DPP v Daniel Prenderville
| Jurisdiction | Ireland |
| Judge | Birmingham J. |
| Judgment Date | 23 January 2015 |
| Neutral Citation | [2015] IECA 33 |
| Court | Court of Appeal (Ireland) |
| Date | 23 January 2015 |
[2015] IECA 33
THE COURT OF APPEAL
Kelly J.
Birmingham J.
Sheehan J.
Crime & sentencing – Firearms – Possession of firearm and ammunition in suspicious circumstances – DPP contending sentences unduly lenient
Facts: The respondent had been convicted of possession of a firearm and ammunition in suspicious circumstances in the Circuit Court. The DPP considered the sentences handed down to be unduly lenient and sought a review of the matter by the Court of Appeal.
Held by Birmingham J, that the Court would grant the review sought by the DPP. Having considered the provisions of s 27A of the Firearms Act 1964 with the evidence, the Court was satisfied the sentence handed down was an error of principle and the Court would substitute a fresh sentence upon submissions by the parties. DPP v Kieran Ryan [2014] IECCA 11 and DPP v Byrne [1995] 1 ILRM 279 considered.
1. In this case the Director, pursuant to s. 2 of the Criminal Justice Act 1993, applies to the court seeking a review of sentences imposed on the respondent in the Circuit Court. The sentences, the subject of the review, were imposed on the respondent, Mr. Prenderville on the 21 st June, 2013. They are as follows:
"On Count 1 in respect of the offence of possession of a firearm in suspicious circumstances contrary to s. 27A(1) of the Firearms Act 1964 as amended, six years imprisonment. In respect of Count 3 of the indictment, the offence of unlawful use of a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961 as amended, three years imprisonment. In respect of Count 5 on the indictment, the offence of dangerous driving a sentence of six months imprisonment. Count 2 on the indictment, possession of ammunition in suspicious circumstances contrary to s. 27A(1) of the Firearms Act 1964, as amended was taken into consideration. All sentences were to run concurrent to date from the 1 st February, 2013. The last eighteen months of the sentence on Count 1 was suspended on conditions that he keep the peace and be of good behaviour for a period of two years from the date of his release from prison and further that he be under the supervision of the Probation and Welfare Service for a period of 12 months from the date of his release. The respondent was also disqualified from driving for a period of five years from the 1 st February, 2013."
2. The legal principles applicable to undue leniency reviews, as first set out in the case of DPP v Byrne [1995] 1 I.L.R.M. 279, are at this stage well established and were not in dispute between the parties.
3. The facts giving rise to the respondent facing the charges that he did may be briefly stated. On the 6 th September, 2012, a number of gardaí were on patrol in the area of Daletree Place, Ballyconnell. An Audi A3 was seen by them entering an estate and it was noted that there were no front registration plates. It was also noted that the three occupants of the vehicles were wearing balaclavas. Garda Finan, the driver of the patrol car which was in the area activated the blue flashing lights and the response to that was that the engine of the Audi was revved and the vehicle was driven head on into the patrol car, in effect the patrol car was rammed.
4. After the collision, all three occupants of the Audi sought to make their escape. The respondent, Mr. Prenderville, got out the driver's seat of the vehicle and was pursued by Garda Finan and, as he sought to discard a balaclava and a pair of gloves, he was apprehended seeking to escape over a wall. It was noted that one of the other occupants of the vehicle who had left it via the front passenger seat was seen to throw what appeared to be a firearm over a wall. The area where the object was thrown was searched and a firearm was located. It was a 0.32 auto (7.65) calibre Baikal semi automatic pistol. On examination the serial number had been deliberately removed. The firearm was fitted with a silencer and the magazine of the pistol contained three rounds of .32 calibre ammunition and there was a further round in the chamber of the firearm.
5. It later emerged that the Audi involved in this incident had been stolen earlier that day.
6. In terms of Mr. Prenderville's personal circumstances and his previous record, the situation is that he was born on the 3 rd February, 1987, so he was 26 years old at the time of the sentence hearing. There were 23 previous convictions recorded, including one for s. 15A of the Misuse of Drugs Act 1977, for which he had received a five year sentence. He was released from that sentence about eighteen months before this offence was committed. He is the father of a young son and was predeceased by his mother who died in February 2007 aged 54 years from a brain haemorrhage. His mother's death had a very significant impact on him.
7. The sentence hearing commenced on the 30 th May, 2013, but in a situation where the results of a urine analysis which had been sought were not available, matters were not finalised on that day. The plea in mitigation focused to a significant extent on the fact that the respondent was engaging with the clinical psychologist in Mountjoy, Dr. Anna O'Rourke. A report of Mr. Desmond O'Mahon, a Consultant Forensic Clinical Psychologist dated the 23 rd May, 2013, which was before the court, referred to the fact that he had attended Mountjoy Prison on the 10 th May, of that year, but that the prison officer who went to Mr. Prenderville's cell to collect him reported that he had been unable to rouse him due to intoxication. Mr. Prenderville had stated that he had started abusing cocaine at aged sixteen years. Mr. O'Mahony observed that Mr. Prenderville was not currently in a position to address his drug addiction and that it was this addiction which was the driver of criminal behaviour. The report did refer to the fact that Mr. Prenderville was attending Dr. O'Rourke for some time and was finding the sessions with her useful. On the adjourned date once again the results of the urine analysis were not before the court, but on this occasion there was a report before the court from consultant psychiatrist Dr. Brenda Wright who met with Mr. Prenderville at Mount]oy Prison on the 17 th June for the purpose of preparing the report. This report also referred to Mr. Prenderville's interaction with Dr. O'Rourke and quoted Mr. Prenderville as saying that he had a long history of P19's (or disciplinary reports) while in prison, but that since he had started working with the psychologist, he had not had any further disciplinary problems. Significantly the report refers to drug screening in March 2012, September 2012, December 2012 and January 2013, all of which were negative. The report quoted Dr. O'Rourke, with whom Dr. Wright had been in contact by telephone, as saying that Mr. Prenderville was working hard and appeared motivated and that he appeared to be benefiting from the work that he was doing.
8. At this sentence hearing the suggestion that there was an extant drug debt arising from the drug loss which led to the s. 15A conviction was canvassed. While the debt issue was the subject of submissions and assertions, there was no actual evidence on this topic and when the issue was raised with the garda giving evidence, his response was that he was not in a position to accept or dispute it. When she came to sentence, the learned trial judge adverted to this issue, commenting that the loss of drugs often exacerbates the position that people are in vis-a-vis the others from whom they received drugs and that clearly the loss of drugs resulting in a conviction under s. 15A meant that he was indebted to others. She referred to the fact that it was submitted that threats arising from that debt led to his involvement in the offences before the court today.
9. The trial judge concluded her sentencing remarks as follows:
"It is clear that on the night in question, Mr. Prenderville and others were found in highly suspicious circumstances, in possession of a firearm which had ammunition available for immediate use, and further they were dressed in clothing that would make their identification impossible by the use of balaclavas or any...
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...of relevance to the Director's appeal in D.P.P. v Ellis had been given by the Court of Appeal on 23 January 2015: D.P.P. v Prenderville [2015] IECA 33. That was also an appeal against leniency in respect of a sentence imposed for an offence contrary to s. 27A(1) of the 1964 Act, as amended......
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Ellis v Minister for Justice and Equality
...in this case under s. 27A of the 1964 Act, the Court of Appeal considered the terms of that statutory provision in DPP v. Prenderville [2015] IECA 33. Accordingly, it is important to set out the relevant sections of s. 27A in full:- ‘(1) It is an offence for a person to possess or control ......
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