Director of Public Prosecutions v Doyle
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 20 February 2023 |
| Neutral Citation | [2023] IECA 80 |
| Docket Number | Record No: 12/2022 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 80
Birmingham P.
Edwards J.
McCarthy J.
Record No: 12/2022
THE COURT OF APPEAL
Sentencing – Demanding money with menaces – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Doyle, was convicted of four separate counts (which counts inclusive comprised the sum of the charges preferred against him on the indictment), which were enumerated as follows: (i) count 1 – criminal damage contrary to s. 3 of the Criminal Damage Act 1991; (ii) count 2 – demanding money with menaces contrary to s. 17 of the Criminal Justice (Public Order) Act 1994; (iii) count 3 – unlawful possession of a controlled drug contrary to ss. 3 and 17 of the Misuse of Drugs Act 1977; and (iv) count 4 – possession of fireworks without holding the appropriate license contrary to s. 68(2)(b) of the Criminal Justice Act 2006. Kilkenny Circuit Criminal Court imposed sentence on the 17th of December 2021. In respect of counts 1 and 2, the sentencing court ordered that the appellant be imprisoned for a period of four years, dating from the date of sentence. In respect of counts 3 and 4, the sentencing court ordered that those two counts should be taken into consideration with counts 1 and 2. Further to this, and in respect of the particulars of count 3, the sentencing court made a forfeiture and destruction order in respect of the drugs seized by An Garda Síochána. The appellant appealed to the Court of Appeal against the severity of his sentence. It was contended firstly that the headline sentence of six years had been too high in all the circumstances of the case; and secondly that the sentencing judge had erred in failing to suspend any part of the post mitigation sentence to incentivise rehabilitation.
Held by the Court that the headline sentence of six years that was nominated by the sentencing judge was not an error; it was perhaps at the severe end of her margin of appreciation but the Court did not consider that it was outside the range of her discretion. The Court held that the significant considerations in the case were that this was a crime committed with premeditation; it involved a deliberate targeting of a dwelling house where a number of innocent people were residing. The Court noted that the purpose of the visit was to demand repayment of a drug debt from one resident of the house; however, three persons attended in the effort to collect that debt and intimidated the innocent occupants. The Court noted that the demand was made with a high degree of menace and there were also two follow-up intimidatory visits. The Court rejected the contention that the headline sentence was inappropriate. The Court held that while it was true that since going into custody the appellant had self-referred to addiction counselling in prison, and he was deserving of credit for that, it did not think that this per se provided a sufficient basis for taking a further chance on the appellant through the suspension of a portion of the post mitigation sentence. The Court held that a court might have been justified in doing so if there had been some track record of progress towards addressing his drug addiction issues, but there was none; there was simply an assertion of resolve to address them, but this had to be viewed against a background where he was given a chance previously and failed to take it. The Court regarded it as concerning that at the time that the appellant committed the offence in the case in August 2020 he had 68 previous convictions and by the time he came before the court for sentencing in December 2021 that number had grown by a further 20 convictions. Against that background, the Court considered that more than his mere assertion of a resolve to address his addiction issues would have been required for the judge to have been justified in part-suspending the post mitigation sentence. The Court found no error of principle.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered ( ex tempore) by Mr. Justice Edwards on the 20th of February 2023.
The present appeal is brought by Mr. Justin Doyle (i.e. “the appellant”) against the severity of his sentence, which sentence was imposed on the 17th of December 2021 by Her Honour Judge Orla Crowe in Kilkenny Circuit Criminal Court. The appellant had been convicted of 4 separate counts (which counts inclusive comprised the sum of the charges preferred against him on the indictment), which are enumerated as follows:
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(i) Count no. 1 – Criminal Damage contrary to s. 3 of the Criminal Damage Act 1991.
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(ii) Count no. 2 – Demanding money with menaces contrary to s. 17 of the Criminal Justice (Public Order) Act 1994, as amended.
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(iii) Count no. 3 – Unlawful possession of a controlled drug contrary to ss. 3 and 17 of the Misuse of Drugs Act 1977, as amended by s. 6 of the Misuse of Drugs Act 1984.
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(iv) Count no. 4 – Possession of fireworks without holding the appropriate license contrary to s. 68(2)(b) of the Criminal Justice Act 2006.
In respect of the first two of the above counts on which the appellant was convicted (count nos. 1 and 2), the sentencing court ordered that the appellant be imprisoned for a period of 4 years, dating from the date of sentence. In respect of the final two of the above counts (count nos. 3 and 4), the sentencing court ordered that those two counts should be taken into consideration with count nos. 1 and 2. Further to this, and in respect of the particulars of count no. 3, the sentencing court made a forfeiture and destruction order in respect of the drugs seized by An Garda Síochána.
The following account of the facts is with reference to the evidence of Detective Sgt. Matt Filan given at the sentencing hearing on the 14th of December 2021. At the outset it should be stated that the indictment (Bill No. KKDP00/2021) named three co-accused, the first of whom is the appellant, and the charges preferred against the appellant on the indictment comprised count nos. 1 to 4 inclusive. The appellant entered guilty pleas on the 1st of July 2021 (in respect of count nos. 1 and 2) and on the 21st of July 2021 (in respect of count nos. 3 and 4).
The index offence occurred on the 7th of August 2020 at an address in Thomastown, County Kilkenny, the home of a Mr. Scott Grace (i.e. “the victim”) and his family comprising of his mother, a Mrs. Annette Grace, his father, a Mr. Tom Grace, and his sister, a Ms. Kirsty Grace. The victim's parents were in their 50s, the victim's sister was 19 at the time of the index offence. The victim was well known to gardaí, he having previously come to the attention of the gardaí in the years prior to the index offence in relation to his drug use and incidents involving the victim arising out of a drugs debt which the victim owed to the appellant. It was alleged that this drugs debt arose out of a purchase by the victim of Alprazolam tablets from the appellant. The victim would purchase these tablets on either a fortnightly or monthly basis depending on his rate of consumption. The victim's drugs debt had reached a figure of €1700 by the time of the index offence (the victim purchasing 500 tablets at a time, for a rate of €1.50 per tablet). Payments were made intermittently to the appellant, whom the victim would contact via the Facebook Messenger application on his mobile phone. In July 2020, the victim ceased to use this mobile phone application, resulting in an inability on the part of the appellant to contact the victim. The reason for why the victim stopped using the application is not known.
On the 7th of August 2020 at around 11:00am, the victim was sitting in his front room at the family home in Thomastown when the appellant and his two co-accused arrived at the property, threatening the victim, shouting, and banging on the windows. The appellant was reported as repeatedly shouting at the victim “ What's the story?”, and one of his co-accused, Mr. Hayden, is reported as shouting “ Scott, I want my money.” The commotion drew the attention of the victim's younger sister, Ms. Kirsty Grace, who came downstairs and saw the three men outside the property. Ms. Grace opened a window to speak to the men, causing one of the party, Mr. Jimmy Hayden to step aback, he having been stood too close to the window when it was opened. Ms. Grace proceeded to tell the three men to get away from the property, in response to which the appellant reportedly replied, “ I will burn this fucking house down”. Detective Sgt. Filan described the victim's statement of evidence in which the victim averred that the appellant then threatened to throw a brick through the window of the property. At this time, Ms. Grace began video recording the interaction on her mobile phone, which video recording was taken from an upstairs vantage point at the front of the property. This video recording depicted the three men walking away from the scene, clearly identifiable as the three co-accused.
The incident was reported to An Garda Síochána at that time on the same date, and the gardaí arrived at the scene whereupon they sought to ascertain what had happened. The victim, initially reluctant to identify the perpetrators, later reported that he had handed over €1700 to the appellant in Thomastown approximately 2 weeks following the index offence and that, in the light of this payment, the victim believed that that was the end of the matter, that the drugs debt which he had owed to the appellant had been settled.
Approximately 8 weeks later, on the 15th of October 2020, the appellant and an unknown male visited at the victim's family's property, again looking for the victim. Ms. Grace in a statement averred that she recognised the appellant and...
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