Court of Appeal dismisses appeal against maximum sentence for serious assault causing disembowelment. The court upholds the 5-year term despite mitigating factors due to exceptional circumstances.

THE COURT OF APPEAL Neutral Citation: [2025] IECA 245 CCAOT0264/2024 Record Number: 32/2020

Charleton J. Edwards J. Burns J.

BETWEEN/ ROMAS BITARIS APPELLANT

- AND -

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGMENT of the Court delivered on the 13th day of October, 2025 by Ms. Justice Tara Burns.

1. This is an appeal against severity of sentence. On 22 April 2023, the appellant pleaded guilty to a single count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (‘the 1997 Act), with an offence of production of a knife and a metal bar in the course of a dispute contrary to s. 11 of the Firearms and Offensive Weapons Act 1990 to be taken into consideration.

2. On 22 November 2024, the appellant was sentenced to 5 years imprisonment. Whilst the maximum sentence which can be imposed for an offence of this nature has now been increased to 10 years imprisonment, at the time of the offending in the instant matter, 5 years’ imprisonment was the maximum sentence which could be imposed.

Background

3. On the evening of 16 February 2020, the appellant assaulted the victim causing him very serious injuries.

4. The appellant and the victim are known to each other. They had spent the previous day and a half in the appellant’s apartment. A large quantity of alcohol had been consumed by them over that period of time. Having returned to his own house at approximately 9pm, the victim realised that he had left his phone behind him in the appellant’s apartment. He commented to his partner before returning to the appellant’s house that “when someone opens the door, I will hit them.”

5. Upon returning to the appellant’s house, where the appellant’s two very young children were present, a fight broke out between the appellant and the victim. The victim was stabbed in the stomach by the appellant with a large hunting knife, described as a bayonet. This caused the disembowelment of the victim. The victim was also struck on his head by the appellant with a metal bar causing a depression fracture of his skull.

6. The Injured Party was admitted to the intensive care unit of Cavan General Hospital and subsequently transferred to Beaumont Hospital where he underwent an emergency laparotomy and resection of the small bowel. A colostomy bag was inserted. He remained in intensive care in Beaumont Hospital for a period of time and has required several operations since.

7. The victim provided a victim impact report for the purpose of the sentencing hearing. At the time of sentencing, the victim was still required to wear a colostomy bag. The effects of the assault on the victim from a physical, psychological and financial perspective were very significant.

8. The appellant was initially charged with two offences of causing serious harm contrary to s. 4 of the 1997 Act. An offer of a plea of guilty to a single s. 3 assault causing harm offence was made by the appellant in advance of the trial. This offer was initially refused by the respondent. On the trial date, after a jury was sworn, counsel on behalf of the respondent consulted with the victim about the plea offered. The respondent subsequently determined to accept the plea of guilty to s. 3 of the 1997 Act.

Personal Circumstances of the Appellant

9. The appellant was 32 years of age at the time of the commission of the offences in this matter. He is a Lithuanian national and has resided in the State for approximately 16 years. He is a father of two children with his partner and had a good work history. The appellant had multiple previous convictions, including a conviction for possession of knifes and other articles and convictions in Lithuania for assault.

Sentencing judge’s determination

10. In determining to impose the maximum 5 year custodial sentence, the sentencing judge reasoned as follows:-

“I've been asked to give credit for the late plea on the basis that it was indicated at a much earlier stage that the accused was prepared to plead to section 3, and I've also been asked to interpret the plea of guilty as a signal of remorse and acceptance of responsibility and acknowledgement of the consequences of his actions. But when I read the probation services report, which I directed consequent upon that plea of guilty, and I find a total absence of remorse, an insistence that everything that was done was done in self-defence, and an insistence that drunk or sober, he in effect would do the same thing again, I cannot interpret it as a signal of remorse. It is an acceptance of responsibility in a very limited way in that it secured -- and the main value and relevance of the plea of guilty is that it secured [….] a prevention of my consideration of the matter from the high point or the starting of 12 years' imprisonment to a starting point of five years' imprisonment. The question then arises whether I have to give a second advantage to the accused for the plea of guilty by giving him a reduction in mitigation from five years'

imprisonment. I take the view that I don't. He's had the advantage well secured for him by his able counsel that I'm confined with a maximum five-year sentence. I take the view that I don't have to give him a further discount for the fact of the plea and the fact that it was indicated earlier and give what might be hoped for of a further one third reduction in the sentence, and I'm not going to do that.

When I look as to whether there's any other matter arising in mitigation that I have to give him credit for, an examination of the probation report, as I've already stated, indicates a total absence of remorse. His family circumstance is that he seems to be in a stable relationship and he has two children with a partner of many years, and that he has quite a good work history. I find that those features are counterbalanced by the fact that he has multiple previous convictions including previous convictions for assaults causing harm, or what I interpret to be assaults causing harm committed in Lithuania. So, his good work record and his family circumstances, I find, do not provide a scope for any form of significant mitigation having regard to those circumstances. So, I am not going to reduce the sentence from five years, I'm imposing a sentence of five years.”

Grounds of Appeal

11. By Notice of Appeal dated 7 August 2024, the appellant appealed against the sentence imposed on the following grounds:-

1. “The Learned Sentencing judge considered a headline sentence, and/or, a sentence which greatly exceeded the sentence available under the statutory provision and thereby conducted the sentence hearing outside the scope of the provisions of Section 3 Non-Fatal Offences Against the Person Act 1997.

2. The Learned Sentencing Judge imposed the maximum sentence available in circumstances where a discounted term of imprisonment was available and warranted.

3. The Learned Sentencing Judge erred in principle by considering that a discounted term was not available for consideration.

4. The sentence of 5 years was excessive and was unduly harsh, having regard to all the circumstances of the case.

5. The Learned Sentencing Judge imposed the maximum sentence available.

6. The Learned Sentencing Judge took into account the plea bargain in circumstances where this ought not have formed part of the sentencing parameters.

7. By imposing the maximum available sentence, the Learned Sentencing Judge failed to provide for some incentive towards rehabilitation.

8. The learned Sentencing Judge, erred in principle, and failed to have sufficient regard to the mitigating factors, which included in particular

I. The appellant’s plea of guilt.”

The Parties Submissions

12. The appellant submitted that the sentencing judge erred in law by imposing the maximum sentence permitted for the offence at issue, in light of the fact that the appellant had pleaded guilty and had offered this plea at a much earlier stage. Furthermore, it was submitted that the plea of guilty was of value having regard to the fact that difficulties with recollection may have arisen in light of the amount of alcohol consumed by the parties on the day in question and also because a claim of self-defence was in the ether.

13. The respondent submitted that the imposition of the maximum sentence was available to the sentencing judge having regard to s. 29(2) of the Criminal Justice Act 1999 and that exceptional circumstances existed in the instant matter which permitted the sentencing judge to impose the maximum sentence available notwithstanding the fact that a guilty plea had been entered.

Discussion and Determination

14. In the case of DPP v. McGrath, Dolan and Brazil [2020] IECA 50, the Court of Appeal considered the appropriateness of imposing the then maximum sentence of 5 years imprisonment for a s. 3 assault charge where the assault perpetrated was of such a serious nature that it could be categorised as a s. 4 assault. Birmingham J stated at para.

24 of his judgment:-

“It is in the nature of things that there may be cases where the decision to charge with s.3 or with s.4, or to accept a plea to s.3 if s.4 has been charged, will be finely balanced. There will be other cases which will be identified as borderline s.3 or s.4.

In such cases, a starting point or pre-mitigation sentence of five years may be appropriate. Certainly judges should not operate on the basis that a starting point of five years is not generally available and that it should only be considered, if it be ever considered, in exceptional circumstances.”

15. As already noted, in the instant matter, the appellant had initially been charged with two offences alleging an assault causing serious harm contrary to s. 4 of the 1997 Act.

16. Section 29 of the Criminal Justice Act 1999 (‘the 1999 Act’) permits the imposition of a maximum sentence for an offence even in circumstances of a guilty plea. It provides:-

“(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account-

(a) The stage in the proceedings for the offence at which the person indicated an intention to plead guilty, and

(b) The circumstances in which this indication was given.

(2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence, if, notwithstanding the plea of guilty, the court is satisfied that there are exceptional circumstances relating to the offence which warrant the maximum sentence.”

17. In DPP v. McC [2008] 2 IR 92, Kearns J delivering the judgment of the Supreme Court stated in his judgment:-

“The presence in a case of ‘exceptional circumstances’ must now be seen, in light of s.29, as enabling a court, notwithstanding the existence of some mitigating circumstances, to impose a maximum sentence in rare and exceptional cases. That does not mean that the Court is relieved of the obligation to consider all mitigating factors and give them due weight, but rather that, having done so, the court is not precluded from passing such maximum sentence. It would however be an essential requirement when imposing a maximum sentence against a backdrop of a guilty plea that the court would identify those exceptional circumstances in such a way as would make it absolutely clear why the maximum sentence is warranted when there have been mitigating factors in the case. Such instances will of necessity be rare and confined to those cases where the offences represent the worst imaginable variation of the offence in question.”

18. This Court considered the application of s. 29(2) of the 1999 Act in a recent case of DPP v. Murphy and Murphy [2025] IECA 173. In that case, a maximum sentence of 5 years imprisonment was imposed in respect of a s. 3 assault causing harm offence in circumstances where an offence of causing serious harm contrary to s. 4 of the 1997 Act had initially been charged. This Court upheld the validity of imposing the maximum 5 year term of imprisonment even where there were significant mitigatory factors present to include an early guilty plea, remorse and significant rehabilitation on the part of each accused, in light of the very serious injuries caused to the injured party. Furthermore, the Court was of the opinion that although the sentencing judge had not referred to exceptional circumstances arising in the case, these could be easily inferred from the particular facts of that case.

19. The offending in the instant matter was of a most serious nature. The injuries sustained by the victim were of a very serious nature, most particularly the injuries sustained to his stomach area. Furthermore, the injuries were inflicted on the victim in the appellant’s house in the presence of two small children. The appellant had previous convictions for knife and assault offences. In addition, the appellant expressed no remorse for the offending and was deemed to be of a high risk of re-offending by the probation office.

20. We are of the opinion that these factors amount to exceptional circumstances such that the trial judge did not err in the imposition of a 5 year term of imprisonment. Whilst it is the case that the trial judge did not label the circumstances which motivated his choice of sentence as being “exceptional” for the purposes of s. 29 of the 1999 Act, we consider that omission not to be of consequence in this case. It can be clearly inferred, from the totality of the trial judge’s sentencing remarks, that he regarded the circumstances of this case as being exceptional and that it fell within the category of rare cases where a maximum sentence was justified notwithstanding the existence of some potentially mitigating circumstances. In substance, the “essential requirement” referred to by Kearns J in DPP v McC is that there should be transparency as to the reasons why such a sentence is being imposed. Nobody could be in any doubt, given the facts of this particular case, as to why the maximum sentence had been imposed, notwithstanding the existence of some potentially mitigating circumstances.

21. The requirements of sentencing are that a just and proportionate sentence is imposed. To achieve that aim, the sentencing judge did not err in imposing the 5 years maximum sentence available for this offence having regard to the exceptional circumstances in which the offending arose.

Conclusion

22. The Court is of the opinion that an error in principle has not been established by the appellant in the sentence imposed upon him. Accordingly, his appeal against sentence is dismissed

Approved No Redaction Needed