DPP v Tony Delaney

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 02 February 2021
• Neutral Citation: [2021] IECA 201
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 27/20

Between/

The Director of Public Prosecutions

Respondent

and

Tony Delaney

Appellant

[2021] IECA 201

Edwards J.

McCarthy J.

Kennedy J.

Record Number: 27/20

THE COURT OF APPEAL

Sentencing – Assault – Suspension – Appellant seeking to appeal against sentence – Whether the judge ought to have suspended a portion of the sentence

Facts: The appellant, Mr Delaney, pleaded guilty to four counts comprising of two counts of assaulting a peace officer acting in the execution of her duty contrary to s. 19(1)(a) of the Criminal Justice (Public Order) Act 1994, a count of production of an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offensive Weapons Act 1990 and a count of criminal damage contrary to s. 2 of the Criminal Damage Act 1991. On the 11th February 2020 the appellant received a sentence of three years’ imprisonment. The appellant appealed to the Court of Appeal against sentence. In oral submissions, Ms McCarthy BL summarised the issues: firstly, the failure to backdate the sentence and, secondly, where the judge did not backdate, she said that he ought to have suspended a portion of the sentence.

Held by the Court that it did not see force in either of the issues raised. The Court held that the judge was fully entitled in the circumstances to exercise his discretion and impose a sentence as of the sentence date. The Court held that no issue may be taken with this approach in circumstances where he was fully cognisant that the appellant had been in custody and expressly stated that he was taking that factor into account in imposing sentence. In the Court’s opinion the judge did not err in the manner he structured the sentence so as not to suspend a portion of the sentence; he observed that such had not benefited the appellant in the past. The Court held that, in those circumstances, the judge operated entirely within his discretion. The Court was not persuaded that he erred in the sentence imposed.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered (ex tempore) on the 2nd day of February 2021 by Ms. Justice Kennedy.

1 This is an appeal against sentence. The appellant pleaded guilty to four counts comprising of two counts of assaulting a peace officer acting in the execution of her duty contrary to section 19(1)(a) of the Criminal Justice (Public Order) Act, 1994; a count of production of an article capable of inflicting serious injury contrary to section 11 of the Firearms and Offensive Weapons Act, 1990 and a count of criminal damage contrary to section 2 of the Criminal Damage Act, 1991. On the 11th February 2020 the appellant received a sentence of three years' imprisonment.

Background

2 On the 8th February 2019, at approximately 4 pm gardaí observed a vehicle at the entrance to Spring Lane halting site. On approaching the vehicle they observed the appellant exit the driver's seat and run from the vehicle. On checking the vehicle the gardaí noted that it did not have valid documentation and the intention was to seize the vehicle. Two gardaí, Garda Conway and Garda O'Shea, were waiting for a tow wagon. As they were waiting the appellant returned. He was highly intoxicated and aggressive towards the gardaí. He jumped into the driver's seat and used his car keys to start the vehicle. Garda Conway went to the driver's side and attempted to take the keys from the ignition. She was punched a number of times along the arm, elbow and shoulder. Garda O'Shea came to her assistance and she was punched several times on the upper body. They managed to remove the appellant from the vehicle and he left but returned with a four-foot iron bar. Gardai Conway and O'Shea, fearing for their safety, got into the patrol car. The appellant proceeded to hit the patrol car with the iron bar several times, causing damage to the passenger windows, the passenger side panels and the windscreen. Assistance eventually arrived and the appellant fled the scene. The appellant was arrested on the 21st March 2019.

Personal circumstances of the appellant

3 At the time of sentencing the appellant was 24 years of age with a partner and two children. He is a man with 51 previous convictions. Of those convictions, five concern Circuit Court convictions from November 2015, which include three convictions for robbery, one for attempted robbery and one for unlawful seizure of a vehicle. For this the appellant received a sentence of four years with eighteen months suspended.

4 The appellant has been in custody since October 4th 2019, there was a serious incident while he was in custody resulting in the appellant being placed on life support for a period of...