Appeal court rules jail 'absolutely unavoidable' for man who kicked woman in head with steel toe shoes
A businessman who viciously assaulted a woman and kicked her in the head with steel toe shoes has lost an appeal against the severity of his prison sentence in which he represented himself.
Dublin man Joseph Fraser (aged 43), of Mount Eagle Drive, in Leopardstown, pleaded guilty to assault causing harm to the woman at Foxborough Downs, in Lucan, on September 19, 2017. He had two previous convictions for drunk driving.
Dublin Circuit Criminal Court heard that Fraser had been dating the woman for a few months when he drove to her home drunk.
The injured party hid his car keys to prevent him from driving again, which angered Fraser and he began punching her in the ribs, face and head. At one stage, he broke a wooden spoon over her head.
He attacked her in the hallway, kitchen and back garden. The injured party tried to lock herself into a dog cage in the garden to escape the assault, but Fraser dragged her back into the house by her hair, rammed her face off sliding doors and kicked her in the head with steel toe shoes.
The businessman, who at one stage owned the Fraser Oil company, was sentenced to four years' imprisonment with the final 18 months suspended by Judge Melanie Greally on November 27, 2018, which was upheld by the Court of Appeal today.
Fraser sacked his lawyers some weeks ago and proceeded to make oral arguments to the three-judge court himself.
He told the court that he took responsibility for his actions on the day and that he had been dealing with his issues by, for example, attending AA meetings.
He submitted that the sentencing judge rushed to judgment and sent him to prison without considering a non-custodial sentence. He said he was sentenced for having broken the victim’s eye socket, when it was just “badly bruised”.
Counsel for the Director of Public Prosecutions, Ronan Kennedy SC, provided photos to the court which showed, he said, the victim’s significant injuries as well as extensive damage to the interior of her home.
Dismissing Fraser’s appeal today, Ms Justice Isobel Kennedy said the circumstances of the case were “so extreme” that a custodial sentence was “absolutely unavoidable”.
Ms Justice Kennedy said it was initially suspected that the injured party had suffered a broken eye socket and it was “absolutely factually correct” for the judge to have made that observation.
Fraser further submitted, she said, that the sentencing judge would have benefited from hearing DNA evidence, which seemed to concern swabs taken from his steel toe boots.
She said Fraser had not sought additional evidence to be heard at sentencing, in what is known as a 'Newton Hearing’, out of concern for the injured party, and it could not be raised now on appeal. She said Newton Hearings can serve to lessen the value of a guilty plea and expressions of remorse.
Ms Justice Kennedy said Fraser also submitted that the sentencing judge failed to take adequate account of the mitigating factors. However, even if the judge did not specifically refer to certain aspects in mitigation, she suspended the final 18 months to take account of the mitigating factors and to incentivise rehabilitation.
Fraser also made arguments in relation to temporary release which, Ms Justice Kennedy said, was a matter for the executive and not the courts.
Ms Justice Kennedy, who sat with Mr Justice Patrick McCarthy and Ms Justice Úna Ní Raifeartaigh, dismissed the appeal.
Wearing jeans and a grey jumper, Fraser made no reaction when the appeal was dismissed.
