DPP v O'Sullivan

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 11 October 2019
• Neutral Citation: [2019] IECA 250
• Court: Court of Appeal (Ireland)
• Docket Number: [153/18]
• Date: 11 October 2019

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MARK O'SULLIVAN

APPELLANT

[2019] IECA 250

The President

McCarthy J.

Kennedy J.

[153/18]

THE COURT OF APPEAL

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

Facts: The appellant, Mr O’Sullivan, on 26th April 2018, was sentenced in the Circuit Court sitting in Bray, County Wicklow to a term of seven years imprisonment, with the final two and a half years suspended, in respect of an offence of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences against the Person Act. The case arose from an incident that had occurred on 15th January 2017 in which one Mr Kirwan was the injured party. The appellant appealed to the Court of Appeal against sentence. Counsel on behalf of the appellant was critical of the trial judge’s approach to the imposition of sentence. He said that whether one approaches the case by focusing heavily on the facts of the case, a one-punch assault, or whether one focuses on the process followed by the sentencing judge that the sentence imposed was excessive and excessive to such an extent as to amount to a clear error in principle.

Held by the Court that it was reasonable to address this appeal by reference to the guidelines in DPP v Fitzgibbon [2014] 2 ILRM 116 which were those that were applicable when sentence was imposed. The Court was in no doubt that this was a mid-range offence and not an offence at the lower end of the mid-range. The Court held that the harm done was very grave indeed and the moral culpability, while not at the very highest point in the scale, was very significant; it was a one-punch assault, but it was a punch delivered to the back of the head of someone who was not expecting it and was wholly unprepared for it. The Court held that if one were to take the mid-range of the band suggested in Fitzgibbon for mid-level offences, this would suggest a starting point or headline sentence of the order of five and a half years to five years and nine months. The Court noted that there were significant factors present in favour of the appellant: there was, first of all, his behaviour after the assault, calling assistance, staying at the scene, and offering assistance; this was followed up by making admissions to Gardaí when they arrived and subsequent more formal admissions when interviewed by Gardaí; in addition, it was the case that the offence was committed without prior record, by somebody in a long-term, stable family relationship, with a very good work record, and a record of service to the community. The Court held that, in those circumstances, one would expect to see some reduction from the pre-mitigation headline sentence. In a situation where there was widespread confidence that Mr O’Sullivan was unlikely to reoffend and unlikely to find himself back in Court, but also where excessive alcohol consumption had played a part in this offence, the Court found that there was an argument for providing for a structured release back into the community through the suspension of a limited portion of the sentence.

The Court held that, having concluded that the sentence was unduly severe in the circumstances of the case, it was obliged to resentence. In doing so, it identified a headline or pre-mitigation sentence of five and a half years, a sentence close to the midpoint range for midrange offences identified in Fitzgibbon. The Court held that it would reduce the starting or headline figure to one of three and a half years to incentivise rehabilitation and to provide for structured reintegration into society upon his release from custody it would suspend the final fifteen months of that sentence on his entering into a bond to keep the peace and be of good behaviour. The Court held that it would hear counsel as to any additional conditions that should be imposed, with particular reference to the contents of the psychologist’s report.

Appeal allowed.

JUDGMENT of the Court delivered on the 11th day of October 2019 by Birmingham P.

1 On 26th April 2018, the appellant was sentenced in the Circuit Court sitting in Bray, County Wicklow to a term of seven years imprisonment, with the final two and a half years suspended, in respect of an offence of assault causing serious harm contrary to s. 4 of the Non-Fatal Offences against the Person Act. The case arose from an incident that had occurred on 15th January 2017 in which one Mr. David Kirwan was the injured party.

2 On the occasion in question, the appellant, who was aged twenty-seven years, had been socialising with his wife in Bray, moving between various licensed premises. They went home. It appears there was some degree of tension between them and the appellant decided to go out for a walk and came upon the injured party, Mr. Kirwan. It seems the appellant had noticed him while socialising earlier, they had overlapped in school for a period. There was a suggestion that the injured party may have made a remark at some stage, but that suggestion was never really firmed up on. When the appellant was asked to give an account of the incident by Gardaí, he commented “and then he said something and I hit him”. The assault involved a single blow with the fist to the back of the head. The injured party felt that the blow that he received was such a heavy one that it must have been with an object, but the evidence does not really provide support that proposition. The injured party began to bleed heavily. To the credit of the appellant, he rang an ambulance and stayed with the injured party until help arrived, putting him into the recovery position.

3 The assault has had catastrophic consequences for the injured party. He suffered serious and extensive head injuries, there was intracranial bleeding, there was bruising and a fractured skull. Following this assault on the injured party, who was attacked as he was walking home listening to music, he was removed to Beaumont Hospital in Dublin and there he was put into a medically-induced coma from 15th to 26th January 2017. According to a victim impact statement prepared by the injured party, he suffered significant brain damage, had experienced regular seizures since the incident, and because of these seizures will never be able to work again. Furthermore, he had lost the hearing in his left ear and had also experienced anxiety and depression.

4 In terms of the background and personal circumstances of the appellant, he was twenty-seven years of age at the time of the incident. He was married, and had been married for some two and a half years at this time, and was the father of two young children. He was also centrally involved in the care of his elderly mother who was in ill-health. The Court heard that he had good work record involving spells with Supervalu, Dunnes Stores, and a paving business. He was also active in his community assisting with the work of the Little Bray Community Centre for many years. He had no previous convictions and a number of positive testimonials in relation to him were put before the Court. There was a probation report which said that he was at low risk of reoffending. The investigating Garda, when asked by prosecution counsel whether he would agree that it would seem unlikely that the appellant would be before the courts...