Court of Appeal dismisses appeal against ten-year suspended sentence for unprovoked assault with a knife.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No: 16/2015

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

DAMIEN GREENE

Appellant

JUDGMENT of the Court (ex tempore) delivered the 17th of April, 2018 by Mr. Justice Edwards.

Introduction

1. On the 25th of July 2014, following a trial at Wicklow Circuit Criminal Court, the appellant was convicted by a majority jury verdict

of assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”).

2. On the 17th of December 2014, he was sentenced to imprisonment for ten years with the final three years of that ten year term

suspended on conditions. The appellant now appeals against the severity of the said sentence.

The relevant facts

3. At the sentencing hearing, the court heard evidence from Garda Emily Jenkins, the investigating Garda in relation to the matter.

She told the court that on the night in question Mr Richard Coster, the injured party, had been drinking heavily and had been

assaulted, but couldn’t remember the circumstances in which he came to be assaulted. He was subsequently informed by a friend, a

Ms Anne O’Brien, that Damien Greene (“the appellant”) had assaulted him.

4. On Saturday the 20th of April 2013, Mr Coster had purchased beer in an off-licence in Bray, Co. Wicklow before walking to the

appellant’s house at 23 Richmond Hill, Bray. He arrived at 2 p.m. and was let in by his friend, Ms O’Brien. He recalled being there for

about five hours “drinking and chatting and having a laugh”. His girlfriend arrived at one stage but later left at around 11 p.m. All

present were drinking and there was evidence that drugs may have been taken as well. At one point during the night the appellant

began accusing people of taking certain items from the house, namely two iPhones and a betting docket. Mr Coster decided to leave

the house and as he was exiting through the front door, the appellant, who was re-entering the house having briefly left, sliced his

face with a Stanley knife or Stanley knife blade. The evidence was that the attack was completely unprovoked. However, the

sentencing judge did accept that the attack was random and not premeditated.

5. Mr Coster was brought to St Vincent’s Hospital where he was treated by a Dr Quinn. In a medical report, dated the 24th of March

2014, Dr Quinn confirmed that the injured party had presented with a large wound to the left side of his face. The wound extended

from the inferior middle aspect of his left nostril superiorly and laterally towards the superior aspect of the left ear. It measured

approximately 10 cm and appeared to be caused in one fluid strike. It was described as “full thickness”. Dr Quinn was unable to

assess the function of the underlying facial structures including muscles and nerves at the time. She was unable to perform definitive

closure of the wound in the Emergency Department as it was extensive and needed specialist surgical intervention. She administered

intravenous antibiotics and a tetanus injection. Due to the risk of infection and the high likelihood of scarring, Dr. Quinn referred Mr

Coster to a plastic surgeon for surgical wash out and closure of the wound. Mr Coster was reviewed by the plastic surgeon and the

team on call, and was admitted for surgical wash out and closure of the wound under general anaesthesia. Dr Quinn stated that “In

my medical opinion, the wound will cause serious disfigurement to Mr Coster's face leaving him with a problematic extensive scar

along the left side of his face.”

6. Photographs of the injury were produced to the court below, and this Court has viewed those photographs. It is further to be

inferred that in the course of the appellant’s trial, at which Mr Coster gave evidence, the trial judge would have had some opportunity

from his position on the bench to observe the resultant scar for himself.

7. Later on the evening of the assault, Garda Sheridan, a colleague of Garda Jenkins, called to the appellant’s’s address. The appellant

came to the front door. He was clearly intoxicated and began saying something which was incoherent to Garda Sheridan. He then

stepped forward and fell out onto the path, Garda Sheridan having to catch him. He then tried to push Garda Sheridan away. When

the appellant was asked was anyone at home with him, he mumbled that there wasn’t and began shouting that he didn’t know

anything. He was then arrested for an offence under the Criminal Law (Public Order) Act 1994. He was brought to a Garda station but

was regarded as unfit to be interviewed until he had sobered up. When eventually he was fit for interviewing he was interviewed but

the interview was characterised by the Garda as non-productive.

The Appellant’s Personal Circumstances

8. At the time of his sentencing the appellant had 21 previous convictions, dating from April 1991, when he was nine years of age, all

of which had been dealt with in the District Court. These included road traffic matters, public order offences, offences involving

unlawful possession of controlled drugs contrary to s.3 of the Misuse of Drugs Act 1977, and a number of theft, handling and burglary

offences contrary to the Criminal Justice (Theft and Fraud Offences) Act 2001. He received a variety of sentences and penalties

ranging from fines, being bound to the peace, community service, to suspended sentences, to actual sentences of some months to

be served, in respect of these offences. His record also includes two convictions for violent crimes, one being a conviction on

05/10/2001 for assault causing harm contrary s.3 of the Non-Fatal Offences Against the Person Act 1997 for which he received a

sentence of six months imprisonment; and one being a conviction on 22/09/2014 for attempted robbery for which he received a

sentence of ten months imprisonment.

9. The appellant had a difficult childhood. He left school at 13 and has a long history of substance abuse. He had some employment

history, having worked for a fire proofing contractor where he was employed for a long period. He had also recently been engaged in a

horticultural project.

10. In his plea in mitigation counsel emphasised that although he had a string of previous convictions, these all took place under the

influence of alcohol and drugs. He was not, as counsel put it, a person who “set out in any conscious or deliberate way to devote

himself to a life of crime”. The sentencing judge was told of his efforts to engage with the Bray Community Addiction Team (“BCAT”)

in addressing his addiction issues.

11. In his plea in mitigation, counsel for the appellant acknowledged that although he had contested the charges, this was only

because he could not remember the incident due to intoxication and counsel stated that his client now accepted the jury verdict and

was expressing remorse.

The impact on the victim

12. Mr Coster declined to give a victim impact statement. However, the medical report of Dr Quinn, referred to earlier, speaks for

itself in terms of the physical injuries suffered. It is reasonable give the extent of the physical injuries to also infer that a degree of

trauma and psychological distress must also have been occasioned by the attack.

The sentence imposed

13. The judge made the following remarks in sentencing the appellant:

“The attack by Damien Greene on Richard Coster, it was a vicious violent and savage attack by Mr Greene on Mr Coster.

It was unprovoked attack on Mr Coster. … Mr Greene was outside the door of his property as Mr Coster was leaving.

Then Mr Greene attacked him using a knife and Mr Greene sliced Mr Coster across the left side of the face. This was a

completely unprovoked attack; it was an attack suddenly without warning by Mr Greene on Mr Coster. Mr Coster had no

opportunity to defend himself. Indeed, it would be very hard to defend himself having regard to the manner of the

attack, but he was in a hopeless, helpless situation when he was attacked by Mr Greene with the knife. Mr Greene

slashed or sliced Mr Coster's left side of his face; it was a large laceration wound running from the inferior medial aspect

of his left nostril, extending laterally towards the superior aspect of the right ear. The photographs of the injuries

confirmed a very serious and horrific injury to Mr Coster. The wound will cause serious disfigurement to Mr Coster's

face. My understanding as well that the -- for completeness, that it extended, the wound extended -- it was measured

approximately 10 centimetres and it appeared to be caused in one fluid strike, meaning that it was once slicing not

multiple slicing as there was no jagged edges, I think that's important just to include that as well, but it was an

extraordinarily serious injury. It will leave Mr Coster, meaning his face, with a permanent extensive scar along the left

side of his face. The effect of the attack and the injury to Mr Coster, and the previous convictions; in addition, the

manner and the type of the attack by Mr Greene using a knife, is the category of a very serious knife attack. Then I

must have regard to the seriousness of the offence and to the very substantial aggravating factors in the case, and

balance them against the mitigating and the personal circumstances and I would have regard to the mitigating and the

personal circumstances in this case, but it remains a very, very serious matter. In respect of count number 2, I'm

imposing a 10 years' custodial prison sentence, the 10 years to run from the … 25th of July 2014, however I will give

him some additional light in that I will suspend the last three years of the 10 years on the following terms of … Mr

Greene entering into a bond before this Court to be of good behaviour for a period of three years from the date of his

release from … prison ..”

Grounds of Appeal

14. The appellant appeals against the severity of his sentence on two grounds:

i. That the trial judge erred in principle in failing to have due regard to all relevant sentencing principles and

considerations, in imposing a ten year custodial sentence on the appellant.

ii. That the trial judge erred in principle in incorrectly placing on the scale of severity the particular offence the subject

matter of the prosecution.

Decision

15. The gravamen of the appeal is that the trial judge over-assessed the gravity of the case. Counsel for the appellant, while not

gainsaying that the injury was a significant one, contends that the degree of disfigurement was relevant to sentencing. He contends

that while there was certainly some disfigurement it was not so great as to justify the sentencing judge in having started at 10 years,

particularly in circumstances where the culpability of the appellant, which was also a relevant factor to be considered in any

assessment of gravity, was not as high as it might have been. The latter contention was advanced on the basis that the attack was

not pre-meditated which the sentencing judge had been prepared to accept, that the wound was inflicted by a single stroke so that

it was not a sustained knife attack, and that the appellant was extremely intoxicated at the time.

16. Counsel for the respondent has referred us to the People (Director of Public Prosecutions) v Fitzgibbon [2014] 1 IR 627, and has

suggested that according to the criteria set out in that case, and in particular the aggravating circumstance of a bladed weapon

having been used, that the case had properly been located in the high range as identified by Clarke J. The high range, which relates

to pre-mitigation sentences, runs from seven and a half years to twelve and a half years. The trial judge had started in exactly the

middle of that range, and it was submitted that there was no error of principle in him doing so.

17. We entirely agree. The circumstances of this case clearly justified the location of the offence in the middle of the high range as

identified in the Fitzgibbon case.

18. In terms of mitigation the appellant had little going for him. He had fought the case and so was not entitled to the mitigation that

a plea would have entitled him to. He had not been co-operative. He also had a bad record, including previous convictions for other

crimes of violence. The only significant thing he had going for him was an evinced intention to address his addiction issues, and

evidence of some concrete steps having been taken in that regard in terms of his efforts to engage with the Bray Community

Addiction Team. The sentencing judge, in order to acknowledge those efforts and to incentivise continued efforts in that regard,

decided to suspend the final three years of the ten-year sentence. Arguably that was generous in the circumstances but we agree

that it was appropriate.

Conclusion

19. We find no error of principle and are disposed to dismiss the appeal.