DPP v Carraher (No.2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 11 June 2018
• Neutral Citation: [2018] IECA 170
• Docket Number: Record No. 218/2016
• Court: Court of Appeal (Ireland)
• Date: 11 June 2018

[2018] IECA 170

THE COURT OF APPEAL

Mahon J.

Birmingham P.

Mahon J.

Edwards J.

Record No. 218/2016

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

SEAN CARRAHER (NO. 2)

APPELLANT

Sentencing – Harassment – Manifestly excessive sentence – Appellant seeking to appeal against sentence – Whether sentence was excessive

Facts: The appellant, Mr Carraher, was convicted in the Circuit Criminal Court on the 14th June 2016 following a six day trial on one count of harassing Sergeant Gilmartin contrary to s. 10 of the Non Fatal Offences Against the Person Act 1997. On the 27th July 2016 the appellant was sentenced to five years imprisonment. He appealed to the Court of Appeal against his sentence on the grounds that: (i) the sentence imposed was excessive and oppressive in all the circumstances; (ii) the sentencing judge erred in law and in fact in placing excessive weight on the aggravating factors as outlined during the course of the appellant's sentencing hearing; (iii) the judge erred in failing to attach sufficient weight to the appellant previous character and the fact that the appellant had attempted to rectify matters in an attempt to remove information from the internet; (iv) the judge attached insufficient weight to the fact that it was the appellant's first time before the Circuit Criminal Court; (v) the judge failed to attach sufficient weight to the appellant's personal circumstances and the fact that the appellant had not come to the adverse attention of the garda from the date of his arrest and interview; and (vi) the judge failed to attach sufficient weight to the appellant's co-operation, and he further erred in failing to suspend any portion of the sentence which would encourage the appellant to reform and reintegrate into society upon his release.

Held by the Court that the offence's more appropriate placement on the gravity scale was in the mid-range. On that basis the Court held that the sentence imposed ought to have reflected such a placement. In the Court's view, a custodial sentence of five years was not warranted in the circumstances. The Court held that it would re-sentence the appellant.

The Court held that an appropriate sentence was one of three years imprisonment. Allowing the appellant all due credit for the efforts taken by him to remove the offending material from the internet, the other mitigating factors identified in the Circuit Court and the impressive prison report on the appellant's involvement in a number of educational courses, the Court would suspend the final eighteen months of the three year term for a period of eighteen months post release subject to the appellant entering into a bond in the sum of €100 to keep the peace and to be of good behaviour and also that he does not post or share on the internet any reference whatsoever to Garda Gilmartin or any member of his family. The Court held that the said sentence was to commence with effect from the 14th July 2016.

Appeal allowed.

JUDGMENT ( ex tempore) of the Court delivered on the 11th day of June 2018 by Mr. Justice Mahon

1 The appellant was convicted in the Circuit Criminal Court on the 14th June 2016 following a six day trial on one count of harassing Sergeant Conor Gilmartin contrary to s. 10 of the Non Fatal Offences Against The Person Act 1997. On the 27th July 2016 the appellant was sentenced to five years imprisonment. He has now appealed against his sentence, his appeal against conviction having been dismissed by this Court in its judgment delivered on the 10th May 2018.

2 The appellant was alleged to have harassed the complainant between March 2009 and May 2011 with internet postings and telephone calls. At the time, the appellant was being investigated for offences under the Domestic Violence Act 1996 in relation to his former wife. In the course of these investigations the appellant alleged child abuse against his estranged wife. He was successfully prosecuted in the District Court, and on appeal to the Circuit Court, in relation to the offence of harassing his former wife on the 1st...