DPP v O'Sullivan

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 26 November 2020
• Neutral Citation: [2020] IECA 331
• Docket Number: Record No: 188/2018
• Court: Court of Appeal (Ireland)
• Date: 26 November 2020

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

IAN O'SULLIVAN

Appellant

[2020] IECA 331

Edwards J.

McCarthy J.

Donnelly J.

Record No: 188/2018

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr Justice Edwards on the 26 ^th of November, 2020.

Introduction

1 On the 21 ^st of November, 2017, the appellant came before Tipperary Circuit Criminal Court, and entered a plea of guilty in respect of one count of robbery contrary to s. 14 Criminal Justice (Theft and Fraud Offences) Act, 2001. On the 16 ^th of May, 2018, the appellant was sentenced to 12 years' imprisonment by that court, backdated to the 16 ^th of March, 2017, and with the final 4 years suspended for a period of 4 years. The appellant was further mandated to engage with the probation service for two years post-release, and comply with their requests. He was also to abstain entirely from alcohol and illicit drugs during that period. A compensation order was further made in the sum of €5000.

2 The appellant now appeals against the severity of the sentence imposed.

Background Facts

3 The court heard from Detective Garda Patrick Powell, who on the 26 ^th of February, 2017, received a call from Thomas Lonergan at around 2 a.m., requesting that gardaí should call to his address, claiming that he had been assaulted and robbed. Garda Powell attended his home at 2.10 a.m. He noticed a large physical injury to Mr Lonergan's face. His shirt had been ripped and he had dried blood on his head, face and clothes. Garda Powell summoned an ambulance, and Mr Lonergan proceeded to inform him what had happened.

4 Mr Lonergan stated that as he was walking home from a night out along Thomas Street in Clonmel, he was approached by three males coming from the direction of Shenanigan's Bar. One of the men demanded money. This was refused by Mr Lonergan. In response, the man punched him. Mr Lonergan attempted to flee, but was pursued by the men, who caught him and kicked and punched him while demanding his phone and money. After acquiescing and giving the men the contents of his pockets, Mr Lonergan was subjected to further kicks by the appellant while he lay on the ground. The appellant could be heard laughing as he kicked his victim. This continued until one of the other males pulled the appellant away from Mr Lonergan. Mr Lonergan was subsequently able to complete his short journey home and proceeded to contact the gardaí.

5 Gardaí were able to identify the injured party and the perpetrators from CCTV footage which showed the attack in its entirety. On the 10 ^th of March, 2017, the appellant was arrested on foot of this identification, and was detained at Clonmel garda station and interviewed on three occasions, from which nothing of evidential value emerged. One of the other assailants was dealt with by way of the juvenile liaison scheme.

Impact on Victim

6 After the arrival of the ambulance sent for by Garda Powell, Mr Lonergan was transferred to South Tipperary General Hospital and then to Waterford Regional Hospital for treatment for his injuries. Mr Lonergan received a fracture to his nose and an injury to his right eye socket. He experienced severe swelling to his face and head, which was an initial cause for concern. A report dated the 3 ^rd of March detailed that CT scans and X-rays showed the facial bones, as normal. Mr Lonergan still complained of pain in his right jaw, which was due to extensive bruising and a small laceration under the right eye, which required closing with surgical glue. A medical report from the 30 ^th of May 2017, outlined that following a review on 5th April 2017, Mr Lonergan had a small residual haematoma on the right upper cheek. Whilst he still complained of reduced vision, the report concluded that no other ocular abnormalities were present. The sentencing judge received a photograph taken shortly after the robbery, which displayed the visual aspect Mr Lonergan's injuries.

7 Mr Lonergan prepared a victim impact statement in which he counts himself lucky to be alive, after having his head and face specifically targeted in the attack. Mr Lonergan's situation became more grave due to the concern of the doctors that he could go into diabetic shock as a result of the attack in circumstances where he is a type 1 diabetic and his blood sugar levels post incident were recorded as being very high, a physiological reaction to his exposure to trauma. Fortunately, this did not occur after the administering of insulin. The severe swelling to Mr Lonergan's head caused much worry that there could be internal bleeding and swelling of the brain, which fortunately was not the case. In total, he spent three days in hospital and had to make return visits to the ENT doctor and to eye specialists. As a medical representative, Mr Lonergan was unable to work for 8 weeks due to the damage inflicted upon his face. He describes the shock of his father and mother, who could no longer recognise him due to his facial injuries. He went for weeks without seeing his son as he believed he “ looked like a monster”. He further claims to have lost income from his weekends previously spent driving wedding cars, which when combined with the cost of the stolen phone, amounts to financial loss of around €2100. Mr Lonergan and his family experienced residual fear from the attack and moved out of their home due to fear of being attacked again. He claims that as a diabetic, his HbA1c (haemoglobin) levels have never returned to normal, which he fears will have long-lasting effects on his body. He also suffers from recurring nightmares, leading him to become aggressive and depressed. The trauma experienced by Mr Lonergan is exacerbated by his belief, induced by the appellant's laughter, that the appellant enjoyed carrying out the attack.

Circumstances of the appellant

8 The appellant has 18 previous convictions, namely:

i) one conviction contrary to s. 3 of the Misuse of Drugs Act, 1977 as amended;

ii) 12 convictions pursuant to the Criminal Justice (Public Order) Act, 1994;

iii) 2 convictions for assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997;

iv) 1 conviction for assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997;

v) 1 conviction for possession of a knife contrary to s. 9 of the Firearms and Offensive Weapons Act, 1990; and

vi) 1 conviction for theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences), 2001.

9 The appellant at the time of sentencing was 29 years old. He is in a long-term relationship and is the father of 3 young children. The court was furnished from a medical report dating from 2016, which attested to severe anxiety and suicidal thoughts experienced by the appellant. He became addicted to alcohol from the age of 15, and to drugs from the age of 11, and underwent methadone treatment in 2014 for a serious heroin addiction. The medical report states that his methadone treatment seemed to have broken down by the stage of the offending. There was mention of suspected temporal lobe epilepsy in 2014, but no update has been received on this issue. It was submitted at the sentencing hearing that the appellant had been drinking heavily on the night in question, and had no memory of the attack. Garda Powell had stated that over the course of three interviews, the appellant at no point showed any remorse for his actions. However, at the time of sentencing, the appellant had instructed his counsel to apologise on his behalf and provided a letter of apology. The letter referred to a cessation of drug-taking by him since the incident. The court was also furnished several letters, one from the appellant's fiancé; one from Making Connections in South Tipperary, a training initiative, dated 2017; one from substance abuse services in Tipperary General Hospital; and one from the addiction nurse in Limerick Prison dated 13th April 2018, which detailed his referral to a psychologist and anger management services.

Remarks of the sentencing judge

10 The sentencing judge began his sentencing remarks with commenting on the wideranging ramifications of such an attack, which apart from causing significant harm to the primary victim, Mr Lonergan, had indirectly hurt, or had had the potential to hurt, numerous others in a secondary way, such as the victim's family, the appellant's own family, or members of the public who might have witnessed such “ horrific, sickening violence”. The following were identified as aggravating factors:

i) The three-on-one dynamic of the attack;

ii) The difference in size of the victim and his assailants;

iii) The unprovoked nature of the attack;

iv) The financial loss, which has never been repaid;

v) The physical damage inflicted on the face of the victim, and the knock-on effects this had on his family and employment;

vi) The psychological damage inflicted upon the victim;

vii) The focus on the victim's head in the attack, targeted with particular malice by the appellant, who laughed while carrying out the attack;

viii) The appellant's previous convictions, of which some were for assault and some for public aggression.

11 The sentencing judge identified the case as being in the top range for robbery offences, and noted that the maximum sentence for robbery is life imprisonment.

12 The following were identified as mitigating factors:

i) The plea of guilty, given 9 months after the attack;

ii) The undertaking given by the appellant that the injured party has nothing to fear from him;

iii) His considerable mental health problems;

iv) His children and supportive partner;

v) His letters of apology, which were accepted as displaying a deep level of remorse and some level of insight into the effects of the crime on Mr Lonergan. However, the judge noted, despite stopping taking drugs, the appellant had not recompensed the injured party for his losses. He further...