DPP v Boza

 
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[2014] IECA 46

THE COURT OF APPEAL

The President

Birmingham J.

Irvine J.

[35/12]

Between
The People at the Suit of the Director of Public Prosecutions
Respondent
and
Kastriot Boza
Appellant

Sentence Severity – Criminal Law Act 1997 – Intent to Impede the Apprehension of Prosecution of an Offender – Appeal – Judicial Error – Mitigating Factors – Duress – Witness Protection

1

This is an appeal against the severity of the sentence imposed on the appellant at the Central Criminal Court on 6th February 2012. He was sentenced to six years imprisonment with the final two years suspended on condition. On 16th December 2011, the accused had pleaded guilty to two counts of a three count indictment and the matter was put back for the sentence hearing which took place on 30th January, 2012. The trial judge reserved his decision on sentence for one week until 6th February, 2012. The indictment charged the accused with three offences contrary to s. 72 and 74 of the Criminal Law Act 1997, of doing acts with the intent to impede the apprehension of prosecution of an offender.

2

On 4th January 2009, the appellant was one of a number of persons who were present in a flat in Cabra in Dublin when the late Peter Gunn was murdered. There is no suggestion that the appellant was in any way implicated in the murder, which on the evidence given to the sentencing court appears to have been a sudden and spontaneous malicious act carried out by one of the party on the unfortunate victim.

3

Following the commission of the crime, the appellant assisted in or carried out a number of acts that were the subject of the charges, namely, disposing of the deceased's body after the murder and some days later taking up the bloodstained carpet from the flat floor and disposing of it and the fatal weapon.

4

Count 1 related to assisting in the disposal of the body of the deceased, Count 2 concerned the carpet and Count 3 disposing of the knife used to kill the deceased. TheDirector accepted that the accused was acting under duress and in fear of his life from the perpetrator at the time of disposal of the body. That amounted to a defence in the circumstances and the prosecution did not proceed on that count. It was also accepted that there was an element of duress in respect of the acts giving rise to Counts 2 and 3, but not such as would have constituted a defence to those charges.

5

In cross-examination of Detective Garda Gleeson, the Officer in charge of the case, Counsel suggested that the appellant's motive was still fear, despite the intervening period of days and the Officer accepted that. Counsel for the prosecution submitted that the offences were at a medium level of seriousness of their kind.

6

The appellant was born on 22nd March 1973 and is from Albania. He came to Ireland in 1998 and got married in 2001 and has one child. He has 28 previous convictions between 2005 and 2010 for a variety of offences including burglary, theft and public order offences of a relatively minor nature. There is no record of violence or anything similar to the crimes in question. The trial judge did not refer to the appellant's criminal record in considering sentence.

7

The appellant's submissions draw attention in the first instance to the fact that the trial judge made an error...

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