The Court of Appeal has allowed an appeal by David Emerson against the severity of a 16-month prison sentence for assault causing harm, replacing it with a two-year sentence suspended for two years on the usual terms.
The court, in an ex tempore judgment delivered on 3 March 2016, said the sentencing judge had been wrong to foreclose the possibility of suspending all or part of the sentence. It did not consider the appellant’s other grounds of appeal because that error was sufficient to require a fresh sentence.
Emerson had pleaded guilty to assault causing harm under section 3 of the Non-Fatal Offences Against the Person Act 1997. The offence occurred on 21 June 2012 at Peachfield, Kilshane Cross, Finglas. The judgment said he struck the caretaker of the property on the head with a hammer after the caretaker confronted him in the front yard. The caretaker received three stitches in hospital.
At the original sentencing in Dublin Circuit Criminal Court on 12 July 2013, the judge recognised Emerson’s guilty plea, cooperation and steps towards rehabilitation, but said a custodial sentence was required given the seriousness of the assault and his criminal record. He imposed 16 months’ imprisonment.
The Court of Appeal said the offence would normally merit imprisonment and, in the usual course, a term exceeding 16 months. It identified three years’ imprisonment as the appropriate starting point, taking aggravating factors into account. It then reduced that to two years for the limited harm, cooperation with gardaí, early guilty plea and genuine remorse. The court said intoxication had some bearing on culpability but did not significantly benefit Emerson.
The court also considered his rehabilitation. By the appeal, he had successfully completed drug rehabilitation programmes he had substantially begun before the original sentence. The judgment described him as law-abiding, a responsible partner and father of two, and said he was engaging in further education. It noted that returning him to prison after a delay of nearly three years, which was not his fault, risked damaging the progress he had made.
The court said it had regard to the injured caretaker, identified in the judgment as Alexander Chudzik. It allowed the appeal and substituted the original sentence with two years’ imprisonment, suspended for two years on the usual terms.