DPP v O'Brien

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 02 June 2016
• Neutral Citation: [2016] IECA 164
• Date: 02 June 2016
• Docket Number: Record No CA 33/2015 Bill No LK 32/2014

Birmingham J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

DAMIEN O'BRIEN

Appellant

[2016] IECA 164

Record No CA 33/2015

Bill No LK 32/2014

THE COURT OF APPEAL

Sentencing – Making a threat to injure another with a syringe – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr O?Brien, on the 10th October, 2013, entered the Gleeson?s shop at 43 Catherine Street, Limerick, and stole a Bounty bar. He left the shop with the Bounty bar. A nephew of the shop owners, a Mr Gleeson and another employee, a Mr Hanley, went outside to confront him. Mr Hanley asked the appellant to return the Bounty Bar. The appellant then produced and brandished a syringe and threatened to kill both Mr Gleeson and Mr Hanley. Armed with the syringe, the appellant then chased Mr Gleeson along a nearby street. Mr Gleeson managed to escape his pursuer. The appellant, having been later arrested, claimed in interviews conducted by members of An Garda Siochána that he did not have a syringe but that what he had in his hand was in fact a bookmaker?s biro. The appellant was convicted by a jury on a count of making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the Non Fatal Offences Against the Person Act 1997. On the 30th of January 2015, Limerick Circuit Criminal Court sentenced the appellant to five years imprisonment, to date from the 21st of October 2014. The appellant appealed to the Court of Appeal against the severity of that sentence. He complained that the sentencing judge failed to assess the seriousness of the case with reference to the range of available penalties. The appellant complained that the sentencing judge failed to have adequate regard to the fact that the syringe was brandished reactively in circumstances where the accused was being pursued by personnel from the shop from which he had stolen produce, and that he had not produced the syringe in the shop, nor threatened anybody with it in the course of stealing the Bounty Bar. It was complained that the sentencing judge failed to have adequate regard to the need to incentivise rehabilitation. The appellant contended that the sentence was simply too severe in all the circumstances of the case. The respondent, the DPP, contended that the trial judge went as far as he could reasonably have been expected to do for the appellant having regard to his previous record and the bad circumstances of the case. The respondent also submitted that s. 6 of the 1997 Act represents a strong statement of legislative policy, and in support of that the Court was invited to contrast its terms with those contained in ss. 9(1) and 9(5) of the Firearms and Offensive Weapons Act 1990 which deal respectively with the possession in a public place of knives and other articles, and the production in a public place of knives and other articles with the intention of causing injury, incapacitation or intimidation; a significantly higher maximum sentence is provided by the legislature for syringe offences.

Held by Edwards J that, in circumstances where both aggravating and mitigating factors were taken into account in the appropriate way, and where a penalty at exactly the mid-point on the scale was the end result, he found nothing in the circumstances to suggest an error of principle in the sentencing judge?s approach. In so far as the need to incentivise rehabilitation was concerned, Edwards J noted that the appellant had previously received such an incentive but had spurned it. Edwards J held that this was not an appropriate case in which to part suspend any portion of the sentence, and in his view the sentencing judge was correct to decline to do so.

Edwards J held that the appeal against the severity of the appellant?s sentence should be dismissed.

Appeal dismissed.

Judgment of the Court delivered on the 2nd day of June 2016 by Mr. Justice Edwards .

Introduction.

1 In this case the appellant appeals against the severity of a sentence of five years imprisonment, to date from the 21st of October 2014, imposed upon him by Limerick Circuit Criminal Court on the 30th of January 2015 following his conviction by a jury on a count of making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the Non Fatal Offences Against the Person Act 1997 (the Act of 1997).

The circumstances of the offence

2 The charge under s.6(1)(b) of the Act of 1997 was preferred in respect of an incident that occurred at the Gleeson's shop at 43 Catherine Street, Limerick, on the afternoon of the 10th of October 2013.

3 The prosecution evidence was that the appellant entered the shop in Catherine Street and stole a Bounty bar. He left the shop with the Bounty bar. A nephew of the shop owners, a Mr. Seaghan Gleeson and another employee, a Mr Karl Hanley, went outside to confront him. Mr Hanley asked the appellant to return the Bounty Bar. The appellant then produced and brandished a syringe and threatened to kill both Mr Gleeson and Mr Hanley.

4 The evidence was that, armed with the syringe, the appellant then chased Mr Gleeson along a nearby street. Mr. Gleeson managed to escape his pursuer after he had successfully positioned himself such that there was a car between him and the appellant.

5 The appellant, having been later arrested, claimed in interviews with him conducted by members of An Garda Siochána, that he did not have a syringe but that what he had in his hand was in fact a bookmaker's biro.

The evidence as to the appellant's personal circumstances

6 The sentencing court was told that the appellant was born on the 11th of January 1986. He is a heroin addict and at the time of the offence the appellant was intoxicated with alcohol.

7 The appellant has a number of previous convictions including convictions for crimes of violence.

8 On the 7th of March 2002 at Limerick City District Court he was sentenced for a total of four assaults contrary to s. 2 of the Act of 1997 and for the offence of being in possession of an article, contrary to s. 9(1) of the Firearms and Offensive Weapons Act, 1990 (the Act of 1990). He received six months for two of the s.2 assaults, with the others being taken into account and nine months imprisonment for the s. 9(1) offence. On the 13th of September 2002 he received 14 days for a further s. 2 assault. Then on the 3rd of December 2002 he received four months imprisonment in respect of four offences of theft contrary to s. 4 of the Criminal Law (Theft and Fraud Offences Act) 2001 (the Act of 2001). On the 15th of April 2003 he received three months imprisonment for a further offence of theft contrary to s. 4 of the Act of 2001.

9 On the 29th of July 2003 he received four months imprisonment for an offence contrary to s. 2 of the Criminal Damage Act 1991 (the Act of 1991), and an offence of theft contrary to s. 4 of the Act of 2001 was taken into consideration. On the 18th of November 2003 he received four months imprisonment for an assault contrary to s. 2 of the Act of 1997, and concurrent sentences of four months imprisonment for an offence contrary to s. 2 of the Act of 1991, and six months imprisonment for possession of knives, contrary to s.9(1) of the Act of 1990. On the 17th of June 2004, he was sentenced to six months imprisonment again for possession of knives, contrary to s.9 (1) of the Act of 1990.

10 On the 8th of December 2004, he was yet again sentenced to eight months imprisonment for possession of knives, contrary to s.9(1) of the Act of 1990. Then, on the 12th July 2006, he received a sentence of nine months imprisonment for possession of an article with intent to cause injury, contrary to s. 9(5) of the Act of 1990, and a concurrent sentence of 6 months imprisonment for burglary offences, contrary to s. 12 of the Act of 2001. On the 12th of June 2007, he received a further sentence of 10 months imprisonment for another case of possession of an article with intent to cause injury, contrary to s. 9(5) of the Act of 1990.

11 On the 29th of June 2007 at Limerick City Circuit Court, he received two years and six months imprisonment in respect of three charges of possession of drugs for sale or supply, contrary to s. 15 of the Misuse of Drugs Act, 1977.

12 The sentencing court also heard that in more recent times he had acquired a number of further convictions for public order offences and the like. Then, in addition, on the 19th of October 2011, the accused was sentenced to four years imprisonment backdated to the 7th of April 2011, with the final year suspended for four years from the 19th of October 2011 in respect of an offence of assault causing harm contrary to s. 3 of the Act of 1997. The present offence was committed during the period of that suspension, and the prosecution were also making an application pursuant to s. 99 of the Criminal Justice Act 2006 that he should now be required to serve the suspended period of the sentence imposed on the 19th of October 2011.

13 The circumstances of that offence were that the injured party was a gentleman who, having consumed alcoholic drink, had fallen asleep on a seat at the bus stop at Mulgrave Street in Limerick city, when without any warning or provocation he was the subject of what was characterised at the time as a brutal attack with a knife, committed by the appellant. The injured party had suffered lacerations to the left side of his face in the vicinity of his left eye and his left facial area. The sentencing judge was told that it had been put forward on behalf of the accused...