DPP v O'Reilly

 
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[2015] IECA 21

THE COURT OF APPEAL

Finlay Geoghegan J.

Sheehan J.

Hogan J.

[111CJA-14]

The People (At the Suit of the Director of Public Prosecutions)
Appellant
and
Mark O'Reilly
Respondent

Criminal law - Appeal by DPP against sentence imposed - s. 2 of the Criminal Justice Act 1993 - Possession of an imitation firearm with intent to commit an indictable offence - Attempted robbery contrary to s. 27B Firearms Act 1964 - Whether sentence unduly lenient - Whether a substantial departure from the appropriate sentence - Rehabilitative considerations

JUDGMENT of the Court delivered on 16th February 2015 by Mr. Justice Hogan
1

This is an appeal by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act 1993 (‘the 1993 Act’) against the sentence imposed by the Circuit Court in the present case on 7th April 2014. The offender, Mark O'Reilly, had pleaded guilty on 14th March 2013 to counts 1 and 2 of the indictment, namely, attempted robbery contrary to common law and possession of an imitation firearm with intent to commit an indictable offence, namely, attempted robbery, contrary to s. 27B of the Firearms Act 1964 (as substituted by s. 60 of the Criminal Justice Act 2006 and as amended by s. 39 of the Criminal Justice Act 2007).

2

The offence of robbery carries a maximum sentence of life imprisonment and the firearms offence carries a presumptive minimum penalty of at least five years. Section 27B(4) of the Firearms Act 1964 (‘the 1964 Act’) (as inserted by s. 39 of the Criminal Justice Act 2007))(‘the 2007 Act’) provides that:

‘in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing a sentence on a person (other than a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than five years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence or the person convicted of it, it would be unjust in all the circumstances to do so.’

3

Section 27B(5) provides that for this purpose have regard to any matters it considers appropriate, including-

‘(a) whether the person pleaded guilty to the offence and, if so—

(i) the stage at which the intention to plead guilty was indicated, and

(ii) the circumstances in which the indication was given, and

(b) whether the person materially assisted in the investigation of the offence.’

4

The Court is also empowered by s. 27B(6) to have regard, in particular, for this purpose to:-

‘(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Act 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and

(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.’

5

The learned Circuit Court judge imposed a sentence of three years with the last eighteen months suspended for a period of five years. This sentence took effect from the date on which Mr. O'Reilly went into custody on 14th March 2013.

6

The background to the present appeal is that at approximately 3 a.m. on 11th March 2012 at a service station at Fortunestown, Tallaght, Dublin 24, the offender, Mr. O'Reilly, pointed a realistic imitation firearm which looked like a handgun to the head of another person and demanded money. It was accepted that Mr. O'Reilly had been both drinking and taking drugs prior to this attempted robbery. The attendant, Mr. Rizman Ali, was quick thinking and realised that the customer was in truth, a participant in this attempted robbery. The ‘customer’ had feigned to purchase cigarettes from Mr. Ali, but Mr. O'Reilly came up from behind and pointed the imitation firearm to the head of the other ‘customer’. Mr. Ali silently pressed the emergency button and counted the money which had been demanded slowly while facing increasing threats from Mr. O'Reilly. The Gardaí arrived quickly and no money was actually paid over. The other ‘customer’ was also charged with certain offences and pleaded guilty and, we have been told, received a suspended sentence.

7

When the Gardaí arrived they produced firearms and announced that they were armed Gardaí. It is clear that Mr. O'Reilly did not put down the imitation firearm and it is not in dispute but that he pointed the firearm at the two Gardaí, Detective Garda McGrath and Garda McGuinness. What is clear, however, is that Mr. O'Reilly ran and was ultimately hauled to the ground by the Gardaí and then arrested. Mr. O'Reilly made no admissions while he was in subsequent detention but he did say ‘the other lad was innocent: I stuck a gun to his head’. It is only right that this Court should pay a tribute to the conspicuous bravery of both Mr. Ali – who stalled the activities of Mr. O'Reilly and who obtained valuable time in the process – and to the individual Gardaí, Detective Garda Kieran McGrath and Garda McGuinness, who fearlessly responded to a potentially very dangerous situation.

8

As far as the personal circumstances of the offender are concerned, he was aged thirty four at the time of the offence and he is an early school leaver. He has twenty seven previous convictions including five for robbery, seven for burglary and...

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