Man who attacked army veteran with sword loses appeal to have nine year sentence reduced
A Tipperary man who attacked an army veteran with an ornamental sword, leaving him with brain damage and partial paralysis in what was described as a “savage attack”, has failed in appeal against his nine-year sentence.
The new Court of Appeal today dismissed an appeal brought by Liam McCarthy (30), who was serving a suspended sentence for another assault when he struck Martin Butler (51) in the head with a sword following a row outside a pub.
There was evidence that McCarthy struck Mr Butler from behind with the sword, hitting him on the left side of his the head and causing a “penetrating injury” to the brain. The victim suffered an “extremely serious injury” and underwent surgery at Cork University Hospital.
The court heard Mr Butler suffered very significant and permanent injuries, including difficulties in communicating, impairment, paralysis in his right arm and the inability to walk without using an aid.
In October last year McCarthy was jailed for nine years by Judge Pauline Codd at Clonmel Circuit Criminal Court, after pleading guilty to assault causing serious harm to Mr Butler, in Cappawhite, Co. Tipperary, on March 30, 2012.
McCarthy, with a last address in the Tipperary town, also pleaded guilty to counts of producing an offensive weapon and violent disorder on the same date.
Counsel for McCarthy, Mr Aidan Doyle SC, today submitted that Judge Codd erred in principle in failing to recognise or acknowledge adequately that there was an element of provocation and self defence - albeit “grossly excessive” self defence - in the case.
However, Mr Doyle said it was accepted by the applicant that this was a “ferocious, very serious and awful assault” with “gruesome consequences”.
He said there was uncontroverted evidence that McCarthy himself suffered “very significant” injuries in the initial row, and it was submitted that the judge did not take full account of these or appreciate the situation the defendant found himself in.
Counsel said that a group of men had fought with a group of three men, which included McCarthy, and arising out of that McCarthy lost consciousness and suffered injuries to his lip, hip, head and nose.
McCarthy told gardai that after he regained consciousness he went in to a “blind rage”, left the scene, went to a house 50 metres away and armed himself with a sword before returning to the scene.
Mr Doyle said the sentencing judge did refer to McCarthy having suffered a “bloody nose”, but did not have adequate regard to the circumstances McCarthy found himself in and the level of provocation.
He submitted that Judge Codd also failed to give adequate regard to the other mitigating factors in the case, in particular how McCarthy returned to the scene and presented himself to gardai, and followed this up with immediate and repeated expressions of remorse.
Counsel for the State, Mr David Humphries SC, said the court could consider the fact that McCarthy had an existing suspended sentence for assault and was under the terms of that suspension when he committed this offence.
He submitted that a reduction in the appropriate sentence had in fact been given and that there was “absolutely no comparison” with the injuries sustained by McCarthy and the “catastrophic” injuries sustained by the victim.
Mr Humphries said that what McCarthy did was “so utterly out of proportion” that it could never be regarded as self defence.
Returning judgement, Mr Justice Alan Mahon said that the trial judge had considered that an appropriate sentence, had the charge been contested, would have been one of 14 years, which was not unreasonable.
Mr Justice Mahon said that in the course of the incident the assailant suffered superficial injuries, but nothing that could justify the act of leaving the brawl, consciously arming himself with a sword and then returning to attack the victim.
He said these facts almost excluded any argument of provocation, given the time lapse between leaving the scene and returning to inflict serious injury. The judge said that if there was provocation, the response to this was “wholly inappropriate and unjustified”.
Mr Justice Mahon said the sentencing judge had properly placed the offence at the higher end of the scale for cases of assault causing serious harm.
He said in the view of the court the trial judge fairly and reasonably took in to account the mitigating factors when reducing the sentence to one of nine years, for what was an “undeniably savage and violent” attack.
Mr Justice Mahon said the court found the sentence imposed was an appropriate one. Furthermore, Mr Justice Mahon said, the earlier imposition of a suspended sentence for assault “clearly did not work as a deterrent”.
He said the appeal would therefore be dismissed.