DPP v Duffy

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman.
• Judgment Date: 19 January 2009
• Neutral Citation: [2009] IECCA 20
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 120 of
• Date: 19 January 2009

[2009] IECCA 20

THE COURT OF CRIMINAL APPEAL

Hardiman J.

McKechnie J.

Birmingham J.

[120/2008]

DPP v Duffy

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

.v.

ROBERT DUFFY

Applicant

CRIMINAL JUSTICE ACT 1999 S29

DPP v DANIELS UNREP CCA 28.7.2006 (EX TEMPORE)

DPP v TIERNAN 1988 IR 250 1989 ILRM 149 1988/4/1067

DPP v M 1994 3 IR 306 1994 2 ILRM 541 1994/9/2641

DPP v CONROY 1989 IR 160

CRIMINAL JUSTICE ACT 1999 S29(2)

CRIMINAL JUSTICE ACT 1999 S29(1)

DPP v ADAMS UNREP CCA 21.12.2004 (EX TEMPORE)

MISUSE OF DRUGS ACT 1977 S15A

O'MALLEY SENTENCING LAW & PRACTICE 1ED 2000 9

1 JUDGMENT of the Court (ex tempore) delivered on the 19th day of January, 2009by Mr. Justice Hardiman.

The facts.

2 On the 14 ^th January, 2008, the applicant pleaded guilty in the Central Criminal Court to count no. 1, which is a count of the attempted murder of one Colin O'Neill and also to count no. 3, which is a count of possession of a firearm within intent to endanger life or cause serious injury. It will be observed that both of these counts relate to offences of specific intent. It is notorious that, at common law, the intent required for attempted murder must be a specific attempt to kill, whereas for murder itself an intent to kill or cause serious injury will, by statute, suffice. The firearms offence is in its terms an offence of specific intent, to endanger life or cause serious injury.

3 A sentence of life imprisonment was imposed for attempted murder. This is the maximum sentence and is not mandatory.

4 The offences took place on the 10 ^th March, 2007, at the Emerald Bar in Church Street, Dundalk, Co. Louth. The injured party, Colin O'Neill, lived above the premises with his partner. His mother owned the premises. At the time of the offence Mr. O'Neill was having a drink in the bar. A row broke out between the accused and Mr. O'Neill on the premises: the subject of this row did not transpire in evidence. The twomen came to grips and Mr. O'Neill threw the accused out of the premises. This happened at about 8.30pm.

5 Some twenty minutes later the accused's wife, Kathleen, came to the premises and exchanged words with Mr. O'Neill. Their confrontation was entirely a verbal one. The accused "arrived in behind her". He was carrying a double barrelled sawn off shotgun. He walked along the bar to where Mr. O'Neill was drinking. He put the shotgun straight up to Mr. O'Neill's face and he discharged one barrel. Luckily Mr. O'Neill put his hand up at just the right time. He was very badly injured in the hand, which has had occupational and other consequences for him. It appears however that, by contriving to take the brunt of the first barrel in his hand, he saved his life. He also received some relatively minor shotgun pellet injuries to his face and neck at this time.

6 It appears that the end of the bar describes a u shape. Mr. O'Neill ran to this point and vaulted over the end of the bar. As he did so the applicant fired the other barrel into his lower back. The pellets from this discharge, which had to travel through his clothing, did not penetrate beyond the upper tissue level and Mr. O'Neill did not receive a substantial or life threatening injury from it, but is left with a significant scar. The victim then, having been shot in the back, crawled out of thepremises and made it into the premises next door. The accused left the premises after firing the second shot. There were quite a number of people present, indeed the garda evidence was that the bar was full. Apart from that, the whole incident was captured on closed circuit television.

7 It transpired that the injury to the hand consisted primarily of a wound to the right thumb which was medically described as "a very destructive bony and soft tissue injury". The metacarpal of the thumb and the metacarpophalangeal joint were largely destroyed. The gunshot caused soft tissue injury and also bone rot resulting in a large contaminated wound. The plaintiff was admitted for monitoring and there was a feared laryngeal injury. He was treated surgically and discharged on the 4 ^th April, having been admitted on the 10 ^th March. He has frequently been seen by his medical advisers since. He is medically described as having made quite a good recovery but being left with a severely handicapped hand.

8 He had previously worked as a bricklayer and had no health problems. He cannot grab or hold anything of weight and therefore cannot work as a bricklayer or at any other manual work. His hand is ugly and disfigured, he suffers from nightmares and is "jumpy" when hearingloud noise. He did not attend the court hearings because he was too frightened of seeing the accused. He has constant pain in his thumb in cold weather and is restricted in playing with his two year old child.

The accused.

9 The criminal record of the accused is a significant one. On the 5 ^th July, 1996 he was convicted of murder and of firearms offences in Belfast. He received a life sentence and it was ordered that he serve at least 25 years. However on the 2 ^nd August, 2000, he was released on license under the terms of the Good Friday agreement. He had a conviction for common assault as well, in 1992, and had a number of road traffic convictions.

10 His previous murder conviction related to the murder of a man called John Gibson in Belfast on the 21 ^st October, 1993. The late Mr. Gibson was a builder who was working on an RUC station and he was deliberately shot for that sole reason. It was a thought out, cold blooded crime, the act of a ruthless, cruel and deliberate killer.

11 The applicant is a married man with one child aged two at the time of the trial. He was working as a taxi driver. He was born on the 5 ^th March, 1972 and is now 37 years of age. He was 21 years old when hemurdered Mr. Gibson in 1993, and 35 years of age when he attempted to murder Mr. O'Neill. He was a heavy drinker and had spent time earlier that day in another bar, according to his counsel, drinking heavily "for some considerable period prior to arriving at the Emerald Bar". He gave no account of how or where he got the sawn off shotgun and the ammunition. But quite obviously, this lethal paraphernalia was readily available to him at short notice.

12 In mitigation, it was said by his counsel that "He does appear to have been acting in hot blood, it does appear to have happened on the spur of the moment very quickly after an altercation and there was no attempt to disguise or flee...". But he knew precisely where to get a sawn off shotgun and cartridges for it and his behaviour may be open to the view that he did not fear identification. There was ample time for his anger to cool, which time he devoted, instead, to getting himself a lethal weapon.

The appeal.

13 It was alleged that the learned trial had made the following errors in principle:

14 (a) He had imposed the maximum sentence based on "his duty to protect the people of Ireland" and this amounted to preventative detention.

15 (b) He had, with insufficient support in the evidence, expressed the opinion that the offence indicated that the accused thought himself "untouchable".

16 (c) He had paid scant if any attention to the plea of guilty, the expression of remorse and the accused's drinking problem.

17 (d) He had paid little or no attention to the accused's good conduct in the seven years since his release from prison and paid too much attention to his previous conviction in 1996.

18 (e) He had relied disproportionally on what the defence called the "hot blooded" aspect of the offence and the offender to justify the imposition of a discretionary life sentence.

19 (f) On the hearing of the appeal it was urged that the learned trial judge had become confused, sometimes attributing the accused's behaviour to the fact that he considered himself to be "untouchable" and sometimes attributing it to hot blood.

20 The point on which most emphasis was placed related to the imposition of a life sentence for attempted murder. It was specifically argued that this sentence was discretionary, in the sense that the Court had discretion to select the sentence and that it paid no attention whatever to the plea of guilty which is an undoubted mitigating factor. It was said that this factor had to be reflected and therefore the maximum sentence could not be justified.

21 Separately, reliance was placed on s.29 of the Criminal Justice Act, 1999. This provides as follows:

22 2 "29(1) In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which the sentence is fixed by law, a court, if it considers it appropriate to do so, shall take into account-

23 (a) The stage and the proceedings for the offence at which the person indicated an intention to plead guilty, and

24 (b) The circumstances in which this indication was given.

25 (2) To avoid doubt, it is hereby declared that subsection (1) shall not preclude a court from passing the maximum sentence prescribed by law for an offence if, notwithstanding the plea of guilty, the court is satisfied that there are any exceptional circumstances relating to the offence which warrant the maximum sentence.

26 (3) In this sentence "fixed by law", in relation to asentence for an offence, means a sentence which the court is required by law to impose on a person of full capacity who was guilty of that offence.

27 Counsel for the applicant emphasised that, in order to justify the imposition of the maximum sentence, there must be "exceptional circumstances relating to the offence", and not to the offender.

A point not taken.

28 Counsel for the applicant did not submit that it was not possible in law to impose the maximum sentence of life...