A violent boyfriend who was convicted of assault after biting his pregnant partner in the face during a campaign of domestic violence has had his headline sentence increased but will not face any extra jail time.
Dylan Fogarty (27), formerly of Moorefield Drive, Clondalkin, Dublin, had pleaded guilty at Dublin Circuit Criminal Court to assaulting his then partner at his home on a date in April 2019.
He also admitted criminal damage of a plasterboard wall at the woman’s home in June 2019, and harassing her at various locations on dates between April and November 2019.
At the same hearing in November 2020, Fogarty, who is now a prisoner at Wheatfield Prison, pleaded guilty to assault causing harm to a man he had never met before at Dame Street, Dublin on October 15th, 2017.
Sentencing Fogarty to three years’ imprisonment for both assaults, Judge Martin Nolan described the second attack – which also involved biting and left the victim requiring surgery under general anaesthetic – as “an act of savagery”.
High enough sentence
On Friday at the Court of Appeal, Mr Justice Patrick McCarthy, sitting with Court President Mr Justice George Birmingham and Mr Justice Brian Murray, said the trial judge had erred by not setting a high enough headline sentence.
Quashing the original sentence, Mr Justice McCarthy handed down a term of four years and six months, with the last 18 months suspended upon the respondent agreeing to enter a bond to keep the peace and remain drug free.
Earlier, the Director of Public Prosecutions (DPP) told the court three years had been too lenient a term for the offences and that closer to five years would have been more appropriate.
Grainne O’Neill BL, for the DPP, said the trial judge had failed to give sufficient weight to aggravating factors, while placing too much emphasis on mitigation.
After playing a tape of a phone call to the court in which Fogarty can be heard shouting to his then partner, “I will kill ye, I will f***ing kill ye”, Ms O’Neill said: “This is one of those instances where the headline sentence should have been at or very close to five years.”
'Toxic relationship'
She said that between April 2019 and November 2019, Fogarty had been involved in a “toxic relationship” with his former partner and they frequently rowed over money.
The respondent, counsel said, had been violent towards the woman during that time, and had been a controlling influence over her and had tried to isolate her from friends and family.
One on occasion, when she was pregnant with Fogarty’s child, the respondent threw an object which hit her in the stomach before pinning her against a wall.
Although Ms O’Neill acknowledged that Fogarty had admitted the offences, she said the value of an early guilty plea must be placed in context against the evidence, which she said had been “strong” and included testimony from independent witnesses and CCTV footage.
In relation to Fogarty’s expression of remorse, Ms O’Neill noted that “in both cases there was an insinuation” that the victims had in some way contributed towards the respondent’s offending.
She said any apology “tempered by the way the injured party is characterised” was reduced in value.
In response, Emmet Nolan BL, for Fogarty, told the court that although his client had been convicted of very serious offences, it not a case there had been “an error in principle in the sentence”.
He said the term imposed by Judge Nolan had offered his client “some light at the end of the tunnel” for rehabilitation.
Fogarty, counsel said, had struggled with drug addiction since he was 14 but was trying to address these issues via counselling.
Mr Nolan said the deprivation of liberty for three years for a man of his client’s age was a “severe penalty”, adding: “We no longer lock people up and throw away the key.”
Previous evidence
Judge Martin Nolan said in the first offence Fogarty seemed to have over-reacted “to put it mildly” while intoxicated after “some small altercation” with the victim by biting and beating him.
He said in the second set of offences he had assaulted, harassed and terrorised his ex-partner.
The judge said Fogarty appeared to have great difficulty with anger control when drinking or taking drugs.
Judge Nolan imposed concurrent sentences totalling three years in relation to all the offences. He also ordered Fogarty not to have contact with his former partner for a period of ten years.
