DPP -v- Patrick Rafferty, [2009] IECCA 79 (2009)

Docket Number:17/07
Party Name:DPP, Patrick Rafferty
Judge:Macken J.
 
FREE EXCERPT

Macken, J.

Murphy, J.

deValera, J. No CCA 17/2007

THE COURT OF CRIMINAL APPEAL

COURTS OF JUSTICE ACT, 1924. S.29

Between/

The People at the Suit of the

Director of Public Prosecutions

Respondent

-and-

Patrick Rafferty

Applicant

Judgment of the Court delivered on the 23rd day of July 2009 by Macken, J.

Pursuant to a notice of motion dated the 29th May 2008 returnable for the 15th December 2008, the applicant applied to this honourable Court for an order pursuant to s.29 of the Courts of Justice Act 1924 ("the Act of 1924") seeking a certificate for leave to appeal to the Supreme Court on a point of law of exceptional public importance. For the purposes of this application, it is not necessary to set out in full S. 29. It is sufficient to say that the section provides for a certificate in circumstances where this court's "decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court."

The certificate is sought in respect of the following question of law: "In circumstances where an offence is not prevalent or has not taken root in the jurisdiction, is it correct for the Court to have regard to a substantial deterrence factor when sentencing a particular individual for the offence."

The application is opposed by the respondent.

Background:

On the 14th November 2006 the applicant pleaded guilty at the Central Criminal Court sitting at Limerick to a charge that he did solicit to murder his wife, on the 7th February 2005 in the region of certain premises in Nenagh in County Tipperary contrary to s.4 of the Offences Against the Person Act 1861. The applicant was, at the time, separated from his wife. The applicant, having been on continuing bail for some time, was, on the 30th January 2007, sentenced to seven years imprisonment. The maximum sentence in respect of the offence is ten years. The applicant applied to this court for leave to appeal against the sentence imposed on the basis that it was unduly severe.

In outline, the applicant's written submissions before this Court having dealt with the factual background, included, inter alia, the following: "For the avoidance of doubt, it is accepted that the learned sentencing judge had no option but to impose a custodial sentence, having regard to the seriousness of the offence. It is further accepted that in imposing sentence, the court was entitled to have regard to rarity of the offence in this jurisdiction and the necessity for a substantial deterrent element in sentencing.

That said however, it is respectfully submitted that the sentence imposed was excessive and that the learned sentencing judge failed to give any adequate weight to the mitigating factors present in the case. He also failed to have adequate regard to the personal circumstances of the appellant." (emphasis added)

It was argued in the written submissions, in particular, that the learned sentencing judge did not attach sufficient weight to the applicant's previous good character and the fact that the preponderance of the evidence suggested that his conduct in the commission of this offence was out of character, and that his plea of guilty alleviated his separated wife from having to give evidence at trial. Further, it was contended the learned sentencing judge had not attached any weight to other matters outlined, and in particular, did not give any consideration to the applicant's personal...

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