DPP v Ellis

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 25 July 2016
• Neutral Citation: [2016] IECA 358
• Docket Number: 145CJA/14
• Court: Court of Appeal (Ireland)
• Date: 25 July 2016

[2016] IECA 358

THE COURT OF APPEAL

Sheehan J.

Sheehan J.

Mahon J.

Edwards J.

145CJA/14

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Wayne Ellis

Appellant

Sentencing – Possession of a firearm in suspicious circumstances – Undue leniency – Respondent seeking review of sentence – Whether sentence was unduly lenient

Facts: The appellant, Mr Ellis, on the 8th April, 2013, pleaded guilty to two counts on the indictment, namely count 1 possession of a firearm in suspicious circumstances contrary to s. 27A(1) of the Firearms Act 1964, and count 2 possession of certain articles contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Following a number of adjournments, the appellant was finally sentenced on the 26th May, 2014 at the Dublin Circuit Criminal Court. He received a fully suspended five year sentence in respect of the charge on count 1 and he received a fully suspended sentence of three years imprisonment in respect of the charge on count 2. The respondent, the DPP, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the respondent on grounds of undue leniency. The principal argument focused on whether or not the Circuit Court judge was entitled to suspend the sentence of five years imprisonment imposed on count 1 in view of the fact that the respondent had a previous conviction for a firearms offence.

Held by Sheehan J that the trial judge was not entitled to suspend any part of the five year sentence imposed on the firearms offence and that the Court must approach sentence on the basis that the starting point was a sentence of five years. The Court was satisfied that there was no need to impose any sentence in excess of the mandatory minimum sentence of five years imprisonment on the five year firearms charge, noting the huge strides in overcoming his addiction. The Court acceded to the application by the DPP for a review of that sentence. The Court set aside the original sentence on the firearms charge and imposed in lieu thereof a sentence of five years imprisonment, credit to be given for the time spent in custody on this matter.

Sheehan J held that, with regard to the second count on the indictment, the Court would uphold the suspended sentence imposed by the trial judge. Sheehan J noted that the trial judge decided that this was one of those unusual cases where the public interest was best served by a suspended sentence in circumstances where there was evidence before her that the appellant had struggled successfully to rehabilitate and had become drug free. In the Court’s view the trial judge marked the huge significance of this by effectively giving the appellant an opportunity to further prove he could become a productive member of society albeit with the inducement of a suspended sentence hanging over him.

Appeal allowed in part.

JUDGMENT of the Court delivered on the 25th day of July 2016 by Mr. Justice Sheehan

1 This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the sentence imposed on the respondent at the Dublin Circuit Criminal Court on the 25th May, 2014, on grounds of undue leniency.

2 On the 8th April, 2013, Wayne Elli pleaded guilty to two counts on in the indictment. Count 1, possession of a firearm in suspicious circumstances contrary to s. 27A(1) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006, as amended by s. 38 of the Criminal Justice Act 2007. Count 2 possession of certain articles contrary to s. 15( 1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Following a number of adjournments, the appellant was finally sentenced on the 26th May, 2014. He received a fully suspended five year sentence in respect of the charge on count 1 and he received fully suspended sentence of three years imprisonment in respect of the charge on count 2.

3 Following his plea of guilty Mr. Ellis's case was adjourned until the 7th May, 2013, for sentence. On that date evidence was given by Detective Garda Shane Graham that on the 5th July, 2012, as a result of confidential information an operation was put in place and as a consequence of that garda? monitored the movements of a particular car namely a Ford Focus 00 4 451 which was kept this car under surveillance. The occupants of the car included the accused and his two co-accused Paul Walsh and Alex Irwin. The three men proceeded to the Penny Hill Pub area of Lucan where they met an innocent party and purchased a car from him. They then left with both vehicles. Paul Walsh drove the Audi 95 D 29009 to Oldmill Court, Tallaght, where he was met by Mr. Irwin and Mr. Ellis in the Ford Focus and they all then left in the Ford Focus, but returned some time later having been dropped off by a fourth person in the Ford Focus. The three men then got into the Audi motor car registration No. 95 D 29009. The garda? continued to monitor this motor car and shortly afterwards it was observed in the vicinity of the Knocklyon Shopping Centre. It turned into the car park of that shopping centre and drove slowly past the post office and a cash in transit van that was parked nearby. It then continued on to the bottom of the car park, turned and headed back in the direction of the post office and cash van. At that point the garda? were in position of the car park of the shopping centre and decided to intercept the vehicle. The Audi was surrounded by armed garda? who looked into the car and observed a shotgun and a sledge hammer in the rear passenger seat foot well. There was an unlabeled bottle which contained a yellow substance which proved to be petrol in between the front seat of the car.

4 Detective Garda Monaghan arrested and detained Wayne Ellis and conveyed him to Tallaght garda station. The respondent was interviewed but nothing of probative value emerged.

5 Garda Graham told the court that Paul Walsh was the driver, that Alex Irwin was in the front passenger seat and that the respondent was the sole occupant of the rear of the car. The sawn off double barrelled loading breach shotgun which was unloaded was sent to the ballistics section where it was examined and found to be in fair condition. It was designed to discharge suitable 12 gauge shotgun.

6 With regard to the personal circumstances of the respondent the court was told that he was 31 years of age at the time of sentence and that he had 26 previous convictions which included a conviction in 2003 for carrying a firearm with intent and robbery. A sentence of six year imprisonment with the final five months suspended was imposed in respect of these charges. The court was also told that he had a further conviction in 2009 for carrying a firearm in the course of a robbery as a result of which he received a sentence of seven years imprisonment with the final two years suspended.

7 On the 7th May, 2013, a plea of mitigation was addressed to the...