Court of Appeal: Man has five-year custodial sentence for one-punch assault reduced to two years

About this case:

• Citation:
  [2019] IECA 250
• Judgment:
  External link
• Court:
  Court of Appeal

Mr Justice George Birmingham, president of the Court of Appeal, said it was appropriate to take into consideration the Fitzgibbon sentencing guidelines in this case, but said the guidelines were in need of refinement and identified higher upper-limits for mid and high-end offences in his judgment.

Background

On 15 January 2017, Mark O’Sullivan had been out socialising with his wife in Bray. After returning home, Mr O’Sullivan decided to go for a walk and came upon David Kirwan, who was walking home listening to music. Mr O’Sullivan alleged that Mr Kirwan said something to him; however, this was “was never really firmed up on”.

Mr O’Sullivan hit Mr Kirwan with a single blow to the back of his head, with such force that Mr Kirwan thought he had been hit with an object. Mr Kirwan began to bleed heavily, and in response, Mr O’Sullivan put him into the recovery position and called an ambulance.

Mr Kirwan suffered serious head injuries, including intracranial bleeding and a fractured skull. He was put into a medically induced coma until 26 January 2017, suffered significant brain damage, lost the hearing in his left ear, and continues to have regular seizures which mean he is not able to work.

Sentencing

In the Circuit Court in April 2018, the sentencing judge referred to the attack as completely unprovoked, cowardly, and one that was vicious and violent. He described the injuries as catastrophic but said this had to be balanced with the fact that it was a one-punch assault. The judge also had regard to the fact that Mr O’Sullivan “did everything he could to offer assistance” after the punch was thrown. Furthermore, Mr O’Sullivan made admissions at the scene, during Garda interviews, and pleaded guilty from the outset.

After considering the personal circumstances of Mr O’Sullivan and testimonials submitted to the Court on his behalf, the judge said that the appropriate headline sentence was one of seven-and-a-half years. He then suspended the final two-and-a-half years of the sentence to take account of the mitigating and personal circumstances.

Counsel for Mr O’Sullivan intervened, submitting that it would have been appropriate to identify a headline sentence, to reduce this considering the mitigating factors, and then to consider suspending part of the sentence. The judge did not alter his position, leading to a further intervention from counsel for Mr O’Sullivan. Counsel referred to the guidance in DPP v Fitzgibbon, stating that in this case that the top sentence for a mid-range offence was identified as seven years. However, counsel was in error in that regard because, in Fitzgibbon, Mr Justice Clarke had actually identified a range of between four and seven-and-a-half years.

Ultimately, Mr O’Sullivan was sentenced to seven years’ imprisonment, with the final-two-and-a-half years suspended, for assault causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997.

Court of Criminal Appeal

Appealing against the severity of the sentence, counsel for Mr O’Sullivan said it was excessive to such an extent as to amount to a clear error in principle. Counsel referred to DPP v Smith [2019] IECA 1, in which the Court of Appeal upheld a fully suspended sentence in a case which involved the victim being stabbed in the back. Counsel argued that the DPP had not challenged the starting point of five years in Smith and that the headline sentence of seven years in Mr O’Sullivan’s case was completely at odds with the approach taken in Smith. Mr Justice Birmingham reiterated past comments from the Courts about decisions on undue leniency offering little assistance to appeals against the severity of sentence and concluded that the personal circumstances of the defendant in Smith were such that the case offered very little help to Mr O’Sullivan.

Mr Justice Birmingham also had regard to the guidance in DPP v Fitzgibbon, which he said required “some refinement” and identified higher upper-limits of ten years for mid-range offences, and fifteen years for high-end offences “with exceptional cases higher again”.

Notwithstanding this view, Mr Justice Birmingham said the Court would address Mr O’Sullivan’s case with reference to the Fitzgibbon guidelines as these were applicable when the sentence was imposed.

Agreeing with the sentencing judge that the offence was in the mid-range, Mr Justice Birmingham said the moral culpability in this case was very significant but not at the very highest point in the scale. Although it was a one-punch assault, Mr Justice Birmingham said the fact that it was to the back of the head of someone not expecting it had to be “distinguished from a punch thrown in the course of an argument or a skirmish”.

Identifying the starting point as approximately five-and-a-half years, Mr Justice Birmingham then considered factors in favour of Mr O’Sullivan – including his behaviour after the assault, his lack of previous convictions, his stable personal life and good work history. In those circumstances, Mr Justice Birmingham said a reduction from the headline sentence was appropriate and proceeded to reduce the sentence to three-and-a-half years, with the final 15 months suspended.