Man walks free after victim loses sense of taste and smell in assault

A man who caused a car salesman to lose his sense of taste and smell following a one-punch assault, walked free from court after paying his victim a substantial, undisclosed sum of money.

Judge Rory McCabe said he would not record a conviction against Erwin O’Toole (36), from Menlo, but instead bound him to keep the peace and be of good behaviour for 18 months in lieu of an 18-month prison sentence.

O’Toole pleaded guilty before Galway Circuit Criminal Court in March to assaulting Adrian Fahy (36), from Ballindooley, causing him harm at 4 Aces Casino, Dominick Street, on July 20, 2014.

Defence barrister, John Hogan BL, who represented O’Toole under the Free Legal Aid scheme, said at the time that while his client was pleading guilty to the assault he wanted an independent medical assessment of the injured party’s injuries.

Mr Hogan said two medical reports for the prosecution stated the victim had lost his sense of taste and smell due to the attack and had also suffered irreparable nerve damage to the affected area.

The barrister applied to the court for an extension of the Free Legal Aid certificate so that his client could have another surgeon examine the victim’s scans after contending that the complaint of a loss of taste and smell was of a very subjective nature and based solely on one consultant reading a scan.

Prosecuting barrister, Conor Fahy objected to the application at the time. saying there were no grounds for the application apart from suspicion. He said the victim’s GP had confirmed he had perfect taste and smell prior to the assault.

Judge McCabe disagreed and he extended the Free Legal Aid certificate to cover the cost of getting another surgeon to examine the scan and provide a report.

Sentence was adjourned to June and then again to last week to await the outcome of the medical findings.

Mr Hogan informed the court that the defence would not be pursuing the medical reports any further.

He said his client had accepted his culpability “100%”, and was truly sorry for what he did.

Garda Evan McKenna told the hearing O’Toole came up behind Mr Fahy in the casino’s smoking area around 6am on the morning in question and struck him one blow on the back of the head with his fist.

The victim was rendered unconscious and was taken to UHG. He was treated for his injury and was released a few hours later.

He felt disorientated for a few days and went back to his GP complaining of headaches and difficulty chewing his food. It later transpired he had lost his sense of taste and smell as a result of the blow.

Garda McKenna confirmed a CT scan was normal. There was no evidence of a fracture or damage to the sinuses.

It did indicate, however, that the victim had suffered a brain trauma as the nerves which provide the sense of taste and smell were torn by the punch and would never recover.

Mr Fahy’s victim impact statement was read to the court.

It stated he remembered waking up in hospital and felt dazed and confused for a couple of days. He had lost his sense of taste and smell following the attack.

“I know he didn’t intend to cause the serious injury I received from the blow. I feel he has learnt his lesson and I do not want to see him go to jail,” the victim said in his statement.

Mr Hogan said the assault occurred following a complete misunderstanding on his client’s part about the sale of a car between the parties.

The barrister handed references from Councillor Padraig Conneely and David O’Donnell from Cancer Care West and from a building contractor into court.

He said his client came from a very decent family. He lived at home and had recently started a job in research and development. He had written a letter of apology to the victim last April in which he had expressed his deep remorse.

Mr Hogan informed the court his client had taken out a loan and had also received a loan from his mother in order to pay a substantial sum of money to the victim.

He asked the court not to reveal the amount involved in open court.

In reply to Judge McCabe, Mr Hogan said the compensation was already paid over to Mr Fahy and no further (civil) proceedings would issue against his client.

A very positive probation report on O’Toole was handed into court.

Judge McCabe said this was a drink-fuelled, unanticipated assault which may have had a foundation in some dispute or dissatisfaction over the purchase of a car.

Such disputes, he said, are usually resolved in civil courts and do not result in life-changing injury, as had happened in this case.

This, he said, had been a one-punch incident and there was little doubt O’Toole had no intention of harming his victim in the way he did.

He said O’Toole may have felt provoked but that was no defence and it was probably fuelled by alcohol.

The judge said the victim’s impact statement was “extraordinarily fair” towards the accused.

He noted O’Toole was genuinely remorseful and posed a low risk of reoffending.

The judge said the accused had compensated the victim to the satisfaction of the victim and taking his previous good record and genuine remorse into account, he said he would not record a conviction against him.

In lieu of an 18-month sentence, Judge McCabe gave O’Toole a conditional discharge, binding him to keep the peace and be of good behaviour for 18 months