DPP v O'Loughlin

JurisdictionIreland
JudgeBirmingham J.
Judgment Date02 December 2014
Neutral Citation[2014] IECA 29
Docket Number231/12
CourtCourt of Appeal (Ireland)
Date02 December 2014

[2014] IECA 29

THE COURT OF APPEAL

President

Birmingham J.

Sheehan J.

231/12
230/12
DPP v O'Loughlin
The People at the Suit of the Director of Public Prosecutions
Respondent
V
Michael O'Loughlin and Edward O'Loughlin
Appellants

CRIMINAL JUSTICE ACT 2006 S72

CRIMINAL JUSTICE (SURVEILLANCE) ACT 2009

CRIMINAL JUSTICE ACT 2006 S71

Sentencing – Participation in the activities of a criminal gang – Severity of sentence – Appellants seeking to appeal against sentence – Whether there was an error in principle

Facts: The appellants, Mr M O"Loughlin and Mr E O"Loughlin, were members of a gang being monitored by Garda pursuant to the Criminal Justice Surveillance Act 2009 over a period of some 110 days. On almost every day when recordings were in place, there were some discussions about criminal activities. More specifically the recordings showed the appellants preparing for having an involvement with some seven offences referred to as the predicated offences. These were drugs offences and four were burglaries. The appellants went on trial in February 2012, for offences of directing a criminal organisation. During the course of the trial, a perceived difficulty in relation to the return for trial emerged and in those circumstances the accused men were recharged and they offered a plea to the less serious offence of participating in the activities of a criminal organisation contrary to s. 72 of the Criminal Justice Act 2006, which was accepted. In mitigation in the Dublin Circuit Court, the appellants emphasised the relative ease with which their activities were disrupted and the point was made that the level at which the gang in question operated was not of the same level as some gangs operating in different parts of the country. When it came to sentence, the judge said that he was driven to the conclusion that the O"Loughlins were involved at leadership level, that they were directing other parties to commit crime and that they were probably the intelligence behind the organisation. The appellants were sentenced in June, 2012 to nine years imprisonment. The appellants appealed to the Court of Appeal, criticising the conclusion reached by the trial judge that the O"Loughlins were at a leadership level, saying that conclusion conflicted with the evidence of Detective Inspector Roche which was to the effect that the appellants were mid range, interpreted as meaning that they were mid range within the organisation.

Held by Birmingham J that the appellants" criticism was misplaced because a careful reading of the transcript made clear that Detective Inspector Roche was speaking about the level of criminality that the gang was involved in which was described as mid range. Birmingham J held that in a situation where the evidence, devised from traditional policing activity and from surveillance, was limited to a period of some months and where there was a gap of some years in terms of recorded offences, that that did involve a degree of impermissible speculation on the part of the trial judge. The blurring of the distinction between the s. 72 offence and the s. 71 offence and the manner in which the gap in convictions was dealt with lead the Court to the view that there was an error in principle. The sentence imposed was, in the view of Birmingham J, unduly severe in a situation where the organisation in question was operating at mid level of criminality and in a situation where there had been a plea entered in the circumstances in which it was. The Court did not lose sight of the fact that at the time the plea was entered, that there had been a ruling on questions of admissibility which was adverse to the appellants. It was nonetheless held to be a valuable plea at an early stage of what was going to be a very lengthy trial.

Birmingham J held that, having concluded that there was an error of principle, the Court would substitute for the sentence imposed a sentence of six and half years imprisonment, which would date from the same day as the sentence was backdated to in the Circuit Court.

Appeal allowed.

1

1. Both applicants have appealed against the severity of sentences that were imposed upon them by the Dublin Circuit Court on the 12 th June, 2012. The sentence under appeal in each case was one of nine years imprisonment imposed in respect of the offence of participating in the activities of a criminal gang contrary to s. 72 of the Criminal Justice Act 2006. The maximum penalty provided in respect of the offence is one of fifteen years.

2

2. The background to the appeal in respect of the offences on which they were subsequently sentenced, is that the two appellants had gone on trial in February 2012, for offences of directing a criminal organisation. It is not absolutely clear to the court whether there was also on the indictment at the stage an offence of participation in the activities of a criminal and it would appear from these papers and on the basis what we heard this morning, perhaps not, but in any event the major charge in the case was one of directing the activities of a criminal organisation.

3

3. The trial had been expected to be a particularly lengthy one, estimated to range from three months to six months. During the course of the trial, a perceived difficulty in relation to the return for trial emerged and in these circumstances the accused men, as they were at the time, were recharged and they offered a plea to the less serious offence of participating in...

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