The Court of Appeal has dismissed a Director of Public Prosecutions application to review as unduly lenient a three-year prison sentence, suspended for three years, imposed on Mark Hayes for assault causing harm.
Hayes pleaded guilty at the Circuit Criminal Court in Ennis on 17 February 2015. He was sentenced on 26 November that year. The suspension required him to keep the peace and be of good behaviour, refrain from alcohol, and follow the directions of the Probation and Welfare Service for three years. A malicious damage conviction was taken into consideration.
The assault happened after 3am in the bar area of the Oakwood Arms Hotel in Shannon, while a night porter was clearing the bar. The court said Hayes punched the porter several times in the head during what the sentencing judge described as a barroom brawl. The porter needed three stitches for a scalp wound. Tests found a trace of blood in his kidneys, which the judgment said was consistent with being struck there by Hayes’s brother. The porter’s prognosis was for full recovery, but he told a victim impact report that the incident caused sleepless nights, affected family life and left him quiet and withdrawn.
The DPP argued that the sentencing judge gave too much weight to mitigation and too little to aggravating factors. Counsel submitted that some immediate custody was warranted, particularly given Hayes’s previous convictions, or that community service could have been required. Hayes’s counsel accepted that he was fortunate to avoid immediate custody but argued that the sentence was just and proportionate.
The Court of Appeal noted that Hayes, then 27, had 18 previous convictions, including an earlier assault causing harm and a violent disorder conviction for which he had served two years in prison. A probation report identified alcohol as a recurring issue and said he had acknowledged the problem and taken steps to address it. The victim received €5,000 in compensation from Hayes and his brother.
The appeal court said the trial judge had considered the circumstances, the harm to the victim, and the aggravating and mitigating factors. It reviewed the DPP’s application under the statutory test for undue leniency: the DPP had to show a substantial or gross departure from the appropriate sentence, amounting to an error of principle. Disagreement with the sentence, or a view that a more severe sentence might have been imposed, was not enough.
The court said the suspended sentence required Hayes to follow probation directions, including an intensive six-month anger management programme. It concluded that the sentence was lenient but not unduly lenient, and dismissed the application. The judgment did not change the sentence.