DPP v Conway

• Jurisdiction: Ireland
• Judge: Ms. Justice Máire Whelan
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IECA 343
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 165/2019
• Date: 20 December 2019

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

DECLAN CONWAY

APPELLANT

[2019] IECA 343

Record Number: 165/2019

THE COURT OF APPEAL

Sentencing – Assault – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Conway, pleaded guilty to a single charge of assault contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced on the 12th July, 2019 at Castlebar Circuit Criminal Court to a term of three years imprisonment with the final year of the said term suspended on condition that the appellant enter into a bond and further on condition that he perform 200 hours of community service within twelve months of the date of his release. The appellant appealed to the Court of Appeal against severity of sentence, identifying three key grounds: (1) the sentencing judge erred in placing the offence close to the maximum level available thereby attracting a headline sentence of four and a half years imprisonment; (2) the sentencing judge attached insufficient weight to the mitigating factors specific to the appellant; and (3) the sentencing judge erred in the imposition of an immediate custodial sanction in all of the circumstances of the case.

Held by the Court that the sentencing judge failed to accord sufficient regard to the entire context and nature of the assault and to attach sufficient weight to the absence of aggravating factors. The Court held that this error in principle resulted in the headline sentence imposed by the Circuit Court judge being unduly severe. The Court held that imposing a relatively lengthy custodial sentence placed a hazard on the employment prospects and security income for nine families quite apart from the appellant’s own dependents being his spouse and two children of his marriage, together with his teenage daughter. Further, the Court held that it significantly undermined his capacity to discharge his borrowings and liabilities incurred for the purposes of making restitution of a meaningful nature to the injured party, and clearly deprived him of the capacity to secure further borrowings to make good his commitment to discharge €40,000 over a sustained period of time. The Court held that the sentence imposed by the Circuit Court ought to be quashed.

The Court held that, in all the circumstances, it assessed the gravity of the offence by nominating a headline sentence of three years imprisonment rather than four and a half years. Given the very significant mitigating factors of which there was a very large number, the Court held that these warranted a reduction of the identified headline sentence of three years to two years imprisonment. In light of additional material put before the Court, including, in particular, testimonials from a large number of individuals and details of the impact of the appellant’s imprisonment on his severely disabled child and the implications for her welfare and on her care, the Court was satisfied to suspend the balance of that sentence in order to incentive rehabilitation. The Court substituted a sentence of two years imprisonment with the balance of the said sentence to be suspended provided the appellant enters into a bond to keep the peace and be of good behaviour for a period of two years.

Appeal allowed.

JUDGMENT of the Court delivered on the 20th day of December, 2019 by Ms. Justice Máire Whelan

Introduction

1 This is an appeal against severity of sentence. The appellant, Declan Conway, now aged thirty-seven years, a stonemason of Westport, County Mayo pleaded guilty to a single charge of assault contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997. He was sentenced on the 12th July, 2019 by his Honour Judge Rory McCabe at Castlebar Circuit Criminal Court to a term of three years imprisonment with the final year of the said term suspended on condition that the appellant enter into a bond and further on condition that he perform 200 hours of community service within twelve months of the date of his release.

The circumstances of the assault

2 The injured party and the appellant did not appear to be acquainted. Shortly after 10.20pm on Friday evening the 26th August 2016, the appellant having completed a day's work and thereafter engaged in some socialising was dropped off at his home. A large contingent of about a dozen young males was outside on the driveway of the adjoining property. The group had been attending a birthday party in the adjoining house. They were waiting for taxis to convey them to a party. The appellant greeted them as he headed for his hall door. An individual within the group appears to have been argumentative and verbally abusive towards the appellant and spoke in a manner which caused Mr Conway to take offence. A verbal exchange took place. The injured party, Matthew White, who at the date of the assault was aged eighteen years and a leaving cert student from Newport, County Mayo, engaged in a verbal exchange with the appellant which escalated into an altercation between the two.

3 It appears that in subsequent investigations of the assault the Gardaí took statements from about twelve young men who had been at the premises. One eyewitness recalled looking up and seeing “Matthew leaning across the wall into Declan Conway's garden.” Garda Barrett, the investigating Garda, recalled in her evidence that a statement from one eyewitness to the assault, Keith Fanning, stated that: -

“He saw Mr Conway attempt to push him back over….. I went over and told Matthew to go to the bottom of the road and wait for the taxi. Matthew kept trying to get over the wall to Declan. I went over and told Matthew to go … to the bottom of the road and wait for the taxi.”

This eyewitness also stated that “Declan hit the injured party with his right fist. Matthew fell right back.”

Conduct of the appellant at the scene

4 It appears that the injured party fell badly banging his head on the ground, losing consciousness and sustaining a head injury. The appellant immediately got a chair and sat the injured party upon it. He put the injured party in the recovery position. The evidence before the sentencing judge was that it was the appellant that directed that an ambulance be called (12th July 2019 p.10 line 29). By the time the ambulance had arrived, the injured party had regained consciousness, he was bleeding from the left ear. On arrival at Mayo General Hospital his Glasgow Coma Scale was 15 over 15.

Injuries sustained

5 The injuries suffered by Matthew White were significant. Forty-eight hours after his admission to Mayo General Hospital, he was transferred to Beaumont Hospital for treatment of intracerebral haematomas which had increased in size. Thereafter, he was transferred to the National Rehabilitation Centre in Dun Laoghaire on the 26th September, 2016. He suffered temporary hearing loss to his left ear and temporal facial paralysis. He did not require neurosurgical intervention to address his injuries. By the 21st October, 2016, some eight weeks following the assault, the medical evidence indicates that the facial weakness had almost completely resolved and an audiogram of the said date noted his hearing had returned to normal. His residual problems were primarily loss of smell associated with alteration in taste and there was uncertainty as to the prognosis for his short and long-term memory in respect of which he had experienced difficulties post the assault. A medical report of Mr Stephen McNally, Consultant Neurosurgeon, dated the 5th January, 2017 being approximately four months post the assault states: -

“This gentleman does not have substantial loss or impairment of his mobility of his body. This gentleman's main problems are cognitive and it will take time to know if his ability to learn and his memory returns to normal.”

6 The medical evidence included the report from Beaumont Hospital dated 26th April, 2017 which identified improvements in Mr White's memory: -

“He does not appear to be having any problems with short term memory in recent weeks. This gentleman has had no major cognitive changes and his mood is stable.”

It appears that primary difficulties identified were anosmia, being a total loss of smell allied to a severe alteration in taste and in respect of which it would appear there had been no improvement since the injury occurred. The medical evidence indicates that it can take up to two years for any smell to return but there is a possibility that Mr White will have no sense of smell in the long term.

The sentencing hearing of 12 July 2019

7 The appellant had previously entered a plea of guilty to the s. 3 charge.

Victim impact

8 Ms. White, the injured party's mother, read a victim impact statement into the record of the court. She outlined that arising from the assault, Matthew White had been absent from school for nearly four months during the most crucial year of his school life. He struggled to attend school and experienced a fear of group situations. She outlined to the court that Matthew suffered long-term memory loss and that since the assault he cannot smell and had difficulties with taste. She outlined that after the sentencing: -

“He can try to start building a different future for himself without the constant fear of this day and its outcome but one thing is for sure, Matthew's life will never be the same.”

Approach of the sentencing judge

9 The judge characterised the events which led to the assault as follows: -

“… the background to this was a fairly innocuous situation. Words were exchanged between Mr Conway and a bunch of teenagers and Mr Conway punched Matthew. He fell to the ground and sustained a head injury. I have no doubt Mr Conway didn't intend inflicting injuries of the nature that were sustained when he punched Matthew, but the injuries were a direct result of...