The State has failed in a bid to increase the jail sentence handed down to a taekwondo fighter who once represented Ireland for striking another man with a "savage" punch in a pub toilet, causing life-threatening injuries.
Jason Owens (34), of Oak Grove, Royal Oak, Santry, Dublin 9, pleaded guilty last June at Dublin Circuit Criminal Court to assaulting Conor Kelly, causing him serious harm, at the Cock & Bull pub in Coolock on New Year’s Day 2020.
Judge Martin Nolan sentenced Owens to three-and-a-half years with the final 12 months suspended on strict conditions, which the State appealed as being too lenient.
At the Court of Appeal last month, Maddie Grant BL, for the State, said the sentencing judge had identified a pre-mitigation headline sentence of seven years before sentencing Owens to two-and-a-half years’ imprisonment.
Ms Grant said that while it was submitted the headline sentence of seven years was “too low”, the core of the State’s submissions was that the deduction for mitigating factors made it “unduly lenient”.
Counsel had submitted that Owens’ guilty plea had been “a very late one" entered on the morning of the trial, which had been fixed for June 20, 2023. The lateness of the plea meant the injured party and his family had court proceedings "hanging over them for three-and-a-half years," said counsel.
Ms Grant said the State had accepted that a guilty plea was present in the case and that Owens had no previous convictions but were still submitting that the “global reduction of over fifty per cent was simply unduly lenient in all circumstances”.
At the Court of Appeal on Tuesday, Ms Justice Úna Ní Raifeartaigh said the trial judge was within his range of discretion to select seven years' imprisonment as a pre-mitigation headline sentence located in the middle range of punishments for a serious assault.
Ms Justice Ní Raifeartaigh said that the primary mitigating factors offered in the case were the respondent's previously blameless life and that "this was entirely out of character and unlikely to be repeated".
The judge said Owens had submitted that a traumatic history had triggered him on the night in question, though no blame could be attributed to the injured party for this.
Ms Justice Ní Raifeartaigh noted that a late plea of guilty, an apology and an offer of compensation had also been taken into account by the trial judge.
"We have carefully considered the final sentence arrived at by the trial judge and the deduction for mitigation and have reached the conclusion that this did not amount to an unduly lenient sentence in all of the circumstances," said Ms Justice Ní Raifeartaigh in dismissing the application for sentence review.
"What is unusual in this case is that the offender behaved in a manner that was completely out of character and by reason of a prior traumatic experience that triggered him to react in a violent way towards the unfortunate victim," she said.
Ms Justice Ní Raifeartaigh said a two-and-a-half year sentence was "a significant sentence for a first-time offender, even though the unfortunate victim has already gone through much suffering and will undoubtedly go through more".
Ms Justice Ní Raifeartaigh said the sentencing judge sought to strike a balance between the harm done and the need to sentence the offender in light of his own particular circumstances.
"We cannot say that he made any error of principle or that he strayed outside the parameters of his range of discretion," she said.
"Undoubtedly this will provide cold comfort to the victim as he continues to suffer the ongoing effects of this dreadful incident, but the sentencing exercise is about striking a balance and rarely strikes one which is palatable to all sides," said Ms Justice Ní Raifeartaigh, who then dismissed the appeal.
Appeal hearing
At the appeal hearing, Court of Appeal president Mr Justice George Birmingham said there had been “significant mitigation” available to Owens even though the assault caused “appalling harm” to Mr Kelly.
Mr Justice Birmingham said the assault had not been premeditated, did not involve others and did not involve a weapon. However, he noted that Owens had also “very unpleasantly” kicked an unconscious Mr Kelly after the injured part hit the ground.
James McGowan SC, for Owens, submitted that the headline sentence had been correctly fixed by the trial judge.
“Fortunately, the injuries were not as serious as they might have been in this case,” said Mr McGowan.
“This isn’t just someone who was jostled,” said Mr Justice Birmingham, “it’s a martial arts expert who engage in a martial arts manoeuvre".
Mr McGowan said the placing of the offence in the mid-range “might be seen as lenient but it's not unduly lenient”.
“There was very good mitigation,” said Mr McGowan, who said his client had apologised to the injured party, was active in helping his family, that the attack had been out of character and that a psychological issue had held up the entering of the guilty plea.
Mr McGowan said that €10,000 had been paid over by Owens, who had no previous convictions, to Mr Kelly, who then had it donated to Acquired Brain Injury Ireland.
Detective Garda Keith Cassidy played CCTV of the incident to the three-judge court. In the footage, Owens can be seen in the toilet of the pub with the injured party and a toilet attendant.
Owens talks with the injured party for several minutes and the two hug before Owens later in the conversation elbow-punches the injured party and then kicks him while on the ground before leaving the bathroom.
Sentence hearing
The sentencing court heard that the injured party was on a night out with friends when he encountered Owens in the toilets of the pub. Both men had never met each other before.
A witness told gardaí that the men engaged in friendly conversation while washing their hands.
While the men continued to chat, Mr Kelly leaned over to whisper something to Owens, who pushed and hit him once with his elbow.
Mr Kelly fell to the ground and was then kicked once in the head by Owens before he left. Other bystanders came to the assistance of Mr Kelly, who was unresponsive and had a large gash on his head, the court heard.
Mr Kelly was taken by ambulance to Beaumont Hospital where a CT scan showed he had sustained haemorrhaging to his brain and a fracture. He required immediate surgery and spent a total of 18 days in the intensive care and high-dependency units of the hospital.
Mr Kelly underwent four surgeries before he was released from hospital in February 2020. He also received follow-up care from the National Rehabilitation Hospital. A medical report was read to the court that said Mr Kelly had sustained a “severe, life-threatening injury”.
Reading his victim impact statement, Mr Kelly said he remains unsure as to why he was assaulted that night. He said the effects of that night will never go away for him and that he will “never feel safe again”.
Mr Kelly said he sustained a traumatic brain injury and is living with ongoing side effects of this condition.
Kelly said he has suffered a “severe identity crisis” since the attack. He said that he left home as himself, someone he would "never see again” and that there are now times when he does not recognise himself.
He is unable to play sports such as football and GAA and had to defer his apprenticeship to take time to recover, the court heard.
Owens had represented Ireland internationally in taekwondo and a letter from an instructor was also given to the court.
Mr McGowan said a psychological assessment placed Owens at low risk of re-offending. Counsel had submitted to the court that his client had acted “out of character” and that this was a “one-punch attack”, despite the subsequent kick.
Judge Nolan told Owens if he had intentionally caused these injuries, he would have been going to prison for a longer period.
“I take the view that you did not intend to injure him and it was a reckless act. The court thinks you intended to punch him, and is satisfied that you did not intend to injure him in the way he was injured. But your actions caused it," said Judge Nolan.
Judge Nolan said Owens “undoubtedly deserves” a custodial sentence “due to his reckless behaviour on the night”.
“When you punch someone with such savagery, serious injury is always possible," said the judge.
