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Irish Court of Appeal |
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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosections -v- McDonnell [2015] IECA 115 (08 June 2015) URL: http://www.bailii.org/ie/cases/IECA/2015/CA115.html Cite as: [2015] IECA 115 |
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Judgment
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THE COURT OF APPEAL Neutral Citation Number: [2015] IECA 115
Appeal No. 337CJA/12 Peart J. Sheehan J. Mahon J. The People at the Suit of the Director of Public Prosecutions Applicant - and -
Lee McDonnell Respondent Judgment of the Court delivered by Mr. Justice Alan Mahon on 8th day of June 2015 1. This is an application by the respondent pursuant to s. 2 of the Criminal Justice Act 1993 to review a sentence imposed on the respondent on the ground that it was unduly lenient. 2. Section 2 of the Criminal Justice Act 1993, insofar as it is relevant, provides:-
(3) On such an application, the court may either:- (a) Quash the sentence and in place of it impose on the convicted person such sentences as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or (b) Refuse the application.”
2. Great weight should be afforded to the trial judge’s reasons for imposing the sentence at issue. If the trial in particular, if the trial judge has kept a balance between the circumstances of the case and the relevant circumstances of the offender the decision should not be disturbed. 3. The test is not the converse of that when there is an appeal by an appellant; it is not a query as to whether or a more severe sentence could have been imposed and upheld as being right in principle. Rather it is an enquiry as to whether the sentence was “unduly lenient”. 4. Nothing but a substantial departure from what would be regarded as the appropriate sentence would justify intervention.
The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon those two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered.” 6. The facts of the case are as follows. On the morning of 21st January 2012, the respondent and another man entered a filling station shop in Ballyfermot, Dublin. Both men were hooded, the respondent carried a firearm, albeit a replica firearm, and his companion carried a knife. The attempt to steal money in the premises failed because there was a time lock on the safe in the premises. An employee in the premises was pistol whipped in the face by the respondent with the replica firearm. That employee was also robbed of his personal possessions, including his mobile telephone and a wallet containing approximately €300. There was no resistance by that individual and no necessity for the violence inflicted on him. As the respondent left the premises he pointed the replica firearm at a member of the public who attempted to photograph him while he made good his getaway. The replica firearm appeared real and was even believed to be so by a witness who had knowledge of firearms. 7. The respondent was known to the gardaí, and was recognised from CCTV images at the crime scene. He was quickly arrested, and, to his credit, he co-operated with the gardaí in the provision of a DNA sample, and subsequently pleaded guilty to the offences. 8. The respondent was twenty one years of age at the time of the commission of the offences. He had a very large number of previous convictions, being eighty eight in total, including convictions for robbery, assault and hijacking a car. He previously served a four year prison sentence. He came from a difficult background, including family problems, addiction problems and other difficulties. 9. Section 60 of the Criminal Justice Act 2006 requires the imposition of a five year minimum sentence in respect of the firearms offence (the third count referred to above). It provides that:-
(a) whether the person pleaded guilty to the offence, and if so:-
and (ii) the circumstances in which the indication was given, and
13. It was indicated on behalf of the Director that, essentially, her criticism of the overall sentence was the fact that half of the six year term was suspended, and that this amounted to an unduly lenient sentence having regard to, in particular, the large number of previous convictions, including one which resulted in a four year prison sentence. 14. The learned sentencing judge decided that there were exceptional and specific circumstances in this case which permitted him to depart from the mandatory minimum sentence. Arguably, exceptional and specific circumstances were present but only to a minimal extent in that the respondent’s plea of guilty, albeit given at an early stage, was given in circumstances where there was compelling evidence confirming his involvement in the incident, and where his only co-operation with the gardaí was his agreement to provide a DNA sample. The discovery of the discarded stolen wallet and phone, and the replica firearm, being crucial items of evidence, only came about as a result of good police work, rather than any co-operation on the part of the respondent. 15. The crimes committed by the respondent on 21st January 2012 were extremely serious. The respondent engaged in extreme violence on the occasion, and unnecessarily so to the extent that the victim of that violence did not challenge him or resist in any way. The use of a replica firearm in circumstances where it appeared genuine to those who were confronted with it, and its use in a very threatening manner, was particularly serious. This was recognised by the learned sentencing judge when he stated that:-
17. It is this court’s view that the sentence imposed was not only lenient, but was unduly lenient. While the respondent’s pleas of guilty and his co-operation (such as it was) may have justified a departure from the requirement to impose a sentence of at least five years it was not appropriate that the offence be merely taken into account with another offence, albeit in circumstances where the sentence for that other offence was one of six years, with 50% of that term suspended. A firearms offence, and particularly one as serious as in this case, should normally attract its own sentence, unless there are exceptional reasons for doing otherwise. The correct approach is to arrive at an appropriate sentence for a firearms offence in the context of, and with due regard to, the mandatory minimum five year term. There was an error of principle in relation to the extent to which the learned sentencing judge did not approach the sentence for the firearm offence in this manner. 18. On a scale, these offences were very serious; they involved what might be described as gratuitous violence and the use of a firearm in a gravely threatening manner. The appropriate sentence on the basis that there is a reasonable basis to depart from the imposition of the mandatory minimum sentence of five years, will be the subject of a separate sentence hearing by this Court, as will be the appropriate sentence for the robbery offences. The extent to which an element of these sentences should be suspended is a matter for submissions to be heard in due course, as is the issue as to whether such sentences as are finally imposed by this court should be served consecutively or concurrently. Certainly, it is the court’s view that the large number of previous convictions should militate against any significant part of the term being suspended. |
