DPP v Liam McCarthy

JudgeMr. Justice Mahon
Judgment Date10 November 2014
Neutral Citation[2014] IECA 8
CourtCourt of Appeal (Ireland)
Date10 November 2014

[2014] IECA 8


Kelly, J

Peart, J

Mahon, J

[Appeal No.]
DPP v McCarthy
The People at the Suit of the Director of Public Prosecutions
Liam McCarthy


DPP v FITZGIBBON 2014 2 ILRM 116 2014 IECCA 12

Sentencing – Assault causing serious harm – Provocation – Appellant seeking to appeal against sentence – Whether trial judge failed to consider the element of provocation

Facts: The appellant, Mr McCarthy, and a number of other men, including a Mr Butler, entered into a physical and somewhat alcohol fuelled street brawl in 2013. 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 brawl 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. The appellant pleaded guilty to one count of assault causing serious harm contrary to s. 4 of the Non Fatal Offences against the Person Act 1997. The trial judge considered that the appropriate sentence, had the appellant contested the charge, and had he been found guilty by a jury, to be fourteen years. There were a number of mitigating factors in respect of which the applicant was entitled to have taken into account in any decision to reduce a fourteen year tariff, including the appellant"s immediate admission of his involvement in the assault, and his early plea of guilty, his expressions of concern and remorse, his co-operation with the Gardaí, his own difficult background, including his previous misuse of intoxicants, the fact of his sobriety from the date of the offence, and the severe anxiety which he suffered as a direct consequence of his involvement in the assault. Aggravating factors included the viciousness and premeditated nature of the assault, the use of a lethal weapon and the fact that it was forcibly used from behind to inflict a very serious injury to an unsuspecting victim"s head, an injury that could so easily have killed him and which has left him with lifelong debilitating injuries. Furthermore, the offence was committed while the appellant was on a six months suspended sentence from an earlier assault on another individual. Clonmel Circuit Criminal Court imposed a sentence of nine years. The appellant appealed to the Court of Appeal against the sentence, submitting that the trial judge failed to adequately consider the issue or element of provocation, and that the appellant had been himself the subject of an assault.

Held by Mahon J that in circumstances where an individual suffers superficial type injuries from what might be described as a fist fight, nothing can justify the clearly pre-mediated act of leaving a row and very consciously arming oneself with a sword, returning to the affray and attacking an unsuspecting individual in a very determined and intentional manner. Mahon J held that the facts almost entirely exclude any arguable case of provocation given the time lapse between the appellant"s involvement in the fight and sustaining an injury, and his leaving the scene, arming himself and then returning to inflict serious injury. Mahon J held that if there was a degree of provocation, equally and indisputably, there was a lengthy cooling off period such as would exclude provocation as a mitigating factor of any significance, and, in any event the response to any such provocation was wholly inappropriate, entirely unjustified and disproportionate. Mahon J held that the trial judge very fully considered this aspect of the assault, and the events immediately preceding it. Mahon J held that the trial judge quite properly placed the assault at the higher end of s. 4...

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