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Criminal Law Update, January 2012 – June 2013 Bar Council CPD

Sentencing Decisions – 2012/20131

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

1 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.

2 [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 co-accused 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 co-accused. 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.

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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.

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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.

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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

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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.

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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

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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.

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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.

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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

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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.

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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.

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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

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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

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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 high-speed 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