Director of Public Prosecutions v Dowdall
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 14 July 2023 |
| Neutral Citation | [2023] IECA 182 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [197/22] |
[2023] IECA 182
The President
McCarthy J.
Ni Raifeartaigh J.
[197/22]
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 14 th day of July 2023 by Birmingham P.
. On 17th October 2022, the appellant was sentenced by the Special Criminal Court, on foot of a plea of guilty, to a term of four years imprisonment in respect of an offence contrary to s. 72 of the Criminal Justice Act 2006, as substituted by s. 6 of the Criminal Justice (Amendment) Act 2009, for the offence of participating in or contributing to activities which would facilitate the commission of a serious offence by a criminal organisation. He has now appealed against severity of sentence.
. The background to the sentence hearing, and now to this appeal against severity of sentence, is well known and does not require to be rehearsed in any great detail. It is sufficient at this stage to recall that the case has as its origin the murder of Mr. David Byrne on the occasion of a boxing weigh-in at the Regency Hotel in Whitehall, Dublin, on 5th February 2016. At one stage, the appellant was charged with the offence of murder, but following an approach by him to the authorities, a new charge was laid to which he entered a plea of guilty. A nolle prosequi was entered in respect of the charge of murder on 28th September 2022.
. The sentence hearing took place at the Special Criminal Court on 3rd October 2022, on which occasion the Special Criminal Court heard an outline of the evidence from Detective Sergeant Patrick O'Toole. This outline of the evidence in the case referred to the fact that, as part of the investigation, Gardaí had focused on persons who had been at the hotel or were connected to the hotel on 4th and 5th February 2016. In particular, that exercise focused on room 2104. That room was booked and reserved over the phone. In the first instance, a credit card was used to secure the room. At that stage, a mobile phone contact number was provided. At an early stage in the investigation, that number was called by Gardaí, and it was answered by Mr. Patrick Dowdall, the father of the present appellant. In the aftermath of the reservation of the room, CCTV footage showed Patrick Dowdall engaging with the hotel receptionist, taking possession of a key card and making his way to the room. Patrick Dowdall was driven to the hotel by the appellant. After check-in and receipt of the key cards, the Dowdalls drove to another location where they met another person, who is understood to be a member of the criminal organisation behind this attack and murder, and key cards were handed to him by the appellant. Shortly afterwards, an individual who became of interest during the course of the investigation, the late Mr. Kevin Murray, arrived at the hotel and made his way straight to the hotel bedroom. He did not engage with reception, so he clearly had a key card.
. On 7th March 2016, the appellant travelled north from Dublin city centre in his land cruiser where he met with another individual who was centrally involved in the investigation; this was the same person to whom the bedroom key cards had been given. Together, they drove to Northern Ireland. The vehicle driven by the appellant was the subject of audio surveillance, an authorisation having issued pursuant to the Criminal Justice (Surveillance) Act 2009.
. With regard to the appellant's background and personal circumstances, he was born in May 1978. He is a married man, the father of four children aged between 11 and 25 years at the time of the sentence hearing. An electrician by trade, in 2007 he had started his own business, which was very successful, providing employment, including apprenticeships, to many people from the north inner city area of Dublin. The appellant is from the north inner city and his family had been close friends and neighbours of the Hutch family for many years; members of this family were believed to be linked to the Regency attack, the incident forming part of the so-called Hutch/Kinahan feud. Of significance is the fact that on 1st June 2017, at the Special Criminal Court, he received a sentence of 12 years imprisonment in respect of an offence of false imprisonment, with a concurrent sentence of four years in respect of an offence to kill or cause serious harm. The 12-year sentence imposed by the Special Criminal Court was reduced on appeal to a sentence of ten years, with two years suspended. The offence which gave rise to that prosecution occurred on 15th January 2015.
. In the course of the sentence hearing, counsel on behalf of the appellant submitted that if the traditional approach of dividing offences into low tier, mid-tier and upper tier was taken, this was an offence which would fall into the low tier. Considerable emphasis was placed on the implications for the appellant and his family of his decision to give evidence on behalf of the prosecution in trials arising from the murder. It was said that his life was “effectively over”, as well as the lives of his family, and that he would have to start over. He would have to live anonymously in exile, probably permanent exile, he would spend his life looking over his shoulder, and every conversation he had with a stranger, he would have to remind himself to be very discreet. It was submitted that this was a case where it would be legitimate for the Court to consider imposing a suspended sentence. It was accepted that the nature of the offence to which he pleaded was such that it would render it inappropriate to consider a suspended sentence unless there were exceptional circumstances and peculiar features in the case. However, it was submitted that there were exceptional circumstances and there were peculiar features, which made a non-custodial disposal realistic and indeed appropriate.
. When passing sentence on 17th October 2022, in the course of sentencing remarks, the Special Criminal Court referred to the case of DPP v. Martin Aylmer [2020] IECA 106, which offered a degree of guidance to sentencing courts as to how to approach cases of this nature. The Court indicated that it did not agree with the submissions that had been made which would have placed the offence within the lowest tier of offending – in the tier where sentences would be between non-custodial and five years before mitigation. The Court said it was satisfied that the appellant knew he was assisting a serious criminal organisation. He had received and followed instructions to obtain a hotel key card, with the assistance of his father, and then he had delivered that hotel key card to another member of the criminal organisation. The assistance resulted in a hotel room being available to a leading member of the team that carried out the subsequent murder. The Court noted that that hotel room gave the individual a base in the hotel to carry out criminal activities and an apparent legitimate reason for their presence there prior to the murder. The Court referred to the fact that the appellant had continued to associate with the same person to whom he had delivered the key card, travelling with him to and from Northern Ireland, at a time when their conversations on the journey were recorded pursuant to an electronic surveillance authorisation. The Court said it had not been given any details of the discussions, but it did know that a firearms seizure relating to the murder took place two days later. The appellant is critical of this observation and says it raises the question of whether the appellant was being sentenced in respect of matters other than those with which he was charged and other than those to which he had pleaded guilty.
. The Court commented, “taking the most charitable view possible of the evidence, we assess the headline sentence in Mr. [Jonathan] Dowdall's case as being the same as that identified in Aylmer, that being one of eight years' imprisonment.” Thereafter, the Court made reference to mitigating and personal factors. The Court noted the appellant was not a person of previous good character as of the date of the commission of the offence – this being a reference to the false imprisonment matter – but that there was evidence of positive activities on his part prior to becoming involved in serious crime. It was noted that he had faced up to his period in custody in a proper and serious manner, and in relation to the matter before the Court, he had pleaded guilty to the current charge at an early stage. The Court referred to various medical reports and other reports put before it. The Court indicated that, in the ordinary course of events, the plea of guilty and the other personal circumstances would see a reduction of 25%, giving rise to a sentence of six years. However, what was described as the “extraordinary additional factor” was the decision by the appellant to make a statement and to give evidence against other individuals implicating them in serious crime. The Court was of the view, however, given the gravity and the consequences of the crime, that even this additional mitigation did not bring the case below the custody threshold. As such, the Court settled on a sentence of four years imprisonment, representing a total discount of 50% from the headline.
. Contending that the sentence was unduly severe and that this Court should intervene, a number of issues are raised, including, but not limited to, the fact that the headline sentence of eight years was too high. In this regard, it is said the appellant's role in the offence was limited, confined to driving his father to the hotel to collect the key cards and then handing over the key cards to a member of the criminal...
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