The Court of Appeal has quashed an unconditional discharge given to Gary O’Mahony for assault causing harm and imposed an 18-month prison sentence, suspended for two years on condition of good behaviour.
The Director of Public Prosecutions brought the appeal under section 2 of the Criminal Justice Act 1993, arguing that the sentence imposed in Cork Circuit Criminal Court on 14 June 2018 was unduly lenient. O’Mahony had pleaded guilty to assault causing harm under section 3 of the Non-Fatal Offences Against the Person Act 1997. The sentencing judge applied the Probation of Offenders Act 1907.
The Court of Appeal said the assault occurred on 11 November 2017 during a soccer match at the Farm in Curraheen, Bishopstown, Cork. After an exchange following a foul, O’Mahony punched the injured party, Michael O’Donovan, on the right side of his face, knocking him unconscious. O’Donovan suffered concussion, a damaged cheekbone, loose teeth, cuts inside his mouth and damage to his right eye. The appeal judgment said the injuries required surgery and affected his studies and career opportunities.
The court accepted that the Probation Act can apply to offences tried on indictment and that its statutory criteria are disjunctive. A judge may rely on relevant personal or other circumstances even where an offence is not trivial. But the Court of Appeal concluded that this serious, unprovoked assault was not a case for applying the Act. It found the discharge a substantial departure from the appropriate sentence and an error in principle, and held that the sentence was unduly lenient.
The court set a three-year headline sentence, then reduced it to 18 months in light of O’Mahony’s guilty plea, cooperation with authorities, approach to Gardaí and other mitigating factors. It also cited his continued rehabilitation, that he had not come to Garda attention since, and the disappointment of receiving sentence so long after the offence. The court suspended the 18-month term on condition that he be of good behaviour for two years.
The judgment records that O’Mahony was 27 at the time of the offence, had one previous conviction for unlawful possession of drugs for personal use, and had raised €2,300 in compensation for O’Donovan. It also records that he lost his job after the assault.