DPP v Mahoney

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 04 February 2016
• Neutral Citation: [2016] IECA 27
• Docket Number: Record No: CJA133/15
• Court: Court of Appeal (Ireland)
• Date: 04 February 2016

Birmingham J.

Mahon J.

Edwards J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

v

BRENDAN MAHONEY

Respondent

[2016] IECA 27

Edwards J.

Record No: CJA133/15

THE COURT OF APPEAL

Sentencing ? Sending certain articles by post ? Undue leniency ? Appellant seeking a review of sentence ? Whether sentence was unduly lenient

Facts: The respondent, Mr Mahoney, was identified as a suspect from CCTV footage from Prussia Street Post Office in Dublin 7 for the date on which a parcel had been dispatched from there to the home of one Garda Heaslip in Kilkee, Co Clare on the 30th of January 2015, containing a decomposing pig?s head. The CCTV footage showed the respondent entering the post office with an unsealed box, joining the queue to be served and then approaching counter no 2 which was attended by a Ms Bernadette Slattery. The CCTV footage showed him presenting the aforementioned box for processing at the counter and being issued with a stamp and barcode by Ms Slattery. Evidence was adduced from a Mr McCardell of the securities department of An Post, who had viewed the stamp recovered from the packaging containing the pig?s head, and had also reviewed relevant An Post business records. Using reference numbers on the stamp, Mr McCardell had been able to determine the relevant date, the relevant post office, and the counter within that post office, namely counter no 2, that had issued the stamp. He was then able to isolate the relevant transaction and his evidence as to what it had involved tallied with that given by Ms Slattery. The CCTV footage had further revealed that the box had markings on it which had matched similar marking on the packaging containing the head. The respondent was arrested at his home at 4, Acorn Apartments, Kilrush. He was taken to Kilrush Garda station where he was detained, and interviewed on four occasions while in detention. The respondent was initially uncooperative, and claimed memory loss. Eventually he admitted being in Prussia Street Post Office on the date in question but contended that the reason he was there was for the purpose of sending a tracksuit and other items to somebody in Australia. Having been charged with the offence of sending a certain article by post contrary to s. 55(1)(b) of the Communication Regulations (Postal Services) Act 2011, the respondent applied for, and was granted, bail pending his trial. However the respondent absconded to Spain in breach of his bail conditions. It was then necessary for the prosecuting authorities to secure his rendition on foot of a European arrest warrant for the purpose of enabling his trial to proceed. The respondent was convicted of the s. 55(1)(b) offence and sentenced to two years imprisonment with the final year suspended upon conditions by Ennis Circuit Criminal Court on the 8th of May 2015. The applicant, the DPP, appealed to the Court of Appeal for a review pursuant to s. 2 of the Criminal Justice Act 1993 of the sentence on the grounds that it was unduly lenient. It was contended that the sentence imposed represented a substantial departure from the norm, caused by alleged errors of principle. It was submitted that the sentencing judge erred in principle in failing to fully consider the range of penalties open to him or to fix the tariff for the offence within that range before considering the mitigating factors. The applicant submitted that the sentence imposed failed to reflect the sentencing judge?s pronounced view of matters and in the circumstances in imposing such a sentence he erred in principle. It was submitted that the sentencing judge attached too much weight to the limited mitigating circumstances.

Held by Edwards J that he was not satisfied that the full circumstances of the case and the trial judge?s remarks at sentencing disclosed any manifest error of principle resulting in a sentence that was unduly lenient in the sense of being a clear divergence from the norm. Edwards J held that the sentencing judge?s judgment disclosed no error of principle in terms of the judge?s understanding of the correct general approach to arriving at a just and proportionate sentence, or in terms of how the judgment was structured. Edwards J held it to be clear from the judgment that the sentencing judge weighed and assessed the respondent?s moral culpability and also had due regard to the harm done. Edwards J was not persuaded that the sentencing judge fell into error in the exercise of his discretion as to what allowance to make for mitigation.

Edwards J held that the sentence imposed was not unduly lenient and the Court dismissed the application.

Application dismissed.

Judgment of the Court (ex tempore) delivered the 4th day of February, 2016 by Mr. Justice Edwards

Background to the Appeal:

1 In this case the applicant seeks a review pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) of a sentence of two years imprisonment with the final one year of the said sentence suspended upon conditions, imposed upon the respondent by Ennis Circuit Criminal Court on the 8th of May 2015 following the respondent's conviction by the unanimous verdict of a jury, at the end of a four day trial, of the offence of sending a certain article by post contrary to s. 55(1)(b) of the Communication Regulations (Postal Services) Act, 2011 (the Act of 2011), on the grounds that the said sentence was unduly lenient.

The relevant statutory provisions

2 Section 55 of the Act of 2011 (to the extent relevant) provides:

?(1) A person commits an offence if he or she sends by post any postal packet?

(a) ?

(b) which encloses any article or thing whatsoever which is indecent, obscene, grossly offensive or menacing,

(c) ?

(2) A person who commits an offence under this section is liable?

(a) ?

(b) on conviction on indictment, to a fine not exceeding ?75,000 or to imprisonment for a term not exceeding 5 years or both.?

The facts

3 At the relevant dates, being the weekend of the 30th and 31st of January 2015, a Mr Paul Heaslip, who was (and indeed still is) a member of An Garda Siochána, resided at an address in Kilkee, Co Clare. He was stationed at the time at Kilrush, Co Clare.

4 On the 30th of January 2015 Garda Heaslip, who was away for the weekend with his then fiancée, now his wife, received a telephone call from his landlord, a Mr McNamara, who was also the postman for the area in which Garda Heaslip lived. Mr McNamara informed Garda Heaslip that a parcel had arrived in the post addressed to him (Garda Heaslip) at his Kilkee residence, and being aware that Garda Heaslip was away he enquired as to what he should do with it. Garda Heaslip, who was not expecting any parcel, instructed him to deliver it to, and leave it at, his residence, which Mr McNamara duly did.

5 When Garda Heaslip arrived home on the following day, accompanied by his fiancée, he found the parcel there. He began to open the parcel, and upon doing so immediately perceived an offensive smell coming from it. Garda Heaslip then stopped what he was doing and contacted his colleagues at Kilrush Garda Station. Sergeant Ronan O'Hara, having spoken to Garda Heaslip on the telephone, proceeded immediately to Garda Heaslip's home in Kilkee accompanied by a Detective Garda Downes. They were shown the parcel, which was then removed out of the house to the side entrance for closer examination. Garda Heaslip then fully opened the parcel in the presence of Sergeant O'Hara, Detective Garda Downes and his fiancée, and removed the contents which comprised a decomposing pig's head. A scene of crime examination team was then summoned, and the pig's head and its packaging were brought back inside the house.

6 The pig's head and its packaging were photographed and then the packaging was removed to Ennis Garda Station. Following examination there the packaging was destroyed as constituting a biohazard. The pig's head was appropriately disposed of by Garda Heaslip.

7 At an early stage of the Garda investigation it was established that the parcel had been posted at Prussia Street Post Office in Dublin 7.

8 The Gardai sought and received CCTV footage from Prussia Street Post Office for the date on which the parcel had been dispatched, and isolated a segment which showed the respondent entering the post office with a box that was open and not sealed, joining the queue to be served at whatever counter would come free, and then approaching counter no 2 which was attended by a Ms Bernadette Slattery. The CCTV footage showed him presenting the aforementioned box for processing at the counter and being issued with a stamp and barcode by Ms Slattery.

9 Ms Slattery gave evidence that, having seen the CCTV footage, she recalled the transaction. She remembered that the man in question had expressed himself as being in a hurry, and she recalled being presented with the box which was closed when she received it, but not sealed. She stated that she had weighed it and issued a stamp for ?15.00.

10 Evidence was also adduced from a Mr McCardell of the securities department of An Post, who had viewed the stamp recovered from the packaging examined at Ennis Garda station, and had also reviewed relevant An Post business records. Using reference numbers on the stamp, Mr McCardell had been able to determine the relevant date, the relevant post office, and the counter within that post office, namely counter no 2, that had issued the stamp. He was then able to isolate the relevant transaction and his evidence as to what it had involved tallied with that given by Ms Slattery.

11 There was also evidence that the CCTV footage had further revealed that the box had markings on it, comprising the words ?Sriracha Chilli Sauce? in blue print, and a red circular logo incorporating a cockerel. These had matched...