DPP v Kelly

JurisdictionIreland
JudgeMr. Justice Sheehan
Judgment Date30 May 2016
Neutral Citation[2016] IECA 359
Docket Number126CJA/15
CourtCourt of Appeal (Ireland)
Date30 May 2016

In the matter of Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions
Applicant
And
Neil Kelly
Respondent

[2016] IECA 359

126CJA/15

THE COURT OF APPEAL

Sentencing – Criminal damage – Undue leniency – Applicant seeking a review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Kelly, on the 1st May, 2015, in the Circuit Court, was sentenced to three years imprisonment, suspended for three years in respect of an offence contrary to s. 2 of the Criminal Damage Act 1991, namely the burning of a motor vehicle. The applicant, the DPP, applied to the Court of Appeal seeking a review of the sentence on six separate grounds: 1) the sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances; 2) the judge erred in law and in fact for failing to attach appropriate weight to the aggravating factors in the case, in particular the fact that evidence showed that the offence of arson was a deliberate and conscious revenge attack on a member of An Garda S?och?na; 3) the judge gave too much credit to the respondent and his co-accused for the payment of the sum of €11,200 by way of restitution to the complainant; 4) the judge failed to give proper consideration to the previous convictions of the respondent; 5) the judge erred in law and in fact in attaching undue weight to the mitigating factors in the case, in particular the efforts by the respondent to rehabilitate himself after the events; 6) the judge erred in law and in fact in failing to place the offences within the range of the seriousness of offences of this nature and of failing to have appropriate regard to the range of sentences appropriate to such offences.

Held by Sheehan J that there was no error of principle in the sentencing judge's approach to sentence. The Court was satisfied that he correctly characterised the serious nature of the offence and that he had regard to all relevant factors. Nevertheless the Court held that this was a borderline case and that the respondent was just about on the correct side of that border. Accordingly the Court found that notwithstanding the nature and seriousness of the offence and its effect on the victim there was sufficient mitigation, namely the plea of guilty, compensation, remorse, apology and absence of relevant previous convictions to allow a Circuit Court judge in the circumstances to impose a suspended sentence.

Sheehan J held that he would refuse the application.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 30th day of May 2016, by Mr. Justice Sheehan
1

This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 193, for a review of the sentence imposed on the respondent in the Circuit Court on the 1st May, 2015. On that date the respondent was sentenced to three years imprisonment, suspended for three years in respect of an offence contrary to s. 2 of the Criminal Damage Act 1991, namely the burning of a motor vehicle.

2

In the course of written submissions, counsel on behalf of the Director of Public Prosecutions sought a review of the sentence on six separate grounds as follows:-

1. The learned sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances being a sentence of three years imprisonment on a count of arson suspending the entirety thereof for a period of three years.

2. The learned sentencing judge erred in law and in fact for failing to attach appropriate weight to the aggravating factors in the case. In particular the learned sentencing judge failed to have appropriate regard to the fact that evidence shown that the offence of arson was a deliberate and conscious revenge attack on a member of An Garda S?och?na by burning a motor car in the car park of Scarriff garda station following the seizure of a motor car by that member of An Garda S?och?na earlier in the evening on the day in question.

3. The learned sentencing judge gave too much credit to the respondent and his co-accused for the payment of the sum of €11,200 by way of restitution to the complainant.

4. The learned sentencing judge failed to give proper consideration to the previous convictions of the respondent.

5. The learned sentencing judge erred in law and in fact in attaching undue weight to the mitigating factors in the case. In particular the learned sentencing judge erred in law and in fact in placing too much emphasis on the efforts by the respondent to rehabilitate himself after the events.

6. The learned sentencing judge erred in law and in fact in failing to place the offences within the range of the seriousness of offences of this nature and of failing to have appropriate regard to the range of sentences appropriate to such offences.

3

In order to consider these grounds of appeal it is necessary to set out the background to this offence, the effect it had on the victim, the personal circumstances of the appellant and the sentencing remarks of the judge.

4

On the evening of the 18th March, 2013, at about 10.30 pm Garda Troy was on mobile patrol on the Tuamgraney Road near Scarriff when she noticed a vehicle at the Gala Service Station which she had stopped the previous evening. The vehicle was being driven by a third party. On ascertaining that there was no insurance in place, Garda Troy decided to seize the vehicle.

5

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5 cases
  • DPP v McMulkin
    • Ireland
    • Court of Appeal (Ireland)
    • 10 November 2016
    ......He lost his left eye as a result and has a prosthetic left eye currently. He pops this in and out during the consultation with some inappropriate mirth. He explains that he was in the Eye 85 Ear Hospital in Dublin under the care of surgeon Ms Geraldine Kelly. He explains that he was told that the bar had fortunately missed his optic nerve and jugular vein otherwise he would have died. He was also under the care of a Dr Moriarity there. Following the surgical procedures he spent a significant amount of time in the rehabilitation centre in Dun Laoghaire. ......
  • DPP v Molloy
    • Ireland
    • Court of Appeal (Ireland)
    • 28 July 2016
    ......306 ; and continuing through The People (Director of Public Prosecutions) v Renald (unreported, Court of Criminal Appeal, 23rd November 2001); The People (Director of Public Prosecutions) v Kelly [2005] 2 I.R. 321 ; and The People (Director of Public Prosecutions) v Farrell [2010] IECCA 116 , amongst other cases, indicating that best practice involves in the first instance identifying the appropriate headline sentence having regard to the available range, based on an assessment of ......
  • DPP v Judge
    • Ireland
    • Court of Appeal (Ireland)
    • 12 May 2017
    ...55; The People (Director of Public Prosecutions) v. Reilly [2015] IECA 53 and The People (Director of Public Prosecutions) v. Kelly [2016] IECA 359. The first three of these were ex tempore judgments. In addition we are acutely aware of yet another case, namely The People (Director of Pub......
  • DPP v T.v
    • Ireland
    • Court of Appeal (Ireland)
    • 6 December 2016
    ......Though it has not been cited in the submissions this Court has expressly approved the passage in question in The People (Director of Public Prosecutions v Shaun Kelly [2016] IECA 204 (unreported, Court of Appeal, 7th of May 2016). It is suggested that in terms of the many aspects of an accused's actual behaviour that can aggravate seriousness, of which a number are listed by O'Malley, relatively few apply in the case of this appellant. That having been said ......
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