork; the injured party in respect of the offences being Jonathan Calnan, aged twenty two years, of Ballyvolane, Cork.
2. The respondent was remanded on bail for sentencing to 2nd July 2014 and thereafter to 21st November 2014, and on that date was remanded in custody until 28th November 2014 when he was sentenced to two years imprisonment in respect of which the balance of that term, over and above the seven days already spent in custody, was suspended for a period of two years.
3. The assault committed by the appellant was very violent, and involved the use of a glass as a weapon. It was by all accounts, unprovoked, and unexpected by the victim, and resulted in very serious injury.
4. In arriving at the sentence in the Circuit Criminal Court, the learned sentencing judge properly referred to the assault as being “very nasty”, and of it being an unprovoked attack. He also specifically referred to a number of mitigating factors, including the plea of guilty, the lack of previous convictions for assault, the low risk of re-offending, and the appellant’s good employment prospects.
5. While the learned sentencing judge noted that an offer of just under €5,000 had been made and accepted by the victim as part compensation, and stated that this fact was, as he put it, not “a matter for sentencing”, he mentioned the fact that the appellant had sold his car to contribute to the compensation offer, and undoubtedly and understandably it appears that this fact (the payment of some compensation) was treated positively by the court, and reflected favourably on the appellant.
6. The other side of the coin, as it were, is the very serious injury caused to the victim of the assault and the fact that it occurred in the absence of provocation, and using a glass as a weapon. The extent of the laceration is made starkly clear by the fact that it required one hundred stitches to repair.
7. It should also be said that the learned sentencing judge formed a view, having had the benefit of seeing and questioning the victim in the witness box, that he had made a better than expected recovery.
8. This court has already found that the sentence imposed in the Circuit Criminal Court was unduly lenient, pursuant to s. 2 of the Criminal Justice Act 1993.
9. In the court’s view, an unprovoked assault using a glass on an unsuspecting victim resulting in a very serious injury normally requires the imposition of a custodial sentence, unless wholly exceptional circumstances exist. No such wholly exceptional circumstances are immediately apparent in this case.
10. The appellant, while he has relatively minor previous convictions, one of which involved personal violence, nonetheless has eight previous convictions. He is not therefore a first time offender. Although not convicted of any offence since being sentenced in this case, the court has been involved by Gda. Comerford that he has been charged with a public order offence in July of this year, and that a District Court hearing of that matter is scheduled for early next year. While the circumstances as outlined by Gda. Comerford would suggest that the alleged offence is not particularly serious, it certainly appears to be the case, and indeed this has been strongly suggested on the appellant’s behalf, that alcohol was a factor in that matter, as it was in this case. The court has been told that the appellant recognises that alcohol is a problem for him, and accordingly, he has remained alcohol free since July in an effort to deal with this issue.
11. When this matter came up for sentence in the Circuit Criminal Court, it did undoubtedly require the imposition of a period in custody having regard to the seriousness of the assault, the injury sustained by the victim, and the use of a glass to inflict that injury. In all the circumstances, on the facts presented to the learned sentencing judge, an appropriate sentence would have included an actual custodial element of not less than twelve months.
12. It is now necessary for this Court to re-sentence the appellant as of today, and with due regard to the appellant’s present circumstances. Those circumstances include the fact that the appellant secured worthwhile and, it would appear, long term employment with good prospects, and indeed has already been promoted. Furthermore, he has since his conviction and sentence, and possibly because of it, suffered the collapse of a long term relationship with the mother of his now twelve month old daughter whom he has access to twice weekly.
13. Furthermore, the appellant has been at liberty for approximately twelve months having spent just seven days in Cork prison in November 2014, and the prospect of being returned to prison, and indeed having to serve a further period in custody, is undoubtedly in itself a significant added punishment, and more so at this time of year.
14. The Court did consider if a Community Service Order would adequately meet the case, but it has concluded that this is not a case for community service and that a period in custody must be served.
15. The Court has been provided with a very positive testimonial from the appellant’s supervisor in his current employment. In order to limit any potential fallout for the appellant in terms of his employment prospects with his current employer, the Court will reduce the period which the appellant will have to serve in custody to an absolute minimum. The sentence will therefore be one of eighteen months imprisonment, with the final fifteen months suspended on condition that he enter into a bond in the sum of €100 to keep the peace and to be of good behaviour for a period of two years. The appellant is entitled to credit for the seven days already spent in custody. For clarification, the un-served portion of the custodial element of the new sentence is two months and three weeks.
