Court of Appeal: Man who bit off a large portion of his victim’s ear loses appeal against sentence

About this case:

• Citation:
  [2019] IECA 97
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

The man had argued that the sentencing judge had erred in identifying a headline sentence of 7 years and in his consideration of aggravating factors, however, Ms Justice Isobel Kennedy found no fault with the sentencing judge’s approach to the violent and unprovoked assault which had resulted in disastrous consequences for the victim.

Background

In August 2014, Sean Jackson was said to have had a “minor interaction” with a man in the smoking area, after which he left the area - but returned shortly after that and “bit off a large portion” of the man’s ear. Gardaí were called and a witness identified Mr Jackson as the attacker.

Dublin Circuit Criminal Court

Mr Jackson claimed to have no memory of the event and pleaded not guilty. In November 2017, Mr Jackson was found guilty.

In sentencing, the judge noted:

• The serious nature of the assault;
• The grave consequences suffered by the injured party;
• The attack was unprovoked;
• The appellant was intoxicated.

The judge identified a pre-mitigation sentence of seven years’ imprisonment.

Mr Jackson had 24 previous convictions - the majority were road traffic offences, three for possession of controlled drugs, and two convictions under the Criminal Justice (Public Order) Act. The judge considered them to be mostly irrelevant.

The judge classified the mitigation as “moderate”, noting Mr Jackson’s work record, his remorse, and the unlikelihood of reoffending in the same manner.

At the time of sentencing, Mr Jackson lived with his partner and her daughter, and his six-year-old daughter was residing with them for up to four nights per week because her mother was having housing difficulties.

Having considered the mitigating factors, the judge reduced the sentence to one of 5 years’ imprisonment.

Court of Appeal

Mr Jackson sought to appeal his sentence on the basis that it was unduly severe.

On behalf of Mr Jackson, it was submitted that the headline sentence of seven years was too high - in this regard, Mr Justice Clarke in The People (DPP) v Fitzgibbon [2014] IECCA 12 was referred to, in which pre-mitigation sentences for offences of assault causing serious harm were identified in the mid-range of 4.5–7.5 years.

It was also submitted that the trial judge erred in considering aggravating factors to include Mr Jackson’s intoxication and the unprovoked nature of the attack.

Mr Jackson referred to The People (DPP) v Lyons [2017] IECA 156, in which the appellant had punched the injured party, who then fell and hit his head, resulting in severe brain injury. It was noted that in this case there was significant mitigation, including the fact that the appellant called an ambulance and remained at the scene to assist, cooperated with Gardaí, had no previous convictions, pleaded guilty, and expressed remorse.

Mr Jackson also referred to The People (DPP) v Foley [2009] IECCA 47, which involved an appellant who bit of part of his victim’s ear. The sentence in this case was increased to two years with 18 months suspended – in this regard Ms Justice Kennedy said referring to cases of undue leniency in circumstances where the appeal is against the severity of a sentence as a comparator was of very limited assistance.

Violent and unprovoked assault

Ms Justice Kennedy said the offence was a violent and unprovoked assault, resulting in disastrous consequences – and that such an offence in most cases necessitated a custodial sentence. She said the judge correctly considered it to be a grave offence. She also rejected the contention that the judge was not entitled to take into account the fact of the appellant’s intoxication or that the attack was unprovoked. 

Ms Justice Kennedy said that Mr Jackson’s “moral culpability was high, his act was a deliberate one and with serious and largely foreseeable consequences”. She said that, in assessing the gravity of the offence, the judge was mandated to take into account that Mr Jackson returned to the injured party and that the attack was without provocation. Intoxication may have gone towards explaining the action, but did not excuse the offence – and the judge appeared to have considered it in a neutral way.

Finding that there was no error in the judge placing the pre-mitigation figure at seven years, Ms Justice Kennedy said that the judge had given full credit for matters urged in mitigation by reducing the sentence to five years.

• by Seosamh Gráinséir for Irish Legal News