DPP v Taylor

• Jurisdiction: Ireland
• Judge: MR. JUSTICE MICHAEL PEART
• Judgment Date: 05 May 2017
• Neutral Citation: [2017] IECA 143
• Docket Number: RECORD NO. 51 CJA/2015
• Court: Court of Appeal (Ireland)
• Date: 05 May 2017

[2017] IECA 143

THE COURT OF APPEAL

Peart J.

PEART J.

MAHON J.

HEDIGAN J.

RECORD NO. 51 CJA/2015

IN THE MATTER OF SECION 2 OF THE CRIMINAL JUSTICE ACT 1993 AND IN THE MATTER OF DUBLIN CIRCUIT CRIMINAL COURT BILL NUMBERS DU 563/14 AND 904/14

BETWEEN/

DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

MARK TAYLOR

RESPONDENT

Sentencing – Unlawful use of a mechanically propelled vehicle – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Taylor, in respect of Bill No. 904/14, pleaded guilty to an offence of unlawful use of a mechanically propelled vehicle pursuant to s. 112 of the Road Traffic Act 1961, and an offence of criminal damage pursuant to s. 2 (1) of the Criminal Damage Act 1991. In respect of Bill No. 563/14 the respondent pleaded guilty to another offence of unlawful use of a mechanically propelled vehicle pursuant to s. 112 of the 1961 Act and two counts of endangerment contrary to s. 13 of the Non-Fatal Offences against the Person Act 1997. Having heard the evidence and submissions, the Dublin Circuit Criminal Court, on the 16th February 2015, imposed a sentence of three years imprisonment in respect of each of the counts on Bill No. 904/14 to run concurrently. In respect of Bill No. 563/14 the Judge imposed a one-year sentence in respect of both counts on the indictment, to run concurrently. The Judge exercised his discretion to make the sentences imposed on Bill No. 563/14 consecutive to the sentences imposed on Bill No. 904/14. The sentences on Bill No. 904/14 were also consecutive to a sentence of three years imprisonment imposed at Naas Circuit Court on 28th November 2013. The respondent was on bail for that offence when the other offences were committed. The applicant, the DPP, applied to the Court of Appeal under s. 2 of the Criminal Justice Act 1993 against the sentences of imprisonment imposed on the respondent at the Dublin Circuit Criminal Court on the grounds that when considered in their totality the sentence was unduly lenient. The DPP submitted that given the facts which gave rise to the offences, and in particular the significant aggravating factors, the effective four year sentence of imprisonment to be served represented a substantial departure from what would be regarded as the appropriate sentence.

Held by the Court that it would not alter the two concurrent sentences of three years imposed for the offences on Bill No. 904/14 as those sentences, taken in isolation, were not unduly lenient. Regarding Bill No. 563/14, while the Court did not consider that the sentence of three years for the offence under s. 112 of the 1961 Act was unduly lenient, the sentence of one year on each of the endangerment offences contrary to s. 13 of the 1997 Act, was, having regard to the aggravating factors identified, held to be a significant departure from what the Court considered to be the appropriate sentence. In the Court’s view these offences each merited a headline sentence of five years to run concurrently with each other. The Court held that the sentences on Bill No. 563/14 would run consecutively to those imposed on Bill No. 904/14, leading to a total of eight years before making any deductions for the undoubted mitigating factors which were identified in relation to the respondent; those sentences will have commenced to be served on the 6th June 2015 being the date on which he ceased serving the three year sentence imposed at Naas Circuit Court. Taking into account the mitigating factors, yet keeping in mind the need to ensure that the seriousness of the offending was not unduly minimised, and at the same time ensuring that the overall sentence was proportionate and respectful of the principle of totality, including that the sentences follow upon the three year sentence imposed at Naas Circuit Court, the Court considered that the final three years should be suspended for a period of three years from the date of his release during which he be under the supervision of the probation service, and that he comply with any directions that may be given by that service during that period.

The Court held that the application by the DPP would be allowed.

Appeal allowed.

JUDGMENT OF MR. JUSTICE MICHAEL PEART DELIVERED ON THE 5TH DAY OF MAY 2017

1 Before the Court for determination is an application by way of appeal by the Director of Public Prosecutions under s. 2 of the Criminal Justice Act, 1993 against the sentences of imprisonment imposed on the respondent on the 16th February 2015 at the Dublin Circuit Criminal Court (His Honour Judge James O'Donoghue) on the grounds that when considered in their totality the sentence is unduly lenient.

2 The respondent had previously pleaded guilty to a number of charges on Bill Nos. 563/14 and 904/14, and was put back for sentencing.

3 The details of the offences and the sentences imposed can be conveniently described as they are set forth in the DPP's written submissions (corrected as to the Bill Nos.) as follows:

‘3. In respect of Bill No. 904/14 the respondent pleaded guilty to an offence of unlawful use of a mechanically propelled vehicle pursuant to section 112 of the Road Traffic Act, 1961, as amended and an offence of criminal damage pursuant to section 2 (1) of the Criminal Damage Act,1991.

4. In respect of Bill No. 563/14 the respondent pleaded guilty to an offence of unlawful use of a mechanically propelled vehicle pursuant to section 112 of the Road Traffic Act, 1961 and two counts of endangerment contrary to section 13 of the Non-Fatal Offences against the Person Act, 1997.

5. The maximum sentence for an offence contrary to section 112 of the Road Traffic Act 1961 is €20,000 and/or up to 5 years imprisonment. The maximum sentence for an offence of endangerment contrary to section 13 of the 1997 Act is imprisonment for a period not exceeding 7 years. The maximum sentence for an offence of criminal damage s a fine or imprisonment for a term not exceeding 10 years or both.

6. Having heard the evidence and submissions, the Court imposed a sentence of three years imprisonment in respect of each of the counts on Bill No. 904/14 to run concurrently. In respect of Bill No. 563/14 the Judge imposed a one-year sentence in respect of both counts on the indictment, to run concurrently. The Judge exercised his discretion to make the sentences imposed on Bill No. 563/14 consecutive to the sentences imposed on Bill No. 904/14. The sentences on Bill No. 904/14 are also consecutive to the sentence of three years imprisonment imposed at Naas Circuit Court on 28th November 2013 which the respondent is currently serving. The respondent was on bail for that offence when the offences before the court were committed.’

4 The net effect of the sentences imposed is that upon the expiration of the sentence of three years imposed at Naas Circuit Court on 27th November 2013 ( i.e. 6th June 2015) the respondent would begin to serve the total of four years imprisonment described above. The DPP submits that given the facts which gave rise to these offences, and in particular the significant aggravating factors, the effective four year sentence of imprisonment to be served represents a substantial departure from what would be regarded as the appropriate sentence, and in that sense is unduly lenient such that it should be set aside, whereupon this Court can impose the appropriate sentence.

5 Somewhat confusingly the offences contained in Bill 904/14 predate those contained in Bill 563/14.

6 It is convenient to summarise the facts of the offences in Bill No. 904/14 from the description contained in the respondent's written submissions as follows:

‘On Bill 904/14, which is the first offence in time and which took place on 19th June 2013, the respondent was driving a Lexus which had been stolen in the course of a burglary. The car was spotted at a service station by an off-duty member of the Gardai, and this was reported by that member to his colleagues. Upon arrival at the service station, they were spotted by the respondent, who drove at the Garda car and crashed into the rear driver's side of that car. It was the belief of the Gardai that the respondent's intent was to “… exit the area having no regard for the safety either of myself or my observer … and no regard to the damage he done to the vehicle (sic) (Transcript, Pages 3–4, Lines 32–34, Line 1). The respondent made good his escape from the service station and drove off. The incident was captured on CCTV, and the respondent identified. The Lexus was later recovered, and items found forensically linked the respondent to the vehicle. He was arrested on the 26 November 2013, his fingerprints were taken, and the link to the respondent was subsequently confirmed. Nothing further of evidential value arose during the interviews. The damage to the Garda vehicle, characterised in the submissions of the appellant as “extensive” … was valued at €1588.83. Both Gardai in the car sustained injuries; both were taken to hospital. Garda Niland subsequently required an operation to remove a disc from his neck in order to prevent further debilitation arising from the injury he sustained. This left him with the scar in his neck and left him out of work for over a year. His...