DPP v McCarthy

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Sheehan
• Judgment Date: 22 July 2016
• Neutral Citation: [2016] IECA 254
• Date: 22 July 2016
• Docket Number: 265/15

[2016] IECA 254

THE COURT OF APPEAL

Sheehan J.

265/15

Birmingham J.

Sheehan J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Christopher McCarthy

Appellant

Sentencing – Malicious damage – Proportionality – Appellant seeking to appeal against sentence – Whether sentence was disproportionate

Facts: The appellant, Mr McCarthy, pleaded guilty at the Circuit Criminal Court in Nenagh on the 20th October, 2015, to malicious damage and to obstructing the Gardaí. The judge imposed a sentence on the appellant of eight years imprisonment for the malicious damage with the final three years of that sentence suspended on the following terms: 1) that the appellant keep the peace and be of good behaviour for a period of five years following his release from prison; 2) that the appellant abstain entirely from drinking alcohol during that five year period; 3) that before his release from prison the appellant place himself on the homeless list; 4) that the appellant whilst in prison and on his release for the entire period which the sentence is suspended engage with the addiction services; 5) that the appellant will engage with the Probation Service while in prison and for a period of three years from his release and engage practicably with them; 6) that he be bound over in his own bond of €100. A sentence of three months imprisonment to run concurrently with that sentence was imposed in respect of the obstruction charge. The appellant appealed to the Court of Appeal against the sentence contending that it was disproportionate and he submitted that the trial judge erred in law in placing the criminal damage offence close to the top range in respect of penalties available for that offence.

Held by Sheehan J that there was a significant and substantial departure from what was the appropriate sentence for the offence. Sheehan J noted that counsel for the respondent, the DPP, while recognising the difficulties faced by the sentencing judge, did not strenuously press the Court to uphold the sentence that was imposed.

Sheehan J held that the original sentence should be set aside and substituted with a sentence of three years imprisonment in lieu thereof. The Court suspended the final twelve months of the three year sentence on condition that Mr McCarthy stay away from the injured party permanently and also on condition that he stay away from Green Street, Grove Street and The Crescent in Nenagh, being areas frequented by the injured party.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 22nd day of July 2016 by Mr. Justice Sheehan

1 This is an appeal against sentence.

2 The appellant pleaded guilty at the Circuit Criminal Court in Nenagh on the 20th October, 2015, to malicious damage and to obstructing the gardaí. The maximum sentence for the malicious damage offence is ten years imprisonment and the maximum sentence for the obstruction offence is six months imprisonment.

3 The judge imposed a sentence on the appellant of eight years imprisonment for the malicious damage with the final three years of that sentence suspended on the following terms:-

1. That the appellant keep the peace and be of good behaviour for a period of five years following his release from prison.

2. That the appellant abstain entirely from drinking alcohol during that five year period.

3. That before his release from prison the appellant place himself on the homeless list.

4. That the appellant whilst in prison and on his release for the entire period which the sentence is suspended engage with the addiction services.

5. That the appellant will engage with the Probation Service while in prison and for a period of three years from his release and engage practicably with them.

6. That he be bound over in his own bond of €100.

4 A sentence of three months imprisonment to run concurrently with that sentence was imposed in respect of the obstruction charge.

5 The...