DPP v Aylmer

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 10 March 2020
• Neutral Citation: [2020] IECA 106
• Docket Number: [277/2018]
• Court: Court of Appeal (Ireland)
• Date: 10 March 2020

BETWEEN

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MARTIN AYLMER

APPELLANT

[2020] IECA 106

Birmingham P.

McCarthy J.

Ní Raifeartaigh J.

[277/2018]

THE COURT OF APPEAL

Sentencing – Participating in the activities of a criminal organisation – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The Director of Public Prosecutions appealed to the Court of Appeal in respect of a sentence imposed on the accused, Mr Aylmer. It was claimed that the sentence was unduly lenient. The offence in question was that of participating in the activities of a criminal organisation, contrary to s. 72(1)(b)(ii) and s. 72(2) of the Criminal Justice Act 2006 as substituted by s. 6 of the Criminal Justice Amendment Act 2009. This was the first time a sentence had been imposed for this offence, which carries a maximum penalty of fifteen years. The sentence imposed by the Special Criminal Court was a sentence of imprisonment of three years and nine months, with the final twelve months suspended on condition that the accused be under the supervision of the Probation and Welfare Service. It was submitted on behalf of the prosecution that the sentencing court had made an error in principle, and that in fixing the headline sentence at five years, the Court had insufficient regard to a number of factors including: the intention of the Oireachtas; the gravity of the offence actually committed; the devastating impact of the offence on others; the level of involvement and/or seriousness of the acts of assistance rendered by the accused man; and his mens rea.

Held by the Court that the following factors were relevant in fixing the headline sentence for this offence: (i) the nature of the acts of assistance given by the accused; (ii) the nature of the criminal organisation he was assisting; (iii) the consequence of his acts(s) of assistance, which may include the commission of a crime which he did not himself specifically foresee; and (iv) considerations of general deterrence. The Court considered that the sentencing court fell into error in placing the case (before mitigation) at the intersection of the lower and middle end of the range and in fixing the headline sentence at five years. The Court considered that this amounted to a substantial departure from what would be regarded as the appropriate headline sentence and constituted an error of principle, within the meaning of the authorities on “undue leniency”. The Court therefore allowed the appeal on the ground that the sentence was unduly lenient.

The Court held that, having regard to the acts of assistance given by the accused man to what he knew was a drug trafficking organisation, together with the fact that a murder was, in fact, committed and had, in fact, been facilitated by his acts of assistance, as well as considerations of general deterrence, the appropriate headline sentence in this case was eight years. The Court applied the same 25% reduction as the sentencing court, resulting in the first instance in a reduced sentence of six years after this reduction. The Court then applied a slightly increased reduction for mitigating factors (to take account of factors including the accused’s previous history and his family situation, as well as the fact that the sentence was being increased on this appeal) and suspended the final fifteen months on the same conditions as those imposed by the sentencing court; accordingly, the final sentence was six years with fifteen months suspended.

Appeal allowed.

JUDGMENT of the Court delivered on the 10th day of March, 2020 by Ms. Justice Ní Raifeartaigh

1 This is an appeal brought by the DPP in respect of a sentence imposed on the accused person in which it is claimed that the sentence was unduly lenient. The offence in question was that of participating in the activities of a criminal organisation, contrary to s.72(1)(b)(ii) and s.72(2) of the Criminal Justice Act, 2006 as substituted by s.6 of the Criminal Justice Amendment Act, 2009. This was the first time a sentence had been imposed for this offence, which carries a maximum penalty of fifteen years. The sentence imposed by the Special Criminal Court (Hunt J., Ní Chúlacháin J., Dunne J) was a sentence of imprisonment of three years and nine months, with the final twelve months suspended on condition that the accused be under the supervision of the Probation and Welfare Service.

The facts as established by the evidence adduced at the sentencing hearing

2 The accused pleaded guilty to the offence at an early stage and the evidence in the case put forward at a sentencing hearing before the Special Criminal Court was as follows.

3 The evidence for the offence for which the accused man was sentenced was uncovered during the Garda investigation into the murder of Michael Barr in the Sunset Public House on 25th April, 2016. After that murder, those responsible for it abandoned a getaway vehicle (an Audi) in Drumcondra. There was an attempt to destroy the vehicle by fire, but timely intervention by An Gardaí Síochána preserved the vehicle and its contents for the purpose of investigation. A mobile phone was found in a grass area near the vehicle and it was observed that a number of calls were made to that phone after the arrival of Gardaí at the scene. Investigations revealed that the phone had been purchased two days previously at an outlet in the Ilac Shopping Centre in Dublin city centre. Gardaí obtained CCTV footage from that store and it showed that the purchaser had bought two other phones there at the same time. They were all prepaid unregistered mobile phones. The CCTV footage showed the man purchasing the phones as wearing a distinctive jacket and baseball cap. His movements were traced to another mobile phone store at Moore Street in the city centre, where he purchased three more mobile phones on the same day, also all prepaid and unregistered. The Gardaí were able to work back from the CCTV footage to establish that he had arrived at the shopping centre that morning in a Toyota Corolla with a particular registration plate. The driver was not wearing a baseball cap at the time he took the ticket from the machine at the carpark barrier but put on the baseball cap upon entering the Ilac Centre. The Gardaí were able to establish that the Toyota Corolla was registered to the accused man and they were also satisfied that the accused man was the person shown in the CCTV footage.

4 The examination of other CCTV footage in the investigation tracked the movement of the Audi getaway vehicle back from the Sunset Public House to lockup premises on the North Circular Road. When the lockup was searched, a number of firearms were found as well as a number of cleaning products. A finger mark lifted from a bottle of bleach was subsequently identified as belonging to the accused. In addition, CCTV footage of the entrance to the lockup showed Mr Aylmer visiting the premises on three occasions on the morning of the day before the murder, all of his visits being within a period of about an hour and a half.

5 The accused was arrested on 17th June, 2016 at his home address and was subsequently detained and interviewed. Initially, he exercised his right to silence but, after the Gardaí invoked statutory inference provisions, he said he believed the phones would be used for drug trafficking. He also said that he may have moved the bottle of bleach while in the lockup. There was no paraphernalia relating to drug trafficking at the location.

6 Mr Aylmer honoured the stringent conditions of bail granted to him by the Court on the 9th April, 2018. His plea of guilty was entered as soon as the preliminary legal discussions had concluded. His previous convictions consisted solely of two minor public order matters back in 2015.

7 The accused man was born in November 1986; he was therefore aged approximately 32 years of age. His father had passed away in 2013 and he lived with his mother who was a retired cleaner. Both of them were responsible for the care of his brother who had become disabled as a result of an accident a number of years ago.

8 In the course of the sentencing hearing, it was accepted by counsel for the DPP that there was insufficient evidence to charge the accused man with murder and that there was no evidence that he had foreseen that his acts of assistance would be used in preparation for a murder or that he had the necessary intent for assisting in a murder before the commission of that crime. In those circumstances, it is a curious feature of the indictment that the particulars of the offence were that Martin Aylmer between 23rd April, 2016 and 25th April, 2016 (both dates inclusive) in the State “with knowledge of the existence of a criminal organisation did participate in or contribute to activity intending to facilitate the commission by the said criminal organisation or any of its members of a serious offence to wit the murder of Michael Barr at the Sunset House, Summerhill Parade on the 25th April 2016.”

9 In an exchange with counsel during the hearing, Hunt J. commented that the accused man was not “in the premiership” of the possible range of those who lent their assistance to criminal organisations.

The sentencing remarks of the Special Criminal Court

10 The Court started by referring expressly to the two-stage sentencing analysis repeatedly prescribed as best practice by the Court of Appeal, which involved assessing the gravity of the offence with reference to culpability, including aggravating factors tending to increase culpability, and identifying a “headline sentence;” and then moving to mitigating factors tending to reduce culpability and the harm done and determining where on the scale of available penalties the offence should be located.

11 The Court said that the provision of any assistance to a serious criminal organisation was a grave matter, but that...