Court of Appeal dismisses appeal against four-year suspended sentence for assault causing harm. Appellant's claim of excessive punishment rejected due to prior convictions.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

268/13

The People at the Suit of the Director of Public Prosecutions

Respondent

And

Wesley McDonald

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 13th day of June 2016,

by Mr. Justice Sheehan

1. This is an appeal against sentence.

2. Following a three day trial at Tralee Circuit Court in June 2013, the appellant was convicted of assaulting Edward Barry and causing

him harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997. On the 10th July, 2013, he was sentenced to four

years imprisonment with the final year suspended on the usual terms. He now challenges his sentence on the following grounds:

1. The sentencing judge erred by intimating that he was taking into account offences in respect of which he had been

acquitted.

2. The sentencing judge failed to give sufficient credit for mitigation.

3. The sentence was excessive.

3. On the 22nd December, 2012, the injured party had been out socialising in Tralee, first with some friends from work and later with

his girlfriend and her sister. At about 2.00 am they went to the local Abrakebabra Shop. While waiting there the injured party needed

to use the toilet and went to a laneway across the road to urinate, having been told that the Abrakebabra toilets were out of order.

He went 30 feet into the laneway and as he was urinating three men arrived at the top of the laneway and asked him for money as

they blocked his exit. In an effort to get past them, the injured party ran at one of the men and as he did so he punched him in the

face. He succeeded in getting by the three men, but was immediately followed by the man he had punched and was attacked from

behind by this man who is the appellant. As a result of the assault on him he had to attend hospital where he received four stitches.

He also suffered a deformity to his nose.

4. The appellant was convicted on the 14th June, 2013. On the 26th June, 2014, prior to sentence, he pleaded to a number of counts

of handing stolen property. The court was told that the appellant’s personal circumstances were that he was 24 years of age and had

been out drinking on the night in question and that at the time of the offence he was looking for money to make a phone call.

5. The court was also told that the appellant had 30 previous convictions, which included 3 for assault and 1 for arson. The third

conviction for assault was one that had occurred on the morning of the sentence hearing and that conviction occurred in the District

Court in Tralee. A considerable number of the appellant’s convictions were for crimes of dishonesty. The court was also told that he

was the father of three children and had problems with alcohol and drugs. The sentencing judge was told that the appellant was

remorseful

6. In the course of brief sentencing remarks the trial judge gave a summary of the facts noting that despite the garda evidence the

only matter that the jury had convicted the appellant of was assault causing harm. The transcript excerpt exhibited by the

respondent in the course of his written submissions confirms this and we are therefore unable to agree with the appellant’s submission

that the sentencing judge factored intimidation into his sentence, that being an offence of which the appellant had been acquitted.

Accordingly, this ground of appeal is dismissed.

7. The appellant submits that the sentencing judge did not reference his remorse as a mitigating factor, nor did he reference the

appellant’s family circumstances and in particular that he was the father of three children. The court finds itself unable to attach any

weight to this particular submission. There was no evidence of remorse before the court apart from counsel’s submission to that

effect. There was no evidence before the court that the appellant at the time took his responsibilities as a father seriously and apart

from the prosecuting garda confirming that the appellant abused alcohol and drugs, there was no evidence that he had significant

addiction difficulties. Accordingly, the court holds that this was a case in which there was no evidence of any mitigation that the

judge could properly factor into the sentence.

8. We are also satisfied that by suspending the final twelve months of the sentence, the penal aim of rehabilitation was properly

factored into the sentence imposed even though there was no mention of rehabilitation in the course of the sentencing judge’s

remarks. The only question therefore that arises is whether or not the headline sentence of four years was excessive. The appellant

contends that it was, given the following:

1. No weapon was used.

2. There was a single blow struck by the appellant.

3. The injuries sustained were minor in nature.

4. There was no gratuitous violence and in the course of these submissions the appellant relied on the decision of the

Court of Criminal Appeal in DPP v. Dwyer [2007] IECCA.

9. While there remains some academic discussion about whether or not previous convictions should be treated as an aggravating

factor or simply result in a progressive loss of mitigation, this Court in previous cases has taken the view that relevant previous

convictions can be regarded as an aggravating factor. The previous convictions of the appellant in this case for personal violence are

therefore relevant when identifying the headline sentence.

10. Undoubtedly the final sentence that was imposed which required the appellant to serve three years in custody was at the high

end of the scale given the nature of the offence and in particular the fact that the injuries arose from one blow. However, it remains

the case that the injured party was subject to an unwarranted attack which resulted in a permanent scar below his eye, some

disfigurement to his nose and an inability to work for a number of weeks. We find no error in the sentencing judge’s approach to

sentence, nor do we find any error in the sentence actually imposed which we deem to be a just sentence. Accordingly the appeal is

dismissed.