DPP v Dermot O'Callaghan

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 21 June 2010
• Neutral Citation: [2010] IECCA 52
• Court: Court of Criminal Appeal
• Date: 21 June 2010

[2010] IECCA 52

THE COURT OF CRIMINAL APPEAL

Denham J.

Budd J.

O'Keeffe J.

[C.C.A. No: 291/CJA/08]

DPP v O'Callaghan

In the Matter of Section 2 of the Criminal Justice Act, 1993

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Applicant

and

Dermot O'Callaghan

Respondent

CRIMINAL JUSTICE ACT 1993 S2

CRIMINAL LAW (JURISDICTION) ACT 1976 S9

CRIMINAL JUSTICE ACT 1984 S15(5)

FIREARMS AND OFFENSIVE WEAPONS ACT 1990 S4

FIREARMS ACT 1964 S27B

ROAD TRAFFIC ACT 1961 S112

ROAD TRAFFIC ACT 1968 S65

ROAD TRAFFIC ACT 2002 S23

CRIMINAL JUSTICE ACT 1993 S2(1)

CRIMINAL JUSTICE ACT 1993 S2(3)

DPP v BYRNE 1995 1 ILRM 279

CRIMINAL LAW

Sentence

Undue leniency - Onus of proof on prosecution - Weight to be given to trial judge's reasons for imposing sentence - Correct approach for court to apply in review of sentence -Review of sentence - Five year term of imprisonment suspended for ten years imposed - Whether trial judge erred in principle in not having any adequate regard for gravity of offence - Whether length of sentence imposed failed to adequately reflect seriousness of offence - Whether exceptional circumstances to justify not imposing custodial sentence - DPP v Byrne [1995] 1 ILRM 279 applied; People (DPP) v WC [1994] 1 ILRM 321 mentioned - Road Traffic Act 1961 (No 24), s 112 - Firearms Act 1964 (No 1), s 27B - Road Traffic Act 1968 (No 25), s 65 - Criminal Law (Jurisdiction) Act 1976 (No 14), s 9 - Criminal Justice Act 1984 (No 22), s 14(5) - Firearms and Offensive Weapons Act 1990 (No 12), s 4 - Road Traffic Act 2002 (No 12), s 23 - Criminal Justice Act 1993 (No 6), s 2 - Criminal Justice Act 2006 (No 26), s 99 - Application refused (291CJA/2008 - CCA - 21/6/2010) [2010] IECCA 52

People (DPP) v O'Callaghan

Facts The Director of Public Prosecutions brought an application to review the sentences imposed on the respondent. The respondent had been charged with a number of offences including firearm, road traffic and burglary. Sentences of five years imprisonment suspended for ten years were handed down. The DPP submitted that the trial judge had erred in principle in that the sentences were unduly lenient having regard to the circumstances and that the trial judge had erred in principle in not having any adequate regard for the gravity of the offences. In addition it was argued that the trial judge gave undue weight to the age of the respondent and the plea of guilty. The trial judge did not have due regard to previous convictions and the sentences imposed would not act as a deterrent.

Held by the Court of Criminal Appeal (Denham J delivering judgment) in refusing the application. The trial judge had set out his reasons fully and carefully. He had determined the appropriate sentence for the offences and then considered the position of the respondent. There were exceptional circumstances as described by the trial judge. In all the circumstances of the case the Court was not satisfied that the DPP had discharged the onus required.

Reporter: R.F.

1 Judgment ( ex tempore) of the Court delivered on the 21st day of June, 2010 , by Denham J.

2 1. This is an application by the Director of Public Prosecutions, referred to as "the D.P.P.", for an order pursuant to s.2 of the Criminal Justice Act 1993 reviewing the sentences imposed on Dermot O'Callaghan, the respondent, referred to as "the respondent", by the Dublin Circuit (Criminal) Court, His Honour Judge Hunt, on the 19th day of November 2008.

3 2. The respondent was before the trial court on four charges. These were:-

Statement of Offence

Count 1

4 Possession of a firearm with intent to commit an indictable offence contrary to section 27B of the Firearms Act 1964, as inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976 and amended by section 14(5) of the Criminal Justice Act 1984 and by section 4 of the Firearms and Offensive Weapons Act 1990.

Particulars of Offence

5 Dermot O'Callaghan on the 29th August 2003 at Ulster Bank, Main Street, Tallaght in the County of the City of Dublin did have in your possession a firearm with intent to commit an indictable offence, to wit, burglary.

Statement of Offence

Count 2

6 Possession of a firearm with intent to commit an indictable offence contrary to section 27B of the Firearms Act 1964, as inserted by section 9 of the Criminal Law (Jurisdiction) Act 1976 and amended by section 14(5) of the Criminal Justice Act 1984 and by section 4 of the Firearms and Offensive Weapons Act 1990.

Particulars of Offence

7 Dermot O'Callaghan on the 29th August 2003 at Greenhills Road, Tallaght in the County of the City of Dublin had in your possession a firearm, to wit a black automatic Laqieao pistol with intent to resist or prevent the arrest of yourself or another.

Statement of Offence

Count 3

8 Unauthorised use of a mechanically propelled vehicle contrary to section 112 of the Road Traffic Act, 1961 (as amended by section 65 of the Road Traffic Act, 1968, and as amended by section 23 of the Road Traffic Act, 2002).

Particulars of Offence

9 Dermot O'Callaghan on the 29th August 2003 at Walkinstown Road in the County of the City of Dublin did unlawfully use a mechanically propelled vehicle, registration number 94 MN 1719, or without the consent of the owner thereof namely Ref Xi Wei or without lawful authority.

Statement of Offence

Count 4

10 Attempted burglary, contrary to common law.

Particulars of Offence

11 Dermot O'Callaghan on the 29th August 2003 at Ulster Bank, Main Street, Tallaght in the County of the City of Dublin attempted to commit burglary.

12 3. On the 19 ^th day of November, 2008 the learned trial judge sentenced the respondent as follows:-

13 (i) Count No.1 - nolle prosequi

14 (ii) Count No.2 - five years imprisonment suspended for ten years

15 (iii) Count No.3 - taken into consideration

16 (iv) Count No.4 - five years imprisonment suspended for ten years

17 4. On sentencing, the learned trial judge stated:-

"Well, first of all I would like to thank Mr Colgan and Mr Ó Braonáin for both assisting in relation to this matter, which is a very difficult matter, and I think points up that if - unless we were to have a kind of slot machine system of sentencing, whereby one regards simply the circumstances of the offence, rather than the offender, the task of sentencing will be complex, and I think that this case neatly illustrates the complexity and range of considerations that have to be taken into account in relation to the matter. The way I propose to approach it is the traditional way. First of all, on the one side of the equation, to look at the offence and to fix the point on the scale where the offence lies. And in doing so, I have regard to what apparently another judge did in relation to a co-accused in this matter, but I'm not bound entirely by that, because I don't know the range and extent of the previous convictions of the co-accused, but I do know that the view taken in that case might well have been conditioned by an early plea of guilty, which is not a factor in this particular case. On the contrary, the plea was tendered at a very late stage indeed in the proceedings. So, I just wish to point out that particular factor as to why I am going to differ in terms of that side of the equation and where I think - what I think would be the sentence merited on that particular side of the scale.

The plea was to counts 2 and 4 on the indictment; count 2 being possession of a firearm with intent to commit an indictable offence at Greenhills Road on the 29th of August 2003, and count 4 being attempted burglary contrary to common law at the Ulster Bank, Main Street, Tallaght on the same date, and count 3, the unauthorised use of a mechanically propelled vehicle in the course of those events is to be taken into consideration.

The position in relation to the facts as given in evidence by Garda Kinsella, are that on the 29th of August 2003, a Honda Civic was stolen in the Rathmines are of the city. It was used in an attempted robbery at the Ulster Bank on Main Street, Tallaght, whereby the occupants of the car ran into a closed door on the bank premises, from the car, and they did this in view of the staff. Mr O'Callaghan was wearing a black wig, a baseball cap over his face and had an imitation firearm. The raiders were unable to gain access to the bank, and the gardaí were alerted. A description was put out of the stolen car, and Garda Kinsella and colleagues came across it. There was a madcap weave through the rush hour traffic. What appeared to be a handgun was pointed out the rear window of [sic] the patrol car, there was a chase through rush hour traffic to the Walkinstown area of the city, in the course of which the Stinger, I think, as it's called, was deployed, and that was avoided by the driver of the vehicle, who drove along the Walkinstown Road, where it clipped a car, a third party vehicle, lost control and was brought to a stop when boxed in at the Superquinn premises on the Walkinstown Road.

The occupants were confronted by armed gardaí, and the accused was arrested at the scene. He was observed to point a firearm on a number of occasions, in the course of the journey, from Tallaght to Walkinstown. Two imitation firearms were recovered, one being a toy, and the other being a pellet gun, and that appears to be the gun that was pointed at the gardaí, and that was capable of discharging pellets. Mr O'Callaghan was detained under section 30 of the Offences against the State Act, he exercised his right to silence, in four interviews, his clothes were seized and samples were authorised. The matter eventually came on for trial before this Court on the 22nd of July 2008, and the prosecution were in...