DPP v Duffy

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 11 November 2022
• Neutral Citation: [2022] IECA 307
• Court: Court of Appeal (Ireland)
• Docket Number: [52/22]

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Gerard Duffy

Appellant

[2022] IECA 307

The President

McCarthy J.

Kennedy J.

[52/22]

THE COURT OF APPEAL

Sentencing – Attempted theft – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The Special Criminal Court, on 4th March 2022, imposed a sentence of eight years and nine months imprisonment with the final 12 months suspended in respect of the offence of participating in certain activities contrary to s. 73 of the Criminal Justice Act 2006, as substituted by s. 10 of the Criminal Justice (Amendment) Act 2009. The appellant, Mr Duffy, appealed to the Court of Appeal against severity of sentence. Counsel for the appellant said that the headline sentence of 11 years was too high as the criminal organisation involved, whilst not an insignificant one, was not in the same league as an organisation involved in drug trafficking on a global scale or that associated with murders. Counsel submitted that the Special Criminal Court erred in selecting the same headline sentence for the appellant and his brother, because the brother had pleaded guilty to a third offence. It was submitted that the fact that the two brothers ended up with the same headline sentence, notwithstanding that the brother had entered an additional plea, in matters involving another incident, meant that the appellant’s sentence was too severe vis-à-vis his brother, and therefore the appellant’s sentence was overly severe and inappropriate. It was submitted that there was a further error, in that the discount therefrom was inadequate. Counsel submitted that the discount of 20% could not be considered as generous as it was the minimum discount that could be applied. Counsel argued that the suspension of 12 months did not adequately address the fact that the appellant was, at least in terms of serious offences, a first-time offender, and therefore, the suspension of only 12 months was not adequate; rather, a suspension of a greater amount would have been adequate to differentiate between him and his brother.

Held by the Court that this was offending of quite exceptional seriousness. The Court did not believe the Special Criminal Court could be found at fault in seeing this offending as falling at the low end of the top tier. The Court held that the discount of 20% for a plea, which was not an early one and was one which was offered in circumstances where the appellant had been caught red-handed at the scene, was not an inappropriate one. The Court held that the suspension of one year must be seen in relation to fact that this was not a situation where there was evidence that the offence was linked to addiction or anything of that nature, and that steps were being taken towards rehabilitation, and that that was a process which the Court would want to encourage, by significant part-suspension. The Court had not been persuaded that the sentence fell outside the available range. It seemed to the Court that the sentence imposed was one available to the Special Criminal Court.

The Court held that it had not been persuaded that there was any error in principle, and therefore it was obliged to dismiss the appeal.

Appeal dismissed.

JUDGMENT ( Ex tempore) of the Court delivered on the 11 ^th day of November 2022 by Birmingham P.

1 . This is an appeal against severity of sentence. The sentence sought to be appealed is one of eight years and nine months imprisonment with the final 12 months suspended, that was imposed by the Special Criminal Court on 4 ^th March 2022. The sentence was imposed in respect of the offence of participating in certain activities contrary to s. 73 of the Criminal Justice Act 2006, as substituted by s. 10 of the Criminal Justice (Amendment) Act 2009.

2 . The particulars of the offence were set out in these terms:

“Gerard Duffy, on the 14 ^th day of August 2019 at Main Street, Virginia in the County of Cavan you did commit a serious offence, in that you did attempt to commit an offence contrary to section 4 Criminal Justice (Theft and Fraud Offences) Act of 2001 contrary to common law, to wit the attempted theft of an ATM and its contents at Riverfront bar and restaurant for the benefit of, at the direction of, or in association with, a criminal organisation.”

The sentence imposed was in relation to this, count 20, and there was a further count on the indictment, count 21, which it was agreed was to be taken into consideration. That count was an offence of participating in certain activities contrary to s. 72 of the Criminal Justice Act 2006, substituted by s. 6 of the Criminal Justice (Amendment) Act 2009, and the particulars of offence were set out as follows:

“Gerard Duffy, on the 14 ^th of August, 2019 at the shed at Tullypole, Moynalty in the County of Meath, participated or contributed to the possession of cash intending to facilitate the commission by a criminal organisation or any of its members of a serious offence, with knowledge of the existence of the organisation referred to.”

3 . While the focus of attention at the sentence hearing was on the events in Virginia on 14 ^th August 2019, the Court was told that there had been a series of ATM robberies at various locations in Monaghan and Cavan between 16 ^th December 2018 and the Virginia incident, and that the total amount of monies stolen came to approximately €790,000. The Special Criminal Court was informed it was the view of the Gardaí that it was the same criminal organisation that was involved in the various ATM...