Court of Appeal reduces violent disorder sentence to match co-defendant's sentence for parity.

THE COURT OF APPEAL

Ryan P.

Birmingham J.

Sheehan J.

82/12

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Wesley O’Brien

Appellant

Judgment of the Court (ex tempore) delivered on the 24th day of November 2014, by Mr. Justice Birmingham

1. In this case the appellant Mr. Wesley O’Brien appeals against the severity of a sentence that was imposed upon him in the Circuit

Court in Dublin on the 24th February, 2012.

2. The position is that the appellant had been standing trial on a number of counts including a count of a s. 4 assault, that is to say

an assault causing serious harm, and also violent disorder. On the second day of the trial, there was a development in that the

prosecution agreed to accept a plea to a s. 3 assault, so ultimately when the matter was dealt with by way of sentence, the

sentences that were to be imposed were in respect of the s. 3 assault and the violent disorder. A sentence of three and half years

imprisonment was imposed for the s. 3 assault and no appeal was brought against that sentence. A sentence of six years

imprisonment was imposed in respect of violent disorder and it is that sentence that is now at the heart of the current appeal.

3. We will say just a little about the incident in a moment, but it is fair to say that the real issue in this appeal arises from the fact

that another person, who had been involved in the incident and in a very serious way as will appear, was dealt with separately, as it

happened, in a different Circuit Court in Wicklow. That individual, a Mr. Nealon, was dealt with in respect of a s. 4 assault as distinct

from a s. 3 assault and also in respect of a violent disorder. He received a sentence of six years imprisonment in respect of the s. 4

assault and four years for the violent disorder.

4. The situation then is that as between these two individuals, Mr. Nealon received four years in respect of the violent disorder while

the appellant in this case received a six year sentence. Essentially the point that is made on behalf of the appellant is that this was a

situation where there were very serious offences, serious assaults and violent disorder, but that the offences of the assault, whether

under s. 4 or s. 3, and violent disorder were closely linked, inextricably linked, and that in a situation where his client offered a plea

and had a plea accepted in respect of the s. 3 assault, that it did not make sense and was impermissible that he should receive a

greater sentence for the violent disorder.

5. The background facts were extremely serious involving a number of people participating in a quite outrageous assault and a quite

outrageous incident at the home of the injured party Mr. Connors. During the course of the incident the injured party was struck with

sticks and golf clubs, he lost consciousness, he suffered two fractures of the skull and various other fractured bones, rib injuries, a

fractured wrist and many other injuries.

6. The essential point made on behalf of the appellant is that, in a situation where a s. 3 assault plea was accepted from him, it is not

permissible that he should receive a sentence for violent disorder that is 50% greater than the sentence that was imposed on another

participant, who was required to plead and did plead to the significantly more serious offence of a s. 4 assault.

7. Mr. Seagrave S.C. for the DPP has said that there is in fact a basis for distinguishing, in that he says that there was a suggestion

that Mr. O’Brien produced a knife in the course of the incident or brought a knife to the incident and held it in proximity to the face of

Mr. Connors. Mr. Fitzgerald, for the Appellant, who appeared at the trial says that while that was the initial evidence, that the

subsequent evidence withdrew any reference to a knife, though apparently substituted a slash hook. If it is the case that a slash

hook was used or threatened as distinct from a knife, it certainly does not seem to the court that that improves matters from the

point of view of Mr. O’Brien. However, the essential point and the heart of this case is the disparity between how Mr. O’Brien was

dealt with in Dublin and how Mr. Nealon was dealt with in Wicklow.

8. It seems to the court that in a situation where four years had been fixed as the appropriate sentence for violent disorder and had

been upheld by the Court of Criminal Appeal that it would have been appropriate that the sentence for Mr. O’Brien would be fixed at

the same level.

9. Accordingly, what the court will do is that, not being asked to interfere with and does not interfere with the sentence of three and

a half years in respect of the s. 3 assault, but in respect of the violent disorder, the court will substitute for the sentence of six years

that was imposed, a sentence of four years so as to achieve parity with the sentence that was imposed in Wicklow Circuit Court on

Mr. Nealon.