A judge who sentenced a Meath man to two and a half years in prison for assaulting his girlfriend did not inquire into an allegation that the man locked the woman in a dog cage, his lawyers claimed at the Court of Appeal on Friday.
The submission was made by a lawyer for Andrew Smith (24), who appeared at the court to appeal the severity of his sentence.
In June last year, at Trim Circuit Court, Smith, of Dean Hill, Hayes, Navan, Co Meath pleaded guilty to assaulting Chloe Cherry on October 27th, 2013 at Balsaw, Wilkinstown in Navan.
He was sentenced to two and a half years in prison, with the final six months suspended, by Judge Michael O’Shea.
During the appeal hearing, Patrick McCullough BL, for Smith, said the allegation that his client locked his then girlfriend in a dog cage was a “disputed fact” which Smith denied but that the judge treated as an “aggravating factor” when sentencing the man.
He added that it was incumbent on the judge to make some enquiries about the allegation and that a court should “make some effort to resolve in so far as possible this factual dispute”.
“This wasn’t done in this case,” Mr McCullough said.
Rehabilitation
Another ground for appeal was that the trial judge failed to give adequate consideration to rehabilitation, Mr McCullough said, adding that, for his client, rehabilitation was “a very strong prospect”.
The lawyer further stated that the judge failed to give significant weight to mitigating factors, including Smith’s lack of previous convictions, his early guilty plea, his remorse, and that he offered compensation to the victim.
Orla Crowe BL, for the State, said that the allegation that Smith locked Ms Cherry in a dog cage was an “egregious part of the evidence” but it was on the defence to “raise the flag”.
“It was for the appellant to say we’re asking the court to not have regard to the cage. Certainly at that point the flags could have been raised very clearly,” she said.
Describing the assault as “very serious”, Ms Crowe told the court that Smith bit Ms Cherry’s leg before the woman ran to the car but Smith dragged her back into their home, where he pushed her and she fell to the floor.
Ms Cherry locked herself into the bathroom but came out after Smith kicked the door and pleaded with her.
She took out her phone but he took it from her, the court heard.
Ms Crowe said that the Smith and Ms Cherry’s first child was four months old at the time of the assault and that night was their first out together since the birth of the child.
The judge was entitled to conclude this was an assault at the higher end of the scale, Ms Crowe said.
Mr Justice Garrett Sheehan, presiding with Mr Justice Alan Mahon and Mr Justice John Edwards, reserved judgement in the case until July 5th.