Court of Appeal: Sentencing judge had correctly regarded relevant previous convictions as an aggravating factor

About this case:

• Judgment:
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The Court found that the trial judge had been correct in taking into account the man’s previous convictions for personal violence, and the sentence imposed was justified on the facts of the case.

Following a three day trial at Tralee Circuit Court in June 2013, Wesley McDonald was convicted of assaulting Edward Barry and causing him harm contrary to section 3 of the Non Fatal Offences Against the Person Act 1997.

On the 22nd December 2012, Mr Barry had been out socialising in Tralee. At about 2am, while waiting a local fast-food outlet, Mr Barry needed to use the toilet and went to a laneway across the road to urinate. 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 the men, Mr Barry ran at one of them – Mr McDonald – and as he did so he punched him in the face. Mr Barry succeeded in getting by the three men, but was immediately followed by Mr McDonald and attacked from behind.

As a result of the assault on him, Mr Barry had to attend hospital where he received four stitches, and also suffered a deformity to his nose.

Sentencing hearing

On the 10th July 2013, Mr McDonald was sentenced to four years imprisonment (with the final year suspended).

The court was told that Mr McDonald had 30 previous convictions, including 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.

The court was also told that he was the father of three children, he had problems with alcohol and drugs, and was remorseful for the assault on Mr Barry.

Court of Appeal

In the Court of Appeal, Mr McDonald challenged 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.

Acquitted offences

In the course of brief sentencing remarks the trial judge gave a summary of the facts noting that, despite Garda evidence, the only matter that the jury had convicted Mr McDonald of was assault causing harm.

The transcript confirmed this remark – therefore Justice Sheehan dismissed the first ground of Mr McDonald’s appeal that the sentencing judge factored an offence of which Mr McDonald had been acquitted into his sentence

Mitigation

Mr McDonald submitted that “the sentencing judge did not reference his remorse as a mitigating factor, nor did he reference Mr McDonald’s family circumstances and in particular that he was the father of three children”.

Justice Sheehan stated that 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 Mr McDonald at the time took his responsibilities as a father seriously; and apart from the prosecuting Garda confirming that Mr McDonald abused alcohol and drugs, there was no evidence that he had significant addiction difficulties.

Accordingly, Justice Sheehan held that “this was a case in which there was no evidence of any mitigation that the judge could properly factor into the sentence”.

In addition, “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”.

Excessive sentence?

Mr McDonald contended that the headline sentence of four years was excessive, given the following:

(1) No weapon was used.

(2) There was a single blow struck by Mr McDonald.

(3) The injuries sustained were minor in nature.

(4) There was no gratuitous violence (relying on the decision in DPP v. Dwyer IECCA).

Justice Sheehan stated that “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”, the Court of Appeal in previous cases has taken the view that “relevant previous convictions can be regarded as an aggravating factor”.

Consequently, Mr McDonald’s previous convictions for personal violence were relevant when identifying the headline sentence.

Justice Sheehan was in no doubt that the final sentence imposed “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”.

Nevertheless, Mr Barry 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.

Dismissing the appeal, Justice Sheehan stated that there was “no error in the sentencing judge’s approach” and the sentence imposed was just.