DPP v Lee

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Hedigan
Judgment Date27 Nov 2017
Neutral Citation[2017] IECA 312
Docket Number331 /16

[2017] IECA 312

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Edwards J.

Hedigan J.

331 /16

The People at the Suit of the Director of Public Prosecutions
Respondent
V
Frederick Lee
Appellant

Sentencing – Escaping from lawful custody – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Lee, on the 6th December, 2016, entered a guilty plea to the offence of escaping from lawful custody contrary to common law. He was sentenced on the 15th December, 2016, in Wicklow Circuit Criminal Court, to three years imprisonment. This sentence was backdated to the 19th July, 2016. The appellant appealed to the Court of Appeal against severity of sentence. It was submitted that the sentencing judge erred in law and fact in placing excessive weight on the aggravating factors and in determining the seriousness of the offence to be an aggravating factor. It was submitted that the sentencing judge erred in fact and law in determining the headline as five or six years before considering mitigation. The appellant submitted that the sentencing judge erred in fact and law in failing to take into account the circumstance in which the fact of conviction meant that the possibility of future release on licence was delayed. The appellant submitted that the judge also failed to have sufficient or any regard to the extensive efforts made by the appellant to rehabilitate and failed to have regard to the objective of rehabilitation in sentencing.

Held by the Court that, having considered R v Coughtrey (1997) 2 Cr App R (S) 269 and R v Purchase [2007] EWCA Crim 1740 521, this was an offence that should have attracted a sentence measured in months rather than years. The Court noted that: the appellant appeared to have escaped with some degree of planning as found by the sentencing judge; there was no outside or even inside assistance; no violence or damage was caused; there were personal reasons for his escape; he did not surrender but could hardly be considered as hiding from the authorities because, although he left the jurisdiction, he travelled to and stayed at his daughter's address which was known to the authorities; he was at large for three and a half months; and, while at large, he did not engage in any criminal or reprehensible behaviour. The Court held that the above factors should have been taken into account in determining how many months. The Court thus found an error in principle in the sentencing and proceeded to resentence.

The Court held that a sentence of ten months to run concurrently with the life sentence the appellant continued to serve was the appropriate sentence. The Court noted that the appellant had served one year and four months in Wheatfield Prison since the operative date of the sentence in respect of his escape and thus the sentence imposed may be considered as having been served.

Appeal allowed.

JUDGMENT of the Court delivered on the 27th day of November 2017 by Mr. Justice Hedigan
Introduction
1

This is an appeal against severity of sentence. On the 6th December, 2016, his first appearance before the Circuit Court, the appellant entered a guilty plea to the offence of escaping from lawful custody contrary to common law. He was sentenced on the 15th December, 2016, in Wicklow Circuit Criminal Court, to three years imprisonment. This sentence was backdated to the 19th July, 2016. He is currently detained in Wheatfield Prison.

The circumstances of the offence
2

The appellant had been in lawful custody in Shelton Abbey, since the 13th September, 2015, when he escaped. On the 4th March, 2016, following a check of rooms and extensive search of the lands and premises the appellant could not be found. This was shortly before he was due before the parole board in respect of a sentence he was then serving. In February, 1994 the appellant was convicted of murder in the United Kingdom and sentenced to life with a tariff of 12 years. The offence occurred during a burglary and there were two other co-accused. One was convicted of murder and the other of manslaughter. Being an Irish citizen he was transferred to this jurisdiction on the 12th March, 1998. The co-accused remained in the United Kingdom and had already been released at the time that this offence was committed.

3

The appellant was discovered in the United Kingdom living with his daughter, at an address known to the authorities. He was apprehended on foot of a European Arrest Warrant on the 19th July, 2016. He consented to his surrender back to this jurisdiction.

The appellant's personal circumstances
4

The appellant was born in 1964. He left school at a young age. He had some experience of scrap dealing and doing other odd jobs. He had some problems with alcohol and drugs.

5

He has an ex-wife, two daughters in their twenties, a granddaughter and a sister in England. His sister was in hospital and this was given as the reason for his absconding. He had sought release to visit but was denied. He had previously been granted three periods of escorted temporary release and complied with the conditions of that release.

6

He had 25 previous convictions including the one for murder. 24 were committed in Ireland between 1981 and 1991. There were nine for burglary, four for theft, four road traffic offences, two bail offences, two trespass and two criminal damage and one escape from custody which was from Shelton Abbey in 1987. A sentence of one month was imposed for that escape.

7

He had been transferred from Wheatfield to Shelton Abbey which was a positive sign in terms of ultimate release. His parole hearing was set for September, 2016. This process of seeking release on licence will now start over from the beginning. Two references were given to the sentencing judge. He was working towards release on licence and having periodic reviews before the parole board.

Sentencing
8

The mitigating factors were his guilty plea, his consent to the European Arrest Warrant execution, his working in the Wheatfield laundry and the governor's report that he was behaving well in Wheatfield. The aggravating factors were the serious nature of the offence, there was trust between the appellant and management in Shelton Abbey which was abused, the respect and authority situation of being in prison was abused, there was a degree of planning and his previous convictions but they were mostly historical. Regard was also had to the appellant's personal circumstances.

9

The sentencing judge noted the maximum penalty was life imprisonment and that he was satisfied that this offence was in the middle range. The headline sentence was noted as being five to six years. Considering mitigation and the appellant's personal circumstances a sentence of three years was imposed to run from the 19th July, 2016.

Appellant's submissions
10

It is submitted that it was accepted that prior to this offence the appellant's release on licence would have been in the ‘relative to near future’. This offence has set back his potential release date on the murder conviction.

11

It is submitted that the sentencing judge erred in law and fact in placing excessive weight on the aggravating factors and in determining the seriousness of the offence to be an aggravating factor. The judge assessed the aggravating factors after it was determined that the offence was in the middle range. In The People (DPP) v. Kelly [2016] IECA 204, in relation to the seriousness of the offence being an aggravating factor, Edwards J. held, at para. 38, that ‘[t]he mere existence of an ingredient of an offence cannot be regarded as an aggravating factor’. The Court then went on to find that trespass could not be an aggravating factor in the offence of burglary as it was ‘an express ingredient of the offence’. The Court referred to this as an error of principle. The appellant submits that the sentencing judge erred in considering the offence in and of itself to be an aggravating factor.

12

It is submitted that the sentencing judge erred in fact and law in determining the headline as five or six years before considering mitigation. It is accepted that the approach taken of fixing a headline and then reducing for mitigation was correct. The headline of five to six years was inappropriate for the offence.

13

There are helpful United Kingdom authorities on this to which the Court is referred. In R v. Clarke (1994) 15 Cr. App. R. (S.) 825 the appellant was serving a five year sentence for causing grievous bodily harm when he walked out of prison by pretending to be a visitor. He claimed to have wanted to discuss the custody arrangements for his young son and that he intended to return. He was given a 12 month consecutive sentence which was reduced to six months consecutive on appeal. The Court noted that he had been trusted with visits outside prison, there was no violence or property damage involved and the escape was not premeditated.

14

In R v. Bentley (1996) 1 Cr. App. R. (S.) 88 the appellant was sentenced to 15 months for a pre-planned escape. He maintained that he was being bullied by fellow prisoners and he transfer request had been refused. On appeal the sentence was reduced to nine months. The Court found that it had been too long in light of all the circumstances and his peripheral role.

15

In Attorney General's Reference No. 4 of 1995 (1996) 1 Cr. App. R. (S.) 356 the Court of Appeal held that the appropriate sentence would have been 15 months consecutive where the offender escaped while in hospital for an operation, remained at large for six months and committed a number of offences during that time.

16

In R v. Coughtrey (1997) 2 Cr, App. R. (S.) 269 the Court held that breaking out of prison is a very serious offence for which a substantial sentence of imprisonment is always to be expected. The appellant and another person...

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