DPP v McDonald

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 13 June 2016
• Neutral Citation: [2016] IECA 249
• Docket Number: 268/13
• Court: Court of Appeal (Ireland)
• Date: 13 June 2016

[2016] IECA 249

THE COURT OF APPEAL

Sheehan J.

268/13

Birmingham J.

Sheehan J.

Mahon J.

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Wesley McDonald

Appellant

Sentencing – Assault causing harm – Manifestly excessive sentence – Appellant seeking to appeal against sentence – Whether sentence was manifestly excessive

Facts: The appellant, Mr McDonald, following a three day trial at Tralee Circuit Court in June 2013, was convicted of assaulting one Mr Barry and causing him harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. On the 10th July, 2013, he was sentenced to four years imprisonment with the final year suspended on the usual terms. The appellant appealed to the Court of Appeal against that sentence on the following grounds: 1) The sentencing judge erred by intimating that he was taking into account offences in respect of which he had been acquitted; 2) The sentencing judge failed to give sufficient credit for mitigation; 3) The sentence was excessive.

Held by Sheehan J that he was unable to agree with the appellant's submission that the sentencing judge factored intimidation into his sentence, that being an offence of which the appellant had been acquitted. Sheehan J noted that in the course of brief sentencing remarks the trial judge gave a summary of the facts noting that despite the garda evidence the only matter that the jury had convicted the appellant of was assault causing harm; the transcript excerpt exhibited by the respondent in the course of his written submissions confirmed this. The Court found itself unable to attach any weight to the submission that the sentencing judge did not reference the appellant's remorse as a mitigating factor, or the appellant's family circumstances, in particular that he was the father of three children. Sheehan J held that there was no evidence of remorse before the court apart from counsel's submission to that effect. Sheehan J held that there was no evidence before the court that the appellant at the time took his responsibilities as a father seriously and apart from the prosecuting garda confirming that the appellant abused alcohol and drugs, there was no evidence that he had significant addiction difficulties. Accordingly, the Court held that this was a case in which there was no evidence of any mitigation that the judge could properly factor into the sentence. The Court was satisfied that by suspending the final twelve months of the sentence, the penal aim of rehabilitation was properly factored into the sentence imposed even though there was no mention of rehabilitation in the course of the sentencing judge's remarks.

Sheehan J held that he found no error in the sentencing judge's approach to sentence, nor did he find any error in the sentence actually imposed which he deemed to be a just sentence. Accordingly Sheehan J dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 13th day of June 2016, by Mr. Justice Sheehan

Mr. Justice Sheehan

1 This is an appeal against sentence.

2 Following a three day trial at Tralee Circuit Court in June 2013, the appellant was convicted of assaulting Edward Barry and causing him harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. On the 10th July, 2013, he was sentenced to four years imprisonment with the final year suspended on the usual terms. He now...