DPP v Nolan
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 21 March 2017 |
| Neutral Citation | [2017] IECA 127 |
| Docket Number | Record No: 241CJA/16 |
| Court | Court of Appeal (Ireland) |
| Date | 21 March 2017 |
[2017] IECA 127
THE COURT OF APPEAL
Edwards J.
Sheehan J.
Mahon J.
Edwards J.
Record No: 241CJA/16
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
Sentencing – Possession of a firearm in suspicious circumstances – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Warren, on the 9th of May 2016, pleaded guilty to possession of a firearm in suspicious circumstances contrary to s. 27A of the Firearms Act 1964. He also pleaded guilty to an offence in relation to unlawful possession of a controlled drug for the purpose of sale or supply contrary to ss. 15 and 27 of the Misuse of Drugs Regulations made under s. 5 of the Misuse of Drugs Act 1977. The respondent was sentenced to five years imprisonment in respect of the firearms offence and to 18 months imprisonment in respect of the drugs offence, both sentences to run concurrently, with the final 18 months of the five year sentence in respect of the firearms offence suspended. The applicant, the DPP, sought a review of the sentence of five years imposed with 18 months suspended imposed in respect of the firearms offence on the grounds that it was unduly lenient. The applicant contended that the sentencing judge was in error in rating the seriousness of the offending conduct as falling within the mid-range as identified by Clarke J in The People (DPP) v Kieran Ryan [2014] IECCA 11 and contended that having regard to the aggravating factors in the case she should have placed it in the high range. She then contended that the discount from the headline sentence of seven and a half years identified as appropriate by the sentencing judge to reflect mitigating factors and to incentivise rehabilitation was simply too great and was unjustifiably generous in the circumstances of the case.
Held by the Court that the headline sentence selected by the sentencing judge did not represent such a departure from the norm as to represent an error of principle in itself. The Court held that the trial judge erred in principle in not satisfying herself, and expressing herself to be so satisfied, that there were exceptional and specific circumstances relating to the offence or the respondent which would have made it unjust in all the circumstances to impose the minimum term and in not identifying what those circumstances were. The Court was persuaded that the overall discount afforded in the case which was in excess of 50% of the headline sentence, which itself was at the lenient end of the available range, was more than was justified in the circumstances of this case, even taking account of the need to incentivise rehabilitation. The Court held that to have afforded such a discount on the available evidence constituted a clear departure from the norm and was a further error of principle. The Court held that the net sentence of five years with the final 18 months thereof suspended was unduly lenient. The Court therefore quashed the sentence imposed by the court below and proceed to re-sentence the respondent.
The Court held that although a higher headline sentence than that fixed by the court below could be justified and that even before account is taken of the suspended portion that a lower discount for mitigation than that allowed by the court below could be justified, it decided in the light of the time that passed and the fact that the respondent was seemingly doing well in prison not to interfere with either the headline sentence or with the initial discount of two and a half years. However, the Court considered that the discount of two and a half years was quite sufficient to reflect both the available mitigation and the need to incentivise rehabilitation. The Court held that the new net sentence would therefore be a sentence of five years imprisonment simpliciter.
Appeal allowed.
On the 9th of May 2016 the appellant pleaded guilty to possession of a firearm in suspicious circumstances contrary to s. 27A of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act 2006 and as amended by s. 38 of the Criminal Justice Act 2007. He also pleaded guilty to an offence in relation to unlawful possession of a controlled drug for the purpose of sale or supply contrary to ss. 15 and 27 of the Misuse of Drugs Regulations made under s. 5 of the Misuse of Drugs Act 1977, as amended. The appellant was sentenced to five years imprisonment in respect of the firearms offence and to 18 months imprisonment in respect of the drugs offence, both sentences to run concurrently, with the final 18 months of the five year sentence in respect of the firearms offence suspended. The Director of Public Prosecutions now seeks a review of the sentence of five years imposed with 18 months suspended imposed in respect of the firearms offence on the grounds that it was unduly lenient.
On the 8th of June 2015 Garda Gavin Curran and Garda John McQueeney were on patrol in a vehicle being driven by Garda Dominic Dowling as part of the drugs unit at Ronanstown Garda Station. At approximately 18:40 they were in the Clondalkin area when a black Hyundai Trajet taxi was observed travelling at speed in a bus lane.
Garda Curran observed three young males in the back of the taxi. The Garda vehicle followed the taxi as it travelled along Greenfort Avenue. The rear left-hand seat passenger and middle seat passenger were observed looking out the back window a number of times. They appeared to be acting suspiciously. The siren and blue lights were activated to indicate to the taxi driver to stop.
At this point, the rear left-hand seat passenger was observed standing up and he appeared to be rummaging. Garda Curran recognised this passenger as the Respondent Mr Warren Nolan. The taxi came to a halt on Greenfort Avenue.
Garda Curran exited the patrol vehicle and ran around the back of the taxi to the rear passenger door. He pulled the handle, which was locked. Garda Curran looked through the rear passenger window and observed Mr Warren Nolan looking at him pointing a shotgun directly at his face. Garda Curran was two feet from the barrel of the gun at the time. He retreated and shouted a warning at his colleagues that the Respondent had a gun and he crouched for safety at the rear of the taxi as he believed the Respondent was going to kill him. Garda McQueeney drew his official firearm and went to the rear of the taxi and shouted ‘Armed Gardai. Drop the gun.’ Two of the males exited the taxi with their hands in the air shortly afterwards. Garda Curran observed Garda McQueeney restraining the Respondent on the ground. He was arrested for an offence under the Firearms Act of 1925. His pockets were searched as a result of which a number of bags of suspected cannabis herb, a bag of suspected diamorphine, and a small yellow Kinder Egg container containing deals of suspected cocaine were found. A pump-action shotgun was retrieved from the rear of the taxi. A small black towel was also recovered. Mr Nolan was conveyed to Ronanstown Garda Station and detained. Nothing of probative value emerged from the detention.
Garda McQueeney in his Victim Impact Statement characterised this as having been the worst incident he had experienced during his employment with An Garda Siochána having attended many incidents involving firearms offences. He said that ‘On the evening in question. Warren Nolan pointed a pump-action shotgun at Garda Curran before then pointing it at me. This was the most stressful, distressing and pressurised incident in my life. I firmly believed that Warren Nolan was going to shoot me.’ He went on to say that he was in shock for a number of hours and that he was more apprehensive, nervous and anxious at work since this incident. In respect of life changes, he said that he was also nervous and anxious in his personal life.
Garda Curran in his Victim Impact Statement indicated that this was a very distressing time for him. He stated that it was the worst incident he had experienced in his time as a member of An Garda Siochána and that he had experienced psychological distress as a consequence. He said that the gun, a pump-action shotgun, had been pointed in his face. He thought he was going to be shot. It was one of the most frightening experiences he had ever had in his life and certainly during his career. He was an unarmed member of An Garda Siochána in plainclothes on the date in question and not in a position to defend himself.
The respondent was a young man aged 20 at the time of sentencing. He had had a difficult family life. His mother raised him and his sister as a single parent until, in 2011 at the age of 14, he discovered his mother's dead body. Afterwards he was raised by his maternal grandmother. While he was in custody and up to the date of his sentencing his grandmother had been his sole visitor. His father was not a regular or reliable presence in his life and suffered from addiction problems, which the sentencing judge was told he was tackling. The respondent's paternal grandfather, described by the respondent's counsel as ‘the only stable paternal influence in his life’ had also died and the court was told that the respondent ‘ took that death quite badly also’.
The respondent left school without any certified educational attainments and his attempts to engage in continuing education had failed. He had previous convictions mostly for minor offences, but his counsel recognised and acknowledged at the sentencing hearing that the present offence represented an increase in the seriousness of his offending....
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DPP v Hughes & Fox
...Court were somewhat out of line with sentences in other cases. Counsel for the appellants drew attention to the case of DPP v. Nolan [2017] IECA 127. This was a case where an unloaded shotgun was pointed into the face of a member of An Garda Síochána. In the trial court, a sentence of five ......