DPP v Liam McCarthy
 IECA 8
THE COURT OF APPEAL
247/2013 - Kelly Peart Mahon - Court of Appeal - 10/11/2014 - 2014 16 4457 2014 IECA 8
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4
DPP v FITZGIBBON2014 IECCA 12
Sentencing – Assault causing serious harm – Provocation – Appellant seeking to appeal against sentence – Whether trial judge failed to consider the element of provocation
10th day of November 2014 by Mr. Justice Mahon
1. This is an appeal of a nine year sentence imposed on the appellant on 13 th October 2013 at Clonmel Circuit Criminal Court following an earlier plea of guilty to one count of assault causing serious harm to Mr. Martin Butler contrary to Section 4 of the Non Fatal Offences against the Person Act 1997.
2. Briefly stated, the facts were that on the night of 29 th March 2013, in Cappawhite, Co. Tipperary, a relatively minor disagreement between a number of men, including the appellant and a Mr. Butler, erupted into a physical and somewhat alcohol fuelled street brawl, in the course of which the applicant, having himself received injuries, left the group of men, went to a nearby house and armed himself with a sword. He returned to the fracas where he used the weapon to strike Mr. Butler on the left side of his head, causing a penetrating injury to his skull. Mr. Butler sustained an extremely serious head and brain injury, and required surgery at Cork University Hospital. Undoubtedly Mr. Butler was lucky to have survived the assault. As a result, Mr. Butler has been left with very significant and permanent disabilities, including difficulties with communication, speech impairment, right side weakness, a paralysed right arm and a requirement to use a walking aid. Every aspect of his life has been adversely affected. Fortunately for Mr. Butler he has the benefit of a network of strong family and community support.
3. The learned Trial Judge considered that the appropriate sentence, had the applicant contested the charge, and had he...
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