Director of Public Prosecutions v McDonagh [2019] IECA 356 (21 October 2019)

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JUDGMENT (Ex tempore) of the Court delivered on the 21st day of October 2019 by

1. This is an application brought by the DPP seeking to review a sentence imposed on

grounds of undue leniency. The sentence sought to be reviewed was one imposed in the

Circuit Court in Castlebar on 14th February 2019 in respect of offences of violent disorder,

s. 3 assault and production of an article in the course of a dispute. The article was a

2. The sentence that the DPP sought to have reviewed was one of three years imprisonment,

but suspended. It was imposed following a conviction by a jury after a contested trial. The

jury returned verdicts of guilty on certain counts and not guilty on other counts on what

was a lengthy indictment. The conviction was recorded on 30th June 2017, and the

respondent was initially remanded in custody and he was in custody until October 2017,

when he was admitted to bail. The sentence hearing was then adjourned to 2nd February

2018, and in the case of the respondent in this matter, Mr. Johnny McDonagh, was

3. The trial related to events that occurred on 16th May 2016 in Ballyhaunis. The events that

occurred that day, and they were disgraceful events, related to a long-running feud. A

funeral was taking place, and it was the funeral of the grandfather of the respondent to

this application and those who were his co-accused at trial and also the funeral of the

grandfather of the injured parties. Thus, the assailants and the injured parties were

cousins. The origin of the dispute, as we pointed out in the course of an earlier judgment,

seems to have been lost in the mists of time. The respondent and those who were

charged with him were living in County Donegal, in the Letterkenny area, while the

injured parties were living in England and they had travelled from there for the family

4. Four brothers were charged, but of particular note, is that two brothers, Johnny and

Martin, opted for trial, and in both cases, ultimately, were the beneficiaries of suspended

sentences. An application to review on the grounds of undue leniency was brought in the

case of Martin and this Court dealt with that and concluded that while the sentence

imposed had been very lenient, that it was not so lenient as to require an intervention by

this Court. The judgment on that day was delivered by Edwards J. and it makes the point

that the Court was of the view that a very considerable margin of appreciation had to be

afforded the trial judge. It explained that the trial judge had made the point that had he

sentenced in the immediate aftermath of the conviction, he would have been imposing

significant custodial sentences, but by the time he was finalising sentence, some of the

heat had gone out of the dispute and he felt it possible to deal with it on the basis of

5. In the case of Martin McDonagh, the judge imposed a suspended sentence of six years

imprisonment. When, at a later stage, and the reason it was at a later stage is that the

judge was of the view that a period of continuing supervision was appropriate in the case

of Johnny McDonagh, an additional period over and above that which had been provided

for Martin. When the judge was dealing with Johnny McDonagh, he operated under the

misapprehension that he had dealt with the brother, Martin, by way of a 3-year

suspended sentence, and wishing to treat them alike, imposed a 3-year suspended

sentenced on Johnny McDonagh and that is the sentence that is now sought to be

reviewed. While the Director’s position that this is a matter that could and should have

been dealt with custodially, the Director is realistic in accepting that in a situation where

the Court did not incarcerate Martin McDonagh on foot of the Director’s review, that it is

unlikely that we were going to do it in the case of Johnny. The Director does make the

point that it is possible to differentiate to some extent, in that Johnny McDonagh’s

previous convictions list is longer than that of his brother, though the response to that by

counsel on behalf of Johnny McDonagh is that in terms of the substantive offences,

offences involving violence, there is little to choose between them. The Director also

makes the point that Johnny McDonagh was arguably the more culpable, in that, it was

he who struck the injured party with the slash hook, but it is accepted that this was very

6. If the Director is realistic in accepting that it is unlikely that we will incarcerate today,

counsel on behalf of Johnny McDonagh is also realistic, in that he recognises that there

does not seen to be any rational reason why his client should emerge with a sentence,

albeit suspended, that is half that which was imposed on his brother when the judge was

anxious to treat them both alike. This is a case where suspended sentences are real and

7. The Court feels the fact that the judge imposed a 3-year suspended sentence, when it is

very likely he would have wanted to have imposed a 6-year sentence had he appreciated

the full facts, requires an intervention from this Court. The judge was in error in believing

that he had sentenced the co-accused to three years, and the judge was in error in

believing that he had sentenced the co-accused to three years and this gave rise to an

8. The Court will deal with the matter by acceding to the Director’s application, will quash

the sentence of three years, suspended, in the Circuit Court and substitute a sentence of

six years, suspended, to date from the same date as the original sentence, thus achieving

9. In all other respects, save that it is a 6-year suspended, rather than a 3-year suspended

sentence, the terms and conditions are exactly the same as in the Circuit Court.

Result: Allow and Vary

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v McDonagh [2019] IECA 356 (21 October 2019) URL: http://www.bailii.org/ie/cases/IECA/2019/2019IECA356.html Cite as: [2019] IECA 356

Irish Court of Appeal