DPP v Zarans
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] IECA 412 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Nos: CCA 29/16 |
| Date | 20 December 2016 |
[2016] IECA 412
THE COURT OF APPEAL
Edwards J.
Birmingham J.
Edwards J.
McCarthy J.
Record Nos: CCA 29/16
Sentencing – Unlawful seizure of a vehicle – Severity of sentences – Appellant seeking to appeal against sentence – Whether sentences were unduly severe
Facts: The appellant, Mr Zarans, on the 19th of May 2015, pleaded guilty to the following: a count of unlawful seizure of a vehicle for which he received a sentence of ten years imprisonment, with the final year thereof suspended; a count imposed of false imprisonment, for which he received a sentence of seven years imprisonment; a count of reckless endangerment, for which he received a sentence of four years imprisonment; and a count of dangerous driving, for which he received a sentence of three months imprisonment. The appellant appealed to the Court of Appeal against the severity of the four sentences imposed upon him on the 16th of October 2015 by Longford Circuit Criminal Court. The appellant complained that the sentencing judge failed to sufficiently take into account the mitigating circumstances in the case. In respect of the offences on which lesser sentences were imposed the appellant submitted that the sentencing judge’s reasoning was not evident and that it was impossible to know what discount, if any, was given for mitigation in respect of those offences. The respondent, the DPP, submitted that the ultimate sentences imposed on the appellant were proportionate and appropriate to the circumstances of the case and that they should not be interfered with.
Held by the Court that, in circumstances where they were satisfied that the sentence ultimately imposed by the sentencing judge would not be materially altered on a re-sentencing, they were not disposed to intervene and to interfere with it notwithstanding the identified error of principle which represented a defect in the process by means of which it was arrived at.
The Court held that in the circumstances they would dismiss the appeal.
Appeal dismissed.
This judgment is concerned with an appeal against the severity of four sentences imposed upon him on the 16th of October 2015 by Longford Circuit Criminal Court following pleas of guilty entered by the appellant on the 19th of May 2015. On that date the appellant had pleaded guilty to a count of unlawful seizure of a vehicle for which he received a sentence of ten years imprisonment, with the final year thereof suspended; to a count imposed of false imprisonment, for which he received a sentence of seven years imprisonment; to a count of reckless endangerment, for which he received a sentence of four years imprisonment and to a count of dangerous driving, for which he received a sentence of three months imprisonment.
The appellant contends that the said sentences, and each of them, were unduly severe and excessive.
The court heard evidence that the appellant was one of two people involved in the abduction of Sabrina Cence, an Italian woman who worked in family take away business in the area. They had planned to abduct a vulnerable female. They were waiting adjacent to the car park at Heaton's in Longford.
As Ms. Cence approached her car which had been parked in the said car park she encountered two men dressed in black (one of whom also had a hi-visibility vest on over his clothes) and wearing balaclavas. She had a knife placed to her neck by one of them and was threatened. She offered them her purse and was told ‘No, you give me the money and I'll be good to you’. She then had her car keys taken and was forced into her car. Both men had knives. One of them got into the back of the car with Ms. Cence and the other assumed the role of driver. The appellant was the driver. Money was demanded from Ms. Cence and a knife was continuously held to her throat. She was told ‘Give me the money, Bitch’. She handed over a sum of €170. It was made clear to her that they wanted more money. The plan was to take Ms. Cence to an ATM machine so that she could take out money. Her bank card had been taken from her.
A concerned citizen had observed the two men, wearing balaclavas, behaving suspiciously in the car park prior to the abduction and had telephoned the Gardaí. Unluckily for Ms Cence's abductors, the Gardaí at Longford Garda Station happened to have the facility to view a live CCTV feed from a camera in the Heaton's car park. When the call from the concerned citizen came in Gardaí immediately logged in to the relevant CCTV system and saw the abduction actually taking place. A number of Gardaí were immediately despatched, in both marked and unmarked vehicles, with a view to intercepting the abductors.
On the way to Heaton's car park an unmarked Garda car encountered Ms Cence's vehicle travelling in the opposite direction, and it turned around and gave chase with blue lights and siren. At one point the Garda car had overtaken the stolen vehicle and pulled in ahead of it at an angle. Immediately after the occupants of the Garda car had alighted from their vehicle the appellant drove forward and rammed the Garda car and then continued to drive on. A high speed chase ensued in the course of which the car driven by the appellant drove in the middle of the road and against oncoming traffic forcing to take evasive action and to get out of its way.
Eventually the appellant, who had a considerable amount of drink taken, crashed the car. The air bags deployed and the car, which was extensively damaged, was written off. Both men left the car with a view to fleeing the scene. The other man was struck by a motorist whilst attempting to flee. He suffered significant injuries and is now in a persistent vegetative state. The appellant was arrested having been seen walking up the road nearby and heading towards Longford wearing black clothes. He was approached by a member of An Garda Siochana who noticed that he had cuts to his head and his hands were bleeding and that his clothes were wet through.
Ms Cence suffered a number of significant injuries in the crash requiring her removal to hospital and was extremely traumatised and was screaming uncontrollably when the Gardai initially came to her aid.
Following his arrest the Applicant was detained at Longford Garda Station. He was interviewed and questioned after caution. He identified himself on CCTV and made certain admissions. However he sought to cast responsibility on the other man as being the prime mover. He accepted however that the abduction was planned and premeditated, and that they had brought rucksacks with then with alternative clothes to change into to facilitate their getaway.
The injured party did not give victim impact evidence but a victim impact statement from her was read into the record, as were extracts from medical reports concerning her injuries.
In her victim impact statement the victim in the first instance described her material and economic losses. She stated that her Mercedes car, which the court was told by counsel had been worth €20,000 to €25,000, had been written off. However, she was reimbursed for that by her insurance company. In addition, as a result of physical and psychological injuries sustained in the incident she had been unable to return to work' in the family take away business. She did not quantity her ecomonic loss.
As regards he physical and psychological injuries she stated:
‘Since the 29th of October 2014, my life has drastically changed. From a psychological point of view I have lost trust in everything and everyone surrounding me to the point that I'm afraid of going to work or even outside. I cannot sleep anymore due to nightmares and panic attacks and my fear has affected my family members also as I must constantly check where they are in every moment.
I cannot go to work anymore, inability to park in the town centre, inability to go outside without having panic attacks. I cannot stay standing for more than 30 minutes due to a spine fracture caused by the accident. Weekly visit to psychologist and physiotherapist. Doctors don't know if I will have to go under an operation.’
The injured party further referred to the fact that she had suffered a spinal vertebral fracture at T12 level, and this had necessitated expensive investigations including MRI and Bone Scans. She was to have further investigations to establish what further action to take or whether surgery was required on her spine.
A medical report from a consultant orthopaedic surgeon concerning Ms. Cence's injuries was also read into the record. The orthopaedic surgeon, having recited the history of the incident, stated that she had had an MRI of her thoracic spine which showed a compression fracture involving about 15 % to 20 % of the superior area of the first lumbar vertebra. There were some degenerative changes at the T.11 and T.12 disc spaces with posterior annular bulging. Otherwise there was no disc prolapse. The lower lumbar spine was satisfactory with some degenerative changes evident. An MRI of her cervical spine showed small left focal posterior lateral disc bulge at C6/C7 with no major pressure on the nerve roots. She was re-examined in March of the following year and she told him she had been having pain in her neck, her right upper arm and her left lower back, and also pain was going down her right left to just below her knee. There were no pins and needles but she complained of numbness on and off. On examination she was tender on the left side of the lower part of her neck as well as over the left trapezius muscle. There was also...
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