Stephen Duffy (28) of Homelawn Road, Tallaght, had pleaded guilty at Dublin Circuit Criminal Court to assault causing serious harm to Darren Darley (50) after the two men crossed paths for the first time at Belgard Road, Tallaght on August 29, 2016.
Although Judge Melanie Greally said Mr Darley had been “fortunate to escape with his life” following the assault, she handed down a wholly suspended sentence of four years to his attacker at a hearing last July.
The Director of Public Prosecutions (DPP) later appealed the sentence on the grounds that Judge Greally had erred by not imposing a custodial term and the penalty she handed down was unduly lenient.
Following an appeal hearing yesterday, Mr Justice George Birmingham, presiding, sitting with Mr Justice Patrick McCarthy and Ms Justice Aileen Donnelly, said he hoped the court would be in a position to deliver judgement today.
However, the court has decided to reserve judgment for a second time after text messages from the injured party to Duffy, which appeared to indicate Mr Darley does not want his attacker jailed, were read to the court by defence counsel Giollaiosa Ó Lideadha SC.
In one message, Mr Darely told his attacker that he was “happy to forgive” him and wanted to give him “closure”.
“Stephen I accept your apology,” Mr Darley wrote in the text. “I had hoped a custodial term would not be handed down as I know my injuries were not intentional. It was probably a moment of madness. We all make mistakes with drink in us.”
He then tells his attacker, who became a father after the assault, that he should “build a good future and make your kid proud”.
“I genuinely wish you and your family a good future,” he continued, adding that he held no “ill feeling” towards his attacker.
On hearing the content of the messages, Mr Justice Birmingham described Mr Darley’s attitude towards his attacker as “extraordinarily charitable”.
However, the judge added that he wasn’t sure if it would be a relevant factor in determining whether or not the appellate court should resentence the respondent.
“It is for the court to identify and impose the appropriate sentence,” he said.
Mr Justice Birmingham also noted there had been instances when a court had taken into account the views of the victims when sentencing, such as “the situation where a dangerous driver caused a death, where the deceased was the best friend of the accused and the family of the deceased might say their loss would be increased by the imposition of a custodial sentence”.
Mr O Lideadha told the court the messages had highlighted a “truly exceptional set of circumstances” and it would be “unfair” to impose a custodial penalty on his client at this point in proceedings.
Mr Garnet Orange SC, for the DPP, said he had been “very much taken by surprise by the contents of the text messages”.
“The information that was conveyed to the court by Mr O Lideadha, and supported by the text messages that he read out is very definitely at odds with the position taken by the injured party at consultation,” Mr Orange explained.
Counsel added that the DPP did not object “to this information being put before the court”.
“But my instructions were also that these [messages] would not have any bearing on the decision the court must make in this appeal,” he added.
Reserving judgement for a second time, Mr Justice Birmingham explained that “in the light of the debate that has taken place, we should give ourselves a little more time”.
During yesterday’s appeal hearing, Mr Orange told the court that a “single blow struck between strangers” could often have “devastating consequences for the parties concerned”.
In this case, which he said was a “classic one-strike assault case”, the immediate impact on the victim had been an extended stay in hospital where he had been treated for a “traumatic brain injury”.
In the longer term, he said Mr Darley has had to close his recruitment business after he began to suffer from “deficits” in his memory.
Mr Orange also said the fact that Duffy returned to the scene to put his victim into the recovery position was not a significant mitigating factor given that the defendant then fled for a second time almost immediately and was only later traced by gardaí as a result of “unusual clothing” he was wearing that night.
He said the DPP had no objection to the headline sentence of six-and-a-half years which Judge Greally had identified, or the post-mitigation term of four years, both of which were appropriate terms for the offence.
However, counsel said she had erred by failing to impose a custodial term on Duffy “in a manner that was consistent with sentences imposed in other cases”.
In response, Mr Ó Lideadha SC said that Judge Greally had given a “comprehensive and careful explanation as to why the sentence should have been wholly suspended”.
He said there had been no element of “prior planning” or “sustained violence” to the assault and the single blow was struck after a brief verbal exchange between the men took place.
Mr Ó Lideadha said his client was “extremely remorseful” for his actions, was no longer abusing alcohol, and was trying his best to make a positive contribution to society “as a human being, a worker, a father, and a partner”.
CCTV footage shown to Judge Greally had displayed “a distinctively dressed person” later identified as Duffy approach Mr Darley.
Duffy is then seen striking Mr Darley, who falls to the ground.
Detective Garda Cian Stears told Fergal Foley BL, prosecuting, that Mr Darley sustained a bleed on his brain, was in a coma for a period of time, and had required life-saving surgery.
When Mr Darley awoke from his coma he had no memory of the incident, the garda said.
The court was also told the victim agreed to accept €5,000 from Duffy.
Judge Greally said she had suspended the entirety of the four-year sentence on strict conditions including that Duffy pay an additional €10,000 to the victim within a two-year period.