DPP v Walsh

 
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[2014] IECA 10

THE COURT OF APPEAL

Kelly J.

Peart J.

Mahon J.

12/13
DPP v Walsh
The People at the Suit of the Director of Public Prosecutions
V
M.J. Walsh
Appellant

12/2013 - Kelly Peart Mahon - Court of Appeal - 10/11/2014 - 2014 17 4821 2014 IECA 10

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

DPP v MCKEVITT 2009 1 IR 525 2009 1 ILRM 401 2008/20/4278 2008 IESC 51

DPP v T (B) 1996 3 IR 294

Appeal – Sentence Severity – Non-Fatal Offences Against the Person – Consecutive Sentences

1

1. This is an appeal against severity of sentence imposed by His Honour Judge Teehan sitting at the Circuit Court in Clonmel in December 2012. On that occasion the accused pleaded guilty to two counts on a two count indictment, both charges being preferred under s. 3 of the Non Fatal Offences against the Person Act. The two incidents which gave rise to the charges occurred on two separate occasions divided in time by a number of months. The first took place in early July 2011, and on that occasion, a Mr. Butler was the injured party. The second assault occurred in the early days of November 2011, and on that occasion, a Mr. O'Dwyer was the injured party.

2

2. There was a certain similarity in the way in which these offences were committed. In each instance the injured party was confronted by two individuals, one of whom was the accused. In each instance the injured party was brought to the ground as a result of the intervention of the accused. The injuries sustained by the injured parties were fully described before the judge whose sentences are being impugned. In the case of Mr. Butler, he set out in his statement what occurred. Having been brought to the ground, he was kicked in excess of four times, he said, to quote him exactly he said:

"I felt several kicks more than four times at least from him on my head, I knew he was kicking me, because I could see his legs. I remember putting my hands up to cover my face, I don't know if the other fellow assaulted me, because the next thing I passed out on the ground."

3

3. The person he is referring to there as the person whom he knew to be kicking him was the accused. Mr. Butler did pass out. He became unconscious and was taken to Clonmel Hospital. The following day was referred to Cork University Hospital because it was suspected that he had a fractured jaw. Fortunately that was not so, but he had all of the other soft tissue injuries and the sequalae which were set out in evidence before the judge.

4

4. The physical evidence was one thing and the physical injuries which were sustained are dealt with in the short summary that was put before the judge. He also suffered some psychological sequalae and he describes them in the statement in the following terms:

"I now fear for my own safety all the time and I am very nervous going around the town and I am very wary of my surroundings and the people in them. I feel very uncomfortable on my own. I no longer socialise and I am not comfortable outside of family events. I don't leave the house unless necessary which causes difficulties at home and with my family."

5

5. He also had some €300 in out of pocket expenses and no compensation was ever offered in that regard.

6

6. Insofar as the second assault is concerned, the victim on this occasion was a Mr. O'Dwyer...

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