A man given five-and-a-half years for killing a talented musician when he was out on bail for an unprovoked assault must wait to hear whether his sentence for manslaughter will be increased on foot of an appeal by prosecutors.
Craig McGrath (26), of Rathfaddan Park in Waterford city, pleaded guilty at Waterford Circuit Criminal Court to the manslaughter of Damien O’Brien (27) on July 13, 2018 arising out of an assault that occurred at the junction of John Street and Manor Street, on July 7, 2018.
Mr O’Brien, who was originally from Kilmacow, Co Kilkenny, had just played a gig with his band in the Hub Bar and was on his way home with his girlfriend at about 2.50am when they encountered McGrath and his companion.
Waterford Circuit Criminal Court heard that McGrath made a derogatory comment to Mr O’Brien’s girlfriend before words were had and McGrath punched Mr O’Brien twice to the head.
The force of McGrath’s punches broke Mr O’Brien’s eye socket, nose and jaw and he was unconscious before he fell, according to the medical evidence. The fatal brain injury was caused when his head hit the ground.
CCTV footage showed McGrath shadow boxing or “reenacting the punches thrown” as he fled the scene of his attack on Mr O’Brien.
McGrath also pleaded guilty at Waterford Circuit Criminal Court to assaulting Kiefer Dowling causing him harm at Shortts Bar, John Street, in Waterford on August 18, 2017.
He was given five years for manslaughter and a consecutive two-and-a-half year sentence with the final two years suspended for assaulting Mr Dowling by Judge Eugene O’Kelly on May 24, 2019, effectively leaving McGrath with five-and-a-half years in jail for both offences.
The Director of Public Prosecutions are now seeking a review of McGrath’s sentence on grounds it was “unduly lenient”. The three-judge Court of Appeal reserved its judgment and is expected to deliver it on February 18.
Counsel for the DPP, Conor O’Doherty BL, told the three-judge court that McGrath was not only on bail for “an almost identical” assault near the same place a year earlier, but was in breach of a curfew imposed on foot of the earlier assault.
Mr O’Doherty said the “high degree of callousness” shown by McGrath as he was shadow boxing or “reenacting the punches thrown” on Mr O’Brien as he left the scene, was at odds with his purported remorse.
He said McGrath’s personal circumstances were not “so unusual”. McGrath had a good work history and the offences did not seem to have been committed in the context of a significant difficulty with alcohol or drugs.
He submitted that the sentencing judge erred in placing the manslaughter offence in the mid range of seriousness and the reduction afforded to McGrath for the mitigating factors involved “double counting” of factors that were in his favour.
Given the “callousness”, the level of violence and McGrath’s earlier unprovokoved assault, Mr O’Doherty said the sentence ought to have been placed in the high range, which attracts a sentence in the “10 year area”.
“Luckily,” Mr O’Doherty said the victim of the first assault did not suffer any long term injuries.
Counsel for McGrath, Kathleen Leader SC, said there was no evidence her client was in breach of a curfew at the time of the fatal assault, despite repeated references to this by the DPP.
Ms Leader said the sentencing judge correctly placed the manslaughter offence into the medium range of seriousness, as identified by the Supreme Court in a recent judgment giving guidance on sentencing for manslaughter.
She said the medium range for manslaughter was four to ten years and “it may not please all people, but that’s the actual law”.
Ms Leader acknowledged the heartache that follows on from cases of manslaughter but said any departure from the Supreme Court’s guidance on sentencing for manslaughter was simply not allowed, according to precedent.
Examples of manslaughters that got higher sentences involved the use of weapons and repeated stabbings, she submitted.
Reserving judgment, President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Brian McGovern and Mr Justice Maurice Collins, said the court hoped to deliver its decision on February 18 next.