THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
126CJA/15
In the matter of Section 2 of the Criminal Justice Act 1993
The People at the Suit of the Director of Public Prosecutions
Applicant
Respondent
JUDGMENT of the Court (ex tempore) delivered on the 30th day of May 2016,
by Mr. Justice Sheehan
1. This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 193, for a review of the sentence imposed on the respondent in the Circuit Court on the 1st May, 2015. On that date the respondent was sentenced to three years imprisonment, suspended for three years in respect of an offence contrary to s. 2 of the Criminal Damage Act 1991, namely the burning of a motor vehicle.
2. In the course of written submissions, counsel on behalf of the Director of Public Prosecutions sought a review of the sentence on six separate grounds as follows:-
1. The learned sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances being a sentence of three years imprisonment on a count of arson suspending the entirety thereof for a period of three years.
2. The learned sentencing judge erred in law and in fact for failing to attach appropriate weight to the aggravating factors in the case. In particular the learned sentencing judge failed to have appropriate regard to the fact that evidence shown that the offence of arson was a deliberate and conscious revenge attack on a member of An Garda Síochána by burning a motor car in the car park of Scarriff garda station following the seizure of a motor car by that member of An Garda Síochána earlier in the evening on the day in question.
3. The learned sentencing judge gave too much credit to the respondent and his co-accused for the payment of the sum of €11,200 by way of restitution to the complainant.
4. The learned sentencing judge failed to give proper consideration to the previous convictions of the respondent.
5. The learned sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors in the case. In particular the learned sentencing judge erred in law and in fact in placing too much emphasis on the efforts by the respondent to rehabilitate himself after the events.
6. The learned sentencing judge erred in law and in fact in failing to place the offences within the range of the seriousness of offences of this nature and of failing to have appropriate regard to the range of sentences appropriate to such offences.
3. In order to consider these grounds of appeal it is necessary to set out the background to this offence, the effect it had on the victim, the personal circumstances of the appellant and the sentencing remarks of the judge.
4. On the evening of the 18th March, 2013, at about 10.30 pm Garda Troy was on mobile patrol on the Tuamgraney Road near Scarriff when she noticed a vehicle at the Gala Service Station which she had stopped the previous evening. The vehicle was being driven by a third party. On ascertaining that there was no insurance in place, Garda Troy decided to seize the vehicle.
5. The three men took their belongings from the vehicle as well as cans of beer. Prior to this Mr. Maloney had been abusive to Garda Troy, being described by another garda who came to the scene as being belligerent and insolent. As Garda Troy was at the vehicle she heard Mr. Maloney say “you’ll see a silver spark later and you’ll know who did it”.
6. The respondent intervened on behalf of Garda Troy and endeavoured to get his associate to submit to Garda Troy’s requests. The three men then left and went to a public house where they remained for some time. Two hours later they returned in another vehicle to Scarriff garda station where they set fire to Garda Troy’s car. The gardaí became aware of the burning car at 12.40 am and the following day the respondent along with his two associates were arrested and detained. Initially the respondent gave a false account of his movements, but later admitted his involvement in the offence.
7. It goes without saying that Garda Troy was extremely traumatised by the event and also suffered financial loss. A dress for a participant in Garda Troy’s forthcoming wedding had been removed from the vehicle and placed on a grass verge.
Personal circumstances of the appellant
8. The respondent was 40 years old at the time of this offence and the father of three dependent children. He has seven previous convictions in respect of road traffic matters including one offence for driving with excess alcohol and another for driving without insurance. He has a good work record and at the time of the offence was running a small car valet business. This business collapsed immediately once it became known by local people that he had been involved in this offence. His family assisted him in providing €6,000 by way of compensation to Garda Troy. He was also remorseful and Detective Sergeant Neville who was in charge of the prosecution expressed the view that from what he had come to know about the respondent since the offence his behaviour on the night in question was essentially out of character.
9. The court was also told that in the meantime this respondent had disassociated himself from his co-accused and had moved to another address to assist in this process.
10. The principles governing the law in relation to undue leniency appeals pursuant to s. 2 of the Criminal Justice Act 1993, were summarised in a judgment of the Court of Criminal Appeal in The People at the Suit of the Director of Public Prosecutions v. Derrick Stronge [2011] 5 JIC 2301, where it was stated that:-
“From the cases cited at the end of this paragraph, the following principles can be said to apply in an application for review under s. 2 of the 1993 Act. These are:-
(i) The onus of proving undue leniency is on the D.P.P..
(ii) To establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former.
(iii) In the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate.
(iv) This task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal.
(v) The fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise.
(vi) It is necessary for the divergence between the sentence imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified: and finally
(vii) Due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made.
The relevant cases are The People (D.P.P.) v. Byrne [1995] 1 ILRM 279, The People (D.P.P.) v. McCormack [2000] 4 I.R. 356 and The People (D.P.P.) v. Redmond [2001] 3 I.R. 390.”
11. In considering the Director’s submissions in light of these principles we are obliged to note that originally the Director of Public Prosecutions had initiated an application for a review in the case of the respondent’s co-accused Mr. Maloney. He was subsequently deemed to be in breach of the terms of his suspension. He was brought back to the Circuit Court where two years of the original three year suspended sentence were activated. As a result of this, the Director of Public Prosecutions withdrew the application for a review of sentence in his case.
12. As is clear from the transcript, Mr. Maloney’s record of previous convictions was far worse than the record of the respondent. His behaviour on the night in question towards Garda Troy has already been described and the words attributed to Mr. Maloney about the gardaí seeing a spark later on strongly suggest that he was the person who initiated this offence. That said this particular crime was not only an offence against Garda Troy, it was effectively an attack on the rule of law and the type of offence that would normally require a prison sentence to mark that fact alone irrespective of the damage to Garda Troy’s car.
13. The learned sentencing judge was clearly alive to the seriousness of the offence and was very properly entitled to endeavour in the course of the sentencing process to ensure that Garda Troy was compensated. He succeeded in that aim. The question that arises for us is whether or not the sentence imposed notwithstanding the compensation represents a substantial departure from what would normally be the appropriate sentence or whether it lies within the margin of appreciation that we are obliged to afford to the sentencing judge in this case who will have heard the evidence at the sentence hearing first hand.
14. There are some matters in the respondent’s favour:
(i) he pleaded guilty at the first opportunity,
(ii) he has no relevant previous convictions,
(iii) he was remorseful,
(iv) earlier in the evening he had intervened when his associate was seriously disrespectful to Garda Troy,
(v) the respondent in the two years between the offence and the imposition of sentence in the Circuit Court had not come to the unfavourable notice of the gardaí.
15. We note the serious effect this incident had on Garda Troy. It happened shortly before she was due to get married and while the compensation was no doubt welcome, this simply ensured that she was at no financial loss insofar as the damage to her car was concerned.
16. Perhaps it needs to be noted also that a member of An Garda Síochána is in a sense always on duty, liable to be called to serve at any time. This crime interfered with her obligation in this regard and therefore interfered with the protection of the wider community.
17. The members of this Court might well have taken a different view and imposed an element of imprisonment to mark this fact. However, the test is not whether this court would have imposed a prison sentence, but rather whether or not the sentence imposed “constitutes a substantial departure from what would be the appropriate sentence in the circumstances”.
18. We are of the view that there is no error of principle in the sentencing judge’s approach to sentence. We are satisfied that he correctly characterised the serious nature of the offence and that he had regard to all relevant factors. Nevertheless we hold that this is a borderline case and that the respondent is just about on the correct side of that border. Accordingly we find that notwithstanding the nature and seriousness of this offence and its effect on the victim there was sufficient mitigation namely, the plea of guilty, compensation, remorse, apology, absence of relevant previous convictions to allow a Circuit Court judge in these circumstances to impose a suspended sentence. Accordingly in view of our finding that the learned sentencing judge was so entitled, we refuse this application.
