C62 DPP -v- James Paul Sweeney Edward Sweeney Patrick Sweeney [2012] IECCA 62 (27 February 2012)

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Cite as: [2012] IECCA 62

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Judgment Title: DPP -v- James Paul Sweeney Edward Sweeney Patrick Sweeney

Neutral Citation: [2012] IECCA 62


Court of Criminal Appeal Record Number: 266, 265 & 254/10

Date of Delivery: 27/02/2012

Court: Court of Criminal Appeal


Composition of Court: Finnegan J, Hanna J., Hogan J.

Judgment by: Finnegan J

Status of Judgment: Approved

Judgments by
Result
Finnegan J
Allow Appeal v Sentence


Outcome: Allow Appeal v Sentence




THE COURT OF CRIMINAL APPEAL
[2010 No. 266, 265 and 254CCA]

FINNEGAN J.

HANNA J.

HOGAN J.

BETWEEN/


THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
AND

JAMES PAUL SWEENEY, EDWARD SWEENEY AND PATRICK

SWEENEY

APPELLANTS


JUDGMENT of the Court delivered by Mr. Justice Joseph Finnegan on 27th February, 2012

Two serious public order incidents took place in Ballinrobe, Co. Mayo in the early hours of 16th August, 2009, within approximately half an hour of each other. It is these events which have given rise to the three related appeals against the severity of sentences imposed by His Honour Judge Hunt in the Circuit Court on 22nd October 2010 in respect of offences of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994, assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997 (“the Act of 1997”) and assault causing serious harm, contrary to s. 4 of the Act of 1997. While all three defendants pleaded guilty to two counts of s. 3 assault, only James Paul Sweeney and Patrick Sweeney were convicted of violent disorder and only Edward Sweeney was convicted of s. 4 assault. To avoid confusion, we propose henceforth to describe the individual defendants by their first names and inasmuch as we do this, no discourtesy to the three co-accused is thereby intended.

Before considering the individual merits of these appeals, it is necessary first to narrate the sequence of events to which we have already briefly alluded. At about 3.45am on the morning of August 10th, 2009 a Mr. John Reddington left a Ballinrobe nightclub with three other males. They walked up Chapel Hill to proceed in the direction of Supermacs, a fast-food outlet which was about 500 metres away, where they came upon the three defendants. As they walked past, it would appear that the first member of Mr. Reddington’s group began to call Patrick an offensive term which referred to the fact that he was a member of the travelling community. This individual in question gesticulated and issued verbal threats. We should stress that Mr. Reddington was a little distance behind this individual and was at all not involved in the exchanges.

When Mr. Reddington’s group turned the corner into New Street, the evidence suggests that they were set upon by the co-accused and a fracas ensued. Mr. Reddington was punched to the ground and then kicked in the head by both Patrick and Edward. Members of the public came to his assistance and broke up the fights and Mr. Reddington was then taken by ambulance to hospital.

One member of this group - who happened to be the person who first uttered the offensive epithets which formed the backdrop to the first incident - continued on to Supermacs and met with one Jonathan O’Malley and one Patrick Lydon who happened to be there. Having discussed what had just happened, they decided to take a taxi home. They rang a taxi driver friend who arranged to meet them at a filling station on the Neale Road. As they turned the corner onto Neale Road, they noticed three people coming from behind. One of the O’Malley/Lydon group identified the three as having been involved in the earlier incident. They decided to quicken their step, but they were immediately set upon.

Mr. Lydon was attacked, kicked on the ground and he received a knife injury on the back of his head. He had put up his hands and told the assailants to stop. Mr. O’Malley put his hands up and an arm was put around his neck. He then felt an injury to the back of neck and blood began pouring out of his neck. Mr. O’Malley was cut from ear to ear. James Paul strongly denies that he was the person who assaulted Mr.O’Malley in this fashion.

Buses and taxis were passing at the time and the event was witnessed by several on-lookers. As the pre-arranged taxi arrived, the three co-accused ran off. The forensic evidence which was subsequently gathered by the Gardaí showed droplets of blood in a trail which led to the discovery of a blood stained t-shirt and a Stanley knife hidden in bushes behind the wall of a nearby car-park. The forensic evidence established that the t-shirt was that of James Paul. Blood stains found on the Stanley knife were identified as being the blood of Mr. O’Malley and Mr. Lydon .

The victims made their way back to the Supermacs outlet where they were tended to by members of the public and by the taxi driver. Mr. O’Malley and Mr. Lydon were then taken by ambulance to Mayo General Hospital. All three suffered very significant injuries, including extensive laceration and permanent scarring following extensive stitching. While all three were discharged from hospital after several days, these were very serious assaults which were very frightening and painful for the three victims involved. Mr. Lydon thought that he was going to die. Mr. Reddington had a serious head injury which, in the days which followed the attack, required neurosurgical intensive care at Beaumont Hospital in Dublin. As Judge Hunt noted in the course of the sentencing ruling, were it not for specialist medical care, Mr. Reddington might well have succumbed to his injuries. All three men and their families suffered considerably as a result of these incidents.

It is important to note that there was an interval of approximately thirty minutes between the two incidents which took place about 500 metres apart. All three co-accused had been drinking heavily that previous day to celebrate the Christening of Edward’s newborn child and had taken cocaine mixed with (then not illicit) substances which mimicked the effect of cocaine. While not a mitigating factor, this cocaine-mixture probably removed their natural inhibitors and enhanced the prospect that they would (uncharacteristically) resort to violence. There is some reason to believe that they may not have fully appreciated the potential impact which this drug-taking could have had on their behaviour and, as Judge Hunt properly recognised, the conduct of all three accused was affected by the consumption of these substances.

The three accused were first arrested on the 19th August, 2009. They made limited admissions to the Gardaí, but subsequently pleaded guilty. These were relatively early pleas which were correctly treated by Judge Hunt as very valuable: the guilty pleas saved considerable prosecution time and allayed the concerns of the victims regarding the necessity to give evidence at any trial. All three co-accused had (in varying degrees) minor criminal records, but they had not previously come to Garda attention in respect of violent behaviour of this type. It is only fair to record that all three men showed genuine remorse and letters of apology were read out on their behalves by their respective counsel in open court. One must also not ignore the fact that the co-accused must be taken to have lost their temper when offensive language was directed towards them by a person other than the three victims of the brutal violence which subsequently followed.

The three accused also had significant community involvement and sporting achievements to their name, despite a sad and difficult family history. James Paul was an accomplished boxer who gave valuable leadership at his local club, but, after these events, it is clear from the testimonials made available to the court that he will no longer be permitted to represent his club. This was his life’s interest, having left school early with few educational accomplishments. The same was broadly true of Edward, who very creditably took the Junior Certificate in certain subjects, despite having had to ensure a childhood of deprivation, disadvantage and, doubtless in certain respects, discrimination. He was a gifted soccer player, but he had to abandon his sporting activities due to the early onset of arthritis. Patrick stayed in school until the Leaving Certificate and was a promising Gaelic football player and a soccer player.

We may now turn to the sentences imposed in the case of each of the three accused.

James Paul Sweeney

In the course of hearing in respect of James Paul, Judge Hunt noted that the accused had pleaded guilty to the offence of violent disorder under s. 15 of the Act of 1994 (which offence carries a maximum penalty of ten years) and to two counts in respect of a s. 3 assault (which offences carries a maximum penalty of five years). Having noted the general mitigating factors (a plea of guilty, remorse and so forth) to which we have already alluded, Judge Hunt imposed a sentence of four years in respect of the offence of violent disorder in the respect of the fracas at New Street.
Turning then to the second assault, Judge Hunt concluded that these sentences should be in principle consecutive to the first offence. The judge took this view in relation to all three co-accused for the following reasons:-

      “I have a discretion in the appropriate case to impose consecutive sentences and I am satisfied that this case calls for the very serious behaviour at the Neale Road to be marked by a sentence which is consecutive to the violent disorder and the s. 4 offence, and it’s consecutive in my view because the behaviour was consecutive. It was not a follow-on. There was break in time. They could have had time for reflection, but they did not, they went back out on the streets of Ballinrobe and one of them, I am satisfied was armed with a Stanley knife and that is something that has to be stamped out, as far as I am concerned a most serious view has to be taken in relation to these matters…so, I intend to impose consecutive sentences in relation to the…second set of assaults, because I am satisfied they are merited, having regard to the circumstances in which they arose. They were pursuers. These people were pursued from behind. The offence is aggravated by the fact that it took place at a time when there was time for reflection after the first bout of violence had been meted out almost an hour earlier.”
The judge was further satisfied that the Stanley knife was wielded by James Paul:-
      “Mr. Grehan S.C., put it forward on the basis that there was an unresolved conflict as to [James Paul’s] part in this. In my mind, there is no unresolved conflict. There is no conflict, unresolved or otherwise. The evidence that I was referred to of Mr. O’Malley…and this is opened in some detail as quite clear. The person, and I am satisfied it was James Paul Sweeney who assaulted him, hit him under his arm and I am satisfied that Mr. O’Malley felt that the injury to the back of his head as being inflicted at that stage. I am satisfied that this was inflicted by Mr. James Paul Sweeney and that the big slash mark around the back of his head did not come there by any means than by a knife wielded by Mr. Sweeney.”
The judge went on to say:-
      “That puts him on the very top of the scale of such offences and the scale should be higher, that is the very top of the five year scale. In the absence of mitigating factors on the basis that it might possibly be an assault causing harm of a variety which is worse than this, a sentence absent of mitigating factors of four a half years would be richly merited in this particular case.”
The judge then went on to have regard to the mitigating factors and sentenced James Paul to a consecutive sentence of three years in respect of s.3 count with regard to the assault on Mr. O’Malley at Neale Road. He further imposed a two year sentence in respect of the other s.3 count dealing with the attack on Mr. Lydon. The latter sentences were concurrent with each other and consecutive upon the violent disorder sentence.

The judge further stated that he would suspend the last year of the two cumulative sentences for a period of three years. This sentence – as with the first sentences imposed on the other accused - commenced on the day on which all the three accused went into custody, 1st July, 2010. Taking all due allowance for the suspended sentence, James Paul has an effective sentence of 6 years.

Edward Sweeney

Having drawn attention to the comments which he had made in relation to the necessity for consecutive sentences in respect of the two different incidents and the general mitigating factors which were common to all three defendants, the judge went on to impose a sentence of six years imprisonment in respect of the s. 4 assault. Edward was the only one of the accused who pleaded guilty to this more serious charge. In respect of the second incident at Neale Road, Judge Hunt imposed a two year sentence in respect of both the assault on Mr. O’Malley and the assault on Mr. Lydon. The sentences for the second assaults were expressed to be concurrent with each other, but consecutive upon the six years’ imprisonment in respect of the s. 4 assault. Here again, Judge Hunt suspended the last year of the cumulative sentence.

Here again, making due allowance for the suspended sentence, Edward has an effective sentence of 7 years.

Patrick Sweeney

In the case of Patrick, Judge Hunt, having noted the comments in relation to the offences which were common to all three co-accused and their respective mitigating factors, imposed a sentence of four years’ imprisonment in respect of the violent disorder charge under s. 15 of the Act of 1994. He likewise imposed a sentence of two years’ imprisonment in respect of the two counts of a s. 3 assault in respect of both Mr. O’Malley and Mr. Lydon at Neale Road. Those sentences were expressed to be concurrent with each other, but consecutive to the sentence imposed in respect of the violent disorder charge. Again, Judge Hunt suspended the last year of the sentence.
Taking due allowance for the suspended part of the sentence, Patrick has an effective sentence of five years’ imprisonment.
All three defendants maintain that the learned trial judge - who we think handled this difficult case with exceptional care - erred in principle in certain respects. For the reasons given hereunder we agree with that assertion.
James Paul Sweeney
In our view, the learned trial judge erred in principle in three distinct respects so far as James Paul is concerned.
First, we do not think that it could safely be concluded from the evidence that it was James Paul who had deployed the Stanley knife and who had slashed Mr. O’Malley in view of the disputed nature of that evidence. Here it must be recalled that Sergeant Hastings was cross-examined closely on those items of evidence by counsel for James Paul, Mr. Grehan S.C.. Specifically, she agreed that the construction of the relevant statements of the victims on the question of whether James Paul had put his hand around Mr. O’Malley’s neck was open to differing interpretations.
In view of that concession, we do not think that it was open to the learned trial judge to reach the definite conclusions which he did regarding the slashing of Mr. O’Malley, at least absent a Newton-style hearing on this discrete factual question.
We also think that appropriate regard must be had to the evidence in relation to the violent disorder in New Street (i.e., the first incident). While it was agreed that James Paul was present and indeed that he punched Mr. Reddington in the course of this incident, Sergeant Hastings also expressly stated that “nobody has identified him as kicking Mr. Reddington.” In that respect he is different from the position of the co-accused who were seen to kick Mr. Reddington in the head as he lay on the ground, conduct which the learned trial judge quite properly condemned. We consider that the learned trial judge failed to give sufficient weight to this distinguishing feature in respect of the violent assault charge.
Finally, while the learned trial judge did advert to the fact that all three co-accused had little or no criminal record, he perhaps did not sufficiently distinguish between James Paul and, indeed, Edward, on the one hand (who had no criminal record to speak of) and Patrick (who had two previous custodial sentences, albeit at District Court level) on the other.
In view of these errors in principle, this Court can consider the sentences afresh. Given that we cannot have regard to the slashing incident for the reasons to which we have just referred and taking account of the fact that it is accepted that there is no evidence James Paul did not kick Mr. Reddington while he was on the ground, we propose accordingly to reduce his sentence for violent disorder from four years to three years.
So far as the two s. 3 counts are concerned, the Court acknowledges that these were serious offences. Yet, the higher three year sentence in respect of the assault on Mr. O’Malley was plainly influenced by the learned judge’s conclusion with regard to the use of the Stanley knife. Disregarding this factor - which, of course, would have been a gravely aggravating had this been proved beyond reasonable doubt in respect of James Paul - we consider that there is no reason to distinguish as either as between the sentence to be imposed as respects the two assaults or, indeed, the moral culpability of all three co-accused in respect of this second incident. We accordingly impose a sentence of two years in respect of the two s. 3 assault charges in respect of the second incident (counts 3 and 4). These sentences will run concurrently with each other. A similar approach will be taken in respect of Edward and Patrick with regard to these second incidents.
We agree, however, with the learned trial judge that the sentences in respect of the second set of incidents should properly be made consecutive to the violent disorder charge in respect of the first incident. The second set of incidents were sufficiently separated in time and in place from the first to warrant this conclusion. The very fact that serious violence had been used in the course of the first incident ought to have made the three accused pause and reflect. Yet with some deliberation they elected to continue and after an interval of at least 30 minutes they pursued the group involving Mr. Lydon and Mr. O’Malley and set upon their unfortunate victims. This amply justifies the imposition of consecutive sentences.
Conclusions with regard to James Paul Sweeney
In the event, therefore, we impose the following sentences in respect of James Paul Sweeney:-

        A sentence of three years in respect of the s.15 violent disorder charge.
        A sentence of two years in respect in respect of the two separate s.3 counts, each to run concurrently with each other, but consecutive to the violent disorder charge.
        Bearing his previous good character and to encourage his rehabilitation, we will suspend the last year of the s. 3 sentence for one year on condition that he keeps the peace and undertakes to be of good behaviour on his own bond of €100.
Edward Sweeney
Edward Sweeney was the only one of the co-accused to plead guilty to the s. 4 serious assault charge, an offence carrying a maximum sentence of life imprisonment. So far as this count is concerned, the key item of evidence is that he kicked Mr. Reddington in the head when the latter lay on the ground. While there was ambiguity on this point in the evidence given at the sentencing hearing, we accept that there was no evidence that Edward repeatedly kicked his victim. On this point, Judge Hunt stated:-
      “So when you spin the wheel of fate by kicking somebody in the head on the ground., it’s really a lottery as to where you end up, whether you kill them or whether you miss and give a superficial injury. This injury was not a superficial injury. It was a very significant injury indeed….That has to be seen against a background of a potential life sentence….”
This is, we think, quite unexceptionable as a statement of principle. The only difficulty here is that the Court cannot really distinguish between the moral culpability of Edward on the one hand and that of Patrick on the other with regard to the first incident at New Street. Both kicked Mr. Reddington on the head while he lay prone on the ground, albeit not repeatedly. The difficulty here probably stems from the fact that both pleaded guilty to different charges - a s. 4 assault charge in the case of Edward and a s.15 violent disorder charge in the case of Patrick. While the former is a more serious charge - and, hence, in principle, meriting a longer sentence - we cannot nevertheless realistically justify differentiating between the Edward and Patrick in terms of the New Street incident in terms of criminal culpability. Furthermore, some weight must be given to the fact that Edward had no previous criminal record worth speaking of.
Conclusions with regard to Edward Sweeney
In these circumstances, we propose to impose the following sentences in respect of Edward:-
        - A sentence of four years’ imprisonment in respect of the s. 4 charge.
        A sentence of two years in respect in respect of the two separate s.3 counts, each to run concurrently with each other, but consecutive to the s. 4 charge.
        Bearing his previous good character and to encourage his rehabilitation, we will suspend the last year of the s. 3 sentence for one year on condition that he keeps the peace and undertakes to be of good behaviour on his own bond of €100.
Patrick Sweeney
35. For the reasons already stated, we cannot realistically distinguish between the position of Patrick and Edward with regard to their respective involvement in both the first and second incidents. This means that whereas Edward’s sentences are reduced, those of Patrick are affirmed, save for a minor variation in respect of the duration of the period for which the last year of the sentence has been suspended.
36. Accordingly, we propose to impose the following sentences in respect of Patrick:-
        - A sentence of four years’ imprisonment in respect of the s. 15 violent disorder charge.
        A sentence of two years in respect in respect of the two separate s.3 counts, each to run concurrently with each other, but consecutive to the violent disorder charge.
        Bearing in mind his previous good character and with a view to encouraging his rehabilitation, we will suspend the last year of the s. 3 sentence for one year on condition that he keeps the peace and undertakes to be of good behaviour on his own bond of €100.



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