Man who bit off part of other man's ear in assault outside Waterford nightclub avoids jail again

The fully suspended sentence handed down to a man who bit part of another man’s ear off during a “vicious, brutal and nasty” fight outside of a Waterford nightclub has been upheld by the Court of Appeal.

The court was told that the defendant Paul Dundon (39) had nine previous convictions at the time and received another fully suspended sentence for an incident that occurred “a number of days” after the fight at the club.

Last December at Waterford Circuit Criminal Court, Dundon was handed a suspended sentence of three years and three months by Judge Eugene O’Kelly for the assault.

Dundon pleaded guilty to assault causing harm to Dean Kelly at the nightclub on John’s Street, Waterford City, in the early hours of June 27, 2018.

Judge O’Kelly identified a headline sentence of four years’ imprisonment before discounting nine months of the sentence in mitigation before suspending the entirety of the remaining sentence.

The court heard that an altercation occurred in the bathroom of the club in which Dundon intervened. Dundon and Mr Kelly were escorted by security staff to an outside alley used as a smoking section before the two men began fighting.

Dundon, of Briot Walk, Templar's Hall, Waterford, pleaded guilty to assault causing harm to Dean Kelly at the nightclub on John’s Street, Waterford City, in the early hours of June 27, 2018.

CCTV played to the three-judge court today (MONDAY) showed Dundon and the man being escorted away from the bathroom area by security staff before they began fighting which continued down the alley and into an area not covered by CCTV.

The Director of Public Prosecution appealed for a sentence review due to what they claimed was undue leniency, submitting that the trial judge erred in fully suspending the sentence.

Conor O’Doherty BL, for the DPP, submitted that “the learned trial judge erred in principle in attaching undue weight to the question of rehabilitation and the personal circumstances of the respondent which did not warrant the suspension in the entirety of the sentence imposed.”

Mr O’Doherty said the assault was a “nasty and vicious” one that resulted in Mr Kelly sustaining “permanent injury or disfigurement” to his right ear.

Mr O’Doherty said Dundon had entered a “very late” guilty plea on the morning of his trial and that the respondent gave a “no comment” interview to gardaí.

Counsel said Dundon had nine previous convictions for public order and criminal damage offences and had received a four-month fully suspended sentence for an incident that occurred “a number of days” after the fight at the club.

Mr O’Doherty said there had to be a “serious general and specific deterrent element to the sentence, given the vicious nature of the assault”. Counsel said that “permanent disfigurement meant that the custody threshold had been reached” for a “very nasty, appalling and vicious assault”.

“Nothing about the case warranted a wholly suspended sentence,” said Mr O’Doherty.

Aidan Doyle SC, for Dundon, said his client had shown remorse, written a letter of apology, had testimonials in his favour, was a father of two and had a good work history.

Mr Doyle said a probation report concluded that Dundon was of low risk of reoffending, that his client had entered a “valuable” guilty plea and had attended counselling.

Mr Doyle said the sentencing judge balanced the mitigation and rehabilitation factors present in the case and had been “impressed” by them. Counsel said that the sentencing judge had correctly considered Dundon’s positive personal circumstances in the intervening five-and-a-half years after the incident.

Mr Doyle said the sentencing judge “did not see any value in imposing a custodial sentence”. “The sentence could be viewed as lenient but not as unduly lenient,” said Mr Doyle.

In dismissing the appeal, Ms Justice Úna Ní Raifeartaigh said the trial judge did not make an error in principle in wholly suspending the sentence.

Ms Justice Ní Raifeartaigh said that while the sentence was a lenient one and not one the Court of Appeal would impose it was not unduly lenient and that the late guilty plea was of value for the sentencing judge.

Ms Justice Ní Raifeartaigh said there had been a “brutal and nasty” aspect to the assault but that the judge balanced the mitigation and personal factors present in the case against those aspects.

Ms Justice Ní Raifeartaigh said it was a “finely-balanced” decision for the sentencing judge to make and that Dundon did not have a record of similar offending.

“Taking all circumstances in the case the trial judge did not overstep the mark in choosing to suspend all of the sentence,” said Ms Justice Ní Raifeartaigh, who then dismissed the appeal.