DPP v Comey
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 31 May 2018 |
| Neutral Citation | [2018] IECA 161 |
| Docket Number | CJA 58/2017 |
| Court | Court of Appeal (Ireland) |
| Date | 31 May 2018 |
[2018] IECA 161
THE COURT OF APPEAL
Edwards J.
CJA 58/2017
AND
Sentencing – Unlawful seizure of a vehicle – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient
Facts: The respondent, Mr Comey, on the 21st of July 2015, pleaded guilty in Dublin Circuit Criminal Court to one count of unlawful seizure of a vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976, one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and one count of possession of a syringe with intent to injure or to threaten or intimidate, contrary to s. 7(1) and (7) of the 1997 Act. On the 10th of February 2017, the respondent was sentenced to a term of imprisonment of three and a half years in respect of each of the counts that he had pleaded guilty to. Each sentence was backdated to the date at which the respondent entered into custody, the 12th of May 2014. The balance of each sentence was suspended from the date that sentence was handed down, the 10th of February 2017, on the condition that the respondent would enter a bond in the sum of €150 to keep the peace and be of good behaviour. The sentencing court also ordered that the respondent undertake to remain under the supervision of the probation and welfare services for one year post release and to comply with any other directions from those services regarding training and employment, drug addiction and offence focused work. Liberty was also given to the Probation and Welfare Service to re-enter the matter before the sentencing court for the purposes of reactivating the sentence in the event of non-compliance with those conditions. On the 8th of March 2017, the applicant, the DPP, applied to the Court of Appeal seeking a review of the said sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient. The applicant submitted that the sentencing judge erred in: a) failing to take adequate account of the evidence adduced of the serious factual background to the commission of the offences and failing to determine where the offences fell on the scale of offending to reflect the nature of the offences and the aggravating factors pertaining to them before applying mitigation; b) failing to attach any or any adequate weight to the aggravating factors in the case; c) attaching undue weight to the mitigating factors in the case; and d) failing to sufficiently incorporate elements of general deterrence in the sentence having regard to the maximum sentence prescribed by the Oireachtas for the offences.
Held by the Court that the failure to determine an appropriate headline sentence led to an ultimate sentence that was clearly outside of the norm and one that the Court found was unduly lenient.
The Court held that, upon an appropriate assessment of the gravity of the offences with reference to the range of penalties available, the appropriate headline sentences should be seven years in the case of the unlawful seizure, three and a half years in the case of the s. 3 assault and three and a half years in the case of the possession of a syringe. The Court held that the respondent was entitled to a discount in mitigation for the fact that he pleaded guilty and to reflect his personal circumstances, including the adversities in his early life, his mental health and his addiction issues. The Court held that his attempts at rehabilitation also required acknowledgment. The Court would discount from the seven-year sentence for the unlawful seizure offence by eighteen months, by nine months in the case of the three and a half year sentence for the s. 3 assault and by nine months in the case of the three and a half year sentence for the possession of a syringe. The Court held that the respondent was to receive credit for the thirty one and a half months that he spent in total on remand in respect of these matters. The Court held that the net sentences imposed were five years and six months imprisonment for the unlawful seizure offence and two years and nine months imprisonment for both the s. 3 assault and the possession of a syringe, respectively, backdated to the 10th of October 2015.
Appeal allowed.
On the 21st of July 2015, the respondent to this appeal pleaded guilty in Dublin Circuit Criminal Court to one count of unlawful seizure of a vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976; one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997; and one count of possession of a syringe with intent to injure or to threaten or intimidate, contrary to s. 7(1) and (7) of the Non-Fatal Offences Against the Person Act, 1997.
These guilty pleas were entered on the basis that the full facts of the incident would be given at the sentence hearing.
On the 10th of February 2017, the respondent was sentenced to a term of imprisonment of three and a half years in respect of each of the counts that he had pleaded guilty to. Each sentence was backdated to the date at which the respondent entered into custody, the 12th of May 2014. The balance of each sentence was suspended from the date that sentence was handed down, the 10th of February 2017, on the condition that the respondent would enter a bond in the sum of €150 to keep the peace and be of good behaviour. The sentencing court also ordered that the respondent undertake to remain under the supervision of the probation and welfare services for one year post release and to comply with any other directions from these services regarding training and employment, drug addiction and offence focused work. Liberty was also given to the Probation and Welfare Service to re-enter the matter before the sentencing court for the purposes of reactivating the sentence in the event of non-compliance with these conditions.
The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.
At the sentence hearing, on the 22nd of January 2016, Sergeant David Wogan gave evidence of the incidents forming the subject matter of the present case. These offences occurred on the 12th of May 2014. At approximately 3 pm on that date, a Mr Mei Bing Zheng and his wife Ms Xiaoling Zhou had parked their car on a street parallel to Parnell Street in Dublin's city centre. Mr. Zheng went to the parking metre which was located behind the car to get a ticket, leaving his key in the ignition and his wife in the passenger seat. Ms. Zhou was seven and a half months pregnant at the time.
Suddenly, the respondent opened the driver's door and sat into the car. Ms. Zhou had taken off her seat belt at this time and, having turned around to get her coat, she did not see where the respondent had come from. Having sat into the seat, the respondent shouted at Ms. Zhou to get out of the car and proceeded to engage the gear and drive the car forward, leaving Ms. Zhou with no chance to get out of the car. The evidence was that Ms. Zhou ‘was crying and very upset and kept begging the man to stop the car, but that he was ignoring her’.
When Ms. Zhou tried to put the car into neutral gear, the respondent punched her to the right side of her face. She was wearing glasses at the time and the punch caused her glasses to dig into her face. This punching persisted whilst the respondent continued driving, and Ms. Zhou continued trying to grab the steering wheel and the gearstick in an effort to stop the car. Ms. Zhou did not know how many punches she received. At one point, Ms. Zhou tried to open the passenger door and get out of the car. She used her leg to try to keep the car door open as she shouted for help from passers-by. At this juncture, the respondent tried to push Ms. Zhou out of the car with his left hand whilst steering and driving the car with his right.
The respondent was shouting at Ms. Zhou, telling her to get out of the car and threatening to kill her. Ms. Zhou's concern was that she was unable to jump from the car on account of being so heavily pregnant. Ms. Zhou was crying and begging the respondent to stop the car. He continued to ignore her and kept driving. The sentencing court heard that Ms. Zhou did not know how long the incident went on for but that at one point the car was driven down a narrow lane with cars parked either side; the car was being driven in such a way that it scratched off the parked cars in the lane.
Sergeant Wogan and a Garda Hunt were on duty on the date in question. They began to pursue Mr Zheng's car as they observed it being driven at a high speed and in an erratic manner with the passenger door open. Sergeant Wogan also gave evidence to the sentencing court that he noticed that there was a man driving the car who appeared to be in a physical altercation with the woman in the passenger seat, the latter appearing very distressed.
As the car travelled down the lane, the car slowed down to a stop and the two Gardaí approached the driver's side of the vehicle. As they did so they ‘observed a number of blows’ inflicted by the respondent on Ms. Zhou. Garda Hunt attempted to open the driver's door but was unsuccessful; the driver took off again towards Gardiner Street and broke a set of red traffic lights on Sean McDermott Street on the way.
Eventually, the car came to a halt and the respondent alighted and walked directly in front of the Garda car, at which point the respondent was arrested. A syringe with a substance in it was found on the respondent's possession at the time...
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