DPP v Evan Stubbins
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 28 June 2021 |
| Neutral Citation | [2021] IECA 229 |
| Docket Number | Record Number: 243/20 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 229
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 243/20
THE COURT OF APPEAL
JUDGMENT of the Court delivered ( ex tempore) on the 28th day of June 2021 by Ms. Justice Kennedy.
This is an appeal against sentence. The appellant was sent forward on signed pleas of guilty to three counts, namely possession of explosive substances contrary to section 3 of the Explosive Substances Act 1883, attempted theft contrary to common law and a count of criminal damage. On the 18th November 2020 the appellant received a sentence of five years' imprisonment.
On the 2nd August 2020, gardaí from Togher, Passage West Garda Station, were on patrol in Carrigaline. At approximately 02:05 hours they were passing the Maxol garage at Ballinrea in Carrigaline. One of the gardaí observed a white Volkswagen Passat parked up very close to an ATM machine. A single male was observed armed with an implement which was later determined to be a screwdriver. This male appeared to be using the screwdriver to damage the front of the ATM machine.
Gardaí approached and at this stage, which was approximately 11 to 12 seconds after they had first spotted him, this male suspect was in the vehicle. He was making efforts to start it and to leave the scene. The male was identified as the appellant, Evan Stubbins. He was eventually arrested and at the time of his arrest there were two cannisters strapped into the backseat of the vehicle which were emitting what appeared to be a gas type substance. These were later found to be propane and oxygen and they constitute the explosive substance the subject matter of the explosives charge.
The appellant was arrested and interviewed. During the course of interview he stated that he owed a drug debt to certain individuals and it was these individuals who suggested that he carry out this particular type of crime. The appellant described how he carried out research on YouTube. He then travelled to the location the night before and waited for an opportune moment. It was his intention to mix the oxygen and propane and place it in the ATM in order gain access to its contents.
At the time of sentencing the appellant was 24 years old. The appellant has eleven previous convictions all of which consist of offences against property, save for one previous conviction for possession of a knife.
Evidence was given that the appellant had a drug problem and this particular crime was undertaken in order to pay off a drug debt he owed at the time.
In terms of aggravating factors the following was cited: at the time of offending the appellant was under a suspended sentence from the District Court, that he used his time to research how to carry out the offending in question, described by the judge as a “mishmash of information, hastily brought down, badly understood.” The sentencing judge further considered the whole idea of gathering this equipment for the purpose of effecting an explosion and bringing it to the premises for this purpose as an aggravating factor.
In terms of mitigation the sentencing judge identified the following: the signed pleas of guilty, the level of cooperation in interview, and his youth. He is a man with eleven previous convictions, including convictions for handling and burglary, which lead to a progressive loss of mitigation.
The sentencing judge identified a headline sentence of seven years in respect of the count of possession of an explosive substance where the maximum penalty is one of twenty years. Taking account of the appellant's signed plea, his cooperation and his age, this was reduced to a sentence of five years. In respect of the criminal damage and the attempted theft, sentences of two years to run concurrently were imposed.
The appellant puts forward three grounds, but in truth, Mr Boland BL for the appellant places the most emphasis on ground 2 with reference to the offence of possession of explosive substances. It is said that the judge erred in:-
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(1) failing to give a sufficient reduction to the headline sentence having regard to the signed pleas and having regard to the guidance of the Court of Appeal as set out in the Director of Public Prosecutions v Cambridge [2019] IECA 133.
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(2) failing to make a second reduction to the sentence to take into account the other mitigating factors, having made a reduction for the signed pleas.
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(3) deeming the lack of sophistication of the offence to be an aggravating factor, rather than a mitigating factor.
The appellant refers to The People (DPP) v. Cambridge [2019] IECA 133 where the Court stated as...
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