Eight-and-a-half years’ imprisonment for knife attack that penetrated victim’s bowel

McCarthy J: Criminal Law – appeal against severity of sentence – Assault causing harm and assault causing serious harm – sentence of ten years’ imprisonment with final 18 months suspended for assault causing serious harm – concurrent sentence of 3 years’ imprisonment on the count of assault causing harm – appeal only against sentence imposed for assault causing serious harm – two male victims, Ncube and Nduli – the appellant and the two victims came into contact having met in the city centre – the three men stayed in town to socialise and were later drinking and smoking cannabis at Wolfe Tone Park – the three returned to the apartment of the appellant’s then girlfriend, Ms Conroy – Ms Conroy was at home and in bed with her young son – appellant asked if the two lads could stay – Ms Conroy was amenable to this request – Ms Conroy then went to sleep – the three men went to the kitchen, shut the door and proceeded to continue drinking – controlled drugs were used by them – Ms Conroy was disturbed in the early hours by Nduli who knocked at her bedroom door to ask for a cigarette – Ms Conroy went into the sitting, where the men now were, and told them to be quiet or they would have to leave – later Ms Conroy was again awoken by the appellant who asked if Nduli had tried to sleep with her – she responded sharply and observed the appellant sitting on the bed with his hands on his head – appellant became extremely agitated and accused Mr Nduli of having tried to sleep with his girlfriend – Mr Nduli denied this – shortly before 6am, appellant hit Mr Nduli and Mr Ncube sought the assistance of Ms Conroy – appellant proceeded to hit Mr Ncube as well – Mr Ncube and the appellant shouted at each other – Mr Ncube was angry at what the appellant had done and picked a knife from the kitchen – the appellant went to the balcony and broke a glass candleholder and threatened to throw himself from the apartment’s third floor balcony – Ms Conroy prevailed on the appellant to come back inside – Mr Nduli disarmed Mr Ncube at Ms Conroy’s request – Mr Nduli and Ms Conroy ejected the appellant and Mr Ncube from the apartment and Mr Nduli followed – Ms Conroy then closed the front door to the apartment, leaving the three men outside in the corridor – shortly after, the appellant broke the door to the apartment and went into the kitchen and picked up a red knife – Mr Ncube followed and picked up a smaller knife – Mr Nduli intervened and managed to get Mr Ncube to leave the apartment with him – appellant followed them out and disarmed Mr Ncube – appellant, wielding a knife in each hand, stabbed Mr Nduli once in the side of the chest – appellant proceeded to attack Mr Ncube – Mr Ncube fell to the floor and the appellant stood over him and continued to attack him – Gardaí arrived shortly and found Mr Nduli cradling Mr Ncube – they found that Mr Ncube to have been eviscerated with his intestines protruding from his stomach – appellant was later apprehended at the nearby Blackhorse Luas stop – Mr Ncube sustained two stab wounds – one to the wrist and one to the abdomen which eviscerated his bowel – the more serious wound was described as life-threatening by a Dr Maguire – victim impact statement of Mr Ncube about the effect of the assault – sentencing judge had regard to sentencing guidelines provided in DPP v. Fitzgibbon instead of DPP v. O’Sullivan – sentencing judge found that offending fell into the most serious category of such offending - sentencing judge summarised seven aggravating factors – a headline sentence of twelve and a half years was nominated by sentencing judge – after mitigation, a custodial sentence of 10 years with 18 months suspended was imposed – whether sentencing judge attached insufficient weight to the plea of guilty by the appellant - whether judge gave disproportionate weight to the victim impact evidence tendered by the respondent – whether the judge fixed a headline sentence of 12.5 years which was excessive in all the circumstances of the case – whether the judge gave insufficient regard to the fact that the injuries sustained by the injured parties were inflicted as a result of the recklessness on the part of the Appellant as opposed to the intentional infliction of harm or serious harm – whether the learned judge placed insufficient regards to the matters advanced in mitigation – any sentence imposed by the trial court was to be decided by reference to the law as it then stood, namely by reference to Fitzgibbons – all relevant mitigating and aggravating factors were considered by the sentencing judge – effective sentence of eight and a half years’ imprisonment represents a substantial discount from the headline sentence – sentencing principles were correctly applied – headline sentence was within the judge’s margin of discretion – more than ample credit afforded to the mitigating factors given the gravity of the crime – appeal dismissed.