DPP v Flynn

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 04 December 2015
• Neutral Citation: [2015] IECA 290
• Docket Number: Record No: CA41/15
• Court: Court of Appeal (Ireland)
• Date: 04 December 2015

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Davin Flynn

Appellant

[2015] IECA 290

Birmingham J.

Mahon J.

Edwards J.

Record No: CA41/15

THE COURT OF APPEAL

Crime & sentencing – Offences against property – Arson – Appeal against conviction

Facts: The appellant had been convicted of a count of arson, relating to the setting fire of a Head shop in Dublin. He appealed against the term of imprisonment handed down.

Held by Mr Justice Edwards, that the Court was satisfied that the sentencing judge had fallen into error by not giving the rehabilitation of the appellant sufficient weight. On that basis, the sentence would be set aside, and a fresh sentence would be handed down.

Judgment of the Court (ex tempore) delivered the 4th day of December, 2015 by Mr. Justice Edwards

Background to the Appeal :

1 In this case the appellant appeals against a sentence of six years imprisonment imposed upon him by the Dublin Circuit Criminal Court on the 16th of February 2015 to date from that date, following his plea to a count of arson, contrary to s. 2(1) and (4) of the Criminal Damage Act, 1991.

2 The facts of the case were that the appellant and another man deliberately set fire to a head shop premises called Nirvana situate at 164 Capel Street, Dublin 1, in the early hours of the 12th of February 2010. The shop specialised in the sale of psychotropic substances which, though now illegal, were legal at the time. in the sale of phototropic substances which were legal at the time. The fire also spread to the two premises on either side of Nirvana, namely to a premises called The Souvenir Seeds Store at 164A Capel Street, which also sold then legal psychotropic substances, and to Utopia at 163 Capel Street which was a sex shop.

3 Five units of Dublin Fire Brigade attended at the scene and twenty six firemen were engaged in fighting the fire.

4 A number of apartments in a neighbouring building had to be evacuated as a result of the fire and Capel Street was closed from Friday the 12th February to Monday the 15th February 2012 causing a huge amount of inconvenience and loss for the businesses on Capel Street.

5 The three buildings directly affected all had to be demolished and the site is now a vacant plot of land. There were two owners to these premises. A Mr. David Nugent owned numbers 163 and 164 Capel Street, but only one of the buildings was insured and he received a payment of €350,000 from the insurance company in respect of the insured building. The owner of the other building at 164A was a Mr. Bellamy and his building was uninsured. The overall cost in relation to the damage to the three buildings was in excess of €1,000,000.

6 In the subsequent investigation the seat of the fire was located at the back of the Nirvana premises, and the fire was believed to have been deliberately started using an accelerant. Gardaí recovered CCTV footage from various premises and as a result of doing so were able to print off 90 photographic stills. The CCTV footage showed a continuous flow of movement by two men, one of whom was subsequently identified as being the appellant, over the course of an hour, in and around the premises that were burnt. It showed, in particular, the appellant approaching the front of the security shutter of Nirvana with bolt cutters and attempting to gain entry. CCTV footage also showed the two men getting over the side gate leading from Little Strand Street to the rear of the Nirvana premises with a rucksack. They were there for a number of minutes following which they were seen to return by the same route. As they returned the rucksack was thrown over the gate and there was a flash of light when the accelerant was ignited.

7 The appellant was identified by a number of Gardaí who viewed the CCTV footage and stills, and was nominated as a suspect. Within two days of the fire the Gardaí had sought and obtained a warrant for the arrest of the appellant. However, they were unable to locate him and the warrant could not be executed. It was in course ascertained that the appellant had travelled to Spain in the early aftermath of the incident. He was in due course arrested and was subsequently charged with arson.

8 A European arrest warrant was then obtained from the High Court and forwarded to the Spanish authorities. The appellant was arrested in Spain on foot of that European arrest warrant and a Spanish Court ordered his rendition to Ireland. Upon his return to Ireland he was charged with arson and was initially granted bail by the District Court. However he did not adhere to his bail terms and his bail was subsequently revoked. He then successfully sought and obtained bail from the High Court, but again did not adhere to his bail terms. He in fact fled the jurisdiction a second time and went back to Spain. A second European Arrest Warrant was then applied for but before it was acted upon the appellant returned to this jurisdiction of his own volition, and handed himself in.

9 The sentencing judge was told that the appellant had sixty five previous convictions, two of which had been recorded outside of this jurisdiction. Thirty eight of those were for non-road traffic offences, and twenty seven were for road traffic offences. Of the thirty eight non road traffic convictions, seven were for robbery, four were for criminal damage, ten were for public order offences, three were for drugs offences, one was for burglary, one was for an offence under the Firearms and Offensive Weapons Act, nine were for theft, and three were for failing to appear before a Court. It was elicited in cross-examination that of the total of sixty five previous offences, thirty had been recorded since 2005 and none of those thirty were convictions on indictment.

10 Although the defence did not call any viva voce evidence, the sentencing judge was asked to receive and take account of a letter from Ushers Celtic Football Club and a report from a Mr Brian Glanville, Consulting Criminal Psychologist, and agreed to do so. The letter from Ushers Celtic Football Club confirmed his sporting skills and good standing with that club. The contents of the report from Mr Glanville, which has been provided to this Court, formed the basis for a detailed plea in mitigation advanced on the appellant's behalf, which particularly emphasised his efforts at rehabilitation. The report runs to in excess of seven closely typed A4 pages, but its substance can be gleaned from the ‘Summary and Opinion’ section of it, which states:

‘Summary and Opinion.

In summary, this is a 42-year-old man who has pleaded guilty to a charge of arson. He grew up under highly adverse circumstances. As a child he felt alienated from his father, who was only partially present in the family and who was a heavy drinker. While he was close to his mother, she also seems to have had an alcohol problem. His mother's family were reportedly associated with the criminal underworld and, in the absence of a positive identification with his father, he identified with role models from this culture in adolescence.

While he seems to have done reasonably well at primary school, he dropped out of secondary school in the first year but later, while in prison, succeeded in obtaining the Junior Certificate.

He has a history of delinquent and criminal behaviour dating from his early teens. This was associated with drug abuse —principally heroin. He spent much of his life from his late teens to his early 30s in prison. However, about 2002, when he was 30 years of age and serving a prison sentence, he decided to stop using heroin. He reports that he has been substantially free of this drug since then.

On release from prison in 2004 he succeeded in obtaining employment and continued in work until the recession in the construction industry began about 2006/7. Subsequently he went to live in Spain where he managed to find casual work. I understand that from 2004 to 2010, when he committed the index offence, he managed to stay “out of trouble”.

In 2009, at his mother's request, he returned to Dublin because his younger brother was reported to be dying following many years of increasingly heavy drug abuse (he died in 2011, reportedly of drug related causes). At that time his brother was abusing a cocktail of “legal highs” which he was buying with the proceeds of an award from the Residential Institutions Redress Board. These drugs were purchased from a shop on the premises which are the object of the index offence.

He claims that his decision to burn down the premises was substantially motivated by feelings of anger at the injury being done to his brother through his consumption of drugs purchased there. He also claims to have long felt a sense of both responsibility and guilt for his brother's drug addiction because of his own failure to provide an appropriate role model to the younger boy/man. He admits to also being partly motivated to commit the offence by the belief that he might receive some financial reward.

Psychometric assessment of Davin's personality indicates a highly dependent personality style characterised by an excessively strong need for emotional and psychological attachment to others who can be depended upon to provide security, support and a sense of identity. This personality style is associated with a pattern of acquiescence in the wishes of others motivated by fear of losing their support. It seems likely that this would have been a factor in his response to his mother's request to return to Dublin to do...