The Court of Appeal reduced Kevin McCabe’s sentence for assault causing harm from three years and nine months to three years, suspending the final six months for 12 months subject to conditions. It found that the original sentencing judge had made an error in principle by allowing too little reduction for mitigation, while agreeing that the offence warranted a four-and-a-half-year headline sentence.
McCabe had pleaded guilty on the day of trial to assaulting his brother-in-law, Frankie McGough, in Ballinamore on 1 January 2018. The appeal concerned the sentence imposed by the Carrick-on-Shannon Circuit Criminal Court on 23 November 2021.
The Court of Appeal’s account of the incident was that McCabe punched McGough repeatedly while co-accused Ryan Collins restrained him on a bench. Medical evidence described complex fractures to the left side of McGough’s face, including fractures around the eye and cheekbone. He was transferred to Altnagelvin Hospital for surgery.
At sentencing, the Circuit Court judge described the assault as premeditated, sustained and very violent. The judge considered the seriousness of the injuries, the involvement of two assailants and McGough’s known psychological vulnerability. The judge set a headline sentence of four years and six months, then imposed three years and nine months after considering mitigation.
The appeal court rejected the challenge to the headline sentence, finding that the serious injuries and multiple assailants supported placing the offence at the upper end of the scale. It also rejected the argument that the sentencing judge had mishandled a €2,000 compensation offer. The offer had been raised on the basis that McCabe sought a non-custodial sentence; the appeal court said the judge had treated it as withdrawn and it was not decisive to the sentence.
The court found, however, that the reduction for mitigation was inadequate. It cited McCabe’s guilty plea, his lack of convictions before the offence and positive community involvement. It said it could not take account of counsel’s statement that later convictions were for non-violent offences because there was no evidence of what those offences were.
The court quashed the original sentence and resentenced McCabe to three years’ imprisonment. It suspended the final six months for 12 months, on condition that he keep the peace and be of good behaviour during imprisonment and for 12 months after release, and submit to Probation and Welfare Service supervision for 12 months.