DPP v P. McC
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 03 October 2018 |
| Neutral Citation | [2018] IECA 309 |
| Docket Number | 309CJA/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 03 October 2018 |
IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT, 1993, AND IN THE MATTER OF:
[2018] IECA 309
309CJA/2016
THE COURT OF APPEAL
Sentencing – Burglary – Undue leniency – Applicant seeking review of sentences – Whether sentences were unduly lenient
Facts: The respondent pleaded guilty in Dublin Circuit Criminal Court to two separate Bills of Indictment, namely: Bill No. 835/2016 - involving one count of burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, one count of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991 and one count of dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961; and Bill No. 833/2016 - involving one count of unlawful use of a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act 1961, one count of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997, one count of driving a mechanically propelled vehicle without holding a driving licence contrary to s. 38 of the 1961 Act and one count of use of a mechanically propelled vehicle without insurance, contrary to s. 56(1) and (3) of the 1961 Act. On the 11th of November 2016, a "full facts" sentencing hearing took place in respect of the offences and the respondent was sentenced to a cumulative term of three years detention, comprised as follows: Bill No. 835/2016 - (i) detention for three years on each of counts 1 and 2 (the burglary and criminal damage), to run concurrently inter se and to date from the 22nd of June 2016, with the final two years suspended on certain conditions; (ii) detention for 3 months on count 3 (the dangerous driving count), plus certain various ancillary and consequential orders including a three year period of disqualification from holding a driving licence (this sentence was also to run concurrently with the sentences on counts 1 and 2, and to date from the 22nd of June 2016; Bill No. 833/2016 - (i) detention for three years on count 1 (the unlawful use of a mechanically propelled vehicle); (ii) detention for three months on each of counts 2 and 4 (the assault and no insurance charges, respectively); (iii) the sentences on counts 1, 2 and 4 were to run concurrently inter se and were all to date from the 22nd of June 2016; (iv) the final two years of the sentence on count 1 were suspended on certain conditions; (v) count 3 was taken into consideration. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the sentences pursuant to s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.
Held by the Court that the sentences were unduly lenient. The Court held that the cumulative sentences of three years detention, the final two years of which were suspended, represented a clear divergence from the norm; they manifestly failed to sufficiently reflect the gravity of the offending conduct, and that was an error of principle.
The Court held that, in circumstances where it was satisfied that s. 2(3) of the 1993 Act is not capable of being afforded the purposive interpretation that the applicant contended for, it was unable to proceed to a quashing of the respondent's existing sentence or to a re-sentencing of him.
Application refused.
The respondent to this appeal pleaded guilty in Dublin Circuit Criminal Court to two separate Bills of Indictment, namely:
• Bill No. 835/2016 - involving one count of burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001; one count of damaging property contrary to s. 2(1) of the Criminal Damage Act 1991; and one count of dangerous driving contrary to s. 53(1) of the Road Traffic Act 1961 (as inserted by s. 4 of the Road Traffic (No. 2) Act 2011.
• Bill No. 833/2016 - involving one count of unlawful use of a mechanically propelled vehicle contrary to s. 112 of the Road Traffic Act, 1961, as amended; one count of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act, 1997; one count of driving a mechanically propelled vehicle without holding a driving licence contrary to s. 38 of the Road Traffic Act 1961; and one count of use of a mechanically propelled vehicle without insurance, contrary to s. 56(1) and (3) of the Road Traffic Act 1961, as amended.
On the 11th of November 2016, a 'full facts' sentencing hearing took place in respect of the offences on these two Bills of Indictment and the respondent was sentenced to a cumulative term of three years detention, comprised as follows:
Bill No. 835/2016
(i). Detention for three years on each of count nos. 1 and 2 (the burglary and criminal damage), to run concurrently inter se and to date from the 22nd of June 2016, with the final two years suspended on certain conditions (particularised later in this judgment).
(ii). Detention for 3 months on count no. 3 (the dangerous driving count), plus certain various ancillary and consequential orders including a three year period of disqualification from holding a driving licence. This sentence was also to run concurrently with the sentences on counts nos. 1 and 2, and to date from the 22nd of June 2016.
Bill No. 833/2016
(i). Detention for three years on count no. 1 (the unlawful use of a MPV);
(ii). Detention for three months on each of counts Nos. 2 and 4, (the assault and no insurance charges, respectively);
(iii). The sentences on counts nos. 1, 2 and 4 were to run concurrently inter se and were all to date from the 22nd of June 2016;
(iv). The final two years of the sentence on count no. 1 were suspended on certain conditions (again, particularised later in this judgment);
(v). count no. 3 was taken into consideration.
The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences pursuant to s. 2 of the Criminal Justice Act 1993 ('the Act of 1993') on the basis that they were unduly lenient.
(Bill No. 835/2016)
At the sentencing hearing, Garda Gerard Smith gave evidence that, on the 13th of April 2016, a Ms. Bernadette Howard was at home in her house on Weston Drive in Lucan. She parked her car outside her house at about 8.30 pm. The evidence was that Ms. Howard was awoken during the night by the doorbell ringing at about 3.50 am. It was her neighbour who informed her that he believed her car had been stolen, as he had been on the road and had seen someone, who he initially thought to be Ms. Howard, putting a plasma TV into her car. Upon realising that it wasn't Ms. Howard, the neighbour rang the Gardaí.
Subsequently, Ms. Howard checked the house and realised that it had been broken into whilst she was asleep. She reported that her television had been taken, an LG Smart TV 3D valued at €1,000, along with a black X-box valued at €400 had also been taken. In addition, her purse had been rifled through and the contents were spread all over the garden. A debit card and US$120 made up of $20 bills were missing from the contents of her purse. Her car keys were also missing, as were keys to her parents" house. Ms. Howard also noticed that her car was not parked where it had been. The evidence was that, as she was talking to her neighbour, Ms. Howard saw her car approaching and that it was being followed by another car, a blue Yaris. The cars were being driven at a high speed and in an erratic manner as they were being pursued by a Garda car.
Garda Smith's evidence was that he had received a call from Ms. Howard's neighbour, Mr. Corrigan, at approximately 3:55am reporting the suspected burglary, following which he proceeded in a patrol car to the relevant address. Upon arriving in Ms. Howard's estate, Garda Smith came across both Ms. Howard's car, which was a Volkswagen Polo, and another car, a Hyundai. Ms. Howard's car was being driven by a Mr. Keane Doherty ('the co-offender') and the respondent was driving the Hyundai. Garda Smith activated the blue lights and siren on his vehicle and positioned the patrol car so as to block the road leaving the estate. The Polo car crashed into the front of the patrol car, causing the engine to cut out, momentarily. Subsequently, both the Polo and the Hyundai cars mounted the path and managed to get around the patrol car. A couple of minutes later, Garda Smith managed to restart his car and he then proceeded to pursue both cars. Upon doing so, Garda Smith observed both cars about to exit the estate at a high speed and with a number of other Garda cars now in pursuit, one of which also appeared to have suffered damage during the pursuit.
Upon joining the pursuit, Garda Smith observed both cars driving at a high speed towards Celbridge, ignoring traffic signals at the junction of Stacumny Lane and Celbridge Road. The pursuit lasted for approximately five kilometres, during which 'both vehicles were driven in a dangerous fashion.... [at] very high speeds, [with] no regard for lanes or traffic signals or lights' As Garda Smith approached Celbridge Village, he observed that the respondent had driven straight through the parapet wall of a bridge and into the river Liffey. The evidence was that the car that the co-offender had been driving 'had followed through the gap that had been created by [the respondent]"s vehicle', and that it also ended up in the river.
Ultimately, both the respondent and the co-offender were recovered safely from the water by Gardaí. Both men were arrested and detained. The respondent was conveyed to Lucan Garda Station where he was detained under s. 4 of the Criminal Justice Act 1984. He was interviewed during the course of that detention. When asked how he ended up in the river Liffey before being arrested, the respondent replied 'I stuck a car into it getting chased...
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