DPP v Walsh

JurisdictionIreland
JudgeKelly J.
Judgment Date10 November 2014
Neutral Citation[2014] IECA 10
CourtCourt of Appeal (Ireland)
Date10 November 2014

[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

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

Facts: This case concerned an appeal against the severity of a sentence imposed under the Non-Fatal Offences against the Person Act. The appellant sought to challenge the judge"s conclusions on the appropriate sentence.

Held by the Court, having regard to the serious nature of the assaults, that the sentence imposed by Judge Teehan was a sentence which could not be regarded as being in anyway in error. In respects of the first criticism raised, the Court was of the opinion that no legitimate criticism could be made of the judge in coming to the conclusion that these were offences at the upper end of the range. The judge had taken account of the mitigating factors applicable and it was within his discretion to hand down consecutive sentences as he had taken account of the totality principle. Consequently, for the above reasons the appeal was dismissed.

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 and the physical injuries sustained by him were much more serious. He again was brought to the ground and kicking and punching to his head took place. He managed to resurrect himself from the ground and was attempting to get away when he fell and fractured his ankle. He says that the accused then stamped on his left ankle above the ankle and that he heard it snap. "He did this to try and stop me from running, as he stamped on my ankle I heard it pop and I looked down and saw the bone had pierced the skin on the right hand side of my ankle". That was his account.

7

7. It is correct to say that that account of stamping on the ankle was not accepted by the accused, but whilst he did give evidence in the court below in relation to the proffering of an apology, he did not touch upon his denial of the assertion made by Mr. O'Dwyer the injured party.

8

8. The consequences for Mr. O'Dwyer were indeed serious. Mr. O'Dwyer was a rather talented young man as is clear from the evidence. First of all he had succeeded in obtaining a Master's Degree in Economics and Finance and at the time of this assault, he had no fewer than four job interviews lined up. Three were with stock broking companies in Dublin and one with Allied Irish Banks. Those interviews had to be foregone. Ultimately he did secure employment, but those interviews were obviously of importance to him, given the qualification that he had just achieved. His talents were not limited to the academic halls. He was also quite a sportsman and it was in a sense a cruel irony that on...

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2 cases
  • DPP v Arkins
    • Ireland
    • Court of Appeal (Ireland)
    • June 11, 2018
    ...to the public not to impose consecutive sentences in this case.' 13 Reference was also made to the decision of this court in DPP v. Walsh [2014] IECA 10 wherein the following remarks were made:- 'In the present case, it is the view of this Court that no error in principle was made by the tr......
  • DPP v O.R
    • Ireland
    • Court of Appeal (Ireland)
    • March 2, 2017
    ...each and every mitigating and aggravating factor, as recognised by this Court in The People (Director of Public Prosecutions) v Walsh [2014] IECA 10. Given that the appellant's counsel identified the relevant mitigating factors and a suspension of eighteen months was granted, the mitigating......

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