The Court of Appeal has refused a Director of Public Prosecutions application to review as unduly lenient a sentence imposed on Jordan O’Donovan for an assault that caused serious harm in Cork city centre.
The court said the offence was serious and the sentence was lenient, but the DPP had not established that it represented a substantial departure from the minimum appropriate sentence. It therefore refused the review application, leaving the original sentence in place.
O’Donovan was sentenced in Cork Circuit Court on 15 December 2014 to three years’ imprisonment, with the final two years suspended subject to conditions. The assault took place at a nightclub on 27 December 2013. The Court of Appeal judgment, delivered by Mr Justice Birmingham on 18 April 2016, records that O’Donovan struck Mark Flynn in the face with a glass during a brief altercation. Flynn suffered a serious eye injury, underwent numerous operations and did not recover full sight in the eye.
At the original sentencing, the judge described the assault as impulsive and said the glass had been in O’Donovan’s hand when he struck. The judge identified the injury and use of the glass as aggravating features, while also taking account of O’Donovan’s youth, lack of previous convictions, work history, cooperation, rehabilitation efforts and genuine remorse. The judge considered a custodial sentence necessary and suspended the final two years, with probation supervision for two years after release.
The DPP argued that the sentence did not fit the approach in earlier case law for serious assaults and that too much weight may have been given to mitigation. O’Donovan’s counsel relied on the mitigating circumstances and submitted that it would be harsh to return him to prison after he had served the sentence and been back in the community for ten months.
The Court of Appeal said a greater portion of the sentence might have been served, but that was not the test. Under the statutory review process, the DPP had to show a substantial departure from an appropriate sentence. The court also took account of O’Donovan having served the sentence, his return to living and working in the community, the suspended sentence and probation supervision. It refused the application; it did not impose a replacement sentence.