DPP v Freeman

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 26 June 2015
• Neutral Citation: [2015] IECA 145
• Court: Court of Appeal (Ireland)
• Docket Number: 100/14
• Date: 26 June 2015

The People at the Suit of the Director of Public Prosecutions

and

Alan Freeman

Appellant

[2015] IECA 145

100/14

THE COURT OF APPEAL

Sentencing – Aggravated burglary – Appeal against conviction and sentence – Appellant seeking to appeal against conviction and sentence – Whether the process of the court was abused

Facts: The appellant, Mr Freeman, was furnished information by his co-accused, Mr O”Regan, about the circumstances of a licenced firearms dealer and he in turn had furnished the information to a criminal gang which had proceeded to carry out an aggravated burglary of the firearms dealer”s home. In February, 2013, the appellant and Mr O”Regan went on trial at Kilkenny Circuit Criminal Court charged with 1) aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001, 2) burglary contrary to s. 12 of the 2001 Act and 3) robbery contrary to s. 14 of the 2001 Act. The appellant entered a plea of guilty to a count of theft which was added to the indictment. The appellant was sentenced to thirteen years imprisonment. The appellant appealed to the Court of Appeal against his conviction and sentence. The two grounds for the appeal against conviction were that 1) the evidence of arrest, detention and interviews was obtained unconstitutionally and was inadmissible, and the trial judge”s decision in that regard was wrong in both law and fact and was deficient in reasoning, and that 2) the trial was rendered unsatisfactory and the process of the court was abused owing to the conduct of the most senior garda officer involved in the case engaging in meetings and telephone communications with the appellant during the trial, knowing that the appellant was on trial on indictment and was legally represented. The DPP took the position that ground number one was moot because of the plea of guilty and objected to that ground being argued. There was a further point in that the decision of the Supreme Court in DPP v JC [2015] IESC 31 would have had a major relevance to the resolution of this ground. In any event, it was, at least tacitly, accepted by the appellant that if he failed on ground two that his plea of guilty would represent an insuperable obstacle to raising issues about the validity of the arrest and detention. In those circumstances, the arguments on this appeal were confined to ground two.

Held by Birmingham J that, in a situation where the trial judge had found as a fact that the contact between the accused and the Detective Superintendent was in relation to matters unconnected with the trial, he was entitled to so conclude. Birmingham J held that the appellant entered his plea with his eyes open; he was aware that his legal team were not advising a plea because they, in part at least, saw the arguments in relation to DPP v Damache at Waterford Circuit Court as having substance. Any confidence there might once have been in that point was held to be significantly undermined by reason of the decision of the Supreme Court in the J.C. case. Insofar as there was contact, both by telephone and face to face between the Detective Superintendent and the appellant, Birmingham J held that it was clear that Mr Freeman was willing to engage in that contact; he entered his plea at a time when he had assistance from senior and junior counsel and there could be no reason whatsoever to believe that his will was overborne. The decision whether to vacate the plea on foot of the application or not was held to be a matter for the trial judge; having conducted three voir dires, he was uniquely well positioned to assess where the merits lay and the decision that he arrived at was one that was very clearly open to him and accordingly, this ground of appeal failed. Turning to the question of sentence and having regard to the gravity of the incident at the core of this criminal involvement, the Court did not see any error in a figure of thirteen years. However, the Court did feel that it was necessary in a situation where two sentences were going to be consecutive to each other and where the global sentence was going to be a very long one to have regard to the principles of totality and proportionality.

Birmingham J held that, in the belief that when Mr Freeman served the significant sentence that he must serve, that it would be better that there would be an incentive for him not to further reoffend. In order to provide that incentive, the Court would suspend the final two years of the thirteen years, therefore effectively reducing the seven years to five to be served consecutive to the six years. That was conditional on Mr Freeman entering into a bond to keep the peace and be of good behaviour for a period of two years following his release from custody in the amount of €100.

Appeal dismissed in part.

Judgment of the Court delivered on the 26th day of June 2015, by Mr. Justice Birmingham

1 On the 5th February, 2013, the appellant, with a co-accused Daniel O'Regan, went on trial at Kilkenny Circuit Criminal Court charged with the following offences:-

1. Aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2. Burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and

3. Robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2 On the 28th February, 2013, which was day fifteen of the trial, the appellant entered a plea of guilty to a count of theft which was added to the indictment. Notwithstanding the plea of guilty that was entered, now before the Court is an appeal against conviction and against sentence.

3 So far as the appeal against conviction is concerned, two grounds are identified, these being:-

1. The evidence of arrest, detention and interviews was obtained unconstitutionally and is inadmissible, and the trial judge's decision in that regard is wrong in both law and fact and is deficient in reasoning.

2. The trial was rendered unsatisfactory and the process of the court was abused owing to the conduct of the most senior garda officer involved in the case engaging in meetings and telephone communications with the appellant during the trial, knowing that the appellant was on trial on indictment and was legally represented.

4 The Director of Public Prosecutions has taken the position that ground number one was moot because of the plea of guilty and has objected to this ground being argued. There is a further point in that the decision of the Supreme Court in DPP v. J.C. [2015] IESC 31 would have had a major relevance to the resolution of this ground. In any event, it was, at least tacitly, accepted by the appellant that if he failed on ground two that his plea of guilty would represent an insuperable obstacle to raising issues about the validity of the arrest and detention.

5 In those circumstances, the arguments on this appeal have been confined to ground two.

6 To offer some context to this ground, it is necessary to explain that on the 9th January, 2009, a gang of four men broke into the home of a licensed firearms dealer who lived in a rural area outside Carrick-on-Suir, Co. Tipperary. Present in the house at the time of the aggravated burglary/robbery was the firearms dealer, his wife, his daughter and an elderly family friend. The former occupants were held for some four hours in their home and were threatened by the balaclava-wearing raiders who were armed with a sawn off shotgun, a knife and a large stick. The occupants of the house were tied up and locked in a firearm safe. The gang took 42 firearms, €800 in cash and the family car.

7 It was never suggested that the appellant was one of the group of four raiders, or indeed that his co-accused Mr. Daniel O'Regan was present at the crime scene. Rather, the case against them was that Mr. O'Regan had furnished information about the circumstances of the firearms dealer to the appellant and he had furnished it to the criminal gang which had proceeded to carry out the aggravated burglary.

8 On the 8th October, 2009, Mr. Freeman was arrested. The arrest was carried out by gardaí who had come to his home in possession of a s. 29 Offence Against the State Act Warrant which had been issued by Detective Superintendent Hayes, who was leading the investigation. This led to a Damache point about the validity of the arrest being argued at trial. However, the prosecution contended that the gardaí who came to the house had a dual purpose: to search but also independently to arrest Mr. Freeman. Ultimately, this argument found favour with the trial judge.

9 The trial opened on the 5th February, 2013. The appellant was represented by a solicitor and by senior and junior counsel. Of significance is the fact that when the trial took place that the appellant was subject to an eight year suspended sentence that had been imposed by His Honour Judge Desmond Hogan at the Dublin Circuit Criminal Court on the 11th February, 2008, after a plea of guilty to an armed robbery at the Bank of Ireland at Rathbone, Co. Laois, on the 13th February, 2004. On day fifteen of the trial the appellant changed his plea to one of guilty of a theft count, which was added to the indictment. The matter was put back for sentence with the appellant remaining on bail. There was no prosecution objection to the appellant being permitted to remain on bail.

10 There was some delay in bringing on the sentence herein. It appears that this was attributable to the need to arrange a hearing in Dublin before Judge Hogan to consider the question of whether the sentence that he had imposed but suspended should be activated. On the 14th February, 2014, six years of the eight year suspended sentence was activated with the final two years remaining suspended.

11 In June 2013, the...