Man jailed for manslaughter of pensioner with 'MMA-style kick'

By Isabel Hayes and Eimear Dodd

A young man who killed a pensioner with an MMA-style kick, causing him to fall to the ground and suffer a fatal head injury, has been jailed for five years.

Joshua Rush (26) pleaded guilty at Dublin Circuit Criminal Court to the manslaughter of Charles McCaughley (69) at Fairview Strand, Fairview, Dublin 3, on June 7th, 2021. The maximum sentence for manslaughter is life imprisonment.

Shortly before the incident, McCaughley ordered fish and chips from a takeaway where staff said he was “in good form”, Detective Sergeant David Ennis told Diana Stuart, prosecuting, during an earlier sentence hearing.

Another witness waiting for a bus told gardaí that he saw three youths passing an older man as he walked along Fairview Strand. He said he saw one of the young men – Rush – employ a “back spin kick, like MMA” on the older man, causing him to fall on his back.

The trio left the scene and were seen entering accommodation nearby.

When the witness ran to his assistance, McCaughley was unconscious and there was blood coming from his mouth. He was taken to hospital by ambulance, but his health deteriorated over the next few weeks and he died on June 26th, 2021.

A post-mortem exam carried out by assistant state pathologist Dr Margot Bolster found the cause of death was traumatic brain injury due to a significant fall to the back of the head.

Rush, with an address at Fairview Strand, Fairview, Dublin 3, has no previous convictions, the court heard.

Sentencing him on Tuesday, Judge Martina Baxter said this was an “unprovoked confrontation” and was a “kick that was deliberately aimed at a defenceless person”.

She said she would not consider it as analogous with a single punch attack, as had been submitted, but was “more serious”. She said the “callousness” of Rush leaving McCaughley lying on the path was a “highly aggravating factor”.

The judge said Rush had given a “self-serving” account of what occurred, including that the victim spat at him, but noted that he and the two other men crossed the road to where McCaughley was walking. She also referenced a witness account that the victim was wearing a face mask at the time.

She said the court “didn't take kindly” to the defence assertion that the victim may have had drink taken. “Whether he had or hadn't, he was going home with a bag of chips,” the judge said.

She took into account a number of mitigating factors, including that Rush has no previous convictions, has not come to garda attention since, was aged 21 at the time and has expressed genuine remorse.

The judge noted the “compassionate” view of McCaughley's closest relative, his sister, who said she didn't want to see anyone jailed for his death, but she said this was a serious offence.

Judge Baxter sentenced Rush to six-and-a-half years' imprisonment, but suspended the final 18 months on a number of conditions, including that he remain under the supervision of the Probation Service for 18 months upon his release.

Prosecution counsel previously told the court that the Director of Public Prosecutions (DPP)’s view is that the headline sentence should fall into the range of four to 10 years due to the case’s similarity to a one-punch attack.

The DPP also noted that the most aggravating factor was that Rush left the scene. He was reasonably co-operative when interviewed by gardaí.

Rush was arrested a couple of days after the assault after gardaí made enquiries at the Fairview accommodation he was seen entering.

Rush told gardaí that the old man said he “wanted to send (him) to Jesus” and spat at him. There was no independent witness to this, the court was told. Rush also alleged McCaughley said he wanted to “bend (Rush) over”.

When asked about the kick, Rush said he was acting in self-defence. The court heard this assertion was accepted by gardaí.

He told gardaí he had a difficult family background and that his father was physically abusive.

The court heard McCaughley had one surviving sister and no wife or children. His sister did not wish to make a victim impact statement but told gardaí that she did not want anyone to go to jail.

McCaughley used to work as a glazier, the court heard.

Under questioning from Ronan Kennedy, defending, Det Sgt Ennis agreed that Rush took responsibility for his actions that evening. He agreed with a defence assertion that Rush is generally a “quiet, shy, non-aggressive, pleasant fellow” and his actions that night were out of character.

Kennedy said McCaughley had been drinking on the night in question, which “may have led to instability at the time he was kicked”.

Kennedy said he was instructed to express his client’s “deep and profound regret” that this terrible incident occurred and for the loss and grief he has caused.

Counsel read a letter of apology from Rush to the court. Rush said he was “filled with remorse and sorrow for the life lost due to my actions”, adding that he wished he could go back and make a different choice.

He said he thinks often about the family and friends of his victim and “knows my apology can never erase their pain”. He said this tragedy had also “devastated” his own family.

“My mistake has destroyed two families, that realisation breaks me more than anything,” he stated.

Kennedy said his client wished to acknowledge the “very gracious approach” of McCaughley’s sister and that he is “deeply respectful and thankful” for this.

Several letters and a probation report were handed to the court. Rush is assessed at medium risk of re-offending. He has three young children and has distanced himself from former acquaintances. He has a diagnosis of ADHD and mental health difficulties.

Kennedy asked the court to take into account that Rush did not carry out further acts of aggression but acknowledged he did panic and flee the scene.

Counsel said Rush didn’t anticipate the possibility of serious harm but accepts his recklessness caused harm and that his response was disproportionate.

He said Rush accepts this was the “biggest mistake” he has made in his life and take full responsibility for a “moment of madness”.

Kennedy submitted his client’s culpability falls towards the lower end of the spectrum and asked the court to consider placing it in the lowest category for sentencing.