DPP v D. McD
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 09 June 2020 |
| Neutral Citation | [2020] IECA 149 |
| Docket Number | [72/19] |
| Court | Court of Appeal (Ireland) |
| Date | 09 June 2020 |
[2020] IECA 149
The President
Edwards J.
McCarthy J.
[72/19]
THE COURT OF APPEAL
FOR ELECTRONIC DELIVERY
Sentencing – False imprisonment – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant appealed to the Court of Appeal against severity of sentence. The sentence under appeal was one of four years’ detention imposed in the Dublin Circuit Criminal Court on 12th April 2019. The appellant had appeared for sentence in respect of three counts of false imprisonment, three counts of robbery and two counts of s. 3 assault. The judge dealt with the matter by imposing sentence in respect of one of the counts of false imprisonment and taking the other matters into consideration. All of the counts on the indictment arose out of the same incident. In prosecuting this appeal, counsel had said that the error in the Circuit Court was that there was no adequate or appropriate regard to the mitigating factors present.
Held by the Court that, given that the judge was so obviously and clearly anxious to be in a position to provide for the continuing involvement of the Probation Service following the appellant’s release into the community, the judge erred, at least to the extent of not specifically considering the option of deferring finalisation so as to open up the possibility of part-suspension. Having come to that view, it seemed to the Court that, in those circumstances, it was required to readdress the question of sentence. In doing so, it took as its starting point that the incident giving rise to the sentence hearing was a very serious one. It was in complete agreement with the sentencing judge that any suggestion that the period in custody that the appellant was already serving should not be extended was unrealistic. It seemed to the Court that the nature of the offence and the personal circumstances of the appellant required that his period in custody be significantly extended. Notwithstanding this fact, the Court recognised that there would be real merit in providing for a structured release into the community and in providing an incentive to rehabilitate and a disincentive to reoffend upon release into the community. However, the Court noted that if the requirement for a significant extension of the period in custody was to be achieved, and yet, that there was to be a supported and structured release into the community, the scope for part-suspension was limited. For that reason, while the Court was prepared to intervene it would only do so to a very limited extent.
The Court held that it would impose a sentence of four years. The Court held that it would suspend the final eight months of that sentence. The Court held that this period of suspension was conditional on the appellant entering in a bond to keep the peace and be of good behaviour during his period in custody and for a period of three years post-release. The Court held that during the period of eight months post-release from custody, he would be under the supervision of the Probation Service and he would be required to comply with their directions.
Appeal allowed.
This is an appeal against severity of sentence. The sentence under appeal is one of four years’ detention imposed in the Dublin Circuit Criminal Court on 12 th April 2019. The appellant had appeared for sentence in respect of three counts of false imprisonment, three counts of robbery and two counts of s. 3 assault. The judge dealt with the matter by imposing sentence in respect of one of the counts of false imprisonment and taking the other matters into consideration. It should be noted that all of the counts on the indictment arose out of the same incident.
This case emerged from events that occurred on the evening of 27 th June 2018. The three injured parties, three boys each 15 years old, were socialising in Crescent Park in Dublin when they were approached by a group of eight or nine people. Most were adolescents in their mid/late teens, but one was an older man, in the narrative he is described as “the old fellow”, but in fact, it seems he was 32 or 33 years of age. The appellant was one of that group and it is not in dispute that he played a prominent, indeed, a leading role in the events that occurred thereafter.
The injured parties were told to walk out of Crescent Park. One of the injured parties, KGB. was held by the appellant around the shoulder. The appellant said to the injured parties “come with us now or you are going to get fucking stabbed”. They were brought to Fairview Park where they were told to hand over their phones and their money. They were required to reset their phones, deleting personal information. The injured parties were told that if they made noise or started to scream for help, they were going to “get battered”. The group of assailants and injured parties made their way to Tesco Express in Fairview. There, an attempt was made to make purchases using a credit card taken from one of the injured parties. From there, the group made their way to the Tech 4U on Philipsburgh Avenue. The injured parties indicate that it was mainly the appellant and the older man who were making threats. At Tolka Park, the appellant kicked and punched the injured party, KGB. while other members of the group assaulted other injured parties. The injured parties ran up the road, but when, at one stage, they stopped running, they were kicked and punched again. The injured party, KGB. was punched into the right eye. In all, the incident lasted between somewhere in the region of an hour and a half or perhaps slightly less.
The Appellant's Personal History
In terms of the appellant's background and personal circumstances, the sentencing judge heard that he was born on 24 th April 2001. On 14 th November 2019, he was arrested and detained and made certain admissions. He had 18 previous convictions recorded. These include the fact that he had received a two-year sentence in the Dublin Circuit Criminal Court on 1 st March 2019 in respect of an offence of robbery and false imprisonment, committed on 22 nd August 2018. The appellant's other convictions were in the Children's Court. However, at the time of the sentence hearing, he had pleaded guilty to three counts of robbery and one count of attempted robbery, committed on Christmas Eve 2018, but this matter had not been processed to a conclusion. In the course of the oral hearing of the appeal, which was conducted remotely, it was indicated that these counts all related to a single incident. The sentence hearing heard that the appellant had “started dabbling very heavily” in cannabis and cocaine between mid-May and December 2018.
In the course of the sentencing remarks, the judge indicated that he saw the headline sentence as being in the region of seven years. The judge addressed the terms of s. 151 of the Children's Act 2001 with its concept of a Detention and Supervision Order. The appellant says that the failure to invoke and make use of s. 151 meant that the sentence actually imposed was overly severe. It is said that this is particularly so if regard is had to the sentences imposed on other co-accused. The adult involved received a sentence of seven years imprisonment with the final 18 months suspended. That sentence not only covered the incident the subject matter of the present appeal, but also the theft on different occasions of a number of bicycles. Another participant, who was dealt with as an adult, but who had been a juvenile at the time of the offence, received a sentence of three years imprisonment with the final 20 months suspended. While there was reference to s. 151 of the Children's Act which provides for detention and supervision orders which results in half of the specified period of detention being served in detention, and the remaining half being spent in the community under supervision, there was no real detailed analysis of the relevance or applicability of the section. We are aware from other cases that we are dealing with at present that there is a divergence of view as to whether the section has any relevance in a situation where the person before the Court would be turning 18 years old during the period of actual detention. This would be of considerable significance in the context of the present case because the sentence hearing took place within a fortnight of the appellant's 18 th birthday.
Impact on the Victims
Each of the injured parties was significantly affected by this incident. Victim impact reports were put before the Court from two of the victims, though, in the case of the third victim, he decided not to do that as he did not want to relive the incident by writing a report. In his case, his mother told the Gardaí that in the aftermath of the incident, her son had been very traumatised, had become very withdrawn from friends, did not enjoy socialising and became very nervous when out in public. In the case of KGB. all of those matters are present, but in his case, it is noteworthy that he gave up playing sport, having up to this point played hurling at a high level, and he did not return to school during that school year. He has been left with a scar on the side of his eye which will be a permanent scar. In the case of the third injured party, again, he became very withdrawn, and again, it had a very significant impact on many aspects of his life.
The Judge's Approach to Sentencing
Some of the exchanges that took place with the sentencing judge before the imposition of sentence, as well as his remarks when actually imposing sentence, merit consideration. In pleading for leniency, counsel on behalf of the now appellant referred...
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