DPP v McQuillan

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 11 October 2024
• Neutral Citation: [2024] IECA 249
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 148CJA/2024

In the Matter of Section 2 of the Criminal Justice Act 1993

Between/

The People at the Suit of the Director of Public Prosecutions

Applicant

and

Gerald McQuillan.

Respondent

[2024] IECA 249

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 148CJA/2024

THE COURT OF APPEAL

Sentencing – Endangerment – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The applicant, the Director of Public Prosecutions, applied to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review on grounds of undue leniency of a sentence imposed on the respondent, Mr McQuillan, on the 30th of April 2024 in the Circuit Criminal Court. On the 7th of July 2023, the respondent pleaded guilty to criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991 (count 1), endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997 (count 2), assault contrary to s. 2 of the 1997 Act (count 3), and trespass contrary to s. 13(1) and (3) of the Criminal Justice (Public Order) Act 1994 (count 4). The order of the court indicated a sentence of 18 months imposed on count 2 with the balance of the counts taken into consideration with credit for time served. There was an indication in the transcript of a sentence of one year imposed. The sentence was imposed consecutively to a sentence of 3 years and 6 months imposed on the 13th September 2022, where the final 6 months of that sentence were suspended. The Director contended that the sentencing judge erred in principle in failing to set a headline sentence and in failing to set a sentence appropriate to the gravity of the offences and the culpability of the respondent. The Director contended that the sentence did not adequately reflect several aggravating factors and that the sentencing judge erred in affording disproportionate weight to the mitigating factors.

Held by the Court that, having applied People (DPP) v Byrne [1995] 1 ILRM 279 and People (DPP) v Stronge [2011] IECCA 79, and examined the circumstances of the endangerment offence, this was of a serious order. The Court found that the respondent not only put the victim in the vehicle at risk, but a further aggravating factor was the risk presented to the public at large. Taken with the fact that the offence was committed on bail, the other aggravating factors, and that the balance of the counts were taken into consideration, the Court held that the sentence was too low and constituted a substantial departure from what would be the appropriate sentence in the circumstances. The Court quashed the sentence imposed and proceeded to re-sentence de novo.

The Court nominated a headline sentence of 5 years imprisonment on count 2. Taking account of the mitigating factors present at the time of sentence, including that the respondent pleaded guilty, albeit at a very late stage, his apology and work record, the Court reduced that sentence to one of 4 years imprisonment. The Court imposed the sentence on a consecutive basis. To give effect to the totality principle, the Court reduced the sentence of 4 years to one of 3 ½ years. The Court was aware of the respondent’s efforts in custody to educate himself and considered it appropriate to suspend an element of the sentence in order to further incentivise his rehabilitation. The Court suspended the final 12 months of the sentence on the condition that he attend the probation service for a period of one year and comply with all directions from that service.

Appeal allowed.

JUDGMENT of the Court delivered (ex tempore) on the 11th day of October 2024 by Ms. Justice Isobel Kennedy.

1 This is an application brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act, 1993 seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 30th of April 2024 in the Circuit Criminal Court.

2 On the 7th of July 2023, the respondent pleaded guilty to count 1, Criminal Damage contrary to s. 2(1) of the Criminal Damage Act 1991, count 2, Endangerment contrary to s. 13 of the Non-Fatal Offences Against the Person Act 1997, count 3, Assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997, and count 4, Trespass contrary to s. 13(1) and s. 13(3) of the Criminal Justice (Public Order) Act 1994.

3 The order of the court indicates a sentence of 18 months imposed on count 2 with the balance of the counts taken into consideration with credit for time served. However, there is an indication in the transcript of a sentence of one year imposed. Whether the sentence was one of 18 months with credit for time served or 1 year, the Director argues that the sentence is unduly lenient. The sentence was imposed consecutive to a sentence of 3 years and 6 months imposed on the 13th September 2022, where the final 6 months of that sentence were suspended.

Factual Background

4 The victim and the respondent had been in a relationship when, in September 2020, the respondent left the victim's home. That came about as a result of an incident which led to a conviction for assault causing harm and two counts of criminal damage, where the aforementioned 3 year and 6 months sentence was imposed on the 13th of September 2022.

5 While on bail and staying with the victim and her daughter in January 2021, the offences the subject of this application occurred, specifically, on the 5th of January 2021, during an argument in the victim's car, the respondent punched the visor and windscreen causing damage to the car valued at €1,676, constituting the criminal damage count. He was asked to leave the vehicle, he refused, and the victim indicated she would drive to Coolock Garda station. As she began to do so the respondent pulled the steering wheel, resulting in the car spinning across lanes of traffic, ultimately blocking two lanes. The victim was terrified and again asked him to leave the car.

6 An ambulance in transit noticed the vehicle blocking two lanes of traffic and stopped. The paramedics rang the gardaí, at which point the respondent fled the scene. The victim declined medical assistance as she needed to go home to her daughter because she was concerned the respondent would go there.

7 When she arrived home, she locked the windows and doors and texted the respondent asking him not to return. However, the respondent arrived at her front door, he was denied entry and proceeded to jump over the wall of the property, pulling the kitchen window out and entering through the window, the subject of count 4.

8 The respondent grabbed the victim by the side of the face and pushed her to the ground, he then grabbed her hair and repeatedly hit her head into the ground. Her young daughter entered the room, and the respondent stopped his attack. He...