Court of Appeal: Man who stabbed victim in the eye must return to prison as sentence is increased

About this case:

• Citation:
  [2018] IECA 318
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Sending the man back to prison for a further twelve months, Mr Justice George Birmingham, President of the Court of Appeal said that it was particularly disturbing that the man had been involved in a second unprovoked attack only nine months after expressing remorse for causing a man to lose his eye.

Section 4 Assault

On New Year’s Eve in 2014, Mr Patrick Harty and his friends went, uninvited, to a party in Poolderry, Waterford. When they were asked to leave, Mr Harty broke a glass bottle and began stabbing a 19-year-old man in the face. Mr Harty stabbed the injured party in the eye twice, and on the second occasion a piece of glass remained in his eye.

The injured party was brought by ambulance to University Hospital Waterford where it was immediately evident that he had suffered a very significant injury to his right eye. The injured party spent a fortnight in hospital, during which he underwent three operations on his eye. After these operations, he had to lie down on his stomach with his face facing down, twenty-four hours a day, with only a five-minute break each hour. Unfortunately, these attempts to restore vision in his eye were unsuccessful, and Mr Justice Birmingham said that the injured party’s ‘very powerful victim impact statement’ set out the detail of the ‘ophthalmic, cosmetic, and psychological effect’ of the assault and its aftermath.

Mr Harty, who was 17-years-old at the time, was arrested and interviewed, wherein he made admissions and expressed remorse for his actions.

Section 3 Assault

The second incident occurred in Dungarvan on 1^st September 2015. The injured party on this occasion was described as having ‘a very distinctive appearance, with long black hair halfway down his back and a long triangular beard’, and was confronted by Mr Harty and a number of other individuals when he was making his way to his car.

Mr Harty was identified as being the person who hit the injured party, causing him to sustain two cuts over his eyes. Mr Harty was arrested and made admissions while detained.

Circuit Court

In Waterford Circuit Court, Mr Harty was convicted of assault causing serious harm contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997 in respect of the incident on NYE 2014, and assault causing harm contrary to s.4 of the Non-Fatal Offences Against the Person Act 1997 in respect of the incident on 1^st September 2015.

In the course of sentencing Mr Harty, the judge said that the NYE incident was ‘particularly vicious’, leaving the injured party with ‘devastating and permanent injuries’. Aggravating factors to this incident were:

• The use of the bottle as a weapon;
• Smashing the bottle to transform it into a more effective and dangerous weapon;
• That the assault was entirely unprovoked;
• The physical, emotional, and psychological consequences for the injured party.

Disagreeing with the DPP’s view that the offence should be placed in the upper range of gravity, the sentencing judge placed it in the upper mid-range with a starting point of six-and-a-half years.

In relation to the September 2015 assault, the fact that it involved multiple blows and that it was entirely unprovoked were identified as aggravating factors. The starting point for this offence was a sentence of 18 months.

For both offences, the judge identified Mr Harty’s difficult, adverse and dysfunctional childhood and background as mitigating factors. Describing Mr Harty as a very vulnerable person from a highly dysfunctional family, the judge also took into account Mr Harty’s youth and the progress since he had gone into prison.

In October 2016, taking mitigating circumstances into account, Mr Harty was sentenced to four and a half years’ imprisonment with the final eighteen months suspended in respect of the s.4 assault, and one year’s imprisonment in respect of the s.3 assault – to be served concurrently.

Court of Appeal

In the Court of Appeal, the Director of Public Prosecutions brought an application pursuant to s.2 of the Criminal Justice Act 1992, seeking to review the sentences on grounds of undue leniency.

Mr Justice Birmingham agreed with the DPP, stating that the case should properly have been seen as entering the upper range of gravity, and that a starting point of seven and a half years would have been appropriate. However, Mr Justice Birmingham said that the divergence between six-and-a-half and seven-and-a-half years ‘would probably not of itself trigger an intervention where there was significant mitigation present’. 

Stating that ‘the combination of an exceptionally lenient sentence on the s.4 assault and a concurrent sentence on the s.3 assault was simply one decision too many in favour of the accused’, Mr Justice Birmingham said that the s.3 assault was particularly disturbing given that the only explanation was that the injured party was of distinctive appearance. Furthermore, Mr Harty’s involvement in ‘entirely gratuitous violence’ only nine months after causing someone to lose an eye, called into question the genuineness of his remorse.

Quashing the unduly lenient sentences, Mr Justice Birmingham said that the starting point for the s.4 assault was a sentence of seven and a half years, with a reduction of two years having regard to the mitigating circumstances present. Identifying the starting point for the s.3 assault at 18 months, Mr Justice Birmingham said that this would be reduced to 12 months, to be served consecutively.  

Given the fact that Mr Harty had been at liberty for several months, and would therefore be required to re-enter custody, Mr Justice Birmingham said that the Court was ‘very conscious’ that it was resentencing a young man who has already completed his sentence. As a result, the Court limited the additional period of incarceration by suspending the final two-and-a-half years.

• by Seosamh Gráinséir for Irish Legal News