Director of Public Prosecutions v Delany
| Jurisdiction | Ireland |
| Judge | Mr Justice McCarthy |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] IECA 260 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 138CJA/2022 |
In the Matter of Section 2 of the Criminal Justice Act 1993
[2023] IECA 260
Birmingham P
McCarthy J
Ní Raifeartaigh J
Court of Appeal Record No. 138CJA/2022
THE COURT OF APPEAL
Sentencing – Unlawful seizure – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for a review on grounds of undue leniency of the sentence imposed for offences on 2 separate Bill Numbers. Sentencing was dealt with at Waterford Circuit Criminal Court on the 17th of June 2022. Bill No: WDDP0018/2020 contained 1 offence, namely, the offence of violent disorder contrary to s. 15 of the Criminal Justice (Public Order) Act 1994 – the respondent, Mr Delaney, received a sentence of 18 months suspended entirely for the period of 18 months. Bill No: WDDP0094/2021 dealt with the following offences: (Count 1) unlawful seizure of a vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976 – 4 years imprisonment, with the final year suspended for 1 year; (Count 2) assault causing harm contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997 – 3 years imprisonment; (Count 4) dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961 – 4 months; (Count 5) using a mechanically propelled vehicle without having in force an approved policy of insurance contrary to s. 56(1) and (3) of the 1961 Act – 4 months; (Count 6) driving a mechanically propelled vehicle without holding a valid driving licence contrary to s. 38(1) of the 1961 Act – 4 months; (Count 7) refusal or failure to provide a specimen contrary to s. 12(3)(a) and (4) of the Road Traffic Act 2010 – 4 months. All sentences on Bill No: WDDP0094/2021 were made consecutive to the wholly suspended sentence imposed on Bill No: WDDP0018/2020 providing an effective sentence of 3 years backdated to the 27th of October 2021.
Held by the Court that in the light of the previous convictions of the respondent including violent disorder, the judge fell into an error of principle in suspending in its entirety the sentence of 18 months for that offence charged on Bill No: WDDP0018/2020. The Court considered that the sentence imposed in respect of the unlawful seizure, aggravated as it was by the assault (as well as the multiple breaches of road traffic legislation), the fact that it was committed whilst he was on bail (an aggravating factor in itself), his previous record of offending, and the specific necessity for deterrence both personal and general meant that the offence should have attracted a headline sentence in the upper part of the midrange rather than at or near the bottom. Having considered DPP v Stephen Duffy [2023] IESC 1, the Court thought that the judge fell into errors of principle in sentencing on both Bills. The Court quashed the sentences for violent disorder on Bill No: WDDP0018/2020 and for unlawful seizure on Bill No: WDDP0094/2021.
The Court considered the appropriate headline sentence in respect of the unlawful seizure offence to be one of 8 years. The Court thought that the appropriate headline sentence in respect of the violent disorder was correctly arrived at by the judge when he nominated 18 months. The Court thought that the appropriate reduction for mitigating factors from the nominated headline sentence for unlawful seizure should be 2 years. The Court imposed a sentence of six years imprisonment in respect of that offence. The Court thought that a post-mitigation sentence in respect of the violent disorder of 12 months was appropriate. The Court held that the sentences on the second Bill would run concurrently inter se; they too should commence on the lawful termination of the sentence on the first Bill. Having regard to the provisions of the Criminal Justice Act 1984 Act, the Court held that the sentence in respect of the unlawful seizure and the others imposed on the same Bill must be served consecutively to that imposed for violent disorder; this would give rise to a cumulative sentence of 7 years imprisonment. The Court thought that to encourage rehabilitation and to facilitate the respondent’s safe return to the community, the last year of the sentence for unlawful seizure should be suspended on the same terms as those imposed in the Circuit Court. The Court held that the sentence in respect of violent disorder would date from the 27th of October 2021 being the date fixed by the Circuit Court.
Appeal allowed.
JUDGMENT ( ex tempore) of the Court delivered on the 26th day of January 2023 by Mr Justice McCarthy
. This is an application pursuant to section 2 of the Criminal Justice Act 1993 for a review on grounds of undue leniency of the sentence imposed for offences on two separate Bill Numbers. Sentencing was dealt with at Waterford Circuit Criminal Court on the 17th of June 2022. Bill No: WDDP0018/2020 contained one offence and that committed first in time, namely, the offence of violent disorder contrary to section 15 of the Criminal Justice (Public Order) Act 1994. Michael Delany, the respondent herein, received a sentence of eighteen months suspended entirely for the period of eighteen months. Bill No: WDDP0094/2021 dealt with various offences which we list as follows:-
Count 1: Unlawful seizure of a vehicle contrary to Section 10 of the Criminal Law (Jurisdiction) Act, 1976
Sentence: 4 years imprisonment, with the final year suspended for one year.
Count 2: Assault causing harm contrary to Section 3 of the Non-Fatal Offences against the Person Act, 1997
Sentence: 3 years imprisonment.
Count 4: Dangerous driving contrary to Section 53(1) of the Road Traffic Act, 1961 (as substituted by Section 4 of the Road Traffic No. 2 Act, 2011)
Sentence: 4 months
Count 5: Using a mechanically propelled vehicle without having in force an approved policy of insurance contrary to the provisions of Section 56(1) and (3) of the Road Traffic Act, 1961, as amended
Sentence: 4 months
Count 6: Driving a mechanically propelled vehicle without holding a valid driving licence contrary to the provisions of Section 38(1) of the Road Traffic Act, 1961, as amended
Sentence: 4 months
Count 7: Refusal or failure to provide a specimen contrary to the provisions of Section 12(3)(a) and (4) of the Road Traffic Act, 2010, as amended
Sentence: 4 months
All sentences on Bill No: WDDP0094/2021 were made consecutive to the wholly suspended sentence imposed on Bill No: WDDP0018/2020 providing an effective sentence of three years backdated to the 27th of October 2021.
. We will briefly outline the facts of both matters. The offence of violent disorder occurred in the early hours of the 12th of August 2018 at 9 Anne Street in Waterford City at the home of the Ward family. Gardaí had been dealing with a separate public order matter at another part of the city and the two incidents appear to have been linked. The Gardaí had attended at the Anne Street address earlier due to a report of a disturbance. They were enroute to it when an investigating Garda observed a red car driven by one of the respondent's co-accused. The vehicle was driven through a junction without stopping or without lights and was visibly damaged. The driver was struggling to control the vehicle and Gardaí pursued the vehicle for a short distance. Three individuals could be seen in the vehicle and what were described as timber poles were thrown from it – there were subsequently recovered by the Gardaí. When the vehicle was eventually stopped, close to the respondent's home, the respondent, who was found to be topless, exited from the rear left of the vehicle and attempted to flee from the scene, but was stopped and detained by Gardaí.
. CCTV was obtained and viewed by the Court which showed three topless individuals with items in their hands including the respondent outside the home of the Wards. Damage was found to have been caused to the family home of the Wards. The vehicle was so driven as to have caused damage to a number of parked vehicles along the street. The respondent was arrested, detained, and made no admissions when interviewed.
. In respect of Bill No: WDDP0094/2021, which concerns the offences committed second in time, the respondent was on bail in respect of the violent disorder matter at the time and disqualified from driving. On the 21st of June 2021 at approximately 5pm Gardaí were called to an incident on what was described as the “ high road” in Kilmeaden, Co. Waterford where they met the victim, one Mr Zolt Tolmowski. He was observed to have blood coming from his nose and mouth. Garda Sharon Ryan was informed that the victim's car had been stolen from him and that he had been assaulted by the male who stole his car. The victim outlined that he was driving from his home in Portlaw to Kilmeaden and had seen a black car stopped on the road. He observed a female and a male by the car. He stopped to enquire if they were okay, at which point the couple, including the respondent, asked if he could bring them to Kilmeaden and he obliged. The respondent then asked the victim to return to his stationary black car as he had forgotten his phone. The victim did so but came to the view that they were wasting his time and he asked them to leave the car. At this point the respondent got out and punched the victim repeatedly into the face and head. When the victim got out of the car the assault continued as he was forced to move across the front of the vehicle and into a roadside ditch – the respondent continued to kick and repeatedly punch him into the head and body. The respondent then took the car and drove off in the direction of Waterford City. The respondent revved the car a...
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