Man who stamped on his victim’s head when killing him appeals length of sentence

A killer who was told to welcome a jury's manslaughter verdict "like a drowning man clinging to a life-raft" after he stamped another man to death in his own home has argued that his jail sentence was too severe.

Last December, Garret Smith (35) was sentenced to 13 and a half years imprisonment at the Central Criminal Court after a jury found him guilty of the manslaughter of Edward ‘Liam’ O’Sullivan in Kilkenny in 2020.

The court heard that such were Mr O'Sullivan's injuries, his family only recognised him by his tattoo and a closed coffin was needed for his funeral.

Trial judge Mr Justice Tony Hunt said the jury in the trial had been "charitable and merciful" in finding Smith not guilty of murder but guilty of manslaughter on the basis that he was too intoxicated to have intended to kill the deceased. 

Smith had pleaded not  guilty to the murder of Mr O’Sullivan.

The trial judge noted that Smith had said he "accepted" the jury verdict but added: "He should welcome it like a drowning man clinging to a life raft. How he could expect anything less than that, if he did expect such an outcome, is not perceived by me on the basis of the facts."

Smith of St John’s Park, Waterford, denied the murder of Mr O’Sullivan in Mr O’Sullivan’s apartment in Kilkenny. In addition to the manslaughter verdict, he was also found guilty of violent disorder, at High Hayes Terrace, Kilkenny, in the early hours of February 6, 2020.

At the Court of Appeal, Tony McGillicuddy SC, for Smith, submitted that the trial judge erred in placing the offence in the highest category for sentencing when identifying 16 years’ imprisonment as a pre-mitigation headline sentence.

Mr McGillicuddy said the trial judge erred in his assessment of the “gravity” of the offending and that while a homicide had been committed, it had been an error to place the offence in the “worst category”.

The barrister said the trial judge erred in his approach to the violence used in the killing and that he treated Smith’s foot “as if it itself was a weapon” when there was no weapon, such as a knife, used in the killing.

Court of Appeal judge Mr Justice John Edwards said the trial judge had placed the offence in the “low end of the worst category” and did not treat the killing as belonging in the “most egregious” category of manslaughter cases where a life sentence could be considered.

Mr McGillicuddy said Smith’s offending did not merit being in the worst category when all the circumstances around it were considered.

Counsel submitted that the trial judge considered that the appellant had received any concession he was due from the jury when they found Smith not guilty of murder but guilty of manslaughter and that this became “infused” in how the trial judge approached sentencing his client.

Mr McGillicuddy said there had been a “lack of premeditation” on his client’s behalf and that an offer of a plea to manslaughter had been rejected by the State.

Mr Justice Edwards said Smith had shown a “lack of premeditation to kill” but that there was still “mens rea” – criminal intent - carried out by the appellant in committing “an absolutely egregious assault causing manslaughter that left the imprint of his boot on the man’s head”.

Court of Appeal president Mr Justice George Birmingham said Smith was, on the night of the killing, “all over the place” and that the trial judge remarked that Smith had benefited from the jury who concluded that the appellant was so intoxicated he could not have formed the intention to commit murder.

Mr McGillicuddy said his client had consumed alcohol on the night and had been assaulted himself before the incident in the house. Counsel said Smith had not “pre-planned” the fight and had not brought any weapon to the scene.

Counsel said the trial judge “ought to have acknowledged that there was a mixed set of circumstances in which he [Smith] had violence inflicted on him” and that the trial judge should have “considered the countervailing circumstances of the night”.

The trial heard that Smith was struck in the head with a frying pan and also had a sweeping brush broken over his head during the violent disorder.

Mr McGillicuddy said the trial judge treated the violent disorder as an “aggravating factor” and that his client was “categorised as an aggressor only, when it deserved a wider assessment”.

Counsel said Smith only received a 15% discount after mitigation when being sentenced to 14.5 years’ imprisonment with the final year suspended.

Mr McGillicuddy said Smith was a good parent and partner who had a pro-social and pro-work record and outlook but the trial judge gave “almost no recognition to those facts”.

Anne Marie Lawlor SC, for the State, said the “brass tacks” of the matter was that Smith had committed a “brutal manslaughter” that was “savage and barbaric in nature”.

“What he’s [Smith] complaining about is that this is not the most serious kind of manslaughter when the court is obligated to look at the heinous kind of the violence inflicted that included stamping on a man’s head when bringing an end to his life,” said Ms Lawlor.

Ms Lawlor added that the deceased’s family were present in the court.

Ms Lawlor said the headline sentence of 16 years was “fair in all circumstances” and that when Smith was jailed for 13.5 years, he received a “significant” reduction when the sentencing court was not dealing with a guilty plea.

Ms Lawlor said there had been no error in principle made by the trial judge and that it was up to the appellant to point to an error in the sentence, which he had not done.

Mr Justice Birmingham said the court would reserve its judgement in the matter.

Sentencing

Before passing sentence, Mr Justice Hunt said that Smith and others had been drinking for about 18 hours and Smith was probably abusing prescription medication. He was seen on CCTV at about 3am with Mr O'Sullivan at a Circle K garage where Smith was "repeatedly and visibly stumbling around the garage forecourt".

The trial court heard that Smith went to Mr O'Sullivan's apartment where there were several visitors engaging in "noisy socialising and drinking," the judge said. There was a violent outbreak which prompted Mr O'Sullivan to produce a knife and tell everyone to leave. He put the knife down but a "violent disorder flared up again" on the street with Smith again involved. Smith then re-entered the apartment and inflicted the fatal injuries on his victim.

Rebecca Walsh told the trial that she saw Smith stamping repeatedly on Mr O'Sullivan's head and face and punching him. She said his face was badly swollen and bleeding and he was making a gurgling sound. 

Ms Walsh said she heard Smith say: “You’re a big man now without your friends.” She said she tried to intervene, but Smith threatened her that the same thing would happen to her.  

At a sentencing hearing in November the court heard that Mr O'Sullivan had his head stamped to such an extent that his injuries were akin to a traffic accident.  

State pathologist, Dr Heidi Okkers told the trial that Mr O’Sullivan suffered damage to his abdomen, broken ribs, and multiple bone injuries including damage to the skull, nose, and jawbone. He suffered internal bleeding and asphyxiation, as well as a traumatic brain injury. Dr Okkers described the brain injury as being akin to a road traffic accident. She said that any of the injuries could have been fatal. 

Smith had eight previous convictions, including one for assault back in 2009.