THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.Appeal No.: 8/2014
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on the 19th day of January 2016 by Mr. Justice Mahon
1. The appellant pleaded guilty to a number of offences and was sentenced at the Circuit Criminal Court in Dublin on 20th December 2013. The offences, as particularised in three Bills, in respect of which the appellant was sentenced were:-
• Assault causing harm contrary to s. 3 of the Non Fatal Offences Against the Person Act 1997.
• Burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001.
• Unlawfully taking possession of a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961 (as amended by s. 65 of the Road Traffic Act 1968, and as amended by s. 18 of the Road Traffic Act 2006).
• Dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961 (as substituted by s. 4 of the Road Traffic (No. 2) Act 2011.
• Unlawfully taking / using a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 as amended.
• Dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961 (as substituted by s. 4 of the Road Traffic (No. 2) Act 2011.
• Driving a mechanically propelled vehicle while being under the influence of an intoxicant to such an extent as to be incapable of having proper control of the said vehicle contrary to s. 4(1) and 5 of the Road Traffic Act 2010.
2. A number of the offences were committed while the appellant was on bail in respect of other offences.
3. Prison sentences were imposed in relation to the various counts, individually ranging from six months to eight years, with the counts numbered 5, 7 and 9 on Bill No. 723/2013 being taken into account. In respect of the eight year sentence (the offence of dangerous driving, being Count No. 3 in Bill 723/2013), the final five years of the sentence was suspended for a period of five years. It was ordered that all sentences run concurrently as between each other on each of the three Bills. It was also ordered that the sentences imposed in respect of Bill No. 1054/2012, the maximum being a sentence of four years in respect of the unlawfully taken a mechanically propelled vehicle, would be served consecutively to the three year sentence imposed for the s. 3 assault charge on Bill 1257/2011, and further, that the sentences in respect of the offences on Bill 723/2013, which included the eight year sentence with the final five years suspended, would be served consecutively to the sentences imposed in respect of Bill 1054/2012. A lengthy driving disqualification was also imposed.
4. The net effect of the sentences is that the overall prison term amounted to ten years, or more accurately, fifteen years with the final five years suspended.
5. The appellant’s grounds of appeal as per his written submissions are:-
(a) The learned sentencing judge erred in not giving any or any adequate consideration to the mitigating factors in the case. The mitigating factors were identified by the appellant as the guilty pleas in respect of the various offences, the appellant’s drug addiction and efforts made by him to rehabilitate himself.
(b) The learned sentencing judge erred in failing to take into consideration the principles of proportionality and totality.
(c) The learned sentencing judge erred in imposing consecutive sentences in all three bill numbers.
6. While the individual sentences of four years in relation to Bill 1054/2012 and the eight year sentence in respect of 723/2013 have been challenged on the grounds of severity, the strong focus of the oral submissions made to this court is the contention on behalf of the appellant that the overall ten year term is excessive having regard to the principles of totality and proportionality.
7. Whether taking in their totality or individually, the offences committed by the appellant within a two year period (2011/2013) amount to what can only be described as appalling and repeated offending which left in its wake severely injured victims and enormous destruction. The severe injuries included a victim’s arm being almost severed by a meat cleaver, and very significant injuries sustained by a passenger in a car. The manner of the appellant’s driving, including driving the wrong way on a dual carriageway, driving at grossly excessive speeds, undertaken highly dangerous manoeuvres on the public road, and crashing head on into another vehicle were extremely dangerous, and it is surprising that they did not result in even greater destruction and injury than in fact occurred.
8. On this basis alone the offences called for a significant custodial sentence, and indeed, this is essentially accepted to be the case by the appellant.
9. The sentencing judgment indicates that the learned sentencing judge very carefully considered all the relevant factors, both aggravating and mitigating. He referred in some detail to the appellant’s personal circumstances and background including his problems with drug addiction and indebtedness.
10. The learned sentencing judge also referred in some detail to the circumstances of each of the offences, and their upmost seriousness. He clearly took particular account of the appellant’s previous convictions which numbered thirty one in total. It is appropriate to refer to these in some detail.
11. The appellant was convicted of dangerous driving causing death on 12th September 2004 in respect of which he was imprisoned for five years. He has five previous convictions for s. 112 offences (unlawfully taken/using a motor vehicle), one of which resulted in a two year prison sentence (in 2004). He has one previous conviction for drink driving (s. 49 of the Road Traffic Act 1961 as amended) in 2011. He was disqualified on that occasion for two years and was fined €350. The appellant was convicted of a s. 3 assault in 2005 in respect of which he received a two year prison term. The clear picture therefore is one of repeated serious offending particularly in relation to the use of motor vehicles.
12. The appellant was the subject of a Probation Service report dated 24th October 2013. That determined the appellant’s risk of re-conviction within twelve months following his release from custody as being high, unless certain identified risk factors were addressed. These, it was stated, included “established pattern of offending behaviour, lack of participation in employment in the community, lack of educational achievement, addiction difficulties, lack of stable accommodation in the community, prior criminal friends and associates in the community, a history of mental health difficulties, lack of consequential thinking and poor problem solving skills”.
13. The sentences imposed on the appellant involved consecutive sentencing. The concurrent sentences of two years, four years and six months respectively in respect of Bill 1054/2012 were directed to be served consecutively to the three year sentence imposed for the serious assault on Mr. Florea, and the four years, eight years (less the last five years suspended) and six month sentences respectively were directed to be served consecutively to those imposed in respect of Bill 1054/2012.
14. This Court is urged to deem the overall effective term of ten years to be excessive in that it offends against the principle of totality and proportionality. Particular relevance is placed on the judgment of Kearns J. (as he then was) in DPP v. Yusef [2008] IECCA 37 in this regard. It is however the case that the decision in that case simply deals with the requirement that when directing sentences to served consecutively it is important to ensure that the overall sentence is not disproportionate to the offending in question. It is apt to quote briefly from p. 12 of that judgment as follows:-
“The court is satisfied that the section is open to both the interpretation indicated by Fennelly J. in The People (At The Suit Of The Director of Public Prosecutions) v. Joseph Cole and to an interpretation which permits the imposition of more than one consecutive sentence, providing the latter course does not infringe the concept of totality when the aggregate of the consecutive sentences is taken into account. The court does not interpret the section as requiring that every sentence imposed for an offence committed while on bail be consecutive to any other similar sentence save as regards the last sentence to be imposed.”
On the facts of the present case, the court is of the view that to structure the sentence so that the sentence imposed for each of the last three sets of offences is made consecutive to each of the others did result in a total sentence which is disproportionately high having regard to the relatively small amounts of drugs involved.
15. In this case, one must consider the totality of the offending, its repetitive nature over a short period of time, the particulars of the offending, and the fact that much of it occurred while the appellant was on bail in respect of earlier charges.
16. The Court is satisfied that the learned sentencing judge approached sentencing in this case on that basis, and very much against the background of very serious and very relevant prior convictions.
17. The Court is satisfied that the overly effective sentence of ten years was, and is, the appropriate sentence in the circumstances of this case, and that there was no error of principle identified in the manner in which the learned sentencing judge structured the overall sentence. The appeal is therefore dismissed.
