Man jailed after spinning kick caused pensioner's death

A 26-year-old man who killed a pensioner with a kick, causing him to fall to the ground and suffer a fatal head injury, has been jailed for five years.

Joshua Rush pleaded guilty at Dublin Circuit Criminal Court to the manslaughter of 69-year-old Charles McCaughley at Fairview Strand in Fairview in Dublin on 7 June 2021.

The court had heard that shortly before the incident, Mr McCaughley had ordered fish and chips from a takeaway where staff said he was "in good form".

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

The three men left the scene and were seen entering accommodation nearby.

The witness said that Mr McCaughley was unconscious and there was blood coming from his mouth, when he went to help him.

Mr McCaughley was taken to hospital, but his health deteriorated over the next few weeks and he died on 26 June 2021.

A post-mortem examination 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 in Fairview, has no previous convictions, the court heard.

Sentencing him, 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 Mr 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 Mr 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 Mr McCaughley's closest relative, his sister, who said she did not 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 Prosecution's was 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 Mr McCaughley had spat at him. There was no independent witness to this, the court was told.

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 Mr 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.

A letter of apology from Rush was read 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.

Counsel for Rush, Ronan Kennedy SC, said his client wished to acknowledge the "very gracious approach" of Mr McCaughley’s sister and that he is "deeply respectful and thankful" for this.

Mr 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 did nOt 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".