THE COURT OF APPEAL
Record No. 84/2017
Birmingham P.Mahon J.Edwards J.BETWEEN/THE DIRECTOR OF PUBLIC PROSECUTIONS
JUDGMENT (ex tempore) of the Court delivered on the 1st day of June 2018 by Mr. Justice Mahon
1. The appellant pleaded guilty and was convicted of two counts of arson contrary to s. 2(4) of the Criminal Damage Act 1991 at Galway Circuit Criminal Court on the 18th January 2017. He was sentenced on the 29th March 2017 to six years imprisonment and the severity of that sentence is now appealed.
2. On the 4th October 2016 at Newcastle Road, Galway, a built up residential area, gardaí attended the scene of a fire. They found a Ford Fiesta motor car engulfed in flames and they observed the appellant standing nearby on a wall, in an intoxicated state. He was observed to be in possession of a lighter and a scissors. It was then established that on the previous night at approximately 10 p.m. another vehicle, an Opel Corsa, was also destroyed by fire at the same location in almost identical circumstances.
3. The appellant was conveyed to Galway garda station and interviewed on three occasions. Initially he denied any involvement in either incident, but ultimately made full admissions but did not provide any motive or explanation for his actions.
4. The appellant is thirty six years old. He has seventy previous convictions including seven for arson as well as others for burglary, theft, harassment and many road traffic offences. The appellant was on bail in relation to a number of road traffic offences (in respect of which he was later convicted and sentenced to ten months imprisonment) at the time of the commission of these offences. Previously, on the 17th December 2013 the appellant was sentenced to four years imprisonment in respect of seven incidents of arson in Galway in September 2012. He was released from that sentence in late 2015.
5. The grounds of appeal relied upon by the appellant are as follows:-
(i) the learned sentencing judge erred in law and in fact in that he failed to place adequate significance on the mitigating factors in the case and failed to attach sufficient weight to the appellant’s plea of guilty, his remorse, his co-operation with the gardaí, the influence of alcohol and his desire to change his life and rehabilitate himself;
(ii) the learned sentencing judge erred in law in failing to give sufficient weight to the evidence of Garda Paul McNulty that the failure of the two cars was €500 each, nor did Garda McNulty give evidence that the burning of the cars posed a danger to anyone;
(iii) the learned sentencing judge gave undue weight to the aggravating factors in relation to the offence, and
(iv) the learned sentencing judge erred in law and in fact in imposing a sentence which in all the circumstances was excessive and disproportionate.
6. In the course of his sentencing remarks, the learned sentencing judge stated:-“...He used a scissors to facilitate the burning of these two vehicles, to cut up the leather so that the interior, the internal material of the seating would be exposed so as to make it more certain and easier for the cars to be burnt. That shows an alarming element of premeditation on his part. It is a clear aggravating factor. ..”
and“...These offences stand at, to my mind, the higher side of medium on the scale of gravity for similar offences, and the headline sentence in respect of each of these offences is eight years imprisonment.”
7. He noted the content of the probation report and the fact that the risk of re-offending wasvery high.
8. The probation report prepared on the 29th March 2017 expresses a deep concern in relation to the appellant’s risk of re-offending. It states, for example, that“..it is his offending behaviour seems to be ongoing and his level of risk increasing at an alarming rate…”and suggests that he remained“..at real risk of harm to others.”The report concludes with the following observations:-
“Taking into consideration the very high, and real, risk of re-offending it is difficult to assess to what extent Probation Supervision would benefit Mr. McCarthy on release. He has failed to co-operate to an extent in the past and seems unlikely to do so in the future. He can address his alcohol issues while in custody and he can be directed as to access after care and follow up on release if he so wishes. It is also recommended that he be referred for psychological assessment and more specialised support services while in custody to allow him address his extremely dangerous behaviour in the area of fire starting.”
9. The focus of the appellant’s appeal, based on Ms. Silke’s oral submissions, is the contention that the learned sentencing judge erred in failing to structure the sentence in a manner which would likely aid the appellant’s rehabilitation, such as, for example, by imposing a sentence incorporating a significant suspended element which would, perhaps, facilitate treatment or counselling for his psychological issues and more particularly his propensity to start fires. It was submitted that the prospects for rehabilitation were further enhanced as a result of an improved relationship and greater contact between the appellant and his son, Jake.
10. It is clear from the sentencing judgment that the learned sentencing judge did consider the issue of rehabilitation. Indeed, the following extract from his sentencing judgment suggests that that issue and particularly the lack of any definite indication of what might be done in terms of successfully treating the appellant’s propensity to start fires, was of particular concern:
“..Without doubt alcohol did play a role in the current offence before the Court but it is evident that there is a worrying underlying issue which manifests itself in a pathological desire to start fires. Until this issue is addressed, if it can be addressed, Mr McCarthy remains at a very high risk of harm to the public. Taking into consideration the very high and real risk of re-offending, it is difficult to assess what extent probation supervision would benefit Mr McCarthy on his release. He has failed to co-operate to an extent in the past and seems unlikely to do so in the future. He can address his alcohol issues while in custody and he can be directed as to access to aftercare and follow-up on release, if he so wishes. It is also recommended that he be referred to psychological assessment and more specialised support services while in custody to allow him to address his extremely dangerous behaviour in the area of fire starting.”
11. Furthermore, the reports now available from a psychologist and a psychiatrist and which were prepared within recent weeks would not have greatly enlightened the learned sentencing judge if they had been available to him at the time of sentencing. Both expressed the view that the appellant does not suffer from any sort of mental disorder and both point to a high risk of re-offending. Neither points to any probable benefit in the context of rehabilitation that would likely follow from an earlier release from custody. Both identified alcohol as a major factor.
12. This case was a difficult one from a sentencing perspective. Arson is a most serious crime and its consequences can be truly appalling. The fact that the appellant has seven previous arson convictions in addition to the two in the instant case, and also, having regard to the absence of mental illness as a possible explanatory factor coupled with the high risk of repeat offending and the consequential enormous risk to public safety, left the learned sentencing judge with little alternative other than to impose a relatively lengthy custodial sentence.
13. The imposition of a six year sentence was, while possibly on the high side, nevertheless within the range of the discretion reasonably available to the learned sentencing judge.
14. As no error of principle has been established the court will accordingly dismiss the appeal.
