DPP v Lewis
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 10 October 2022 |
| Neutral Citation | [2022] IECA 231 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 109/2021 |
[2022] IECA 231
Edwards J.
Kennedy J.
Ní Raifeartaigh J.
Record Number: 109/2021
THE COURT OF APPEAL
Sentencing – False imprisonment – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Lewis, on the 23rd November 2020 at Cork Circuit Criminal Court, pleaded guilty to one count of possession of a knife contrary to s. 9(1) and (7) of the Firearms and Offensive Weapons Act 1990 as amended, one count of unlawfully interfering with the control of a motor vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976 and one count of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced to 4 years’ imprisonment on the first two matters and 6 years’ imprisonment in respect of the false imprisonment offence. All sentences were imposed concurrently. The appellant appealed to the Court of Appeal against severity of sentence. The grounds of appeal related to: (1) the headline sentence; (2) the weight attached to the mitigating factors; (3) the question of rehabilitation; and (4) the failure to backdate the sentence.
Held by the Court that whilst the offending itself was short lived, it was not at all persuaded in light of the manner of the offending and the premeditation that the judge erred in his nomination of the headline sentence. The Court accepted that the sentence nominated was on the high side, but given the aggravating factors, it was satisfied that such fell within the margin of appreciation afforded to a sentencing judge. The Court recalled that the judge reduced the nominated headline sentence by one third in coming to the final sentence of 6 years for the false imprisonment of two people. The Court held that it is preferable if a sentencing judge refers clearly to the matters being taken into account in the interest of transparency and as an aid to assessing if the reduction afforded for mitigation was sufficient; on appeal, however, it will not always amount to an error in principle, and the Court must look to the reduction afforded and the ultimate sentence imposed to assess whether such sentence was just. In this case, the Court was not at all persuaded that the judge did not afford an adequate discount. The Court held that rehabilitation is a most important aim in sentencing an offender; however, in deciding whether to suspend a portion of a sentence in pursuit of this objective, a judge may look to the past conduct of the offender. In this case, the Court held that the appellant had committed the offence whilst on bail and more significantly had committed the offending whilst under a bond. In the circumstances the Court found no error. The Court held that the judge gave a clear reason as to why he did not feel able to backdate the sentence; he explained this was because the appellant had committed the offence while on bail. The Court held that a judge has a discretion in this regard which must be carefully applied, and it was satisfied that he did so.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered (ex tempore) on the 10th day of October 2022 by Ms. Justice Kennedy.
This is an appeal against severity of sentence. On the 23rd November 2020 at Cork Circuit Criminal Court, the appellant pleaded guilty to one count of possession of a knife contrary to s. 9(1) and (7) of the Firearms and Offensive Weapons Act, 1990 as amended, one count of unlawfully interfering with the control of a motor vehicle contrary to s. 10 of the Criminal Law (Jurisdiction) Act 1976 and one count of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997. He was sentenced to 4 years' imprisonment on the first two matters and 6 years' imprisonment in respect of the false imprisonment offence. All sentences were imposed concurrently.
At approximately 7:15 pm on the 20th July 2020, the injured parties, Mr G and Ms D, were having a cigarette outside their vehicle in a carpark in Cork City Centre when they were approached by the appellant who asked them for a light. He had difficulty lighting his cigarette as he was wearing yellow washing up gloves. The couple became nervous and got into their vehicle. At this stage, the appellant opened the back passenger door of the car and jumped into the back seat and, as a consequence, Ms D jumped out of the car in fear. The appellant produced a knife which was described as being approximately 15 centimetres in length with a black handle which he pointed at the driver, Mr G. The appellant told Ms D to get back into the car or else he was going to stab Mr G. He repeated the threat. Ms D believed the appellant would carry out this threat and feigned a panic attack. As a result of this, the appellant fled the scene on foot.
The couple telephoned 999 and gave a description of the appellant to the Gardaí upon which the investigation commenced. CCTV footage was recovered showing the appellant purchasing the knife and yellow gloves from a Supervalu at 5:34pm that evening. Further CCTV footage shows the appellant fleeing from the incident, discarding items of his clothing and the packaging of the knife. Gardaí carrying out a search the following day, recovered the knife used in the incident in a park in Cork City Centre and the appellant was arrested later that evening.
Due to the state of intoxication of the appellant, he could not be interviewed until the morning following his arrest. He made full admissions and was remorseful.
The appellant was 20 years of age at the time of sentencing. He is the father of two young children, and he suffers from addiction issues.
He has 31 previous convictions, these include three convictions for the possession of knives, assault causing harm, the possession of drugs, criminal damage, violent disorder and public order matters.
The sentencing judge identified a pre-mitigation headline sentence of 9 years' imprisonment in respect of the false imprisonment count, citing inter alia the “extremely stressful circumstances” endured by the two injured parties.
In terms of mitigation, the judge took into account the appellant's guilty plea and his cooperation. He took these factors to reduce the headline sentence to one of 6 years' imprisonment from the date of the sentencing hearing.
The appellant appeals his sentence on 4 grounds which are set out in the submissions. It appears that the appellant sought an enlargement of time which contained 4 potential grounds of appeal, however those grounds are somewhat reformulated in the submissions. Moreover, leave on the date of this hearing was granted to permit an additional ground relating to the failure of the judge to backdate the sentence. In substance, therefore, the grounds related to:-
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(1) The headline sentence;
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(2) The weight attached to the mitigating factors;
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(3) The question of rehabilitation and
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(4) The failure to backdate the sentence.
It is clear from the submissions that the appellant's primary appeal rests with the sentence imposed for false imprisonment where it is submitted that the headline sentence of 9 years' imprisonment is excessive in all the circumstances. In support of this contention, the appellant points to the relatively short duration of the incident, the absence of any actual use of violence and the fact that no property was taken or damaged. It is also submitted that it is significant that the appellant ceased his actions and fled the scene upon Ms D feigning a panic attack. This, it is said, suggests an unwillingness to progress the offending past the point at which the victim exhibited signs of significant distress and indicates a lack of intention to do harm to the injured parties. The appellant further points to the level of intoxication of the appellant at the time of the offending as reducing his culpability.
The appellant refers to a number of cases where sentences were imposed in instances involving false imprisonment. It is submitted that the headline sentence imposed in the present case is excessive when compared with other cases where lower headline sentences were nominated for more prolonged offending, using actual violence against vulnerable victims.
The appellant relies on on The People (DPP) v Halligan [2010] IECCA 17 which concerned an accused who gained entry to a shop and tied up the owner, an elderly and almost entirely blind gentleman, and imprisoned him for approximately 40 minutes. An initial effective sentence of two years was imposed, and this was increased in the context of an undue leniency appeal to one of six years. It is submitted that it is significant that the Court of Criminal Appeal in Halligan nominated a headline sentence of eight years, placing the offending involved there at a lower level than that in the present case, notwithstanding the serious aggravating factors in Halligan.
The People (DPP) v Maguire [2018] IECA 71 is also cited, in which case, the appellant entered the home of his estranged wife in breach of a barring order and assaulted and falsely imprisoned her in a bedroom for an extended period of time. An effective sentence of four years with the final two years suspended was imposed at first instance with this being replaced by a sentence of four years with twelve months suspended on appeal.
Mahon J said:
“Kidnapping offences cover a great variety of situations and...
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