DPP v Eddie O'Loughlin

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 20 January 2022
• Neutral Citation: [2022] IECA 18
• Docket Number: Record Number: 15/20
• Court: Court of Appeal (Ireland)

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent/

and

Eddie O'Loughlin

Appellant

[2022] IECA 18

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 15/20

THE COURT OF APPEAL

Conviction – Aggravated burglary – Severity of sentence – Appellant seeking to appeal against conviction and sentence – Whether sentence was unduly severe

Facts: The appellant, Mr O'Loughlin, in February 2018, pleaded not guilty in Galway Circuit Court to one count of aggravated burglary pursuant to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the 27th February 2018, the appellant changed his plea and entered a guilty plea. On the 15th January 2020, the appellant was sentenced to 10 and ½ years’ imprisonment. The appellant appealed to the Court of Appeal against conviction and severity of sentence. In appealing his conviction, the appellant contended that the trial judge erred in law in failing to vacate his guilty plea. The appellant appealed his sentence on three grounds, namely: (1) that the judge erred in law and in fact in imposing the sentence that it did; (2) that the judge erred in law and in fact in that he failed to place adequate significance on the mitigating factors in the case; and (3) that the judge approached the structure of the sentence in a way which lacked clarity, and failed to adhere to the correct manner in which a sentence of this nature should be approached.

Held by the Court that the judge exercised his discretion with due regard to the appellant’s constitutional right to a fair trial and in light of the evidence before him. The Court did not see any basis to interfere in the manner in which the judge exercised his discretion and accordingly, the appeal against conviction was dismissed.

The Court held that the maximum sentence in this case was one of life imprisonment and the nominated notional or pre-mitigation sentence of 12 years was appropriate. The Court held that the judge afforded considerable discount to the appellant in terms of the mitigation present. The Court recalled that remorse could not be offered as a mitigating factor, that the plea was a late plea of guilty and that his convictions resulted in a progressive loss of mitigation. The Court found no error in the approach by the judge in that respect. The Court held that it was a concern as to whether there was a realistic possibility that a part-suspended sentence would incentivise the appellant from committing further crime. However, the Court noted the report of a psychiatrist dated the 4th November 2019 making reference to the appellant’s substance abuse difficulties and the potential benefit of him availing of treatment, albeit in a residential setting under the supervision of the probation service. In the circumstances, the Court proposed suspending the final 18 months of the sentence in the appellant’s own bond of €100 for a period of three years on the condition that he remain under the supervision of the probation services for that period. The Court held that the bond may be entered into before the Governor or the Assistant Governor of the prison with liberty to re-enter should any difficulties arise in that regard.

Appeal allowed in part.

JUDGMENT of the Court delivered ( ex tempore) on the 20th day of January 2022 by Ms. Justice Kennedy.

1 This is an appeal against conviction and severity of sentence. In February 2018, the appellant pleaded not guilty in Galway Circuit Court to one count of aggravated burglary pursuant to s. 13(1) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the 27th February 2018, the appellant changed his plea and entered a guilty plea. On the 15th January 2020, the appellant was sentenced to 10 and ¹/₂ years' imprisonment.

Background

2 On the 20th June 2016, Gardaí responded to a call from an address in County Galway. On arrival, Gardaí noted blood on the carpet, stairs, walls and in the upstairs bathroom and designated the property a crime scene.

3 Gardaí took an extensive statement from the resident of the property, Adrienne Keary, who gave evidence on the 27th February 2018 that at approximately 07:55 am, she opened the door to a man known to her who enquired about the whereabouts of her ex-partner Jonathan King. Ms. Keary called for Mr. King and, as he was halfway down the stairs, the appellant then entered the property with a knife and attacked him. Mr. King was stabbed on his ribs, across his chest and on his face. Ms. Keary's children were witness to the attack. Ms. Keary ran to her neighbours' house seeking help and the appellant fled the scene in a car driven by the other man. A neighbour drove Mr. King to hospital.

4 On the 20th June 2016, Gardaí executed a search warrant at an address in County Galway and arrested the appellant for an offence of aggravated burglary. He was brought to Galway Garda Station and detained pursuant to s. 4 of the Criminal Justice Act 1984. No admissions were forthcoming. A number of clothing items were seized from him and the forensic science laboratory determined that the blood of Mr. King was present on the appellant's jeans.

5 On the 27th February 2018, the appellant appeared before Judge MacCabe in Galway Circuit Criminal Court and pleaded not guilty to one count of aggravated burglary. A jury was impanelled and two witnesses were called. Towards the latter stages of Ms. Keary's direct testimony, counsel for the appellant objected to a question asked and the jury retired. During that period the appellant changed his plea and entered a guilty plea. On the 6th June 2018 the appellant filed a notice of motion and affidavit seeking to vacate his guilty plea. There was a change of solicitor on the 7th June 2018 andthe matter was adjourned on several occasions and heard on the 14th November 2019. Two psychiatric reports were put before the court in respect of the appellant. On the 6th of December 2019, having heard the appellant's application, Judge MacCabe refused to vacate the his plea of guilty. On the 15th January 2020, the appellant was sentenced to 10 and ¹/₂ years' imprisonment.

6 This appeal addresses conviction and sentence.

Grounds of Appeal

7 In appealing his conviction, the appellant contends that the trial judge erred in law in failing to vacate his guilty plea.

8 The appellant appeals his sentence on three grounds, namely:

• 1. That the judge erred in law and in fact in imposing the sentence that it did.

• 2. That the judge erred in law and in fact in that he failed to place adequate significance on the mitigating factors in the case.

• 3. That the judge approached the structure of the sentence in a way which lacked clarity, and failed to adhere to the correct manner in which a sentence of this nature should be approached.

Submissions of the Appellant on Conviction

9 On his ground of appeal against conviction, namely, that the trial judge erred in law in failing to vacate his guilty plea, On the 6th June 2018 a notice of motion and affidavit seeking to vacate his guilty plea were filed.

Counsel (not the counsel at trial) opened the appellant's affidavit wherein he averred that he intended at all times to plead not guilty, that he was represented by solicitor and counsel, (in fact senior and junior counsel), that his solicitor and counsel told him of the potential sentence he might face should he plead guilty as against the sentence he might face should he plead not guilty. He averred that he was overwhelmed by the conversation for the reasons hereunder. A strong feature of his recollection was his solicitor informing him that ‘they'll give you a right bollocking’. He became very worried that he was going to get a significant sentence if found guilty and consequently, he changed his plea to guilty. He further states that he was under great stress and pressure while awaiting trial and that his relationship with the mother of his children also broke down during this time. As a result of this, for the nine months leading up to the trial, the appellant was taking Xanax or variants thereof and claimed he was “heavily under the influence of Xanax on the 27 of February 2018” when he changed his plea from not guilty to guilty.

The appellant contended statement that he felt he was not in his right mind when he changed his plea and that it was something that he regrets.

10 It is said that on the 1st May 2019, unbeknownst to the appellant, Mr. King swore an affidavit denying he was assaulted by the appellant and showing a willingness to release his medical records in support of this statement. It is said that it has never been suggested that this affidavit sworn by Mr. King was done so under any threats, coercion, duress or any other external influence and that Mr. King never made a statement during the course of the original investigation nor was there a medical report supporting the allegation of stabbing. We observe that Mr King was not a witness on the book of evidence.

It is submitted that the court below failed to consider the affidavit of Mr. King, which, it is said completely contradicted the evidence of the principal witness for the prosecution, in refusing to allow the appellant vacate his guilty plea on the 6th December 2019 and in so doing, failed to correctly consider and determine the principles and policies that apply in respect of an application to vacate a plea of guilty.

11 With reference to the principles set out by Laffoy J in Dunne v. McMahon [2007] 4 IR 471, namely that the respondent ought to have due regard for the applicant's constitutional right to a fair trial, the appellant contends that a sworn affidavit from an alleged injured party that contradicts the evidence given by the main prosecution witness was of such significance that the judge ought to have determined that it was unsafe to allow the appellant's conviction to stand.

The appellant also cites DPP v. E.R. [2017]...