Suspended jail term for kicking man in the head on the ground

Incident captured on CCTV

Clonmel Courthouse

Clonmel Courthouse where the Circuit Court is currently sitting.

A 24 year-old man received a five months suspended jail sentence at Clonmel Circuit Court last week for kicking another man in the head while he lay on the ground during a late night incident in Clonmel.

Judge Tom Teehan handed down the sentence to Derek Madigan of 22 Shanavine Way, Clonmel, who pleaded guilty to assaulting 35 year-old Thomas Fitzgerald from Hawthorn Crescent, Carrick-on-Suir at Anglesea St., Clonmel on February 1, 2015.

Gda. Sgt. Kieran O'Regan told the court that at 8.25pm on this date Gdas. Michael Cullinane and Jennifer O' Brien responded to a report of a man lying on a footpath at Anglesea Street. They found him on the ground. There was a large wound above his eye that was bleeding and there was a pool of blood next to him. Mr Fitzgerald was taken by ambulance to South Tipperary General Hospital for treatment.

On April 3, Mr Fitzgerald made a statement to gardai outlining that he had no recollection of the incident and how he sustained the injuries he suffered.

Sgt. O'Regan outlined that Gda. Cullinane found high quality CCTV footage of the incident from a business in the Parnell Street/Anglesea Street area. The footage showed a black Audi parked at Anglesea Street.

Two men got out of the vehicle and walked towards Parnell St and then returned from Parnell St. with takeaway food and walked back towards the car.

Thomas Fitzgerald walked a short distance behind them and also appears to have a takeaway. He is talking to the other two men as they walk ahead of him.

One of the men places their food in the boot of the car. The footage then shows Mr Fitzgerald approach the driver at the rear of the vehicle and there appears to be a confrontation.

Mr Fitzgerald stands closer and closer to the driver until he suddenly pushes Mr Fitzgerald back approximately five feet.

Mr Fitzgerald stumbles backwards but remains on his feet. He then hits Fitzgerald and knocks him to the ground and stamps on the back of his head three times.

The passenger of the black car didn't get involved in the assault.

Fitzgerald was face down in the footpath and the footage shows him trying to get back up but falling back onto his knees. It also shows Fitzgerald stumbling onto the road stopping oncoming traffic and then sitting down on the kerb before the gardai arrive.

Gda. Cullinane believed both parties crossed paths in the Parnell Grill but there was no CCTV footage working in the takeway restaurant that night.

Gda. Cullinane circulated the CCTV footage of the incident at Clonmel Garda Station and Det. Gda. Graham Deegan immediately recognised the man who assaulted Fitzgerald as Derek Madigan.

A search warrant was executed on his home and a tracksuit and runners very similar to those worn by the assault suspect in the CCTV footage were found.

On February 27, 2015 Madigan, accompanied by his father, went to Clonmel Garda Station and he was arrested. While he was being interviewed by gardai, he either remained silent or made no comment in response to questions. Det. Gda. Larry Bergin observed a scar on the left side of Madigan's scalp that was also visible on the man who assaulted Fitzgerald in the CCTV footage.

Sgt. O'Regan read a Victim Impact Statement from Thomas Fitzgerald submitted to the court, which outlined that he suffered from mood swings since this assault and the incident was always in the back of his mind.

Mr Fitzgerald was glad he didn't know the man who assaulted him and he didn't want to meet him. He said he was conscious of the scar on his forehead every day.

He was living on a disability allowance since 2014 as he had been diagnosed with cluster headaches. He worked part-time before this incident but was now unable to work. He was quick to become angry as a result of the incident and this had affected his family life. Mr Fitzgerald added that he didn't wish to attend the court hearing.

Sgt. O'Regan said Madigan had four previous convictions for road traffic offences.

Defence barrister Brian O'Shea BL said his client was sober that night and went into town to pick up chips for his family and was only in the chip shop for two minutes. While there, Mr Fitzgerald for no apparent reason, became aggressive towards his client and his friend.

Mr Fitzgerald followed behind them as they returned to the car. He threatened his client that he would "leave him for dead".

He argued that the initial push and punch could quite reasonably be viewed as self defence. In relation to the kicking of Mr Fitzgerald on the ground, Mr O'Shea submitted that Mr Fitzgerald was wearing a hoody and when he fell to the ground his client was standing behind him and couldn't see his face. He didn't realise he went helplessly down onto his face when he fell.

His client said he kicked Fitzgerald twice and was a about to kick him a third time but realised he wasn't going to get up and left.

Mr O'Shea pointed out that the assault from the punch to the last kick took place in just 2.5 seconds and it was Madigan who contacted the ambulance.

The barrister submitted that Madigan expressed a wish to apologise and shake hands with Mr Fitzgerald at his first consultation with him last November and the offer was made and remained still open.

"He took responsibility for his actions and regrets his involvement in the offence. He considered he was defending himself initially and were it not for the heat of the moment he would have dealt with this in a different way."

Mr O'Shea also submitted that his client hadn't any previous convictions for any type of violence. He requested Judge Teehan to take into account the very positive probation report carried out on his client that assessed him as being of low risk of re-offending.

He also asked the Judge to take into account the fact that Mr Fitzgerald's injury was not serious and was treated with stitches. Madigan had paid €200 compensation for Mr Fitzgerald's medical costs.

Judge Teehan said he took Mr O'Shea's point that Madigan couldn't see that Fitzgerald had fallen helplessly to the ground but nevertheless he assaulted him by stamping to his head.

And while there was some possibility, given Mr Fitzgerald's history, that there was a "level of exaggeration" of the impact of the assault, it wouldn't be surprising if he suffered some of the symptoms described in the Victim Impact Report after an attack.

The Judge also noted that it seemed clear to him that Mr Fitzgerald was the aggressor in the events leading up to the assault. From the time they met in the food outlet, it seemed he was pushing himself on Madigan. He advised Madigan to walk away in future if he found himself in a similar situation and he recommended to Mr Fitzgerald that he might find meeting the defendant would benefit his recovery.

Judge Teehan suspended the five months jail sentence for 12 months on condition Madigan entered into a bond to keep the peace and be of good behaviour and not approach Mr Fitzgerald unless he invited him to do so in a friendly manner.

"I hope you have learned a very salutary lesson from this," he concluded.