Court of Appeal dismisses appeal against sentence for assault causing harm, upholding judge's mitigation of headline sentence.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

Court of Appeal Record Number: 118/2024

Neutral Citation: [2025] IECA 227

Kennedy J. Butler J. Burns J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS

PROSECUTOR/

RESPONDENT

- AND –

NOEL BRETT

APPELLANT

JUDGMENT of the Court delivered by Ms. Justice Butler on the 13th day of November 2025

Introduction

1. This is an appeal against severity of sentence. On 14th November 2023 the appellant entered a guilty plea to a single count of assault causing harm contrary to s. 3 of the Non- Fatal Offences Against the Person Act 1997. On 19th March 2024 he was sentenced by the Circuit Criminal Court to 3½ years imprisonment with the final nine months suspended on the condition that he enter into a bond and complete an anger management course either in prison or within six months of his release.

2. The sentencing judge identified a headline sentence of 4½ years. At the time the offence was committed the maximum penalty available for a section 3 assault was 5 years. [This has since been increased to 10 years by s. 20 of the Criminal Justice (Miscellaneous Provisions) Act 2023 which entered into force on 1st November 2023.] The headline sentence was reduced by twelve months and the final nine months was suspended to take account of the appellant’s “background, the circumstances, rehabilitation and to give him light at the end of the tunnel”.

Background

3. The offence to which this appeal relates occurred on the morning of 17th August 2022 in Kilkenny City. The appellant had parked his motorbike in a loading bay on a busy street as a result of which the injured party, who was driving a delivery van, was unable to park in the loading bay and had to pull up into an area marked with a yellow box in order to make his delivery. On his return to his van the injured party saw the appellant standing at his motorbike and said to him that he should not park the motorbike in the loading bay. The appellant then approached the injured party shouting at him and punched him on the left side of his face. This entire exchange was caught on the CCTV camera of an adjacent business premises. The appellant then drove away on his motorbike, but the injured party was able to take a photograph on his phone which showed the number plate of the departing motorbike. The injured party called the Gardaí who arrived at the scene shortly afterwards. They were able to trace the appellant from the registration number of his motorbike.

4. The injured party was taken by his partner to the local hospital where an x-ray confirmed that his jaw was broken in two places. He was transferred to St James's Hospital in Dublin where he underwent surgery to reduce and fix the fractures. He has been left with the sensory nerve deficit and a residual loss of sensation in his lower lip which is likely to be permanent.

5. It will be apparent from the description of the injured party’s injuries in the preceding paragraph that this was a serious assault. In a victim impact statement, the injured party described the ongoing effects of the assault going beyond the immediate pain and suffering caused to him and the permanent nature of the reconstructive surgery required. These include continuing stress and anxiety and damage caused to his business during the period when he was unable to perform his duties which had a significant financial effect on him and his family.

Personal Circumstances of the Appellant

6. The appellant is a 58-year-old man who was 55 at the time of the offence. He has 22 previous convictions, 11 of which were for offences under the Road Traffic Acts and another four for public order offences dealt with summarily before the District Court. Three of the previous offences were identified by the garda who gave evidence in the case as being more serious. These were firearms offences in 2008 for which the appellant was sentenced to 3 years imprisonment in 2010; an indictable conviction for harassment in 2001 for which he received a suspended sentence and a conviction for the obstruction of a peace officer in 2006. Counsel for the appellant pointed out to the sentencing judge that these convictions were quite historic in that the most serious of them had occurred some 15 and 23 years prior to the sentencing hearing.

7. The plea in mitigation made on the appellant's behalf focused on two events proximate to the date of the offence, which it was submitted showed that he was going through a very difficult period in his life when he committed this assault. In the preceding month he had given evidence in a trial which had a traumatic effect on him. Moreover, as a consequence of abuse sustained by him as a child, he suffered long term psychological effects, leading to bad decisions and anger.

8. Counsel emphasised that this was not an excuse for the offending behaviour, but contended that it was an exceptional circumstance relevant to an assessment of the personal circumstances of the appellant at the material time, and hence to his level of culpability. At the time of the sentencing hearing the appellant was attending counselling and therapy regarding the impact of these matters and he was receiving medical treatment for his mood disorder.

9. The other matter relied on was the fact that in July 2022 the appellant had received notice of termination of his tenancy from his landlord who intended to sell the dwelling in which the appellant was residing. Both of these events created what counsel described as a significant and stressful situation for him.

10. Finally, as regards the offence itself, the appellant had entered an early plea of guilty on the first occasion the matter was before the court.

Sentencing Remarks

11. In imposing sentence, the judge outlined the circumstances of the offence, the injuries to the victim, the appellant's early plea and previous convictions. He noted that the injured party was standing on a roadway with busy traffic and had he “fallen to the ground, his injuries could have been a lot more serious”. The judge expressed the view that while “the accused may have been angry over issues in his life, … there was no need to take it out on (the injured party)”.

12. The judge then described the aggravating and mitigating factors as follows: – “Now, the aggravating factors are that it was an unprovoked and needless assault, the serious injuries suffered by (the injured party). The injured party… was doing his job and the previous convictions that I've referred to are aggravating. Now, the mitigating circumstances are, I take into account the accused's age. He is

56. His personal circumstances. There were early pleas of guilty. They’re described as pleas of guilty of value, but that’s in a context of the clear CCTV. He hasn't come to adverse garda attention since this. I take into account his remorse and his apology. I take into account that he had given evidence in the case described and that he was losing his tenancy at the time, which may have made him more susceptible to road rage or flying off the handle. I take into account the letters handed in. His own letter, the letter from his doctor, the newspaper report in relation to the case where he gave evidence, the letter from Conor McMullen, the letter from Pastor Andy Guilfoyle and the letter from Patrick Kehr . So, I take those matters into account. I take into account the notice of termination and the letter from Geraldine Kennedy in relation to counselling. I take all of those matters into account.” The sentencing judge then proceeded to impose sentence as described at paras. 1 and 2 of this judgment.

Grounds of Appeal

13. The appellant advances four grounds of appeal which I paraphrase as follows: –

(1) The nomination of a headline sentence of 4.5 years was too high and constituted an error of law, principle and fact.

(2) Insufficient regard was paid to all of the mitigation in the case, in particular the appellant's personal circumstances and early plea of guilty.

(3) Inadequate regard was paid to his personal circumstances in determining that there was high culpability. I note that the written legal submissions deal with grounds (2) and (3) together.

(4) The sentence was disproportionate.

Headline Sentence

14. The appellant argues that the identification of a headline sentence of 4½ years when the maximum penalty available was 5 years was excessive in all of the circumstances of this case. Counsel points to a number of judgments, including the decision of this court in a composite judgment involving three separate undue leniency appeals involving section 3 assaults, namely DPP v. McGrath, Dolan and Brazil [2020] IECA 50. Birmingham P. for the court stated at para. 22 of that judgment: – “As the facts of these three cases show, s.3 assault cases can be very serious indeed. Amongst factors tending to aggravate such offences, we would identify the infliction of significant injuries, injuries well in excess of the threshold to constitute a s. 3 offence, the use of a weapon, the involvement of more than one assailant, the injured party’s situation is more difficult if he is assaulted by two, three or more individuals and planning or premeditation.”

15. McGrath, Dolan and Brazil was an undue leniency appeal in which serious injuries had been inflicted in all three cases. The court accepted the DPP’s argument that the headline sentences had not reflected the gravity of the offending conduct measured with reference to the offender's culpability and the harm done. The court noted that “for high end s. 3 assaults, a 5-year headline pre-mitigation sentence is not excluded”. In re-sentencing the appellants, the court felt that a headline sentence of five years was appropriate in two of the cases (McGrath which involved two assailants, the use of a weapon and where the accused's prior record included directly relevant previous convictions involving serious assaults, and Dolan which involved an extremely violent assault and the use of a glass to inflict permanent facial scarring on the victim). In the third case, Brazil, where the evidence was somewhat unclear, a headline sentence of between four and five years was appropriate for an assault involving two assailants both of whom used weapons.

16. Counsel argues that this assault did not have any of the aggravating factors identified in McGrath, Dolan and Brazil as justifying a headline sentence at almost the highest end of the range. She describes the assault as an unplanned, spur of the moment, one-punch incident. It was not a prolonged attack, there were no weapons used and there was a single assailant. Acknowledging that the injuries inflicted were serious, counsel submitted that in the absence of any other aggravating factor, placement at the upper end of the scale of gravity was not warranted.

17. Counsel for the appellant also pointed to the recent decision of this court (Kennedy J.) in DPP v. Crotty [2025] IECA 33 which was another section 3 assault. As this was an undue leniency appeal, counsel relied primarily on the re-sentencing exercise carried out by the court having found the original sentence to be unduly lenient. This case involved an incident which occurred late at night when a young woman asked a group of men to stop using abusive language towards a third party who was in the vicinity. The accused then turned on the injured party, shouted aggressively at her, grabbed her by the hair, punched her in the face repeatedly and continued the assault after she had fallen semi-conscious to the ground. The assault ended when a passerby intervened. The accused subsequently posted a boastful message on social media about the assault. When interviewed by the Gardaí, the accused claimed to have been acting in self-defence and that the injured party had punched him first. He maintained this position until shown the contradictory CCTV evidence.

18. On re-sentencing, this court agreed with the sentencing judge's nomination of a fouryear headline sentence and the reduction of that by a year in light of the mitigating factors. However, it disagreed with the suspension of the entire sentence and instead suspended only

12 months leaving the accused with an effective custodial sentence of two years. Counsel pointed to the gravity of the offending in Crotty compared to this case notwithstanding the fact that the headline sentence was six months lower.

19. In reply, the DPP argued that a section 3 assault can be serious and thus warrant a headline sentence in the higher range without all or any of the aggravating factors in McGrath, Dolan and Brazil being present. The sentencing judge correctly regarded the unprovoked nature of the assault, the appellant’s previous convictions, the seriousness of the injuries and the impact on the victim as aggravating factors. The weight to be attached to the early plea had to take account of the fact that the appellant was readily identifiable from the photographs taken at the scene by the injured party and the CCTV footage. Finally, the appellant had a number of relevant previous convictions.

20. We are of the view that this assault was a serious one, which was entirely unprovoked and resulted in significant and permanent injuries to the injured party. Aggravating factors which may be relevant to the nomination of a headline sentence are not limited to those set out in McGrath, Dolan and Brazil. Although not mentioned in that judgment, the fact that an assault is an entirely unprovoked attack on an individual with no prior involvement with the accused is certainly an aggravating factor to which weight can be attached. The fact the accused has previous relevant convictions may also be an aggravating factor. Thus, taking these factors into account and having regard to the gravity of the offence, the sentencing judge was within his margin of discretion in nominating a headline sentence within the upper range of that available for this offence. No error of principle has been identified by the appellant under this heading.

21. The third and fourth grounds of appeal addressed the extent to which the sentencing judge had adequate regard to the appellant's personal circumstances. Although the way the grounds of appeal are framed suggests that the appellant might have been contending that these factors went to his culpability and thus to the headline sentence, the written legal submissions make it clear that these grounds relate to the way the mitigating factors were treated in reducing the headline sentence by one year and the part-suspension of the balance. The submissions contend that the reduction/suspension allowed by the sentencing judge “failed to adequately reflect the high levels of mitigation, that included the appellant's personal circumstances, the early plea and the very significant efforts to address his issues with therapy”. It is acknowledged that these matters are mentioned in the judgment but it is contended that in reality no weight was attached to them.

22. The appellant relies on the judgment of this court in DPP v. McCabe (McCarthy J. [2023] IECA 41) as an example of a section 3 case which, it is contended, was a more serious offence with a greater degree of culpability on the part of the accused in that it was a planned assault with more than one assailant and multiple punches thrown. A headline sentence of 4½ years was reduced by nine months when mitigation was taken into account. The Court of Appeal held that this level of reduction was insufficient and constituted an error of principle in light of the mitigatory factors involved. These included the fact that the accused had no previous relevant convictions, was otherwise a person of good character who was positively engaged in his community and had pleaded guilty. The Court of Appeal imposed a post-mitigation sentence of three years and suspended the last six months.

23. Counsel argued that if the appellant's particular vulnerability at the material time were to be excluded from consideration, the balance of the mitigatory factors, i.e. the early plea, the historic nature of his more serious previous convictions and the proactive steps taken by him to deal with his anger issues would warrant the level of reduction actually applied. Therefore, it was contended that no additional allowance was made for what is said to be the particular and unusual extenuating personal circumstances of the appellant.

24. In circumstances where the sentencing judge expressly identified the fact that the accused had recently given evidence in the case described, it is not possible for this court to conclude that an error of principle was made by him in failing to have sufficient regard to it. In imposing a 3½ year sentence, a significant discount was made from the headline sentence which reflected these mitigatory factors. The further suspension of nine months no doubt reflected the prospects for the appellant's rehabilitation based on his expressions of remorse, his apology and his active engagement in therapy with a registered counsellor. The effective sentence of two years and nine months reflects a 40% reduction from the nominated headline sentence. In circumstances where we do not accept that the sentencing judge failed to have sufficient or adequate regard to the appellant's personal circumstances, no error of principle has been identified in the manner in which the judge treated the mitigatory factors and the level of credit he afforded the appellant in respect of them.

Proportionality

25. No oral arguments were advanced on behalf of the appellant on this ground of appeal. In his written legal submissions the appellant asserts that the failure to impose a proportionate sentence constitutes an error in law. As a matter of principle this is, of course, correct. However, a lack of proportionality is not established by simply identifying one other case (in this case DPP v. Duffy [2022] IECA 53) in which a greater suspension of a four-year sentence was allowed in the case of a section 3 assault. It is difficult to make any direct comparison between this case and Duffy because the latter involved a section 4 rather than a section 3 assault and the matter came before this court as an undue leniency appeal rather than an appeal against severity of sentence.

26. We do not accept the comparison with Duffy necessarily establishes that the sentence imposed in this case was disproportionate. During the course of argument and in the written legal submissions, the court was referred to a number of cases involving section 3 assaults where the effective sentence fell within a range of between two and three years, as is the case here. Apart from pointing to the fact that a lighter sentence was imposed in a different case, the appellant has not advanced any grounds for establishing that the sentence imposed by the judge in this case was disproportionate as a matter of principle.

27. As the appellant has not succeeded on any of his grounds of appeal, we dismiss this appeal.