Criminal Law Update, January 2012 – June 2013
Bar Council CPD
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Sentencing Decisions – 2012/2013
Brian Gageby BL
Saturday, 29 June 2013
The following is by way of an update from the last Criminal Law Update run in
January 2012 and provides an outline of written sentencing decisions in the Court of
Criminal Appeal since that date. While there are not a great many decisions that
substantially change the law on sentencing over that period, there are a number of
issues of some small interest that arise and some trends to be seen.
Maximum Sentences
DPP -v- Moustafa Ismaeil [2012] IECCA 36 – Finnegan J.
Following trial in the Circuit Court, the appellant was convicted of a single count of
child abduction contrary to Section 17 of the Non-Fatal Offences Against the Person
Act 1997. Following the break-up of a marriage between the appellant’s brother and
his wife, the appellant abducted the couple’s son and took him to live with his
brother’s family in Egypt. The child had been dressed as a young girl and presented
as the appellant’s daughter in order to evade immigration and passport control. The
child now remains in Egypt with the Ismaeil family and the child’s mother has only
been able to visit him on a number of occasions. This has had devastating
consequences on both mother and son.
The sentencing Judge described the crime as “appalling” and one demanding the full
rigours of the law. In noting that a maximum sentence of 7 years was provided for
under the Act, the sentencing Judge reduced the sentence by 1 year having regard
to the following: the relatively good previous character of the appellant, the
acknowledgment that custody may prove more onerous for him on account of his
nationality and the fact that he had not presented a false account to the jury (he had
not given evidence).
The CCA considered whether the offence in question was one capable of attracting
the maximum sentence. The appellant made submissions in line with the case of
Loving to the effect that maximum sentences should only be applied where the
conduct is at the highest end of seriousness capable of being envisaged for the
particular offence. Furthermore, the CCA in Loving had found an error in principle
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I am very grateful to Geraldine Manners in the office of the Court of Criminal Appeal for her
assistance in the preparation of this paper.
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where the sentencing Judge considered the maximum sentence as the starting point
before considering mitigation.
However, in finding the offending calculated and intentional, and in particular the
permanent nature of the child’s abduction, the CCA stated that the case fell within
the very worst category of offences under the section and precisely the type of case
envisaged by Section 29 of the Criminal Justice Act 1999 which might have attracted
a maximum sentence even on a guilty plea. The CCA noted the infringements of the
mother’s constitutional rights and queried whether 7 years was even a sufficient
penalty for such offences. The sentence was found to be entirely proportionate and
the appeal was dismissed.
DPP -v- Martin McDonagh [2012] IECCA 12 - Finnegan J. (ex tempore)
The appellant had assaulted two people in the street, one of whom had heart
difficulties and died as a result. Owing to the difficulty in proving causation on a
more serious charge, the appellant was charged with Section 3 assault. He was also
charged with another Section 3 assault on the deceased’s companion. He was
sentenced to the maximum of 5 years on a guilty plea in respect of the man who
died and 3 years in respect of the deceased’s companion.
The CCA found that the sentencing Judge was entitled to consider the offence as one
upon which it was appropriate to apply the maximum sentence but owing to the
principle that a guilty plea usually attracted some credit and the principle of totality,
there was an error in principle. The sentence was reduced to 5 years with the final 9
months suspended. The sentence of three years was left unaltered.
DPP -v- Frank Ward [2012] IECCA 15 - Finnegan J. (ex tempore)
The appellant pleaded guilty to assault causing harm, possession of a firearm with
intention to commit an arrestable offence, robbery, possession of a firearm with
intention to commit robbery and possession of a firearm with intention to resist
arrest. He was sentenced to life imprisonment on the first two offences and 12 years
on the remaining offences, all to run concurrently. This case relates to the attempted
robbery of the Goat Pub in Goatstown, Dublin and the discharge of a shotgun at the
proprietor, Mr Chawke, and at the Gardaí.
The appellant had an extremely poor record including previous convictions for very
similar offences. The appeal was moved partly on a parity basis (the co-accused
having received 15 years), however, it appears that the co-accused was in a very
different position as regards the offence and previous offending. Similarly, while a
guilty plea was entered, it was done so in the course of a trial where the appellant
was caught red-handed.
One point which did cause the CCA some concern was that in imposing life sentences
the sentencing Judge explicitly did so on the basis that should the appellant be
released and commit further offences, that his licence might then be revoked. Such a
sentence may have amounted to some form of preventative detention to prevent the
appellant committing offences in the future. In finding such an error of principle, the
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CCA imposed sentences of 20 years on the first of the two offences place of the life
sentences.
DPP -v- Stewart Hunter [2012] IECCA 57 - Finnegan J. (ex tempore)
The appellant was sentenced after trial to 5 years on a count of assault causing harm
(the maximum sentence for that offence).
The appellant submitted that the imposition of the maximum sentence took no
account of the personal circumstances or the principle that maximums sentences
should be reserved for cases at the highest level capable of being envisaged.
The assault involved a slash wound to the injured party’s face requiring some 38
stitches. The appellant was interviewed and denied the assault. The appellant had a
bad criminal record. The sentencing judge noted the callous nature of the assault
and the lack of remorse. He also noted the appellant’s violent past and the lack of
insight.
The CCA refused the appeal finding there was little to be said in the appellant’s
favour.
Appeals to the Supreme Court
DPP -v- Ronald McManus (aka Ronald Dunbar) [2012] IECCA 39 - Macken
J. (ex tempore)
The appellant sought certification for an appeal to the Supreme Court in
circumstances where he had received a life sentence for manslaughter. The nub of
the point, which the appellant sought to have certified, was whether certain matters
should have provided mitigation when a life sentence was open to the Court such as
the following: that having heard the evidence at trial the jury returned a verdict of
manslaughter rather than murder and that the previous convictions were of a
summary nature only and of antiquity.
The CCA found that the sentencing Judge was entitled to impose a life sentence
owing to the exceptional and rare circumstances of the case. In refusing the
application, the Court found that the issues raised were to be determined on the
established principles of sentencing and did not constitute a question of exceptional
public importance.
DPP -v- Ezenwata Izundu [2012] IECCA 44 - Macken J. (ex tempore)
The appellant sought a certificate to appeal to the Supreme Court. The point that the
appellant wished to agitate was whether there was a legal duty on a sentencing
judge to assess re-offending where the issue is expressly raised. This was in the
context of an apparent refusal by the sentencing judge to procure a probation
report. The CCA had found, in their substantive decision, that the sentencing Judge
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was not obliged to secure a probation report for the purposes of deciding or
assessing whether the appellant was likely to offend again as she had adequate and
sufficient information before her. The application for a certificate was refused.
DPP –v- Alan Morrison & Aidan Finnegan [2012] IECCA 77 – Finnegan J.
The appellants were convicted following trial of offences contrary to Section 15A of
the Misuse of Drugs Act 1977, as amended. They were each sentenced to 12 years
imprisonment. An appeal against conviction was refused. An appeal against sentence
on a parity argument was subsequently heard by a differently constituted Court2,
which was refused on the basis that a dearth of information on the co-accused was
submitted.
The applicants sought certification to appeal to the Supreme Court in circumstances
where another person was convicted and sentenced for a similar offence arising out
of similar circumstances and who received a sentence of 10 years with the final 5
suspended, thereby breaching the principle of parity. The proposed issue which the
appellants sought to agitate in the Supreme Court was whether there was an onus
on an appellant or the prosecution, where disparate sentences had been imposed, to
adduce such evidence in the CCA in order to evince the breach of the parity
principle.
It should be noted that there was some significant divergence between the facts of
the case relating to the appellants and that of the other accused, against whom they
sought to utilise for the purposes of the parity argument. Most relevant though was
the fact that the other accused had cooperated and pleaded guilty.
The CCA refused to certify the question on the basis of the rule in Cronin’s case, as
the point was not raised at sentence, nor on appeal and the appellants were now
seeking to advance the matter by way of certification to the Supreme Court.
Suspended Sentences
DPP -v- Michael “Tyser” Connors [2012] IECCA 45 - Finnegan J. (ex
tempore)
This was an application under Section 99 of the Criminal Justice Act 2006. The
appellant received a sentence from the Court of Criminal Appeal of 3 years detention
that was partially suspended. There was, at the time of the hearing, approximately
two years of the sentence of three years that was imposed outstanding. Several
serious offences occurred during the period of suspension that could not be
described as de minimis.
The CCA imposed the remaining sentence but took into account the time spent
awaiting hearing in the CCA.
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[2012] IECCA 8
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DPP -v- Karl Boyne [2012] IECCA 46 - Finnegan J. (ex tempore)
The appellant was convicted of robbery and sentenced to 5 years suspended in full.
The suspension was on condition that he engaged with the probation services and
underwent drug treatment. He failed to abide by these conditions and the matter
was re-entered. The sentence was then re-activated in full.
The CCA noted that since his suspension he was of good behavior save for one de
minimis offence - the theft of €7 worth of food. He had progressed well in prison and
shown some prospect of recovery as regards his drugs misuse. In light of this, the
CCA activated only 3 years of the sentence. The CCA also noted that when he leaves
prison the appellant would have 2 years prison left to serve which remains
suspended.
DPP -v- John Pakker [2012] IECCA 47 - Finnegan J. (ex tempore)
The appellant was sentenced to 7 years in prison with the final 4 suspended. During
the period of suspension he committed two public order offences, Sections 4 & 6 of
the Public Order Act, the second of which carries a maximum of 3 months. However,
they included aggressive and abusive behavior towards the Gardaí and the appellant
ultimately had to be restrained by the use of incapacitating spray.
The CCA considered that the offences were not de minimis. However, it viewed that
the entire re-activation was not proportionate and therefore an error in principle. In
light of this, the Court imposed 2 years of the suspension.
Previous Bad Character
DPP –v- David O’Neill – [2012] IECCA 37 – Finnegan J.
The appellant pleaded guilty to possession for sale or supply of some €10,000 worth
of cocaine. He was sentenced to 5 years imprisonment with the final 1 year
suspended. The appellant had 13 previous convictions, most of which were for road
traffic but one of which was for possession of a flick knife. There were no previous
convictions for drugs.
In the course of the sentence hearing, there appears to have been some conflict
between counsel for the appellant and the prosecuting member as to the appellant’s
level of involvement in drug dealing. It appears to have been the appellant’s case
that he was only selling drugs to friends to feed his habit. The prosecuting member
took a less benign view. Following his evidence, counsel for the appellant invited the
prosecuting Garda to accept the appellant was dealing drugs, albeit at a low level.
The sentencing Judge then intervened and asked the Garda whether he believed the
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appellant was selling drugs to which the Garda replied - “I do”. The Circuit Judge
then asked for how long and the Garda replied - “Possibly a few years”.
It was submitted that the sentencing Judge had fallen into error in soliciting the
opinion evidence in respect of matters extraneous to the offence. The CCA agreed in
principle and considered a number of recent decisions in which impermissible
evidence was given by Gardaí in the course of sentence hearings (most notably in
drugs cases, in respect of previous bad character.) In repeating the principle, the
Court stated that:
“…the guiding principle here nonetheless remains rooted in the constitutional
fundamental identified by this Court in McDonnell, since the accused must not
to be sentenced in respect of offences with which he was neither charged or
convicted. While the sentencing judge is entitled to receive hearsay evidence
and opinion evidence, he or she must also be astute to ensure that
extraneous matters whose evidential value is inherently more prejudicial than
probative so far as the accused is concerned are thereby excluded. Should
this not prove possible, a trial judge should then expressly state the extent to
which such material is being disregarded in the course of the sentencing
process.”
However, the Court found that the error did not materially prejudice the appellant
and in any event would have imposed a not dissimilar sentence. The appeal was
dismissed.
Sentencing Fraud
DPP –v- Paul Murray [2012] IECCA 60 - Finnegan J.
The appellant was convicted of 25 sample counts of theft in which he defrauded the
Department of Social Protection of €249,000. Sentences of 6 months were imposed
on each of the 25 counts to run consecutively amounting to a total 12½ years
imprisonment.
The appellant had been engaged in an elaborate and sophisticated welfare fraud
thought to be the largest of its kind uncovered to date. It also involved the creation
of different identities from which the appellant received the social welfare payments.
Fairly detailed admissions were made as well as a good deal of cooperation. Only
€11,151 had been repaid and further repayments were considered unlikely.
Submissions were made on proportionality and totality. The CCA agreed that the
totality principle had been breached however went on to emphasise the effect on the
welfare system of such offences, particularly at a time of weakness in the public
finances. Emphasis was placed on the threat to social solidarity were it the case that
when detected, such offences would not be dealt with severely. The CCA noted, in
particular, the relevance of the principle of deterrence in such offences and took the
rather unusual step of giving “some general guidance for future cases of this kind”.
In particular it stated:
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“We therefore suggest for the future guidance of sentencing courts that
significant and systematic frauds directed upon the public revenue - whether
illegal tax evasion on the one hand or social security fraud on the other should generally meet with an immediate and appreciable custodial sentence,
although naturally the sentence to be imposed in any given case must have
appropriate regard to the individual circumstances of each accused.”
In light of the level of defrauding, the identity theft, the long period of offending and
the falsified documents a sentence of 9 years was imposed, made up of 3 years on
three of the sample counts to run consecutively. All other offences were TIC. In light
of the guilty plea and considerable cooperation, the final year of the 9 years was
suspended.
DPP –v- John Hughes [2012] IECCA 85 - Fennelly J.
The appellant pleaded guilty to six sample counts on the indictment in respect of
failure to pay VAT and failure to furnish accurate VAT returns. He was sentenced to
4 years in prison. The appellant was involved in importation of used cars upon which
the VAT was not paid. The VAT due on the vehicles in question was some €226,718.
The appellant had fraudulently used a VAT number of an extinct company in order to
evade the relevant tax. The appellant made full disclosure of his assets to the
Revenue, downgraded his home, sold property and gave the proceeds to the
Revenue. The appellant also came to a settlement with the Revenue in respect of his
unpaid income tax and capital gains tax for periods prior to that of the indictment. In
the sum of €795,000 composed of €278,000 for tax and approximately €516,000 for
interest and penalties. Of this settlement €685,000 had been paid and the appellant
was unable to pay the remainder.
The appellant’s submissions were made on proportionality, the extent of the
reparations made (that he had “emptied the cupboard”), the fact that the appellant
was being sentenced in a different climate (the offending having predated the
decision in Murray), the failure to take account of mitigating factors and the
structure of the sentence.
The CCA concluded that the sentencing Judge had mischaracterised the repayments
made by the appellant as an attempt to buy his way out of prison. The CCA noted
that were financial reparations not taken into account then this could result in an
obvious injustice. In this case, the very large repayments of tax, interest and
penalties had a very destructive impact on the appellant and the sentence was
excessive. It found that a custodial sentence was warranted, owing to the nature of
the fraud, and reduced the overall sentence to one of 2 years.
It is worth noting that in the course of the decision the CCA clearly stated that the
decision in Murray “could not represent any departure from or qualification of the
generally applicable principles of sentencing.” In that regard, it is clear that the CCA
attempted to limit what first appeared to be a very significant restatement of the law
for sentencing principles in such cases.
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DPP –v- Paul Begley – Unreported - 22nd January 2013 - McKechnie J.
The appellant entered guilty pleas to four counts relating to evasion of customs duty
involving the mislabelling of shipments of garlic as apples in order to avoid the larger
customs duty on garlic. It was estimated that as a result of the scheme some €1.6
million of duty was evaded. He was sentenced to 6 years in prison, 5 years on one
charge (the maximum provided for at law) and 1 year on a second charge to be
made consecutive. The remaining two charges were taken into consideration.
The appellant had entered into an agreement with the Revenue to repay the lost
duty which was due for completion by November 2013 and at the time of the appeal
the CCA stated that it was satisfied that the remainder would be paid.
Submissions were made on the imposition of the maximum sentence with
consecutive element, the reliance on the principle of deterrence to the exclusion of
personal circumstances and proportionality.
The CCA repeated the general principles of sentencing as per O’Driscoll and RMcC.
The CCA dealt substantially with whether tax evasion cases were to be treated
differently, particularly with regard to the decision in Murray. However, while
concurring with much of the sentiment in Murray, the CCA stated that:
“…it is most unlikely, even allowing for the narrow circumstances by which it
is suggested that an immediate custodial sentence may be appropriate, that
the Court was offering guidelines of a general nature in this regard, for to
have done so would surely have breached what the Supreme Court said in
The People (Director of Public Prosecutions) v. Tiernan [1988] I.R. 250
(“Tiernan’), and further would likewise have been in conflict with several
other decisions subsequently given , to similar effect”
The CCA found that there was not any substantial departure from the ordinary rules
of sentencing for such cases and followed the case of Hughes. The CCA noted that
even were it wrong in this approach that blanket sentencing policy to tax fraud cases
would cause significant concern given how such crimes compared to more serious
crimes against the person. It further noted the variation within such cases, that
many defaulters are not even prosecuted, the importance of admissions and pleas
and the incentivising of co-operation particularly in the area of white-collar crime.
In finding that there was an error in principle on the basis of the maximum sentence,
the failure to accord sufficient weight to the mitigation and the proportionality of the
sentence, the CCA reduced the sentence to 2 years.
Consecutive Sentencing
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DPP –v- James Paul Sweeney, Edward Sweeney and Patrick Sweeney
[2012] IECCA 62 – Finnegan J.
The three appellants pleaded guilty to various charges of assault and serious public
order. The offences arose in the course of a dispute in the early hours of the
morning in Ballinrobe, Co. Mayo. There were two separate incidents, although
arguably forming something of a sequence of events. The first was an assault by the
three co-accused upon a group of men who had allegedly called one of the coaccused an offensive term which referred to his membership of the travelling
community. This was a serious assault upon the injured party involving punching and
kicking to the injured party while he was on the ground. The second incident
occurred some 30 minutes later 500 metres away. Three men (one of whom was
involved in the earlier incident) were walking away from Supermacs. The man
involved in the earlier incident recognised the co-accused and the men quickened
their pace. However, they were set upon by the three co-accused resulting in
extremely serious injuries to the three men.
The sentencing Judge in the Circuit Court took the view that the sentences to be
imposed should be consecutive for the two incidents “because the behaviour was
consecutive…it was not a follow on…there was a break in time” and there was “time
for reflection” between the incidents. The sentencing Judge then imposed sentence
as follows:
James Paul Sweeney
A 4 year sentence in respect of the first incident (violent disorder) and sentences of
3 years and 2 years in respect of the second incident (both Section 3 assaults) that
were to be concurrent to each other but consecutive to the 4 year sentence imposed
on the first incident. The final year of the cumulative sentence was suspended - so 6
years effective sentence.
Edward Sweeney
A sentence of 6 years in respect of the fist incident (a Section 4 assault) and
sentences of 2 years on each the charges relating to the second incident (both
Section 3 assaults) that were to be concurrent to each other but consecutive to the 6
year sentence imposed on the first incident. The final year of the cumulative
sentence was suspended – so 7 years effective sentence.
Patrick Sweeney
A 4 year sentence in respect of the first incident (violent disorder) and sentences of
2 years on each the charges relating to the second incident (both Section 3 assaults)
that were to be concurrent to each other but consecutive to the 4 year sentence
imposed on the first incident. The final year of the cumulative sentence was
suspended – so 5 years effective sentence.
The CCA found various errors in principle regarding the construction of the
sentences, primarily having regard to conclusions the sentencing Judge reached on
the particular facts of the various assaults that were, to some degree at least, in
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dispute. In light of the sentencing Judge’s conclusions on the facts that the CCA
found unsafe, the sentences were reduced to 5 years, 6 years and 6 years (sentence
affirmed) with the final year of each suspended.
It is notable however that the CCA affirmed the imposition of consecutive sentencing
in respect of the two incidents –
“We agree, however, with the learned trial judge that the sentences in
respect of the second set of incidents should properly be made consecutive to
the violent disorder charge in respect of the first incident. The second set of
incidents were sufficiently separated in time and in place from the first to
warrant this conclusion. The very fact that serious violence had been used in
the course of the first incident ought to have made the three accused pause
and reflect. Yet with some deliberation they elected to continue and after an
interval of at least 30 minutes they pursued the group involving Mr. Lydon
and Mr. O’Malley and set upon their unfortunate victims. This amply justifies
the imposition of consecutive sentences.”
Plea of Not Guilty – An Aggravating Factor?
DPP -v- Eugene Kelly [2012] IECCA 71 – Fennelly J.
This was an appeal against conviction and sentence from convictions in the Special
Criminal Court relating to firearms offences. The appeal against conviction was
refused.
The appellant was convicted and sentenced to 10 years imprisonment in respect of
two offences relating to the possession of a Glock semi-automatic pistol and fifty
rounds of 9 mm parabellum calibre all in good working order. The relevant section
provides for a presumptive minimum of 5 years imprisonment. The accused had
previous convictions for murder, robbery and larceny. The co-accused received 7
years with the final 2 suspended but had no criminal record.
Submissions were made of the Special Criminal Court’s categorisation of the not
guilty plea as an aggravating factor. The Court of Criminal Appeal repeated the
principle:
“The Court must commence by stating that it was quite wrong to treat the
failure to plead guilty as an aggravating element. An accused person is fully
entitled to contest a charge. The decision to do so cannot be counted against
him so as to increase the sentence which would otherwise be imposed. It is,
of course, correct to state that a plea of guilty may, depending on timing and
other circumstances, be treated as a mitigating factor so far as sentence is
concerned. However, the distinction is important. It is not a mere trivial
matter of nomenclature. The sentencing court should identify the correct
sentence for the offence and may add for aggravating factors or deduct for
mitigating ones.”
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That said, no criticism could be found of the sentence itself, particularly having
regard to the appellant’s record and the fact that he was, at the time, on release
from a life sentence for murder.
DPP –v- Michael Byrne [2012] IECCA 72 – Murray J.
The appellant was convicted after trial in the Circuit Court in respect of various drugs
offences relating to some €6.2 million worth of heroin. He was sentenced to 18 years
imprisonment. The appeal was grounded in the submission that the appellant had
been penalised for contesting the charge and that the sentence was too severe as a
matter of principle. The accused had various previous convictions, mainly for petty
crime but none for drugs.
The CCA repeated the constitutional right to fight a case tooth and nail and that the
decision to do so cannot add one day to the sentence. In this case, the sentencing
Judge had made particular reference to the fact that the appellant had clearly
perjured himself before the jury. In sentencing the appellant the sentencing Judge
stated that “…when convicted by a jury of their peers, there is very little room for
any sympathy or recognition of remorse, particularly when an accused gets into the
witness box and perjures himself in relation to the reality of what actually took
place…It was a performance Laurence Olivier would have been proud…” While the
CCA noted that comments on the manner in which a case is defended are best
avoided lest they lead to any misunderstanding, they did not find in this case that
the comments suggested that the sentencing Judge had sought to penalise the
appellant for the way in which he defended the case.
In considering the sentence itself, the Court found little by way of mitigation. After a
brief consideration of some of the larger Section 15A cases, the Court found that the
sentence of 18 years could in no way be considered objectionable.
DPP –v- David Timmons [2013] IECCA 5 – MacMenamin J.
The appellant was convicted after trial of conspiracy to commit an offence –
possession of drugs for sale or supply. The appellant was sentenced to 8 years
imprisonment. The two co-accused, who pleaded guilty, received sentences of 5
years and four years respectively. The cocaine weighed some 8½kg and was valued
at around €600,000.
It was submitted by the appellant that he had effectively been punished for running
the case. Submissions were made on proportionality between sentences of coaccused. However the parity argument was rejected as the CCA found a greater
degree of culpability attached to the appellant than to his co-accused. The appeal
was refused.
Sentencing as per Kelly and M
DPP -v- Damien Quinn [2012] IECCA 7 – Finnegan J.
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The appellant was convicted after trial of possession of a sawn off shotgun with
intent to endanger life. He was sentenced to 10 years. (The date of offence predated
recent amendments to the sentencing for such offences). The possession of the gun
led to his brother discharging the firearm twice at the injured party. On the night in
question, the appellant and his brother approached the injured party and the
appellant shouted - “shoot him”. The appellant’s brother shot the man and as the
man tried to escape, on the instructions of the appellant, the appellant’s brother
again discharged the gun, this time hitting and injuring the victim.
The appellant criticised the sentencing judge for failing to fix the sentence at an
appropriate level and then applying the mitigating factors by way of reduction.
It was noted by the CCA that there was no assistance to the Gardaí at interview nor
was there a plea of guilty. The appellant had bad previous convictions including for
armed robbery and the date of this offence was not terribly far after his release from
the sentence received for the armed robbery. The CCA found that even if the
sentence was not set out in the manner suggested, it was not satisfied that there
was an error in principle because the sentence fell at the centre of the range of
sentences appropriate for similar cases. The appeal was therefore refused.
Sexual Offences
DPP –v- Seán Canniffe [2012] IECCA 2 – Finnegan J.
The respondent pleaded guilty to one count of sexual assault and was sentenced to
2 years, the entirety of which was suspended. The DPP appealed the sentence on
the basis of undue leniency.
The respondent met the injured party on a night out and got it into his head that he
should call upon the injured party in the early hours of the following morning. He got
into bed beside the injured party where the injured party was sleeping with her own
partner and on two occasions he put his hands inside her pyjamas and inserted his
fingers into her vagina. He cooperated and pleaded guilty. A sum of €20,000 was
proffered and accepted as a token of remorse. There were significant mitigating
factors in respect of the respondent’s previous good character.
In viewing that the sentence did not adequately reflect the seriousness of the
offending, the CCA increased the sentence to one of 4 years but suspended the
entirely of the sentence owing to the significant mitigating circumstances.
DPP -v- Gary Kinsella [2012] IECCA 73 – O’Donnell J.
This was the Director’s appeal against a sentence of 8 years with 1 suspended for
various offences arising out of a rape.
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The respondent, a soldier in the army, had followed the injured party for a period of
time and after approaching her, grabbed her, beat her around the face and
threatened to kill her. The respondent dragged her into the grounds of a parochial
house and raped her vaginally, anally and orally. There were repeated threats made
on her life. The respondent was caught at the scene and maintained an account of
consensual intercourse before admitting to rape in the third interview.
Following the injured party’s evidence at trial, and before cross-examination, the trial
judge observed that the respondent might consider his position overnight and that
the Rubicon had not yet been crossed. The following day pleas were entered to a
number counts. The victim impact report reflected very lasting damage to the injured
party. The sentence imposed was one of 8 years on each of the rape charges with
the final year suspended, 5 years on the threat to kill and 3 years on the assault
causing harm – all concurrent. The respondent was also ordered to undergo 2 years
post-release supervision.
In allowing the appeal, the CCA found that a starting point of 8 years was too low,
and the suspension of the final year too generous in circumstances of a very late
guilty plea. The CCA found that a sentence of between 10 and 12 years would have
been merited owing the premeditation, the pursuit, the violence, the threat to kill,
the level of degradation and the initial assertion of consensual intercourse merit such
a sentence.
The CCA found that the characterisation of the offence as being at the lowest end of
the scale of serious offences and was unduly lenient. A sentence of 10 years with the
final 6 months suspended was imposed in place of the original sentence, to include
post-release supervision.
DPP -v- James Kelly [2012] IECCA 9 – Finnegan J. (ex tempore)
The appellant pleaded guilty to anal, oral and vaginal rape. He pleaded guilty on the
first day of the trial, a previous trial date having been taken but not reached in the
list. A sentence of 10 years on each count was deemed appropriate with a reduction
of 3 years for the guilty plea, remorse and the potential for rehabilitation. The final
18 months of the 7 years was then also suspended. The offence itself involved force,
violence, threat to kill and a belt was tied around the victim’s neck. The offending
lasted some 2½ hours. He made full admissions but the plea was a late one.
No error of principle found and the reduction of 3 years from the nominated 10 was
deemed to be generous. Appeal refused.
DPP -v- Joseph Finnerty [2012] IECCA 22 - Finnegan J. (ex tempore)
The respondent was found guilty after trial of two offences: false imprisonment and
sexual assault. He was sentenced to 3 years. The Director appealed on grounds of
undue leniency.
13
The respondent detained the injured party in his car and drove her to a wooded area
where he held her and committed a very serious sexual assault. The respondent was
aged 35 and the injured party aged 14. Sentences of 3 years were imposed on each
offence to run concurrently. (Note the maximum at the time was 5 years on the
sexual assault.) In the course of the sexual assault he forced the injured party to
undress. The assault resulted in bruising to the injured party including her genital
area.
The CCA found that the sentence of 3 years was inadequate. However, owing to the
fact that the respondent had almost served his sentence the Court imposed a
sentence of 4 years on each charge (concurrent) with the final 1 year suspended.
DPP -v- Seamus Mulligan [2012] IECCA 23 - Finnegan J. (ex tempore)
The appellant pleaded guilty to two counts of sexual assault upon one CC, the
daughter of the appellant’s partner. He was sentenced to 8 years with 2 suspended.
The pleas were entered on a full facts basis and represented repeated offending
when the injured party was aged 9 and 10. He had also threatened her to keep
silent. He made fulsome admissions and was remorseful at interview.
The Court found that the sentencing process was not clearly carried out and as a
result it was not possible to assess the sentence adequately. The Court therefore
imposed a sentence of 8 years with 3 suspended, to take into account the mitigating
factors of the appellant’s health, the early plea and the cooperation.
DPP -v- Janis Esmitis [2012] IECCA 27 - Finnegan J. (ex tempore)
The respondent was sentenced to 7 years for vaginal and oral rape following a trial
in the Central Criminal Court. The appellant appealed on the grounds of undue
leniency. The offence involved the respondent meeting the injured party in Dublin
and walking her home from a nightclub. He then forced her into a passageway and
committed the acts of rape. He contested the charges on the basis that the acts
were consensual. The submissions were made that the respondent was someone
who was not Irish and would therefore find prison more onerous.
While the Court found that the sentence and mitigation from the notional sentence
of 10 years was lenient, it was not unduly lenient and therefore the application was
refused.
DPP -v- MR [2012] IECCA 41 - Fennelly J. (ex tempore)
The appellant pleaded guilty to two counts of committing acts of gross indecency
with a mentally impaired person. He received a sentence of 15 months (maximum is
2 years). While pleas were entered on 2 counts only, this was done on the basis of
giving full evidence.
14
The offences themselves, while not detailed in the judgement, were described as
being at the mid to high range of the spectrum. It was submitted in the course of
the sentence hearing that any period of sentence should be suspended. This, the
CCA stated, was not considered by the sentencing Judge. The appellant had no
previous convictions and had pleaded guilty and was deemed to be at low-risk of
reoffending. It was also considered that there might have been difficulties in bringing
home the prosecution given the mental ability of the complainant.
The CCA deemed the sentence of 15 months appropriate but in the circumstances
suspended the balance of the sentence to allow for the mitigating factors. (It
appears from newspaper reports that the appellant served about 7 months in prison
by the time the appeal came on).
DPP -v- DM [2012] IECCA 56 - Finnegan J. (ex tempore)
The appellant pleaded guilty to various counts of sexual assault and rape under
Section 4. He received a sentence of 3 years on the rape charge and 2 years on each
of the sexual assault charges to be concurrent. The charges were historic, being
some 20 years old by the time of the appeal.
The appellant was the uncle of the injured party. The injured party was aged 8 and
the appellant aged 21. The offending involved the ejaculation by the appellant
between the cheeks of the injured party’s buttocks on three occasions (the sexual
assaults) and the placing of his penis in the injured party’s mouth on one of these
occasions (the Section 4 Rape).
He made full admissions and expressed remorse. He was, at the time, suffering
significant psychiatric difficulties.
The CCA found that the sentences overall were light and would not intervene.
Drugs
DPP –v- Noel Leigh [2012] IECCA 4 – Finnegan J.
The respondent pleaded guilty to an offence under Section 15A of the Misuse of
Drugs Act 1977, as amended. He received a sentence of four years, the entirety of
which was suspended. The Director appealed on the basis of undue leniency.
There were a number of counts on the indictment, but the respondent only pleaded
guilty to count 1 on the indictment. The respondent was originally found with six
bags of cocaine while he was the passenger in the van (counts 2 & 3). This led to
the finding of other drugs on wasteland in Co. Kildare (counts 4 & 5). Counts 6 & 7
related to drugs in his house while counts 8 & 9 related to other drugs found as a
result of his admissions. The total value of the drugs was €17,664. The plea was
entered on the basis that full facts would be given in respect of the other counts.
The respondent pleaded guilty and cooperated. There was an unusually high degree
of cooperation. By way of mitigation, he had greatly improved matters relating to his
drug use and had no similar convictions in the past. It was conceded that he was a
person being used rather than having any direction or control in the operation.
15
The CCA noted that suspended sentences would only be imposed in Section 15A
cases in very exceptional circumstances. However, it noted the experience of the
sentencing judge and while it was noted that the Court might not have taken the
same route, it would not accede to the application.
DPP -v- Wayne Deans [2012] IECCA 11 - Finnegan J. (ex tempore)
The appellant pleaded guilty to Section 15A of the Misuse of Drugs Act 1977, as
amended and received a sentence of 8 years with 3 suspended (for 7 years). The
drug found was cocaine, valued at €70,000, found along with various drug
paraphernalia. He was a cocaine addict and selling the drug in order to feed the
habit. The appellant made admissions and provided significant cooperation.
The appellant was in steady employment and had taken significant steps to deal with
his addiction. Noting in particular the level of rehabilitation, the CCA found an error
in principle and imposed a sentence of 7 years with 4 suspended (for 4 years).
DPP -v- Noel Dowling [2012]- IECCA 14 - Finnegan J. (ex tempore)
The appellant pleaded guilty to Section 3 & 15A of the Misuse of Drugs Act 1977, as
amended and was sentenced to 10 years There were various drugs found in a large
haul valued at some €216,000. There was also some €90,000 in cash found. The
appellant was himself a user and dealer in cannabis and had been forced into dealing
more serious drugs. The appellant was a man of no previous convictions and aged
58. There was considerable cooperation, which fell short of naming those higher up
on the spectrum.
The CCA found that there was a failure to accord adequate weight to the mitigation
and suspended the final 4 years of the sentence suspended for 4 years.
DPP -v- John Lynch & Anthony Tiernan [2012] IECCA 21 - Finnegan J. (ex
tempore)
Mr Lynch pleaded guilty to Section 15A of the Misuse of Drugs Act, 1977 as amended
in respect of a quantity of cannabis. He also pleaded guilty to Section 15 for a haul
of drugs found in his car. Mr Tiernan pleaded guilty to Section 15A. Mr Lynch
received a sentence of 14 years with 2 suspended and Mr Tiernan a sentence of 10
years with 2 suspended.
Both appellants were found in a property with some 260 kg of cannabis valued at c.
€1.8 million. The drugs found in the vehicle, for which Mr Tiernan was not convicted,
were valued at some €600,000. Both were cooperative and both were engaged in
the exercise for fairly modest reward. Both men had difficulties with alcohol and
gambling and both had only very minor previous convictions.
The CCA reduced the sentences for Mr Lynch to a sentence of 12 years with 2 years
suspended on the same terms as were imposed by the Circuit Judge. In relation to
16
Mr Tiernan, the CCA affirmed the sentence of 10 years, but suspended the final 3
years of that sentence upon the like terms as were imposed by the Circuit Court.
DPP -v- Alice Van Staden, [2012] IECCA 26 - Finnegan J. (ex tempore)
The appellant pleaded guilty to Section 15A of the Misuse of Drugs Act 1977, as
amended and importation under Section 21. The sentence was deemed to be one of
12 years with a reduction to 8 allowing for the mitigating factors.
The drug in question was cannabis, valued at c. €240,000. The appellant, a South
African national, was prevailed upon to import a large suitcase of drugs into Ireland
through Frankfurt. The appellant was arrested and made very full and frank
admissions. She had no previous convictions and had shown remorse.
The Court found that the sentence was unduly severe and marked the appropriate
sentence as one of 10 years. Noting the mitigation, and in particular the very
fulsome cooperation, and the fact that prison would be more difficult for the
appellant reduced the sentence to 8 years with the final 3 suspended.
DPP -v- Gerry Coffey [2012] IECCA 31 - Finnegan J. (ex tempore)
The appellant pleaded guilty to cultivation of cannabis contrary to Section 17 of the
Misuse of Drugs Act 1977, as amended. The cultivation occurred at two premises
with cannabis valued at around €350,000. The appellant received 6 years with the
final 2 suspended.
The appellant, while involved at a mid-range level and himself a gardening expert,
was a man of previous good character and advanced years. He had made admissions
and had pleaded guilty.
The Court found that insufficient weight was given to the mitigating factors and
reduced the sentence to 4 years with the final 1 year suspended.
DPP -v- Alan Cleary & Keith Brown [2012] IECCA 32 - Finnegan J. (ex
tempore)
The appellants pleaded guilty to an offence contrary to Section 15A of the Misuse of
Drugs Act 1977, as amended. They were sentenced to 10 years in prison.
Both appellants were heroin users. The appellants, in order to feed their own habit,
became involved in a scheme to move and prepare a very large amount of heroin.
They were both at a very low level of operations and had very little by way of
previous convictions. There was a letter on file to the effect of the appellants’
significant assistance and cooperation at interview.
17
The CCA determined that while the sentence was correct, there was a failure to
correctly give consideration for the level of cooperation which was described as
“quite an unusual feature”. In light of that the sentences remained with the final 4
years suspended on conditions.
DPP -v- Paul Connolly [2012] IECCA 33 - Finnegan J. (ex tempore)
The appellant pleaded guilty to an offence contrary to Section 15A of the Misuse of
Drugs Act 1977, as amended. He was sentenced to 7 years with the final 1 year
suspended for 3 years.
The drug in question was cocaine valued at c. €17,500. The offence arose out of a
sting operation by Gardaí who purchased drugs from the appellant. This continued
on a regular basis leading to bigger purchases. Before a larger transaction took
place, a warrant was sought and the appellant was arrested. The appellant was
cooperative but would not name those higher up on the chain. The appellant had
managed to largely deal with his drug difficulties.
The CCA found that the period of suspension was excessive and on that basis
interfered with the sentence. The Court imposed a sentence of 8 years with the final
3 suspended for 3 years.
DPP -v- Shane O’Mahony [2012] IECCA 34 - Finnegan J. (ex tempore)
The appellant pleaded guilty to an offence contrary to Section 15 of the Misuse of
Drugs Act 1977, as amended and one count of dangerous driving. He was sentenced
to 4 years on the drugs charge and 6 months on the dangerous driving charge, both
sentences to run consecutively.
The appellant was under surveillance and on being approached by the Gardaí sped
off in his vehicle. A highly dangerous high-speed chase ensued before the appellant
was apprehended. Drugs were found to the value of €4,500 along with drug related
paraphernalia. He had minor previous including two for possession of drugs and has
a cocaine addiction. He had a very good work history.
The CCA found that the sentence did not adequately leave open the possibility of
rehabilitation. In light of that, the final 9 months of the 4 year sentence was
suspended and the rest of the sentence maintained.
DPP -v- Eoin O’Sullivan [2012] IECCA 48 - Finnegan J. (ex tempore)
The appellant pleaded guilty to an offence contrary to Section 15 of the Misuse of
Drugs Act 1977, as amended. Heroin and was found in his apartment valued at c.
€2,250. He was sentenced to 5 years.
The appellant was a chronic drug abuser with over 70 previous convictions. He
initially fled but when apprehended was cooperative. One of the difficulties that
arose was that the appellant was sentenced on the same day in respect of other
offences which were made consecutive (as they were committed on bail) and which
18
were not appealed (the sentences were suspended). This suspension was clearly to
reflect the totality principle.
Having regard to the very significant and tragic circumstances of the appellant, the
CCA suspended the final 18 months of the sentence of 5 years.
DPP -v- Michael Fagan [2012] IECCA 58 - Finnegan J. (ex tempore)
The respondent pleaded guilty to one offence contrary to Section 15A of the Misuse
of Drugs Act 1977, as amended. On a second bill he also pleaded guilty to 3 charges
under Section 15A. He was sentenced to 3 years imprisonment on the first bill and
10 years on each offence on the second bill with review after 5. The sentences were
to be concurrent with each other but consecutive to the first bill resulting in an
effective sentence of 13 years but with a review after 8. The Director appealed the
sentence on the basis of undue leniency.
On the sentence of 3 years the appellant argued that the circumstances did not
permit the departure from the presumptive minimum in circumstances where there
was very little cooperation and the plea was not early and the sentence was
furthermore unduly lenient. In respect of the second bill, it was submitted that there
was insufficient evidence that the respondent was a drug addict and so review
should not have been provided for.
The CCA refused to deal with the technical submissions of the appellant and instead
applied the totality principle. The CCA found that the sentence of 3 years did not
adequately mark the seriousness of the offence and so imposed a sentence of 5
years in its stead, but suspended the final 2 years of that sentence on conditions.
The remainder of the sentence remained the same resulting in an effective sentence
of 13 years.
DPP -v- Gavin Quinn [2012] IECCA 59 - Finnegan J. (ex tempore)
The appellant pleaded guilty to two offences contrary to Section 15 of the Misuse of
Drugs Act 1977, as amended. He was sentenced to 3 years with 1 year suspended
on one count and the other count was taken into consideration.
The offences involved the possession of cannabis to the value of some €5,000. The
sentencing Judge fixed the notional sentence at 6 years before applying mitigation.
The appellant had previous convictions for both Sections 3 & 15 of the 1977 Act. He
was clearly dealing in drugs and had a history of depression as well as alcohol and
cannabis misuse. He was a working man and had also suffered abuse as a child.
In light of the mitigation the CCA found an error of principle and that the appellant
deserved an opportunity to put his life back on track. The Court left the sentence
unaltered but suspended the final 2 years rather than 1 year on conditions.
19
DPP -v- Kenneth Flynn [2012] IECCA 80 - Fennelly J. (ex tempore)
The respondent pleaded guilty to an offence contrary to Section 15A of the Misuse of
Drugs Act 1977 as amended. He received a sentence of 6 years suspended in full.
The Director appealed on grounds of undue leniency.
The offence related to the possession of some €34,000 worth of cocaine and
€12,000 worth of cannabis. The respondent made fulsome admissions and provided
cooperation.
The CCA concluded that there were exceptional circumstances, in line with the
McGinty decision, which would allow the imposition of a fully suspended sentence.
This was based on the fulsome and unequivocal cooperation, the fact that the
reward for his role was very small - some €300, he had no previous for drugs, his
young age, his successful efforts at drug rehabilitation and the fact that he was now
in stable employment. In light of this the Court rejected the application.
Theft Offences
DPP v Christopher Doyle [2012] IECCA 3 – Finnegan J.
The respondent was convicted in respect of two bills: the first bill contained one
count of robbery while the second contained one count of robbery and one of
unlawful seizure of a vehicle. The respondent was sentenced to 15 months on the
first bill and 12 months on the second, the sentences to be consecutive as the
second offence was committed on bail. The Director appealed on grounds of undue
leniency.
The first of the robberies was committed when the respondent entered a shop on a
summer’s evening and pretended he had a gun concealed beneath his jacket
(although in fact he had no gun). He required the shopkeeper to empty the till which
he did. He then dragged the shopkeeper along the ground, manhandled him and
threated to kill him if he moved. The second robbery occurred at a service station
where the attendant was cleaning a car. The attendant was threatened by the
respondent who had his hand in his pocket. This time the threat was to put a syringe
of blood in the man’s neck. The man gave him his wallet and then the respondent
proceeded to take the car which he subsequently crashed.
The respondent had previous convictions for public order, manslaughter and
robbery. He was also under the influence of drugs at the time of the robberies, the
subject matter of the appeal. There was an early plea and cooperation with the
Gardaí.
In finding the sentences unduly lenient, the CCA imposed a sentence of 3 years on
the first bill. The Court noted that the offences committed on bail must be
consecutive but also that this must be considered as an aggravating factor. The
Court imposed 3 years on the second bill, consecutive to the first. It did, however,
agree to suspend the final portion of the second sentence and the final 2 years were
suspended.
20
DPP -v- Paul McCullagh [2012] IECCA 20 - Finnegan J. (ex tempore)
The appellant came before the Court on 3 separate bills. The first was burglary, the
second was burglary and the third was unlawful seizure of a motor vehicle and
permitting himself to be carried in a stolen vehicle (the same incident). He received 5
years imprisonment on each of the first two bills, which sentences were concurrent.
He received 5 years and 2 years on the third bill that were to run consecutive to the
first two bills with the final 3 years of the 5 years sentence suspended - so a total of
7 years in prison.
The burglaries were in two domestic residences and involved some struggle with the
residents of the homes. The theft of the car involved the threat to a young child who
was in the car at the time and a high-speed chase. The appellant had some 91
previous convictions and suffered from a difficult drink and drug habit.
The CCA found little to be said for the appellant. However, owing to his previous
offending it was inevitable that he would breach his suspended sentence and so a
sentence of 3 years with 1 suspended was imposed (in lieu of the 5 years with 3
suspended) resulting in a total sentence of 7 years.
DPP -v- Andy Cash [2012] IECCA 28 - Finnegan J. (ex tempore)
The appellant pleaded guilty to burglary and was sentenced to 5 years with the final
3 suspended. The burglary itself was committed by five offenders who entered a
premises which they believed was unoccupied. In fact, there was a 78 year old
woman in bed and one of the intruders forcibly removed a ring from her finger
breaking one of her bones. The appellant was not involved in this part of the
burglary.
The appellant was aged 15 at the time of the offence but not sentenced until he was
aged 16 resulting in his sentence to be served in St Patricks rather than Oberstown.
There was, at the time of sentence, a large amount of other matters before the
courts, so the Court viewed that it was inevitable that the suspension would be
revoked. Also relevant was the fact that there were a number of family members
involved in the offence and the Court queried what hope there was for the appellant
if this was his guide.
In finding an error in principle in what the CCA viewed would be an effective 5 year
sentence, a sentence of 3 years with 1 suspended was substituted.
DPP -v- William Moorehouse [2012] IECCA 29 - Finnegan J. (ex tempore)
The appellant was before the Circuit Court on 3 separate bills. The first was in
relation to a theft where the appellant broke into a car and stole a handbag and
various personal belongings; he pleaded guilty and received a sentence of 2 years.
On a second count, a count of burglary, he received 3 years and on a third count,
another burglary he received 3 years. All counts on this bill were to run concurrently.
The second two bills each contained one count of burglary. He received sentences of
21
5 years with 2 suspended and 3 years respectively. These two latter sentences were
concurrent to each other but consecutive to the first bill, the offences having been
committed while on bail. This left a total sentence of 6 years.
It appears that in the course of sentencing, the sentencing Judge imposed sentences
upon counts upon which it was agreed should only have been “taken into
consideration”. The CCA therefore found an error of principle. In offering the
appellant a final chance towards his rehabilitation, the Court reduced the effective
sentence to 6 years with 2 years of that suspended.
DPP -v- Darren Carton [2012] IECCA 42 - Fennelly J. (ex tempore)
The appellant pleaded guilty on one bill containing two counts of burglary and for
which he was sentenced to 5 years on each count, with the final 2 years suspended.
Each sentence was concurrent to the other. The appellant was subsequently
sentenced on another bill, and by a different Judge, containing counts of burglary,
attempted burglary and firearm offences. He was sentenced to 3½ years in respect
of those matters which sentence was made consecutive to that imposed on the first
bill, leaving a total sentence of 5 ½ years in respect of both bills, plus periods of
suspension.
The appellant had a record of constant and repeated offending, mostly burglary. He
was a drug addict and his heroin addiction was one of the main causes of his
offending. Submissions were made that in respect of the first sentence, the
sentencing Judge implied that the appellant’s maintenance of silence was an
aggravating factor. This submission was rejected by the Court. The second
submission rests on the fact that the second sentence was made consecutive and on
the totality principle. The Court similarly rejected this argument and found no error
in principle. The Court noted: It is not possible to trivialize burglary. Burglary is the
invasion of the home, the sacrosanct personal domain in which we all live.
DPP -v- Dermot Byrne [2012] IECCA 43 - Fennelly J. (ex tempore)
The appellant pleaded guilty to robbery and received a sentence of 3 years with the
final 12 months suspended.
The appellant submitted that the parity principle was breached in that there was not
sufficient differentiation with another participant and failure to accord sufficient
weight to the mitigating factors. The applicant and two others had robbed a shop.
The appellant, a heavy drugs user at the time, had held a knife and hammer but did
nothing with them. The other man engaged in violence with the shop assistants. No
injury was caused to the shop assistants but €300 was stolen. The appellant had no
previous convictions and made full admissions. He had fully rehabilitated in terms of
his drugs misuse.
The Court found that while the sentence itself could not be criticised, that there was
insufficient discrepancy made between the appellant and the other man in only
suspending one year of the sentence. The Court therefore suspended the final 2
years of the sentence on conditions.
22
DPP -v- Colin Reid [2012] IECCA 51 - Finnegan J. (ex tempore)
The appellant was sentenced in respect of offences of possession of stolen property,
a jeep, and driving of that jeep without insurance. He received sentences of 5 years
with one suspended on the possession charge and 1 year on the no insurance (the
maximum being 6 months). He was disqualified for 20 years.
In consideration of the mitigating factors the Court imposed a sentence of 2½ years
with the final 9 months suspended and in lieu of 12 months on the no insurance a
sentence of 6 months. The disqualification remained in place.
DPP -v- Andrew Boland [2012 IECCA 52 - Finnegan J. (ex tempore)
The appellant pleaded guilty to unauthorised use of an MPV and criminal damage.
He received sentences of 18 months and 12 months respectively, each sentence
concurrent to the other.
The offence involved the appellant starting the stolen vehicle with a screwdriver
upon being approached by a member of the Gardaí. He then drove the car into
another vehicle causing some €200 worth of damage. He made early admissions and
cooperated with Gardaí. The appellant had significant previous including various
larceny offences. This offence occurred in the course of a period of suspension, and
so impressed was the Circuit Judge with the progress the appellant had made
regarding his drug addiction that the Circuit Judge declined to reactivate the
sentence. The Gardaí were similarly impressed with the improvements he had made.
In light of the significant mitigation, the appellant had previously been admitted to
bail. The Court let the sentence stand but suspended it on conditions.
DPP -v- Keith Manning [2012] IECCA 53 - Finnegan J. (ex tempore)
The appellant pleaded guilty to burglary at a supermarket and contemporaneous
criminal damage to internal doors, glass, shutters and the alarm system to the value
of some €13,000. He received sentences of 3 years and 2 years, concurrent.
The appellant had minor previous convictions and had engaged in the activity in
order to try and pay back some personal debt.
The Court found that the sentences imposed were at the lower end and could find
no error in principle.
DPP -v- Shane Keogh [2012] IECCA 54 - Finnegan J. (ex tempore)
The appellant pleaded guilty to one count of robbery. There was some 15 months
between his plea and his sentence in order to allow the appellant’s rehabilitation of
the appellant’s drug addiction. He was sentenced to 3½ years with the final 1 year
suspended.
23
The offence involved a robbery of an off-licence at knifepoint. The appellant
committed the offence in order to feed his heroin habit. The appellant made
admissions at interview and apologised. He made considerable progress with his
drug addiction in the aftermath of the offence.
In order to mark the significant efforts made at rehabilitation the Court found that
while the sentence could not be criticised, it would suspend the final 18 months of
the sentence on conditions.
DPP -v- Michael Delaney [2012] IECCA 55 - Finnegan J. (ex tempore)
The appellant pleaded guilty to aggravated burglary and false imprisonment. He was
sentenced to 18 years imprisonment with the final 6 years suspended for a period of
12 years.
The offence itself was horrific. The appellant and three other intruders broke into an
elderly couple’s house, tied them up and threatened them both with their lives. They
were attacked physically. The men were armed with a hammer and a hatchet. One
of the injured parties saw what she thought was a gun and the couple were
threatened with being kneecapped and that they would be burnt. This was
accompanied with rags being stuffed in their mouths and a petrol can was also
brought. The couple’s son, who was not present, was also threatened. The house
was ransacked. The appellant made admissions and was somewhat cooperative.
Submissions were made on the length of the suspension and the proportionality of
the sentence. The CCA found that the sentence of 18 years, while high, was not so
high that it would interfere. However, to give credit for the plea and cooperation, the
Court reduced the sentence to one of 15 years with the final 3 years suspended for 3
years; the previous period of suspension considered to be inappropriate.
DPP -v- Gerard Nolan and Darragh King [2012] IECCA 61 - Finnegan J. (ex
tempore)
The appellants pleaded guilty to robbery. Mr Nolan also pleaded guilty to unlawful
taking of a vehicle and Mr King to production of an article. Both these offences were
committed in the course of the robbery. They each received 5 years for the robbery
and 3½ years for the second offence to be served concurrently.
The offence involved the robbery of a post office in Kildare. They entered the post
office and shattered the counter with the sledgehammer. The postmistress was not
behind the counter but returned to find the men riffling through the desk. The victim
impact appears to have been minimal. There followed a high-speed chase by the
Gardaí and an ensuing struggle with the Gardaí which included use of the
sledgehammer and a hurley (although the Garda also had a hurley). There was
thereafter cooperation and admissions.
The CCA, in order to leave the appellants some light at the end of the tunnel,
suspended the final 18 months of the 5 year sentence on conditions. It was noted
24
that this was by means of considerable indulgence to allow the appellants an
opportunity to mend their ways.
DPP -v- Gareth Hill [2012] IECCA 79 - Fennelly J. (ex tempore)
The appellant, who had pleaded guilty, was sentenced to 2 years for an offence of
possession of stolen goods. He appealed the refusal of the Circuit Judge to allow him
withdraw his plea. This appeal was refused. He also appealed his sentence.
The offence involved the possession of a number of electrical items which were part
of a larger haul of stolen televisions, stereos etc. The appellant had previous
convictions and his plea was entered late and considered to be of slight value.
No error in principle was found and the appeal was refused.
Offences Against the Person
DPP –v- Louise Wall and Michael Cruise [2012] IECCA 5 – Finnegan J.
The respondents were charged with murder but it became apparent in the course of
the evidence that the charge could not be brought home. Pleas were entered to
violent disorder and it was conceded that there was a willingness to enter such a
plea in advance of the trial. Sentences of 5 years with 2 suspended were imposed on
each of the respondents. The Director appealed on the grounds of undue leniency.
The facts of the case related to the Christmas period in 2007 in a housing estate in
Drogheda Co. Louth. Over the course of a number of days a large number of people
were drinking and taking drugs in a series of houses. There appeared, over the
course of one night, to have been frenzy of violence involving a number of persons,
which was ultimately directed at the deceased. The evidence of the respondents’
involvement arose out of their own statements. Both respondents had been involved
in punching and kicking the victim while he was on the ground. Both respondents
presented as people with very significant learning difficulties as well as somewhat
dysfunctional backgrounds.
The DPP submitted that while the sentencing Judge had correctly analysed the
offence and the mitigating factors, that there was a mischaracterisation in the
sentence, which should have registered towards the upper end for such an offence,
particularly having regard to the maximum sentence of 10 years. The CCA agreed
with this submission and found that an appropriate starting point would have been 7
years. Having regard to the willingness to plea, the cooperation and the respondents’
personal circumstances, the Court suspended the final 2 years of the sentence.
DPP -v- James McInerney [2012] IECCA 10 – Finnegan J. (ex tempore)
The respondent was charged with murder and convicted after trial of manslaughter.
An effective sentence of 26 months was imposed taking into account the time spent
25
in custody. The Director appealed on the grounds of undue leniency. The respondent
was released by the time the appeal came on.
The death occurred in circumstances where both the respondent and the deceased
were drinking and a row ensued when the deceased tried to gain entry to the
respondent’s family home, which included banging on the back door with a spade. A
struggle ensued and the respondent took the spade from the deceased and struck
him a number of times resulting in his death. The respondent made admissions but
claimed self-defence and provocation.
The DPP submitted that the starting point of 6 years was inadequate and the
mitigation too great. The CCA noted in particular some of the aggravating factors,
particularly the number of blows, the fact that the deceased was unarmed and that
some of the blows were administered while the deceased was on his knees or on the
ground. However, the CCA found that the overall sentence was not unduly lenient,
and in taking into account the fact that the respondent had been released, declined
to interfere with the sentence.
DPP -v- Anthony Mason [2012] IECCA 13 - Finnegan J. (ex tempore)
This was an undue leniency appeal against the sentence of 5 years imposed upon
the respondent who pleaded guilty to manslaughter.
The respondent and the co-accused attended a house where the co-accused’s sister
was having a party with some other young men. The respondent and the co-accused
produced knives and in the course of the fight, one of the young men died. It was
accepted that the respondent did not intend to stab the injured party. It appears that
the co-accused was much more heavily involved in the violent actions and indeed
was considerably older than the respondent. Given the level of cooperation and
significant mitigating factors, the CCA was satisfied that the sentence was not unduly
lenient.
DPP -v- Shane Casey [2012] IECCA 16 - Finnegan J. (ex tempore)
The appellant pleaded guilty to various charges of reckless endangerment, 1 count of
drunk driving and 5 counts of dangerous driving. The offending involved a highspeed chase of the appellant by the Gardaí; the appellant was driving a scooter and
failed to stop when requested. He received 3 years imprisonment on the reckless
endangerment and this sentence was consecutive to various robberies for which he
was sentenced on the same day. (It is not entirely clear how these sentences are
composed).
The Court refused to interfere with the sentence noting the litany of very serious and
dangerous acts which made up the offending behaviour. It did, however, find the
period of disqualification of 20 years was disproportionate and reduced it to 8 years
disqualification.
DPP -v- Kevin Haughey [2012] IECCA 19 - Finnegan J. (ex tempore)
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The appellant pleaded guilty to an offence of dangerous driving causing death. He
was sentenced to 3 years. The facts that led to the accident were to the effect that
the appellant was being chased and rammed from behind on a straight stretch of
road. It would appear that there was menace in this and the appellant was speeding
in an effort to get away from the car behind him. It was this that led to the accident.
The CCA found that on the facts of the crash, the sentencing Judge had
mischaracterised the offending and substituted 2 years (time served) for the 3 year
sentence imposed.
DPP -v- Maurice Foley [2012] IECCA 24 - Finnegan J. (ex tempore)
The appellant pleaded guilty to assault causing harm for which he received a
sentence of 3 years (the offence carries a maximum of 5 years). The assault
occurred at a nightclub in Roscommon, during which the appellant bit off and spat
out a small piece of the injured party’s face, leaving him with a permanent scar.
There was little or no provocation and the appellant was very drunk and
remembered very little.
While the appellant was of previous good character and had something to be said by
way of mitigation, given the serious nature of the assault, the CCA would not
interfere with the sentence.
DPP -v- Stephen Finnegan [2012] IECCA 25 - Finnegan J. (ex tempore)
The appellant pleaded guilty to assault causing serious harm and received 7 years in
prison with the final 2 suspended. In the course of a melee, the appellant produced
a Stanley blade and slashed the injured party’s face while the injured party was on
the floor, leaving him with a large a disfiguring scar.
It was submitted that the sentencing Judge had erred as he had said something to
the effect that because a section 3 assault carried up to a 5 year sentence, then this
assault required a sentence of something above five years. It was submitted that
such an approach was incorrect.
The CCA found that while such an interpretation might be made by the comments,
that a sentence of above 5 years was appropriate in the circumstances. The period
of suspension of 2 years was also considered an adequate credit for the mitigation.
DPP -v- Abdeerahim Awragh [2012[ IECCA 35 - Finnegan J. (ex tempore)
The appellant pleaded guilty to 3 counts of assault causing harm and two counts of
producing an article under Section 11 of the Firearms Act 1990. He received
sentences of 3 years, 2 years and 2 years on each of the assaults and 3 years in
respect of each of the article offences, all to be served concurrently.
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The offence arose where a number of youths were banging on the doors and
windows of the appellant’s home. The appellant “lost it” and came out to find out
who was causing the disturbance. In the course of the incident, he came across
three different youths. A struggle ensued and the appellant hit one of the youths
with a nun chuck causing bruising. He also caused a large number of knife wounds
on one of the youths resulting in a collapsed lung.
While there was a guilty plea there was little by way of remorse. Consideration was
given that the appellant was Moroccan and would therefore find prison more difficult.
He also had previous convictions for similar offences. In the circumstances, there
was no error of principle found.
DPP -v- Martin Landy [2012] IECCA 40 - Fennelly J. (ex tempore)
The appellant was convicted after trial of an offence of assault upon a peace officer
and sentenced to 4 years (the maximum being 7 years).
The offence occurred when Gardaí executing a search warrant were presented with
the appellant who was brandishing knives and shouting in a loud voice. The Gardaí
overcame the appellant but no injury occurred. The appellant was, at the time of the
offence, under the influence of drugs and had a string of previous convictions as a
result of same. He had made recent positive endeavours at freeing himself from his
addiction.
The CCA found that the sentence itself could not be criticised but that there was
insufficient regard to considering a period of suspension to allow for rehabilitation.
The CCA suspended the final 18 months of the sentence.
DPP -v- Shane Whelan [2012] IECCA 63 - Murray J. (ex tempore)
The appellant pleaded guilty to assault causing serious harm. He received a sentence
of 3½ years with the final 18 months suspended.
The offence involved the use of a pint glass that was pushed into the victims face
causing him scarring. The victim ultimately recovered. It would seem that the act
was spontaneous rather than premeditated. The appellant had no previous
convictions and was unlikely to trouble the Court again.
Given his previous good character and that he was unlikely to re-offend the Court
imposed a sentence of 3 years with the final 2 suspended.
ENDS
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