DPP v Boza

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeBirmingham J.,Irvine J.
Judgment Date10 Nov 2014
Neutral Citation[2014] IECA 46
Docket Number[35/12]

[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

Facts: This case was concerned with an appeal against the severity of a sentence imposed on the appellant at the Central Criminal Court on 6th February 2012. The appellant had been sentenced to six years imprisonment with the final two years suspended on condition. The appellant had been charged with three offences contrary to s 72 and s 74 of the Criminal Law Act 1997, of doing acts with the intent to impede the apprehension of prosecution of an offender. Specifically, it was alleged that following the murder of Mr. Peter Gunn, the appellant, under duress, assisted in or carried out a number of acts, including, disposing of the deceased”s body and some days later taking up the bloodstained carpet from the flat floor and disposing of it and the fatal weapon. It was submitted on behalf of the appellant that: (1) The trial judge did not give an adequate recognition of the difference as to the level of seriousness of disposing of the body as compared with interfering with the scene of the crime and getting rid of the murder weapon knife. Moreover, the judge failed to give any adequate rationale for the one-year reduction that he made in light of the error pointed out by Counsel; (2) The trial judge departed from proper sentencing practice; (3) The judge did not give sufficient weight to the mitigating elements and imposed a sentence that was disproportionate in all the circumstances; and (4) In supplemental submissions dated 5th November 2014, the appellant cited a sentence imposed by the same judge for an offence under the same section and subsections by way of comparison of a case of acts following a murder and in which there was also an element of fear on the part of the accused. The implication was that the sentence in this case was inconsistent with the decision in the latter case and was evidence of an error of principle.

Held by the Court in light of the available evidence and submissions presented that the learned trial judge did fall into error and the sentence must be set aside and the Court would proceed to consider the appropriate sentence to impose instead. The proposed comparison between this case and the one decided two years later was deemed not to be helpful. In coming to its decision, it was the opinion of the Court that the learned trial judge did not sufficiently allow for the extra element of mitigation in the acknowledged presence of duress operating on the appellant in his carrying out of the other acts of obstruction. Additionally, the failure to take account of the time in custody, a fact which was accepted by the Director amounted to another error in the view of the Court. Consequently, the Court was of the opinion that the proper sentence in the case was four years, subject to mitigation which justified a reduction of that sentence by suspending two years, so the sentence that the Court imposed considered appropriate was four years with two of those years suspended. Acknowledging that there were special circumstances, in that the appellant, followed through on his commitment to participate in the prosecution of the alleged perpetrator and gave evidence, and secondly, he was now in the Witness Protection Programme, the Court, additionally, suspended, to the extent that it was necessary, any remaining balance of the sentence over and above the amount of time that the accused had spent in jail, either on remand for the four and half months pending the case or as a result of the sentence imposed by the Court before he was granted bail.

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...

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