Court of Appeal dismisses appeal against sentence for assault causing serious harm, upholding judge's consideration of appellant's mental health.

THE COURT OF APPEAL

Ryan P.

Birmingham J.

Sheehan J.

208/13

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Andrew McDonnell

Appellant

Judgment of the Court (ex tempore) delivered on the 11th day of December 2014, by Birmingham J.

1. In this case the appellant is bringing an appeal to this Court against the severity of the sentence that is imposed upon him. The

sentence under appeal is one of nine years imprisonment with the final year suspended subject to conditions that were imposed on

the 31st July, 2013, in respect of an offence contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997, that is to say

an offence of assault causing serious harm. The sentence was backdated to the 24th April 2011.

2. A number of issues are raised on the grounds of appeal, the overall issue being that the sentence was in all the circumstances

excessive and disproportionate, but a particular focus is on an alleged failure on the part of the sentencing judge to take account of

the personal circumstances of the appellant and in particular to have sufficient regard to his medical situation and to have sufficient

regard to his lack of cognitive function and we will return to this aspect in greater detail.

3. The basic facts may be stated briefly. On the evening of the 23rd coming into the early hours of the morning of the 24th April,

2011, a group of people that included the appellant and also the injured party were at the appellant’s home at an apartment in

Finglas. Very substantial amounts of alcohol and cocaine were taken, indeed to the extent that at one stage the group ran out of

cocaine and had to make arrangements to access fresh supplies.

4. In the course of the evening a dispute arose and developed into a confrontation leading to a fight between the injured party and

the appellant and it must be said that they had previously been friends. The injured party fell to the floor, it was a tile floor and it

seems struck his head very violently indeed on the floor in the process of the fall.

5. In the course of the dispute, which will be referred to in more detail in a moment, the appellant gained the upper hand and on the

evidence that was presented to the Circuit Court a stage was reached where the injured party was on the ground, the appellant

kicked him and stomped on his head.

6. I have referred to the fact that at one stage the group involved sent out for more cocaine. When the individual went to get the

additional supply, it was at that stage that an altercation involving the injured party and the appellant developed. An altercation

which progressed to violence with initially the appellant striking the injured party in the face causing him to bleed from the mouth. At

that stage matters calmed somewhat and indeed following the return of the individual who had gone out, all those present resumed

drinking and taking cocaine.

7. However, the calm, which was the word that was used in the course of the proceedings in the Circuit Court to describe the

reconciliation that had been achieved did not last. At approximately 3.00am, the brother of the injured party who was one of those

there, went to the toilet and when he returned, he saw the injured party and the appellant “squaring up to each other” and that

progressed to scuffling and rolling around on the couch, to a stage where the injured party was on the ground. At that stage he was

kicked and the description is that at one stage, the injured party was kicked all over.

8. At that point in time, there seems to have been a recognition that the injured party had suffered significant injuries, because the

appellant is recorded as putting his arms around his girlfriend who was there, saying to her that everything would be all right and

asking her to summon an ambulance on behalf of the injured party.

9. However, there was a further and very serious development in that having made that request to his girlfriend, he moved away from

the girlfriend and then proceeded to “stomp” and step on the injured party’s head. How many times is not clear, but certainly it

appears to have been on a number of occasions.

10. Having done that, in fairness to the appellant, he at that stage sought to put the injured party who by now was clearly in a very

bad way indeed, into the recovery position. The medics arrived on the scene and subsequently the gardaí. When the gardaí arrived,

they were told that the attacker had fled which of course was quite untrue as the appellant who was the attacker was present. The

injured party was brought to the Mater Hospital and initially on arrival it was assessed on the Glasgow Coma scale was 4/15 and that

deteriorated then to 3/15.

11. This assault has had the most serious impact on the injured party. Quite simply he is no longer able to live independently and he is

forced to return to live with his elderly parents. He does not it seems recognise danger, for example tasks as simple as crossing the

road tend to cause problems. He has suicidal tendencies, his speech has been affected, making it difficult to understand. The incident

has impacted in a very profound way on his relationship with his eight year old son, Aaron. Aaron too is a victim of this very serious

assault because he has been deprived of the companionship of his father and relationship with his father that he had previously had.

12. Perhaps one measure of how profound the impact on the appellant has been was the fact that he was not in a position to

produce a victim impact report for himself and a victim impact report had to be prepared by his brother.

13. So far as the appellant is concerned, when he came before the court, the court was told that he had seventeen previous

convictions, mainly road traffic, but in that context of some significance is the fact that two of the road traffic convictions were for

s. 49, that is to say for drunk driving. But more significantly one of the previous convictions was a s. 3 Non Fatal Offence Against the

Person Act assault in August 2006, which involved him biting off someone’s ear causing disfigurement.

14. In terms of his personal circumstances, he was born on the 24th September, 1982 and he is the father of two children. There is a

long history of alcohol and drug abuse. Of particular significance is that in the appellant notes certainly, is that in August 2008, he

was admitted to an intensive care unit following a cocaine overdose and alcohol intoxication. This it would appear was an occasion

when he had sought to harm himself by means of an overdose. The relevance of this is that a neuropsychological evaluation in April

2013 by Dr. Albert Blanco, revealed cognitive defects and at that stage the view was that Mr. McDonnell was functioning at an

extremely low range of ability and Dr. Blanco felt that there may well have been and indeed there were, behavioural and personality

changes leading to the overdose incident of 2008. As a result of the various assessments and tests that he carried out, Dr. Blanco

came to the conclusion that the incident of 2008, had resulted in brain damage.

15. It is the situation that following his arrest, Mr. McDonnell had spent a period of time in the Central Mental Hospital and as the

case made its way through the court system, the question of Mr. McDonnell’s mental condition was a significant part of the

proceedings. There was an elaborate fitness to be tried hearing and the question of his mental condition featured and that was

resolved in favour of the trial being permitted to proceed. Subsequently a plea of guilty was entered and the trial judge adopted the

position that while this was not an early plea in the sense that it was not in chronological terms early, that a plea against the

background of the mental issues and the resolution of those issues should be regarded as an early one.

16. Really the criticism made of the approach to sentencing is that insufficient regard and attention was made to the mental issues

and the contents of the report of Dr. Blanco and to the views expressed by Dr. Blanco.

17. The court has considered very carefully the transcript of the proceedings and what emerges is that this was a case that the

sentencing judge approached with particular care and attention and in which she gave matters particularly close and it might be said

anxious scrutiny. That was evident not just on the day in which sentence was eventually passed, but in the way in which she had

approached the fitness to be tried issue and the way in which she had sought further information on the progress of the injured party,

putting the matter back for that purpose.

18. This was by any standards a very serious assault. This is an assault that has had very serious consequences and it is an assault

that has given rise to consequences that are going to persist into the future. The learned sentencing judge approached the case with

very particular care and attention and was clearly conscious of the fact that it was not an easy case in which to sentence and she

was conscious of the fact that she was sentencing for an offence of particular gravity, but she was also clearly conscious of the fact

that she was sentencing a person with very particular difficulties and a very particular background.

19. The court can find no error in the way in which she approached her task and in the circumstances the court will dismiss the

appeal.