Court of Appeal dismisses appeal against nine-year sentence for premeditated sword assault causing serious harm.

THE COURT OF APPEAL

Kelly, J

Peart, J

Mahon, J

CCA 247/13

Between/

The People at the Suit of the Director of Public Prosecutions

-v-

Liam McCarthy

Appellant

Judgment of the Court (ex tempore) delivered on the 10th day of November 2014 by Mr. Justice Mahon

1. This is an appeal of a nine year sentence imposed on the appellant on 13th October 2013 at Clonmel Circuit Criminal Court following

an earlier plea of guilty to one count of assault causing serious harm to Mr. Martin Butler contrary to Section 4 of the Non Fatal

Offences against the Person Act 1997.

2. Briefly stated, the facts were that on the night of 29th March 2013, in Cappawhite, Co. Tipperary, a relatively minor disagreement

between a number of men, including the appellant and a Mr. Butler, erupted into a physical and somewhat alcohol fuelled street brawl,

in the course of which the applicant, having himself received injuries, left the group of men, went to a nearby house and armed

himself with a sword. He returned to the fracas where he used the weapon to strike Mr. Butler on the left side of his head, causing a

penetrating injury to his skull. Mr. Butler sustained an extremely serious head and brain injury, and required surgery at Cork University

Hospital. Undoubtedly Mr. Butler was lucky to have survived the assault. As a result, Mr. Butler has been left with very significant and

permanent disabilities, including difficulties with communication, speech impairment, right side weakness, a paralysed right arm and a

requirement to use a walking aid. Every aspect of his life has been adversely affected. Fortunately for Mr. Butler he has the benefit of

a network of strong family and community support.

3. The learned Trial Judge considered that the appropriate sentence, had the applicant contested the charge, and had he been found

guilty by a jury, to be fourteen years. This view is not unreasonable although it is marginally greater than the higher tariff of twelve

and a half years suggested in the case of DPP -v- Fitzgibbon [2014] IECCA 12. It is submitted on behalf of the applicant that the

learned Trial Judge failed to adequately consider the issue or element of provocation, and that the Appellant had been himself the

subject of an assault. However, in circumstances where an individual suffers superficial type injuries from what might be described as

a fist fight, nothing can justify the clearly pre-mediated act of leaving a row and very consciously arming oneself with a sword,

returning to the affray and attacking an unsuspecting individual in a very determined and intentional manner. Indeed these facts of

themselves almost entirely exclude any arguable case of provocation given the time lapse between the appellant’s involvement in the

fight and sustaining an injury in that altercation, and his leaving the scene, arming himself with a lethal weapon and then returning to

inflict serious injury on the victim. If there was a degree of provocation, equally and indisputably, there was a lengthy cooling off

period such as would exclude provocation as a mitigating factor of any significance, and, in any event the response to any such

provocation was wholly inappropriate, entirely unjustified and disproportionate. The learned Trial Judge very fully considered this

aspect of the assault, and the events immediately preceding it.

4. There are a number of mitigating factors in respect of which the applicant was, and is, entitled to have taken into account in any

decision to reduce a fourteen year tariff (as suggested by the learned Trial Judge to be a reasonable tariff), in respect of these

factors. They were referred to by Counsel for the Applicant at the sentencing hearing, and again today, and include, particularly and

most importantly, the applicant’s essentially immediate admission of his involvement in the assault, and his early plea of guilty, (albeit

in circumstances where his involvement in the assault would almost certainly have been readily and quickly identified), his expressions

of concern and remorse (and which the Trial Judge acknowledged were genuine), his co-operation with the Gardai, his own difficult

background, including his previous misuse of intoxicants, the fact of his sobriety from the date of this offence, and the severe anxiety

which he suffered as a direct consequence of his involvement in this assault.

5. Aggravating factors included, most particularly, the viciousness and premeditated nature of the assault, the use of a lethal weapon

and the fact that it was forcibly used from behind to inflict a very serious injury to an unsuspecting victim’s head, an injury that could

so easily have killed him and which has left him with life long debilitating injuries. Furthermore, this offence was committed while the

appellant was on a six months suspended sentence from an earlier, albeit, less serious, assault on another individual. This earlier

assault occurred just four months prior to the one which is the subject of this appeal.

6. The learned Trial Judge quite properly placed the assault at the higher end of Section 4 assault cases. In the recent Court of

Appeal decision of DPP -v- Fitzgibbon [2014] IECCA12, Clarke J, it was indicated that the appropriate sentence for a higher end

Section 4 offence would be seven and half to twelve years. That Judgement also, as have many others, emphasised that the use of

weapons or other objects likely to cause serious injury is a significant aggravating factor. It is of course the case that this decision

merely sets down sentencing guidelines in relation to an offence which by statute provides for a life sentence.

7. The sentence of nine years handed down to the applicant is in fact almost one third less than the twelve and a half years upper

limit suggested in the Fitzgibbon case. It is the view of this Court that the learned Trial Judge fairly and reasonably took account of

the various mitigating factors in reducing what might have been, (in her view), a fourteen year sentence to one of nine years in

respect of what can only be described as a savage and violent attack on an unsuspecting victim involving the use of a lethal weapon.

The absence of a suspended element of the sentence does not of itself call into question its appropriateness as the sentence did

include a significant discount in what was an appropriate term if the various mitigating factors were absent. Furthermore, it was noted

by the court that an earlier suspended sentence relating to a separate assault clearly did not work as a deterrent in that the

appellant perpetrated an even more serious assault some few months later.

8. The decision of the Court is that the Appeal is dismissed.