DPP v Kiely

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 19 July 2016
• Neutral Citation: [2016] IECA 252
• Docket Number: 246/15
• Court: Court of Appeal (Ireland)
• Date: 19 July 2016

[2016] IECA 252

THE COURT OF APPEAL

Sheehan J.

246/15

Sheehan J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Glen Kiely

Appellant

Sentencing – Violent disorder – Mitigating factors – Appellant seeking to appeal against sentence – Whether sentencing judge failed to have adequate regard to the mitigating factors

Facts: The appellant, Mr Kiely, pleaded guilty to violent disorder contrary to s. 15 of the Criminal Justice Public Order Act 1994, in respect of an incident that occurred on the 27th November, 2013, near Balbutcher Lane, Ballymun. He received a sentence of three and a half years imprisonment with the final twelve months suspended on the usual terms. The appellant appealed to the Court of Appeal against that sentence, submitting that the sentencing judge failed to have any adequate regard to the social, domestic and other circumstances of the appellant by the date of sentence and in particular failed to have adequate regard to the mitigating factors especially the huge progress which the appellant had made in dealing with his drug addiction. The appellant submitted that in all the circumstances of the case the sentence was excessive particularly in light of the exceptional mitigation. The respondent, the DPP, while acknowledging the rehabilitative efforts of the appellant, nevertheless maintained that in this case, there was no error of principle in the judge's approach to sentence. The respondent further concluded that the rehabilitative efforts as evidenced by the appellant were adequately factored into the sentence that was imposed.

Held by Sheehan J that it was open to the sentencing judge to impose a sentence of imprisonment notwithstanding the efforts made by the appellant. Sheehan J was unable to identify the trial judge's starting point; the sentencing judge did not identify a headline sentence and Sheehan J found himself in the position of having to speculate as to what that was and what allowance the judge made for mitigation. The Court found an error in the trial judge's approach and held that insufficient credit was allowed for what both parties agreed was significant mitigation. The Court proceeded to resentence the appellant.

Sheehan J held that the Court would increase the suspended part of the sentence by one year. Accordingly the Court set aside the original sentence and substituted in its place a sentence of three and a half years imprisonment with the final two years suspended. The Court imposed the same terms that the Circuit Court judge imposed when suspending one year of the sentence, namely that for the period of two years following release the appellant keep the peace and be of good behaviour and be subject to the supervision of the Probation Service for that period of time.

Appeal allowed.

JUDGMENT of the Court (Ex tempore) delivered on the 19th day of July 2016 by Mr. Justice Sheehan

1 This is an appeal against sentence.

2 The appellant pleaded guilty to violent disorder contrary to s. 15 of the Criminal Justice Public Order Act 1994, in respect of an incident that occurred on the 27th November, 2013, near Balbutcher Lane, Ballymun. He received a sentence of three and a half years imprisonment with the final twelve months suspended on the usual terms.

3 The facts are that a young man who later refused to make a complaint to the gardaí was attacked by a group of three men, one of whom was the appellant. The appellant was believed to be wearing a knuckleduster and carrying a hurley which was thrown at the injured party. The injured party received a severe beating.

4 The appellant is 28 years old and living with his partner and four children at an address in Ballymun. He has 47 previous convictions, including five for offences contrary to s. 3 of the Misuse of Drugs Act, as amended, two for offences contrary to s. 15 of the Misuse of Drugs Act, three for obstruction under the Misuse of Drugs Act. He has two convictions for endangerment, one for dangerous driving, one for drunken driving, two for unauthorised taking, two for driving without insurance and the rest of his convictions relate to Road Traffic Act matters.

5 At the sentence hearing on the 18th May, 2015, the court was told that his last conviction had occurred on the 4th September, 2014, when he had received a community service order of 120 hours in respect of an offence contrary to s. 15 of the Misuse of Drugs Act.

6 There was evidence before the sentencing court that the appellant had made huge efforts to overcome...