The Court of Appeal refused a Director of Public Prosecutions application to review as unduly lenient a sentence imposed for assault causing harm to a garda.
The judgment, delivered ex tempore by Mr Justice Sheehan on 15 December 2014, concerned a two-year prison sentence imposed at Kilkenny Circuit Criminal Court on 14 May 2014. The final six months were suspended on conditions that Thomas Donovan keep the peace and be of good behaviour for 18 months after release, and be subject to Probation Service directions during that period.
The DPP argued that the sentencing judge had not sufficiently reflected the gravity of the offences and had wrongly declined to make the assault sentence consecutive to a nine-month sentence for burglary. The respondent opposed the application, submitting that the judge had balanced the seriousness of the offences with rehabilitation. A written submission that there had been double counting was withdrawn at the oral hearing.
The court said the assault occurred on 15 February 2013, when Donovan tried to prevent the arrest of his uncle. After behaving aggressively and failing to leave when cautioned by a garda, he punched the garda, breaking his nose. During the ensuing struggle, the garda fell and fractured his elbow. The judgment said Donovan had consumed eight or nine Valium tablets, a flagon of cider and some whiskey.
Donovan was 17 at the time of the assault and 18 when sentenced. The judgment noted his difficult upbringing, low literacy and self-control, and 27 previous District Court convictions, including for burglary, theft and assault. He admitted the offence but said he could not remember what happened after taking the tablets. The garda made a full recovery and did not consider a victim impact statement appropriate.
The Court of Appeal said assaults on gardaí are serious, particularly one causing the injuries described. Applying the test for a prosecution sentence review under section 2 of the Criminal Justice Act 1993, it found the sentencing judge had carefully constructed the sentence, balancing proportionality and rehabilitation. Although the sentence might be considered lenient, the court held it was not a substantial departure from an appropriate sentence and refused the DPP’s application.