DPP v Hughes & Fox
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 04 December 2018 |
| Neutral Citation | [2018] IECA 376 |
| Date | 04 December 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [68/2017] [69/2017] |
[2018] IECA 376
THE COURT OF APPEAL
Birmingham P.
Birmingham P.
Edwards J.
McCarthy J.
[68/2017]
[69/2017]
Crime & sentencing – Offences against the State – Possession of firearms – Appeal against severity of sentence
Facts: The appellants had been under surveillance in the belief they were members of the IRA and were stopped in a stolen car. In the vehicle was a sawn-off shotgun. They were convicted of possession of a firearm in suspicious circumstances and sought to appeal the severity of their sentences.
Held by the Court, that the appeal would be dismissed. The Court was satisfied that the sentence imposed by the Special Criminal Court was proportionate given the circumstances in which the appellants had been arrested.
These are appeals by Conor Hughes and Darren Fox against severity of sentence. The sentences under appeal are sentences of seven years imprisonment imposed in the Special Criminal Court on 8th February 2017 in respect of offences contrary to s. 27A of the Firearms Act 1964 (as amended), the offence of possession of a firearm in suspicious circumstances.
The background to the sentence hearing and now this appeal is to be found in events that occurred on 30th October 2015. On that occasion, Detective Superintendent Thomas Maguire of the Special Detective Unit was in possession of confidential information relating to the movement of suspected members of the IRA and their intention to ‘effect an event’. In those circumstances, the movements and activities of the appellants were monitored and they were placed under surveillance by members of the National Surveillance Unit. They were observed meeting a third individual in Adare, County Limerick, and observed engaging in what was described as a reconnaissance mission.
The appellants were intercepted by members of the Emergency Response Unit at 01.30am on 31st October 2015 in a stolen motor vehicle which was travelling from Adare in the direction of Rathkeale. When detained, the appellants were observed to be wearing gloves and each had a hood pulled tightly over his head. A loaded sawn-off side-by-side double-barrelled shotgun (loaded with two cartridges) and described as ‘ready to go’ was located in the front of the vehicle. Also within the vehicle was a jerry can containing petrol and a quantity of matches. Both appellants were arrested and detained and interviewed and apart from denying membership of the IRA, exercised their right to silence. The sawn-off shotgun which was located in the vehicle had been stolen previously and the Serial Number on the shotgun had been removed.
In terms of the background and personal circumstances of the appellants, the Court heard that Conor Hughes had six previous convictions while Darren Fox had seven previous convictions, but it was said that none of these convictions were ‘of a substantive nature’. The Court heard that Darren Fox was twenty-seven years of age and came from what was described as a decent, hardworking family background. He was also said to have had a good employment record. So far as Mr. Hughes was concerned, he was aged forty years at the time of the sentence hearing and the Court heard that he, too, had a good employment history.
The Special Criminal Court indicated that it was identifying a notional or headline sentence of ten years” imprisonment, but taking into account the mitigating factors identified that were present in respect of each accused and in order to permit the prospect of rehabilitation and to incentivise that in each case, they were reducing the sentence to one of seven years imprisonment.
In DPP v. Ryan [2014] IECCA 11, the Court of Criminal Appeal suggested by way of guidance that offences at the lower end of the range ought to attract a sentence of five to seven years, offences in the mid-range seven to ten years, and an offence at the top of the range a sentence of ten to fourteen years, these indicative sentences being pre-mitigation sentences.
The appellants have referred to a number of comparator cases and say that by reference to these cases, it emerges that the sentences imposed by the Special Criminal Court were somewhat out of line with sentences in other cases. Counsel for the appellants drew attention to the case of DPP v. Nolan [2017] IECA 127. This was a case where an unloaded shotgun was pointed into the face of a member of An Garda Síochána. In the trial court, a sentence of five years imprisonment was imposed in respect of the firearms offence and a concurrent eighteen-month sentence in respect of the drugs offence. In imposing sentence, the Judge in the Circuit Court had identified a headline sentence of seven and a half years, talking the view that the case fell within the mid-range identified in DPP v. Ryan [2014] IECCA 11. Seeking to review the sentence, the DPP contended that the Judge was in error in placing the offence as mid-range and contended that it should have been in the high range. The Court of Appeal was prepared to accept that the case belonged in the mid-range while adding that if it had been sentencing, it might have nominated a headline sentence towards the upper end of mid-range. The Court of Appeal was of the view that a higher headline sentence than that fixed by the Circuit Court would have been justified and that even before account was taken of the suspended portion of eighteen months, that a lower discount for mitigation than that provided for by the Circuit Court would have been justified. This Court then proceeded to impose a sentence of five years simpliciter.
The Court would simply observe that it has on a number of occasions recently expressed some doubts about the usefulness of reliance on undue leniency reviews in the case of appeals against severity of sentence. In the first undue leniency review, the case of DPP v. Byrne [1995] 1 ILRM 279, the point was made that it would rarely be helpful to ask the question whether a higher sentence than that the subject of review would have been upheld. By way of analogy, it may be said that it is often the case that had a sentence more severe...
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