DPP v Kieran Ryan

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: Mr. Justice Clarke
• Judgment Date: 18 March 2014
• Neutral Citation: [2014] IECCA 11
• Date: 18 March 2014
• Docket Number: [Record No: CCA 144/2011]

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Kieran Ryan

Accused/Appellant

[2014] IECCA 11

[Record No: CCA 144/2011]

THE COURT OF CRIMINAL APPEAL

Sentencing – Firearms offences – Suspicious possession of a firearm and ammunition – Accused seeking to dispute sentence imposed – Whether sentence excessive

Facts: The accused/applicant was Mr. Ryan. He pleaded guilty to two firearms offences; suspicious possession of a firearm and suspicious possession of ammunition. Mr. Ryan held the firearm and ammunition with the intention to deliver them to a third party. Mr. Ryan sought to appeal on the grounds that the sentence of eight years imposed on him is out of line with the broad range of sentences imposed in like cases.

Held by Clarke J in relisted hearing, having considered Director of Public Prosecutions v. Eoin Barry [2008] IECCA 93, that the principle factors to take into account in assessing the seriousness of the offence are the nature and quantity of the firearms concerned, the extent to which they were used or brandished and the extent that the offence arose out of criminality, including any circumstances concerning the culpability of the accused. Clarke J held that the deduction of four years for an early guilty plea was also excessive in light of Mr. Ryan”s serious previous conviction for violent crime. Clarke J considered the appropriate sentence to be imposed on a person pleading guilty to the committal of criminal charges and questioned the extent to which there is a jurisdiction for the court to give general guidance.

Clarke J held that the sentence was excessive. The Court established that there was an error in principle in the trial judge”s analysis in placing Mr. Ryan”s offence on the spectrum of seriousness. However the court also found a partly compensatory error in principle in the extent of the reduction allowed for mitigating factors by the trial judge. The Court feels it should allow the appeal and interfere with the sentence.

Appeal allowed.

Mr. Justice Clarke

Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.

1 1. Introduction

1.1 There are many factors which are properly taken into account in coming to a view as to the appropriate sentence to be imposed on a person pleading guilty to or convicted of criminal charges. The process is, as was pointed out in The People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306, ‘a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation.’ It has been said many times that the proper approach to sentencing requires both a consideration of the gravity of the offence (including the level of culpability of the accused) and the circumstances of the offender. However, in addition, it is important that the courts strive to maintain, notwithstanding that complexity, a level of consistency so that, in at least a general way, like cases are treated in a similar fashion.

1.2 Because of the broad range of factors which can properly be taken into account in assessing the gravity of the offence, the culpability of the offender and the individual circumstances of the accused, it will rarely be possible to engage in a direct comparison between one case and the next. However, that does not mean that the courts could not, and in the view of this Court should not, attempt to maintain a broad level of consistency. Furthermore, it might be said that it is part of the function of this Court, as a Court of Appeal, to attempt to establish not only the broad legal principles by reference to which any sentencing exercise should be conducted but also to give, where possible, some guidance as to the broad range of sentences which should be imposed, all else being equal, across the spectrum of severity applicable to an offence under consideration.

1.3 That question comes into particular focus on this appeal as a result of the detailed and careful analysis presented to the Court by counsel for the accused/appellant (‘Mr. Ryan’) which addressed many recent decisions of this Court dealing with sentences for like offences to the one under consideration. It will be necessary to return to the detail of that analysis in due course. That submission does, however, raise the question of the extent to which there is a jurisdiction for this Court to give general guidance.

2 2. Giving of Guidance

2.1 The starting point has to be a consideration of the judgment of the Supreme Court in People (DPP) v. Tiernan [1988] I.R. 250. This Court is, of course, bound by that decision. As noted in the judgment of Finlay C.J. (speaking for the Court), the case in question came before the Supreme Court on a certificate issued by the Attorney General under s. 29 of the Courts of Justice Act 1924, in which it was stated ‘that it was desirable in the public interest that an appeal should be taken to the Supreme Court’ because the case ‘involved the guidelines which the courts should apply in relation to sentences for the crime of rape.’ In that context Finlay C.J. said, at p. 254, the following:

‘Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases’.

2.2 For reasons which the Court will address in due course, the first of the concerns expressed by Finlay C.J. is, at least to a material extent in respect of certain types of offences, significantly reduced today. The very detailed analysis conducted on this appeal by counsel of the various sentencing cases in respect of a like offence allows, as a matter of practice, at least general observations to be made on the view which this Court has taken of sentence for such offences. In addition, there are, increasingly, sentencing surveys and statistics available which can provide the kind of assistance which the Supreme Court did not have available to it at the time of Tiernan. For example, the ISIS (Irish Sentencing Information System) project provides details as to the range of sentences which are typically imposed by sentencing judges for many types of offences.

2.3 Finlay C.J. did, in the passage just cited, make clear that he doubted the appropriateness of an appellate court, such as this Court, appearing ‘to be laying down any standardisation or tariff of penalty’. That was, of course, because all relevant facts as to the severity of the offence, the culpability of the accused and the circumstances of the accused need to be taken into account. In those circumstances, to attempt any standardisation of penalty would clearly be inappropriate. However, this Court does not read the judgment of the Supreme Court as precluding some broad level of guidance being given by this Court as to the range of sentences which may be appropriate for an offence under consideration on an appeal, having regard to the severity of the offence and the culpability of the accused. It clearly remains a matter for the sentencing judge to form a judgment, on all of the relevant facts, as to where on that range the offence for which the accused is to be sentenced lies. It is also clearly a matter for the sentencing judge to decide on the extent to which any aggravating or mitigating factors identified ought increase or decrease the sentence to be imposed. Thus, any such range provides broad guidance but does not seek to impose any form of standardisation of penalty. In addition, it needs to be emphasised, even at this early stage, that there will always be cases which disclose highly unusual features and which will not readily fit into any particular pattern.

2.4 Finally, it is important to emphasise that such an exercise can only legitimately be carried out if the court has, as it had in this case, the opportunity, through the industry of counsel, to conduct a comprehensive review of the views on sentences which this Court has expressed and/or has available to it detailed information of sufficient quality on the type of sentences typically imposed by sentencing judges. To attempt to give guidance without such assistance would, in this Court”s view, be inappropriate. Against that background, it is next necessary to turn to the approach to sentencing which any such guidance might permit.

3 3. The Approach to Sentencing

3.1 There are, in general terms, two ways in which a determination of the appropriate sentence can be arrived at. First, a sentencing judge, having assessed the gravity of the offence and the culpability of the accused, may seek to place the offence itself at an appropriate point on the spectrum of offences of that type. Offences can typically be divided into lower, middle and upper parts of the range with, perhaps, further refinements such as, for example, ‘the upper part of the middle range’ or the like. There is, of course, no necessary formula of words which must be used. It should also be emphasised, as has already been pointed out, that there may always be exceptional or unusual cases which do not readily fit into any such range or ranges and where the sentencing judge will have to engage in a somewhat novel analysis to come to an appropriate determination as to...