DPP v McDonnell
| Jurisdiction | Ireland |
| Judge | Mr Justice McCarthy |
| Judgment Date | 30 June 2022 |
| Neutral Citation | [2022] IECA 200 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 188/2020 |
[2022] IECA 200
President
Edwards J
McCarthy J
Court of Appeal Record No. 188/2020
THE COURT OF APPEAL
Sentencing – Assault causing serious harm– Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Mubango, pleaded guilty to two counts; one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and another count of assault causing serious harm contrary to s. 4 of the 1997 Act. On the 15th of July 2019, the Dublin Circuit Criminal Court imposed a sentence of ten years’ imprisonment with the final 18 months suspended in respect of the count of assault causing serious harm and further, a concurrent sentence of three years’ imprisonment was imposed on the count of assault causing harm. Both sentences were backdated to the 17th of May 2018 when the appellant first entered custody. The appellant appealed to the Court of Appeal against the severity of the sentence imposed in respect of the count of assault causing serious harm. The grounds of appeal advanced by counsel for the appellant were as follows: (i) the judge attached insufficient weight to the plea of guilty entered by the appellant where she made a finding that the said plea was made in early course as a result of the late service of additional evidence by the respondent, the Director of Public Prosecutions; (ii) the judge gave disproportionate weight to the victim impact evidence tendered by the respondent; (iii) the judge fixed a headlines sentence of 12.5 years which was excessive in all the circumstances of the case; (iv) the judge gave insufficient regard to the fact that the injuries sustained by the injured parties were inflicted as a result of the recklessness on the part of the appellant as opposed to the intentional infliction of harm or serious harm; and (v) the judge placed insufficient regards to the matters advanced in mitigation.
Held by the Court that all relevant mitigating and aggravating factors were considered by the Circuit Judge when sentencing. The Court noted that in substance the effective sentence imposed provided for eight and a half years in custody, representing a very substantial discount from the headline sentence; this was in circumstances where the mitigating factors were modest. The Court did not think that the headline sentence identified was excessive or represented an error of principle. The Court held that the judge engaged with all relevant matters and the principles of sentencing were properly applied. The Court thought that the identification of the headline sentence was within the judge’s margin of discretion. Furthermore, the Court thought that more than ample credit was afforded for the mitigating factors given the gravity of the crime. The Court held that the appellant could not have legitimately expected a lesser custodial sentence. The Court emphasised the importance of general deterrence of offences involving the use of knives and found that the headline sentence clearly took that into consideration.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT ( ex tempore) of the Court delivered by Mr Justice McCarthy on the 30th day of June 2022
This is an appeal against the severity of sentence imposed in the Special Criminal Court on the 31st of August 2020 on Bill No: SCDP0004/2020. Edward McDonnell, the appellant herein, pleaded guilty to one count of unlawful possession of a firearm contrary to section 27A(1) of the Firearms Act 1964, as substituted by Section 59 of the Criminal Justice Act 2006 and as amended. This offence carries a maximum custodial sentence of fourteen years. The appellant entered a guilty plea on the fifth day of his trial, after the close of the prosecution case and after an application for a directed verdict. The judges imposed a sentence of nine years imprisonment backdated to the 16th of September 2019 when the appellant first entered custody.
We will now briefly outline the facts of the matter. The offence occurred on the 14th of September 2019 at Lein Park, Harmonstown, Dublin 5, Co. Dublin. The appellant was 55 at the time of the offence and was joined in the matter with one co-accused, one Stephen Little. A surveillance operation had been established by the Garda National Drugs and Organised Crime Bureau in the days prior to the offence in the Coolock area of Dublin. One particular stationary vehicle in the Lein Park area aroused suspicion — a dark blue Audi vehicle with a registration number of 02-D-81655 (a registration number that emerged to be false). Surveillance of the vehicle was maintained and initially no one was observed coming or going to the vehicle. On the 13th of September, a decision was made to undertake a search of the vehicle. The vehicle was found to be unlocked and a firearm was found under the passenger seat. This firearm was found to be in a loaded state, and it was briefly removed by Gardaí and unloaded, was returned and surveillance of the vehicle was maintained.
Gardaí were also monitoring another vehicle, a Toyota Avensis, with a registration number of 07-D-42711. On the 14th of September, this was seen being driven by the appellant's co-accused, one Stephen Little, to the area where the Audi was parked. Surveillance continued and the appellant, Edward McDonnell, was observed exiting the Avensis and going to the stationary Audi. He was seen “ bending down to the driver's wheel of that vehicle, taking something from the wheel” and a decision was made at approximately 3.35pm to intercept both vehicles. The appellant was arrested at the driver's side of the Audi and during this process, a number of items fell to the ground, to include two balaclavas, two black baseball caps and two pairs of gloves as well as a red petrol can. There were also items of clothing in a shopping bag in the passenger seat and the firearm remained where it was. Gardaí also intercepted the Avensis vehicle which was disabled after a failed attempt to flee the scene and the appellant's co-accused was also arrested. On arrest, Mr Little was noted as having said: “ Had you given me another hour I would have killed the bastard that killed him. I've lost my marriage and my son” and later at Clontarf Garda Station: “ Why didn't you let it go another hour?”. The appellant was interviewed on several occasions, but he was not cooperative. During those interviews, he merely indicated that he had come to Dublin to buy a car and denied any knowledge of the firearm and the other items recovered.
Gardaí examined the firearm recovered in the Audi. It was described as a Grand Power G9 machine pistol in good condition with its serial number removed. This firearm was found to be capable of either semi or fully automatic fire and there was also recovered a magazine and 12 rounds of 9-millimetre calibre ammunition, consistent with the machine pistol itself. Furthermore, a Nokia mobile phone was recovered from the appellant, with two numbers saved in its contacts under the initials J and S. These were subsequently found to match the numbers associated with two Nokia mobile phones recovered in the Avensis vehicle.
Counsel for the...
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