DPP v Foley

JurisdictionIreland
JudgeBirmingham P.
Judgment Date26 January 2023
Neutral Citation[2023] IECA 12
CourtCourt of Appeal (Ireland)
Docket Number[117CJA/22]
Between
The People at the Suit of the Director of Public Prosecutions
Applicant
and
David Foley
Respondent

[2023] IECA 12

The President

McCarthy J.

Ní Raifeartaigh J.

[117CJA/22]

THE COURT OF APPEAL

Crime & sentencing – Application by DPP – Whether sentence unduly lenient – S 2 Criminal Justice Act 1993

Facts: The respondent had been convicted of multiple offences, including trespass with a weapon of offence contrary to s.10 of the Firearms and Offensive Weapons Act 1990, aggravated burglary and possession of drugs for the purpose of sale. The applicant considered the sentence handed down to be unduly lenient and now applied under s 2 of the Criminal Justice Act 1993 for review.

Held by the Court that the aggregate sentence imposed was very clearly unduly lenient. Each of the offences were of a serious nature. As the Court was of the view that the aggregate sentence was unduly lenient, and that two of the three individual sentences that went to make up the aggregate were unduly lenient, the Court proceeded to resentence.

Application granted.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 26 th day of January 2023 by Birmingham P.

1

. This is an application brought by the DPP pursuant to s. 2 of the Criminal Justice Act 1993, seeking to review a sentence on grounds of undue leniency. The sentences sought to be reviewed were sentences that were imposed on 20 th May 2022 in Waterford Circuit Criminal Court. At the outset, it might be said that the legal principles applicable to reviews such as these were not in dispute between the parties and those principles have not really been the subject of controversy since the first such case, that of DPP v. Byrne [1995] ILRM 279. The sentences now sought to be reviewed were imposed in respect of counts that had appeared on three bills of indictment, the details of which are as follows:

Bill 1: Trespass with a weapon of offence contrary to s. 10 of the Firearms and Offensive Weapons Act 1990, committed on 19 th April 2020. The sentence imposed was two years and three months imprisonment.

Bill 2: Aggravated burglary contrary to s. 13(1) and (3) of the Criminal Justice (Theft & Fraud) Offences Act 2007, committed on 11 th March 2020. A sentence of three years imprisonment with two years and three months suspended was imposed. This sentence was made consecutive to the sentence under Bill 1.

Bill 3: Possession of drugs for the purpose of sale or supply contrary to s. 15A of the Misuse of Drugs Act 1977, as amended, committed on 23 rd May 2020. A sentence of four years with the final three years suspended was imposed. The sentence was made consecutive to Bill 1, as it was required to be by law, having been committed while on bail for the offence under Bill 1. It was made concurrent to the offence under Bill 2. As such, the aggregate effective sentence was one of three years and three months.

2

. The grounds of appeal are as follows:

  • (i) The sentencing judge erred in principle in imposing an effective three years and three months custodial sentence on the respondent for three very serious offences, which sentences were unduly lenient in all the circumstances.

  • (ii) The sentencing judge erred in failing to have regard to the aggravating factors in the aggravated burglary offence on Bill 2, in particular:

    • (a) the serious and violent nature of the offence, in that the respondent had armed himself with a serious weapon before breaking into the victim's house with the express intention of attacking him;

    • (b) the attack was premeditated;

    • (c) the defendant attended with an accomplice;

    • (d) the protracted physical attack on the victim and the injuries sustained;

    • (e) the offence took place in the context of a feud; and,

    • (f) the previous convictions of the respondent.

  • (iii) The sentencing judge erred in law and in fact in placing the aggravated burglary offence at the upper end of the low range and setting a headline sentence of four years.

  • (iv) In relation to the offence of aggravated burglary, having regard to the aggravating factors that were present and the very limited mitigating factors, the sentencing judge erred in law and in fact in suspending two years and three months of the three-year sentence, and imposing an effective custodial sentence of nine months.

  • (v) The sentencing judge erred in law and in fact in how he structured the sentenced imposed for the aggravated burglary count and the trespass with a weapon of offence count where the offences involved significant aggravating factors, including serious violence and planned violence perpetrated at the home of the victim on two occasions just over one month apart.

  • (vi) The judge erred in law and in fact in suspending the final three years of the four-year sentence imposed on the defendant for the s. 15A offence, leaving an effective custodial sentence of one year, which, having regard to the aggravating factors and the extremely limited mitigating factors that were present, was unduly lenient in all the circumstances.

  • (vii) The sentencing judge erred in law and in fact in the manner in which he structured the sentences imposed, including the mandatory consecutive elements thereof.

  • (viii) The sentencing judge had undue regard to the limited mitigating factors and the application of the totality principle which did not warrant the leniency of the sentences imposed.

  • (ix) The sentencing judge erred in relation to the sentences imposed for what were three separate serious offences. The effective custodial sentence of three years and three months, which involved, by operation of law, an automatic consecutive sentence element, failed to have regard to the societal need for a serious, general and specific deterrent element to the sentences that were imposed.

Background to the Offences
3

. The background facts relating to the individual offences were as follows. So far as the aggravated burglary of 11 th March 2020 is concerned, the position is that Gardaí received a 999 call that a stabbing incident had occurred at Apartment 14, The Mews, 26 William Street, Waterford. There were three individuals there as Gardaí arrived on the scene – Ms. CK, Ms. AK and Mr. RO'H – one of whom, RO'H, had significant injuries consistent with being struck with a sharp object. Gardaí learned that the respondent, along with another individual, Mr. JF, had broken into the apartment, where the door was kicked in. The respondent was armed with a retractable sawblade and proceeded to strike RO'H with it repeatedly. In the course of the...

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