An application by the State to jail a man for assaulting his baby daughter has been rejected by the Court of Appeal.
The man was given a six-month prison sentence for assaulting his partner in a separate incident.
In passing sentence, Judge Martin Nolan had said he was “taking into consideration” the attack on the child when jailing the man at a hearing at Dublin Circuit Criminal Court last March.
The Director of Public Prosecutions (DPP) later appealed this decision on the grounds it was unduly lenient.
In the first attack, the man’s partner was holding their four-month-old daughter when he repeatedly punched her before pushing her against a wall at the woman’s home on September 18, 2019.
The baby’s head against hit the wall during the assault and she began vomiting shortly afterwards.
The child was still vomiting when gardai arrived at the scene in Skerries, north Dublin.
The second attack took place on June 12, 2020, when the man and woman were in his home in Rush, north Dublin and began arguing over who would go to the shop to get milk for the baby.
The man later pleaded guilty to a Section 2 assault contrary to the Non-Fatal Offence Against the Person Act in relation to the second incident, and guilty to a Section 3 assault contrary to the same Act in relation to the first incident.
At the Court of Appeal, Ger Small BL, for the DPP, said there was no “prosecutorial complaint” regarding the Section 2 assault.
She asked the court to focus on the ‘first matter”, adding the sentencing was “unduly lenient and out of kilter”.
“This was a four-month-old infant in the arms of her mother,” Ms Small said.
Judge Nolan, counsel continued, had erred by confining the defendant’s culpability to a six-month summary matter.
“The Section 3 offence was a far more egregious offence,” she explained,
James Dwyer SC, for the respondent, said judges must be allowed to use their discretion when sentencing.
Mr Dwyer also argued that an order by the judge to take a matter “into consideration” was not a conviction.
Dismissing the appeal, Ms Justice Aileen Donnelly, sitting with Mr Justice George Birmingham, presiding, and Mr Justice Patrick McCarthy, said the court was satisfied that the defendant had been convicted of the Section 3 assault “as a result of his plea of guilty”.
Although Ms Justice Donnelly acknowledged the assault against the child had been the more serious offence, she said the court could find no “practical consequence” in resentencing and was refusing the DPP’s application.
Mr Dwyer said his client’s mother died in tragic circumstances when he was young and that he started taking drugs in his late teens.
He said his client’s family have a pub in the midlands and that there is an offer of work there for his client.
Judge Martin Nolan said he was satisfied that the man never intended to harm the child but that he behaved with recklessness in relation to her.
He said that his actions were nonetheless “pretty inexcusable”.