DPP v Fitzgibbon

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 18 March 2014
• Neutral Citation: [2014] IECCA 12
• Docket Number: [Record No: CCA 2/2012]
• Court: Court of Criminal Appeal
• Date: 18 March 2014

[2014] IECCA 12

THE COURT OF CRIMINAL APPEAL

Clarke J., Birmingham J., Sheehan J.

[Record No: CCA 2/2012]

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Adam Fitzgibbon

Accused/Appellant

Criminal law - Assault causing serious harm - CCTV footage - s.4 Non-Fatal Offences Against the Person Act 1997 - Appeal against severity of sentence - Sentencing approach - Plea in mitigation

Facts: In July 2010 the appellant launched an unprovoked, sustained and vicious attack on the victim, 16year old Kevin Meaney, outside a petrol station in Corbally, Co. Clare. This was contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997. The trial judge sentenced him to 15years imprisonment with the final 3 years suspended. He now sought to appeal against the severity of that sentence on two grounds, firstly that the sentence was materially out of line and inconsistent with comparable serious assaults and that the trial judge erred in principle as he gave little or no consideration to various mitigating factors. This assault was a brutal attack which resulted in life-changing consequences for that of the victim and his family.

Held: The judge considered the basis of the appeal and the appropriate approach as to sentencing. Several cases involving serious assaults were referred to and relied on. The judge gave consideration to those that formed part of a higher sentencing range. Owing to the vicious nature and severity of this attack, it was placed in the upper end of the sentencing range. However, whilst of a serious nature the judge concluded, before taking mitigation into consideration, that the initial sentence of 15years was out of line with cases of a comparable nature relating to serious assaults. Appeal allowed.

On the second ground of appeal: a plea in mitigation. The judge considered the dysfunctional background of the appellant and his extensive reliance on drugs and alcohol. The judge deliberated over the cases of Keane and Stafford and concluded that the trial judge had significantly misread the outcome of these cases. He concluded that the trial judge had erred in principle in failing to take the above mitigating factors into consideration in the overall circumstances. Appeal allowed.

Mr. Justice Clarke

Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.

1 1. Introduction

1.1 On the 23rd July, 2010, a truly horrific assault occurred. The Court has had the difficult task of having to view a CCTV recording of the assault, for it took place at an Applegreen service station in Corbally, Co. Clare in full view of the cameras. The victim, Kevin Meaney, was aged 16 at the time of the assault. In the written submissions filed on behalf of the accused/appellant ('Adam Fitzgibbon'), counsel correctly described the assault as 'unprovoked, sustained and vicious'. It was certainly that and more.

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 2. How the Offence Occurred

2.1 On the evening of the offence, Adam Fitzgibbon was under the care of two workers from the HSE who had arranged to collect him from the city centre of Limerick. The evidence was that when he was picked up he appeared to be under the influence of drink and drugs, was agitated and was hyperactive. Adam Fitzgibbon was being brought back to a residential home. As he was being driven back to that home, Eden Villa, Adam Fitzgibbon told the care workers that he was 'looking for someone'. As the car approached the Applegreen service station, Adam Fitzgibbon shouted to the driver to pull in and, just as the car was parked, got out saying 'you have no idea what I am capable of'. He then walked towards his victim who was sitting on a window sill outside of a pharmacy at the filling station.

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 3. Adam Fitzgibbon"s Circumstances

3.1 That Adam Fitzgibbon has had a highly unfortunate upbringing cannot be doubted. Amongst the materials available at his sentencing hearing was a report of Dr. Kevin Lambe which, in succinct terms, summarised Adam Fitzgibbon"s difficulties at paragraph 14.3 in the following terms:-

'A multivariate analysis of the situation that has led to this terrible outcome for Adam and his victim suggests there has been no singular cause. Rather it is the composition of his life experiences to date – less than ideal factors from infancy; unavailable parents; ineffective parenting strategies; multiple disruptions in relation to his sense of home; a father who was coming and going in his life; difficult father-son relationship; problems at school from primary level; undiagnosed learning disability; ineffective identification of specific learning difficulties; early drug use; association with older peer group; involvement in petty criminal activity; expulsion from school; psychoactive drug dependence; alcohol abuse; conflict orientated and defensive in interpersonal relations; acceptability of violence in peer group; absence of life goals and planning; and, situational variables in relation to group rivalries.'

3.2 Dr. Lambe also noted that Adam Fitzgibbon did not wish to think about the fact that he had very nearly killed Kevin Meaney. Dr. Lambe quoted Adam Fitzgibbon as saying: 'I"m thankful he didn"t die. I am very sorry for my actions now but I am not sorry I am locked up'.

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 4. The Impact on Kevin Meaney and his Family

4.1 The effects on Kevin Meaney are set out in a medical report by Dr. Susan Finn of the National Rehabilitation Hospital. She noted that, on admission to hospital following the attack, his score on the Glasgow Coma Scale was 7, compared to a normal score of 15. He required intubation and ventilation for a period of 8 days. His score on the Glasgow Coma Scale had risen to 11 at the end of this intubation period. Brain scans demonstrated that he had suffered a left sided subdural haematoma and right sided fracture of the orbit.

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...