Court of Appeal dismisses appeal against three-year sentence for assault causing harm, upholding severity despite illness and lack of violence convictions.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

72/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Darren Byrne

Appellant

Judgment of the Court (Ex tempore) delivered on the 8th day of October 2015 by Mr. Justice Sheehan

1. This is an appeal against severity of sentence.

2. At the Dublin Circuit Criminal Court on the 24th February, 2015, the appellant was sentenced to three years imprisonment in

respect of a charge of assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. This followed his

plea of guilty a week earlier.

3. The appellant appeals on the following grounds:-

1. The sentencing judge erred in law in failing to construct a sentence which took into account the sentencing goal of

rehabilitation.

2. The sentencing judge erred in law in failing to fully take into account the fact that the appellant suffers from a

significant illness.

3. The sentencing judge erred in law in failing to fully take into account the appellant’s relative lack of convictions and

especially his lack of any convictions for violence.

4. The sentencing judge erred in law in finding that the appellant was under the influence of an intoxicant on the evening

of the offence.

5. In all the circumstances the sentence passed by the sentencing judge was unduly severe and excessive.

4. In order to consider these grounds it is necessary to set out the background to the offence, the victim impact report and the

personal circumstances of the offender.

Background

5. On the 23rd June, 2012, the appellant went to the Village Inn public house in Clondalkin with his sister where he had a shandy. The

victim was there with friends and family members having been in another public house earlier that evening.

6. The victim was at the bar and was seen to engage in what was described as some form of jocular scuffling with his brother. The

Court was told that CCTV footage showed the appellant approaching the counter to buy a drink and the victim speaking to him. The

appellant then punched the victim in the face. He was completely surprised by this attack and retaliated by punching the appellant in

the face.

7. The victim said that he thought that that was the end of the matter but the appellant then grabbed him by the neck and described

him as growling in his ear. Security personnel intervened at that point and it was then that the victim realised he was missing a

portion of his right ear.

8. The gardaí were called and the appellant was arrested for a public order offence and taken to Clondalkin garda station. He was

described by the prosecuting garda as being extremely aggressive at the time of that arrest and he did not give any account then as

to what he believed had happened.

9. The victim was taken to hospital where attempts to reattach the severed portion of his ear were unsuccessful. Further cosmetic

operations were offered to him, but he was advised that these would be of limited assistance and he declined them.

10. The victim stated that the injury to his ear has caused him significant ongoing difficulties resulting in anxiety and depression. He

said that the injury had had an adverse impact on his career prospects and also had had an ongoing adverse affect on him personally.

11. The appellant was subsequently arrested in April 2013 for this offence and told the gardai that he had been on medication at the

time for depression. He said that a scuffle had occurred at the bar and that he then went upstairs. He stated that he believed a

number of people had attacked him.

The personal circumstances of the appellant

12. The appellant was thrity-two years old at the time of sentencing and recently separated from his long term partner and their

child. The sentencing judge was told that he had started using heroin when he was thirteen years old and that this had continued

until he reached the age of nineteen when he was diagnosed with Hepatitis C.

13. He was subsequently diagnosed with mouth cancer which had necessitated a number of operations, but was presently in

remission.

14. He continued to suffer from depression. The appellant expressed his remorse for the offence in a letter addressed to the Court. He

had fifteen previous convictions between 2000 and 2012 which included two for intoxication in a public place, one for drunken driving

and one for breach of the peace. The remaining offences related to breaches of the Road Traffic Act which had occurred on two

separate occasions.

15. No satisfactory explanation was offered to the Court for the appellant’s attack on the victim, nor was there any explanation for

the continuing aggression when the police had arrived to arrest him for the public order offence. While it was to the appellant’s credit

that he had committed no offence in the almost three year period between the offence and the date of sentence, the circumstances

of this attack insofar as it could be explained to the Court did not warrant a partial suspension of the sentence to encourage the

appellant’s rehabilitation.

16. When imposing sentence the judge had stated that the appellant had been intoxicated. It was brought to his attention by the

appellant’s counsel that there had been no evidence of this and the judge responded by saying that this would have been slightly

mitigating in one sense, but he then went on to say that he apologised if he had misheard or misremembered what occurred, but this

did not change his view of the situation.

17. Accordingly the Court finds no error of principle in respect of this particular ground of appeal.

18. The remaining grounds of appeal all relate to a submission that the sentence was excessive, especially in light of the fact that the

appellant had no previous convictions for violence and more particularly in view of the fact that the appellant suffered from a

significant illness. Counsel for the appellant submitted that these two matters were not adequately reflected in the sentence.

19. In considering the sentence imposed by the sentencing judge, the Court reminds itself that the sentencing judge located the

offending behaviour in this case as being at the highest level noting that a s. 3 offence carries a maximum sentence of five years

imprisonment. The sentencing judge’s finding that this was an unprovoked attack in which the appellant bit off a substantial portion of

the victim’s ear is not in dispute. As a consequence of this attack the victim is permanently disfigured.

20. This Court takes the view that the sentencing judge gave sufficient attention to the appellant’s health problems and also to the

lack of relevant previous convictions. The Court agrees with the sentencing judge’s location of the offending behaviour in this case at

the highest end of the scale and accordingly upholds the sentence of three years imprisonment. The appeal therefore is dismissed.