DPP v McCann
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 19 July 2016 |
| Neutral Citation | [2016] IECA 221 |
| Docket Number | Appeal No.: 281/2015 |
| Court | Court of Appeal (Ireland) |
| Date | 19 July 2016 |
[2016] IECA 221
THE COURT OF APPEAL
Mahon J.
Appeal No.: 281/2015
Sheehan J.
Mahon J.
Edwards J.
Sentencing – False imprisonment – Culpability – Appellant seeking to appeal against sentence – Whether sentencing judge failed to take sufficient account of the mitigating factors
Facts: The appellant, Mr McCann, on 11th August 2014, forcibly entered the home of Mrs Brown in Co. Wexford. Having attempted unsuccessfully to enter the house by throwing himself against a living room window, the appellant threw a rock through a front sitting room window where Mrs Brown and her three children were watching television. He then climbed in through the broken window and confronted Mrs Brown and her children. He bundled the two oldest children, aged seven and five, into a cupboard in the kitchen, and closed its door on them. He proceeded to take two knives from the kitchen, holding one to his throat and the other in front of him waving it around. He was in a highly agitated state, and demanded that Mrs Brown ring the Gardaí. He was shouting that there were people after him. He then demanded that Mrs Brown take the children into her bedroom, and to lock the door. Mrs Brown suggested, in an effort to placate the appellant, that he would take her car. Some minutes later the appellant returned to the bedroom, knocked on the door, and when it was opened, he was seen to be holding a knife against his own neck. He then returned into the hall of the house, whereupon Mrs Brown and her children ran from the house to a neighbour?s house. The appellant then stole Mrs Brown?s car but crashed it into a wall at the house. A neighbour attempted to detain the appellant but he escaped and ran through adjoining fields. On the main Bunclody to Enniscorthy road he attempted to stop passing motorists. When a number of vehicles stopped he attempted to gain entry by banging heavily on their windows, but he did not succeed in doing so. He then waded across the River Slaney, and was found on the embankment of the river by Gda. Quirke. He was taken to Gorey garda station but was deemed unfit for interview for a number of hours. When later interviewed by the gardaí he made full admissions as to what had occurred. The appellant was sentenced on 13th November 2015 at Wexford Circuit Criminal Court to concurrent sentences of eighteen months, eighteen months and three years (with the final six months suspended), respectively, in relation to three counts, to which he pleaded guilty, namely: 1) damaging property contrary to the provisions of s. 2(1) of the Criminal Damage Act 1991; 2) unlawful use of a mechanically propelled vehicle contrary to the provisions of s. 112 of the Road Traffic Act 1961; and 3) false imprisonment contrary to s. 15 of the Non Fatal Offences against the Person Act 1997. The appellant appealed to the Court of Appeal against those sentences on the grounds that the sentencing judge: (i) erred in law and in fact in imposing a custodial sentence having regard to all of the circumstances of the case and the weight of the evidence; (ii) erred in law and in fact by placing disproportionate weight on the public interest in the deterrents of the commission of crime and failing to take any or any adequate account of the public interest in the rehabilitation of offenders; (iii) erred in law and in fact in confusing and/or conflating the issue of?mens rea?for the relevant offences with the issue of actual culpability and in particular attached undue weight to the unintended consequences of the?actus reus?of the relevant offences; (iv) failed to take sufficient account of the mitigating factors in his decision to suspend only the last six months of the three year sentence for false imprisonment.
Held by Mahon J that he was satisfied that, when sentenced in the court below, the fact that the appellant did not intend to harm Mrs Brown and the children was in fact taken into account. It was the view of the Court that the effective sentence of three years with the final six months suspended was both measured and appropriate and sufficiently reflected, on the one hand, the seriousness of the crime and the long lasting effect on Mrs Brown and her children, while at the same time recognising and taking account of the undoubtedly strong mitigating factors apparent, including those bearing on culpability. The Court was also of the view that the suspension of the last six months of the three year sentence imposed for the false imprisonment offence was a sufficient measure to incentivise rehabilitation.
Mahon J held that he found no errors of principle in the sentencing judge?s approach and therefore he dismissed the appeal.
Appeal dismissed.
The appellant was sentenced on 13th November 2015 at Wexford Circuit Criminal Court to concurrent sentences of eighteen months, eighteen months and three years (with the final six months suspended), respectively, in relation to three counts, to which he pleaded guilty, namely:-
? Damaging property contrary to the provisions of s. 2(1) of the Criminal Damage Act 1991.
? Unlawful use of a mechanically propelled vehicle contrary to the provisions of s. 112 of the Road Traffic Act 1961, as amended by s. 65 of the Road Traffic Act 1968 and by s. 18 of the Road Traffic Act 2006.
? False imprisonment contrary to s. 15 of the Non Fatal Offences against the Person Act 1997.
The appellant has appealed against these sentences.
On 11th August 2014 at approximately 4p.m. the appellant forcibly entered the home of Mrs. Kathleen Brown in Co. Wexford. At the time, Mrs. Brown was caring for her three young children, aged one, five and seven.
Having attempted unsuccessfully to enter the house by throwing himself against a living room window, the appellant threw a rock through a front sitting room window where Mrs. Brown and her three children were watching television. He then climbed in through the broken window and confronted Mrs. Brown and her children. He bundled the two oldest children, aged seven and five, into a cupboard in the kitchen, and closed its door on them. He proceeded to take two knives from the kitchen, holding one to his throat and the other in front of him waving it around. He was in a highly agitated state, and demanded that Mrs. Brown ring the gardaí. He was shouting that there were people after him. He then demanded that Mrs. Brown take the children into her bedroom, and to lock the door. Mrs. Brown suggested, in an effort to placate the appellant, that he would take her car. Some minutes later the appellant returned to the bedroom, knocked on the door, and when it was opened, he was seen to be holding a knife against his own neck. He then returned into the hall of the house, whereupon Mrs. Brown and his children ran from the house to a neighbour's house.
The appellant then stole...
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