DPP v Duffy

• Jurisdiction: Ireland
• Judge: Keane C.J.
• Judgment Date: 21 March 2003
• Neutral Citation: 2003 WJSC-CCA 3296
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. Nos. 20 and 21 of 2001]
• Date: 21 March 2003

2003 WJSC-CCA 3296

THE COURT OF CRIMINAL APPEAL

Keane C.J.

O'Sullivan J.

Peart J.

20 & 21/01

DPP v. DUFFY & O'TOOLE

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

DECLAN DUFFY AND PATRICK O'TOOLE

APPLICANTS

Citations:

ROAD TRAFFIC ACT 1994

DPP, PEOPLE V THOMPSON UNREP SCC MORRIS 2.5.2001

AG, PEOPLE V POYNING 1972 IR 402

DPP V CONROY 1989 IR 160

DPP V CUNNINGHAM 2002 2 IR 712 2003 1 ILRM 124 2002/8/1937 2002/9/1958

ARCHBOLD CRIMINAL PLEADING, EVIDENCE & PRACTICE 2003

R V STROUD 65 CAR 150

R V WOOD 5 CAR 381

R V FAWCETTS 1983 CAR 158

Synopsis:

CRIMINAL LAW

Sentence

Possession of firearms - Severity of sentences - Whether disparity in sentences imposed - Whether sentences should be reduced (20 & 21/2001 - Court of Criminal Appeal - 21/3/2003)

DPP v Duffy - [2003] 2 IR 192

The applicants had pleaded guilty to firearms and false imprisonment offences arising out of a violent incident which involved a number of people and which also resulted in the death of one of the participants. The applicants had sought leave to appeal against sentences imposed claiming that there was a disparity between the sentences they received and that received by another participant in the affair in a separate trial. The other participant had received a six year sentence on a false imprisonment charge, four years of which were suspended by a differently constituted Court of Criminal Appeal.

Held by the Court of Criminal Appeal (Keane CJ delivering judgment; O'Sullivan J and Peart J agreeing) in allowing the application in part. It was clear that the first applicant had a considerably more important role in the whole affair than the second applicant and any disparity in the sentences imposed in his case was justified. However in the case of the second applicant there was an unjustified disparity in the sentence imposed for false imprisonment and the court would quash the original sentence and impose seven year sentence with the last two years suspended.

1 JUDGMENT of the Court delivered the 21st day of March, 2003 by Keane C.J.

2 The applicants pleaded guilty in the Special Criminal Court (O'Donovan J, Judge Matthews and Judge Hamill) to being in possession of firearms, in such circumstances as to give rise to a reasonable inference that they had them in their possession for an unlawful purpose and to four counts of false imprisonment. The first named applicant was sentenced to 5 years imprisonment in respect of the firearms charge and to 9 years imprisonment in respect of each of the false imprisonment charges, all the sentences to run concurrently. The second named applicant was sentenced to 5 years imprisonment in respect of the firearms charges and 7 years imprisonment in respect of each of the false imprisonment charges, again all the sentences to run concurrently. The applicants, having been refused leave to appeal, have now appealed to this court from that refusal.

3 The prosecution arose out a series of violent incidents which took place at the Ballymount Road industrial estate in Dublin involving approximately 24 people on October 6 ^th, 1999. It appears from the evidence of the officer in charge of the subsequent investigation, Detective Inspector Mulligan, in the court of trial that the background to the episode was a dispute between a part owner of the business at Unit 8A in the industrial estate, one John Creed, and another person called Brian O'Keeffe. A van belonging to the latter had been destroyed by fire and he believed a member of the Creed family to have been responsible. He demanded a sum of £600 from John Creed as "compensation" and, when it was not forthcoming, it was indicated to John Creed that an effort would be made to extract that sum from him on the evening of 6 ^th October. It was in those circumstances that the latter decided to engage the services of a group of people to support him in resisting this attempt to secure money from him.

4 The group who arrived at the premises that evening to render this assistance were described as "the INLA group". There were approximately six of them and they hid themselves in an upstairs portion of the premises. At least some of them, including the applicants, were in possession of firearms. When the group of persons who were intent on extorting the money arrived at the premises, the INLA group who were in hiding were given a prearranged signal and came downstairs to confront this group. They ordered them to lie on the ground, beat and kicked them, stripped them naked and bound them hand and foot. They were then brought upstairs for what was described as "interrogation", their heads were covered and cold water, and in one instance hot tea, was poured over them. They were told that they had 24 hours to leave the country or members of their family would be shot and they were also told that they could be taking "a trip across the border to Armagh". One of them was told that he would be "going North" and that "he would die a young man". They were then taken down, still naked, to a van that was parked outside and bundled into the van.

5 At this stage, a third group, numbering approximately 12, arrived on the scene. They were apparently associates of the person named as Brian O'Keeffe and had been told of the confrontation with the group who had gone to collect the money. Further violence then ensued, in the course of which one of the INLA group received severe injuries, from which he subsequently died. As the members of the third group were leaving the scene, having released the persons who had arrived to extort the money, two shots from a shotgun were discharged and struck the side of the van in which that group was travelling.

6 The participation of the applicants in these events must next be considered. The first named applicant was arrested while driving a motor car and was found to be in possession of a document giving a detailed account of what had happened on the occasion in question, apparently prepared by him for his "superiors" in the organisation of which he was a member. It is clear from that document, the accuracy of which was confirmed by the first named applicant when he was questioned by the Gardaí, that he had a considerably more important role in the events of the evening than the second named applicant. It should also be pointed out that the second named applicant was an employee of John Creed and that this probably influenced him in taking an active part in the events in question, although it was not suggested that he acted under any form of duress.

7 The first named applicant was born on 20 ^th August 1973 and is a native of Armagh but has been living at Fatima Mansions in Dublin for a number of years. He was in the main unemployed but at the time of his arrest was working part-time in a pub in the Smithfield area. He is unmarried but has a partner and they have one child who is about 1½ years old. He had no previous convictions in the State but there were two on record in Northern Ireland. He was bound over for 2 years in Ards Magistrates Court on 12 ^th November 1990 for the crime of malicious damage. He was also sentenced on 16 ^thMarch 1991 on a charge of robbery by Belfast Crown Court and, while there initially was some confusion as to the precise nature of the sentence he received, it seems that, although a two years sentence of imprisonment was imposed, he was also afforded the alternative of 240 hours community service in lieu of the sentence and availed of that option. It was also said on his behalf that he took a prominent part in a committee in Fatima Mansions which was seeking to eliminate drug taking among young people.

8 The second named applicant was aged 22 at the date of the incidents in question and was employed in general building work. He had begun work in the firm of John Creed a relatively short time before the incident. He also had a partner who had recently had a baby. He had two previous convictions, one for burglary for which he was fined £350 and another for breaches of the Road Traffic Act in respect of having no insurance and no driving licence for which he was fined the sum of £50.

9 While the ground of appeal relied on in the notice served on behalf of each of the applicants was the severity of the sentence, the court was not pressed to hold that, in either case, the sentences in themselves were so severe as to require the intervention of this court because of an error in principle on the part of the court of trial. Given the gravity of the offences to which both applicants had pleaded guilty, it is clear that there was no such error in principle. It was, however, submitted on behalf of each applicant that the sentences in each case should be reduced because of what was said to be a disparity between them and a sentence subsequently imposed on another person concerned in the same events.

10 On 2 ^nd May 2001, in the case of The People -v- Denis Thompson, the Special Criminal Court (Morris P, Judge...