The Court of Criminal Appeal has indicated it will allow Adam Fitzgibbon’s appeal against his 15-year sentence for assault causing serious harm, saying the sentence was out of line with other sentences for severe assaults and that the sentencing judge misread earlier decisions on substance abuse and a dysfunctional background.
The court has not yet set a replacement sentence. It directed that the case be listed for further consideration, when it will hear submissions from both sides and consider updated reports on Fitzgibbon’s progress in prison. The court said it would determine the appropriate sentence after that material is considered.
Fitzgibbon pleaded guilty in October 2011 to assault causing serious harm under section 4 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced the following month to 15 years in prison, with the final three years suspended, and appealed on the severity of the sentence.
The assault happened at an Applegreen service station in Corbally, Co Clare, in July 2010. Fitzgibbon was 17. The court described CCTV footage as showing an appalling and vicious attack on 16-year-old Kevin Meaney, involving repeated punches and stamps to the head and chest. Medical evidence described a subdural haematoma and an orbital fracture. Meaney required ventilation for eight days and later experienced difficulties including memory problems, fatigue and impaired coordination, according to the judgment.
The appeal court said the attack belonged at the upper end of the range for serious assaults. But it found that the trial judge’s indicative sentence of 15 years, before mitigation, was beyond the range supported by the cases reviewed. The judgment gave tentative guidance of two to four years for offences at the lower end, four to seven and a half years in the middle range, and seven and a half to 12 and a half years for the most serious cases, while allowing that exceptional cases may warrant more.
The court also found an error in principle in the sentencing approach. It said earlier rulings did not establish that substance abuse or a severe dysfunctional background could never significantly mitigate a sentence. Voluntary intoxication alone was not mitigation, and background difficulties alone were unlikely to suffice; however, a persistent substance-abuse problem connected with a particularly difficult upbringing could matter, especially where the offender was young or rehabilitation was realistic. The court said the sentencing judge had failed to consider whether Fitzgibbon’s circumstances fell into that category.
The trial judge had suspended the final three years, citing the guilty plea, lack of previous convictions and the need to provide a prospect of rehabilitation. The appeal court said it was unnecessary to decide the other subsidiary grounds once it found errors on sentence range and mitigation.