Court of Appeal allows DPP review, finds original sentence unduly lenient, and imposes new consecutive sentence.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 114

Sheehan J.

Mahon J.

Edwards J.

267CJA/11

The People at the Suit of the Director of Public Prosecutions

Appellant

and

James Kelly

Respondent

Judgment of the Court delivered on the 4th day of June 2015 by Mr. Justice Sheehan

1. This an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the

sentence imposed on the respondent at Limerick Circuit Court on the 27th October, 2011, for the offence of false imprisonment on the

ground of undue leniency.

2. The respondent was sentenced to six years imprisonment with the final two years suspended on his own bond to keep the peace

and be of good behaviour for a period of seven years. The other charges arising from this incident were also taken into account

namely, the unlawful seizure of a vehicle contrary to s.10 of the Criminal Law (Jurisdiction) Act 1976; two counts of robbery contrary

to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001; and one count of theft contrary to s.4 of the Criminal Justice

(Theft and Fraud Offences) Act 2001.

3. This appeal is related to the sentence imposed in respect of the above offence hereinafter referred to simply as “the false

imprisonment” offence. When the respondent committed the offence of false imprisonment he was on bail in respect of a burglary

charge and a charge for the possession of articles to be used in connection with theft or burglary. The respondent pleaded guilty to

the burglary offence and the possession of articles to be used in connection with theft or burglary and on the same date sentences

of twelve months imprisonment were imposed in respect of these two offences with both sentences ordered to run concurrently. The

sentence for the false imprisonment was ordered to run consecutive to those sentences.

4. On the same date the respondent pleaded guilty to another burglary charge and was sentenced to twelve months imprisonment to

run consecutive to the other twelve-month sentences but concurrent with the sentence for false imprisonment. This offence had also

been committed while the respondent was on bail. The respondent committed the above offences during the currency of a part

suspended sentence. The sentencing judge did not activate the suspended period of this earlier sentence.

5. The applicant contends that the sentence imposed in respect of the offence of false imprisonment was unduly lenient. In order to

consider this application, it is necessary to set out the background to this offence.

Background

6. On the 3rd May, 2011, a young woman arrived at Colbert Station in Limerick at 9.30 pm having been working in Dublin that day.

She went to her car which she had parked in the car park adjacent to the railway station and as she did so she was confronted by

the respondent who produced a knife. She jumped into the back seat of her car and tried to lock the door, but was unable to do so.

The respondent opened the rear driver’s door and sat in beside her and said: “I want your money I am not going to hurt you. Blondie,

it’s your lucky night”. The young woman handed the respondent her handbag. The respondent took €40 from her purse, which he

noticed contained various bank cards. He then said: “I’m not going to hurt you, but you’re going to drive me to the Bank Link

machine”. The respondent insisted on the young woman climbing into the front seat of the car forced at her knifepoint to drive him to

a Bank Link machine.

7. As she was driving the car, the respondent roared directions at her and held a knife to the left side of her throat. She thought that

the knife looked like a kitchen knife with a dark handle. The respondent put his hand on her left leg and said: “You don’t know how

dangerous I am”. He then told her that he was wanted for murder and rape.

8. The young woman stopped the car at a Bank Link machine and the respondent told her to get €700 from the machine. She was

able to obtain €500 which she gave the respondent. She considered escaping at this time, but was aware of the knife being held by

the respondent. They both returned to the motorcar the young woman said to the respondent “I thought you said you would leave

me alone if you got the money”. The respondent replied saying “I want you to drive me to Moyross and I have got my boys out

there waiting for you”. He said something in the nature of “I promised them I was going to bring you to them”.

9. The young woman continued to drive the car and said that she was in such a state of terror that she told the respondent she was

going to ram into a car travelling in front of her. The respondent then shouted at her to stop the car. When she did so he got out of

the car and told her he would give her back her mobile phone when he got out. However, he did not do so and she saw him flinging it

over a railing. The young woman then drove to Roxborough garda station and made a complaint there. She estimated that her ordeal

had lasted about twenty minutes. She became physically ill when she arrived at the garda station.

10. Video evidence from the premises across the road from the railway station was able to place the respondent in the vicinity of that

area at the time of the hi-jacking. The respondent was arrested on the 5th May, 2011, and when interviewed by members of the

gardaí he made full admissions in respect of the offences and it was acknowledged by the prosecuting garda at the sentence hearing

that the respondent’s admissions were of critical importance in his prosecution for false imprisonment and the related offences.

11. He was interviewed by the gardaí and the respondent admitted that he had said at one point that he was a murderer and that he

did so in order to frighten his victim. He told the gardaí that when he got into the young woman’s car he said at the outset “Don’t

worry I’m not here to harm you, rape you or anything”.

12. In the course of her victim impact report, the young woman described the effect that the ordeal had had on her and in the course

of her statement said:

“I, as the victim, have had to make significant changes to both my family and my personal life in order to help me try in

some way overcome the events of May the 4th. I have always been a very confident and independent individual but that

has now changed. I find it extremely difficult to go anywhere unaccompanied and live in constant fear which has put my

family and friends under an awful lot of pressure. I no longer feel safe in my own home and need to have company at all

time. I find it incredibly difficult to do even the simplest chores, like the weekly shopping, without having somebody

accompany me. The nature of my employment involves me travelling between Dublin and Limerick frequently. This is a

journey I can no longer do, unless I have a work colleague or family member travel with me.”

13. The young woman also stated that her only daughter had made her First Holy Communion three days after the incident and that a

shadow had been cast over this important family occasion by the traumatic consequences of the crime committed on her by the

respondent.

Personal circumstances of the respondent

14. At the time of sentence the respondent in this case was 22 years of age and a heroin addict. He had 25 previous convictions for

theft, four convictions for burglary, one for robbery and one for possession of a knife.

15. It was acknowledged that at all relevant times the respondent was a chronic heroin addict. When he was about 8 years of age he

witnessed the unlawful killing of his father. It was also acknowledged that he made very full admissions and pleaded guilty at an early

stage in all cases on foot of which he was being sentenced. It was also acknowledged by the gardaí in evidence that he was

remorseful.

16. Counsel for the DPP submitted that the sentencing judge erred in principle in respect of the sentence of six years with two years

suspended for the false imprisonment offence and that the sentence imposed was unduly lenient having regard to the nature,

circumstances and gravity of the offence. A number of grounds in furtherance of this appeal were set out in detail in the Notice of

Appeal before this Court but the core submission advanced by counsel for the DPP was that the sentencing judge failed to adequately

take into account the following aggravating factors namely: -

a) That the respondent, when armed with a knife, unlawfully seized a vehicle and falsely imprisoned the young

female driver thereof;

b) That he forced the young woman to drive her vehicle under duress;

c) That he robbed the young woman at knife point;

d) That he subjected the young woman to certain threatening and degrading comments of a gross nature;

e) The traumatic impact of the incident on the young woman.

17. The applicant also contended that the sentence imposed did not reflect the specific aggravating factor that the false

imprisonment offence was committed while the respondent was on bail for another offence.

18. Counsel on behalf of the respondent, while conceding that the learned trial judge imposed a lenient sentence, nevertheless

submitted that in constructing the sentence which he imposed upon the respondent, the sentencing judge did not make any error of

principle, but rather imposed a sentence based upon the evidence, the findings made by him and proper sentencing principles. It was

submitted that although the sentence was lenient it was not unduly so.

Decision

19. This Court is cognisant of the decision in The People at the Suit of the Director of Public Prosecutions v Byrne [1995] 1 ILRM 279

which is the recognised authority in relation to appeals pursuant to s.2 (1) of the Criminal Justice Act 1993 and states at p. 287 that:

- “Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial

departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”

20. In its subsequent judgment in The People at the Suit of the Director of Public Prosecutions v Derrick Stronge [2011] 5 JIC 2301,

the Court of Criminal Appeal further identified the applicable principles in undue leniency appeals pursuant to s.2 of the Criminal Justice

Act 1993. The Court stated the following: -

“From the cases cited at the end of this paragraph, the following principles can be said to apply in an application for

review under s. 2 of the 1993 Act. These are: -

(i) the onus of proving undue leniency is on the D.P.P.:

(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross

departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and

discernible difference between the latter and the former:

(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless

the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose:

sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate:

(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The

test under s. 2 is not the converse to the test on such appeal:

(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is

the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each

court is quite different: on a s. 2 application it is truly one of review and not otherwise:

(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to

an error of principle, before intervention is justified: and finally

(vii) due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that

judge who receives, evaluates and considers at first hand the evidence and submissions so made.

The relevant cases are The People (D.P.P.) v. Byrne [1995] 1 ILRM 279, The People (D.P.P.) v. McCormack [2000] 4 I.R.

356 and The People (D.P.P.) v. Redmond [2001] 3 I.R. 390.”

21. In considering how these principles apply in the present case, this Court has considered the transcript of the sentence hearing in

this case and concludes that it is clear that the trial judge approached a difficult balancing exercise in a careful manner. It is not

suggested by this Court that the sentencing judge did not take into account aggravating factors, but rather that he did not give

those factors sufficient weight.

22. Allowing a margin of appreciation and notwithstanding the sentencing judge’s careful approach, this Court holds that the sentence

imposed in this case represented a substantial departure from what this Court considers appropriate.

23. The Court having so decided invited the parties to make further submissions and neither party wished to do so.

24. This Court must therefore proceed to sentence the respondent afresh. The Court is cognisant that the offence of false

imprisonment carries a maximum sentence of life imprisonment. Bearing in mind the need to be guided by the principle of

proportionality and the need where possible to reconcile that with the principle of rehabilitation, this Court must approach sentencing

in accordance with the principles outlined in The People at the Suit of the Director of Public Prosecutions v. M. [1994] 3 I.R. 306.

That is to say this Court is aware of the range of sentences applicable in respect of this offence and in endeavouring to place that

sentence within this range this Court is of the view that the minimum starting point in this case, particularly in light of the associated

threats and the fact that the offence was committed while the respondent was on bail for another offence is one of eight years

imprisonment.

25. The principle mitigating features in this case were the following: - (i) the respondent cooperated fully with the gardaí when

arrested and made full admissions, (ii) the respondent was remorseful, and (iii) the respondent pleaded guilty on arraignment. The

Court also takes into account the personal circumstances of the respondent.

26. Accordingly, this Court has identified the applicable range and locating this offence within that range as being one of 8 years

imprisonment. The Court has identified mitigating factors as outlined above and in applying these factors to the identified sentence

this Court will reduce the sentence to one of 6 years imprisonment. For the sake of absolute clarity, this sentence is to run

consecutive to the sentences of twelve months imposed in respect of the burglary charge and a charge for the possession of articles

to be used in connection with theft or burglary. The other twelve-month sentence for another burglary which had also been

committed on bail and ordered to run consecutive to the twelve-month sentences already imposed but concurrent with the sentence

for false imprisonment also remains.