About this case:

• Judgment:
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Finding that the starting-point of 16 years was “stiff but not manifestly excessive”, Lord Chief Justice Morgan noted that the appellant had a significant history of domestic violence against former partners, had assaulted three former partners while they were pregnant, and had assaulted another toddler in 2012.

The man was at a significant risk of reoffending, and emphasis had to be placed on the vulnerability of his victim.

Background

In October 2014, Darren Fegan violently assaulted a two-year-old child with extreme force when she was crying in her cot. The child sustained a significant brain injury, requiring a wheelchair – and now has a significant risk of developing epilepsy. The Court heard that she has visual impairment as a result of her injuries, limited cognitive ability, speech and physical impairment, and will require intervention with community disability services for the foreseeable future.

Mr Fegan maintained that he had not caused any injury to the child, alleging that the child’s injuries were caused by her mother. The Court heard that he maintained his position until at least late 2016.

In 2017, Mr Fegan was given a determinate sentence of 13 years and 6 months with an extended licence of 3 years, following a late plea of guilty to grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 (OAPA).

Sentencing

The Court heard that Mr Fegan had 19 assault-related convictions and an extensive domestic abuse history. Of particular concern was an incident in 2012, when Mr Fegan assaulted a former partner and her 20-month-old son.

The pre-sentence report concluded that Mr Fegan presented a high likelihood of re-offending, and posed a significant risk of serious harm. Indeed this was a second conviction for a serious assault on a young child, and he had a history of repeated violent assaults on 3 previous partners whilst pregnant and 2 children.

In sentencing Mr Fegan, the Judge noted as an aggravating factor his “cowardly, shameful and vindictive” denial of responsibility for the offence blaming of the victim’s mother.

The sentencing judge did take into account Mr Fegan’s “harrowing and tragic” childhood, and his lately expressed remorse, but noted that there were no mitigating factors in relation to the offence.

Considering DPP References Numbers 2 and 3 of 2010 (McAuley and Seaward) NICA 36 which drew on the earlier decisions of R v Magee NICA 21 and R v McArdle NICA 29, the Judge “found that the case fell within the uppermost end of the range of the first level as set out in McArdle and in the Sentencing Guidelines”.

As such, the starting point was set at 16 years imprisonment. A discount of 15% was applied for the late guilty plea resulting in a sentence of 13 years and 6 months.

Court of Appeal

Mr Fegan submitted that the guideline set out in DPP References Numbers 2 and 3 of 2010 (McAuley and Seaward) was not an appropriate starting point for a case of this nature.

That line of authority was concerned with the problem of violence primarily among young men, often in the public street and generally fuelled by alcohol or drugs.

Within that context issues of planning, premeditation and the use of weapons were important issues in respect of the level of culpability. Such issues did not generally arise in cases of this nature.

Mr Fegan relied on R v Orr NI 287 and R v Joanne Mitchell NICA 30, in which the maximum sentences were 5 and 7 years, respectively.

Morgan LCJ stated that in both of the cases relied on by Mr Fegan, “intent to cause grievous bodily harm was not part of the offence” – therefore, they were of limited assistance to Mr Fegan.

Morgan LCJ said that R v RD EWCA Crim 159 was of greater assistance in that it was a case with a background of domestic violence. However, the appellant in that case had no previous convictions, appeared to show genuine remorse, and the pre-sentence report indicated that reoffending was unlikely.

SD v HM Advocate HCJAC 83, in which there was a starting point of 9 years, was also of “little assistance” to Mr Fegan in that the offence in this case did not require an intent to cause GBH.

The Court of Appeal accepted that the background of alcohol fuelled violence by young men against which the guideline judgment in DPP References Numbers 2 and 3 of 2010 (McAuley and Seaward) was issued is different from the background against which this appeal has to be considered.

Morgan LCJ said that sentencing policy in section 18 cases must reflect the vulnerability of the child – “the child has absolutely no defence mechanism” against the perpetrator, and “because of the child’s stage of development the harm likely to be caused by the application of severe force is greater than that which would be expected in relation to an adult”.

In these circumstances, the conduct is rendered highly culpable and a range of 7 to 15 years for such conduct is appropriate.

Morgan LCJ also placed emphasis on the fact that Mr Fegan had sought to make a case that the victim’s mother had been responsible for the assault, and that this was an attempt by him to pervert the course of justice: “No such charge was properly levied against him but in dealing with this as an aggravating feature we must take into account that such conduct would normally require a consecutive sentence.”

Dismissing the appeal, Morgan LCJ stated that the starting point of 16 years was stiff but not manifestly excessive.