Court of Appeal dismisses appeal against five-year sentence for threatening to injure with a syringe.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No CA 33/2015

Bill No LK 32/2014

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

DAMIEN O’BRIEN

Appellant

Judgment of the Court delivered on the 2nd day of June 2016 by Mr. Justice Edwards.

Introduction.

1. In this case the appellant appeals against the severity of a sentence of five years imprisonment, to date from the 21st of October

2014, imposed upon him by Limerick Circuit Criminal Court on the 30th of January 2015 following his conviction by a jury on a count of

making a threat to injure another with a syringe, contrary to s. 6(1)(b) of the Non Fatal Offences Against the Person Act 1997 (the

Act of 1997).

The circumstances of the offence

2. The charge under s.6(1)(b) of the Act of 1997 was preferred in respect of an incident that occurred at the Gleeson’s shop at 43

Catherine Street, Limerick, on the afternoon of the 10th of October 2013.

3. The prosecution evidence was that the appellant entered the shop in Catherine Street and stole a Bounty bar. He left the shop

with the Bounty bar. A nephew of the shop owners, a Mr. Seaghan Gleeson and another employee, a Mr Karl Hanley, went outside to

confront him. Mr Hanley asked the appellant to return the Bounty Bar. The appellant then produced and brandished a syringe and

threatened to kill both Mr Gleeson and Mr Hanley.

4. The evidence was that, armed with the syringe, the appellant then chased Mr Gleeson along a nearby street. Mr. Gleeson managed

to escape his pursuer after he had successfully positioned himself such that there was a car between him and the appellant.

5. The appellant, having been later arrested, claimed in interviews with him conducted by members of An Garda Siochána, that he did

not have a syringe but that what he had in his hand was in fact a bookmaker’s biro.

The evidence as to the appellant’s personal circumstances

6. The sentencing court was told that the appellant was born on the 11th of January 1986. He is a heroin addict and at the time of

the offence the appellant was intoxicated with alcohol.

7. The appellant has a number of previous convictions including convictions for crimes of violence.

8. On the 7th of March 2002 at Limerick City District Court he was sentenced for a total of four assaults contrary to s. 2 of the Act

of 1997 and for the offence of being in possession of an article, contrary to s. 9(1) of the Firearms and Offensive Weapons Act, 1990

(the Act of 1990). He received six months for two of the s.2 assaults, with the others being taken into account and nine months

imprisonment for the s. 9(1) offence. On the 13th of September 2002 he received 14 days for a further s. 2 assault. Then on the 3rd

of December 2002 he received four months imprisonment in respect of four offences of theft contrary to s. 4 of the Criminal Law

(Theft and Fraud Offences Act) 2001 (the Act of 2001). On the 15th of April 2003 he received three months imprisonment for a

further offence of theft contrary to s. 4 of the Act of 2001.

9. On the 29th of July 2003 he received four months imprisonment for an offence contrary to s. 2 of the Criminal Damage Act 1991

(the Act of 1991) , and an offence of theft contrary to s. 4 of the Act of 2001 was taken into consideration. On the 18th of

November 2003 he received four months imprisonment for an assault contrary to s. 2 of the Act of 1997, and concurrent sentences of

four months imprisonment for an offence contrary to s. 2 of the Act of 1991, and six months imprisonment for possession of knives,

contrary to s.9(1) of the Act of 1990. On the 17th of June 2004, he was sentenced to six months imprisonment again for possession

of knives, contrary to s.9 (1) of the Act of 1990.

10. On the 8th of December 2004, he was yet again sentenced to eight months imprisonment for possession of knives, contrary to

s.9(1) of the Act of 1990. Then, on the 12th July 2006, he received a sentence of nine months imprisonment for possession of an

article with intent to cause injury, contrary to s. 9(5) of the Act of 1990, and a concurrent sentence of 6 months imprisonment for

burglary offences, contrary to s. 12 of the Act of 2001. On the 12th of June 2007, he received a further sentence of 10 months

imprisonment for another case of possession of an article with intent to cause injury, contrary to s. 9(5) of the Act of 1990.

11. On the 29th of June 2007 at Limerick City Circuit Court, he received two years and six months imprisonment in respect of three

charges of possession of drugs for sale or supply, contrary to s. 15 of the Misuse of Drugs Act, 1977.

12. The sentencing court also heard that in more recent times he had acquired a number of further convictions for public order

offences and the like. Then, in addition, on the 19th of October 2011, the accused was sentenced to four years imprisonment

backdated to the 7th of April 2011, with the final year suspended for four years from the 19th of October 2011 in respect of an

offence of assault causing harm contrary to s. 3 of the Act of 1997. The present offence was committed during the period of that

suspension, and the prosecution were also making an application pursuant to s. 99 of the Criminal Justice Act 2006 that he should

now be required to serve the suspended period of the sentence imposed on the 19th of October 2011.

13. The circumstances of that offence were that the injured party was a gentleman who, having consumed alcoholic drink, had fallen

asleep on a seat at the bus stop at Mulgrave Street in Limerick city, when without any warning or provocation he was the subject of

what was characterised at the time as a brutal attack with a knife, committed by the appellant. The injured party had suffered

lacerations to the left side of his face in the vicinity of his left eye and his left facial area. The sentencing judge was told that it had

been put forward on behalf of the accused at his sentencing for that offence on the 19th of October 2011 that he had certain

difficulties which he was hoping to address (i.e. his addiction and substance abuse issues).

14. It was accepted by the prosecuting Garda while under cross examination that the appellant had been taken into the care of the

State when he was six years old and had remained in care until he was eighteen. He was twenty seven years of age at the date of

the offence and was just past his twenty ninth birthday on the date on sentencing.

15. The appellant gave evidence himself at his sentence hearing, concerning the details of his time in care and concerning his

addictions to drugs and alcohol. He said that he had started using cannabis at the age of 12, and later graduated to prescription

drugs, particularly benzodiazepines, and alcohol. The appellant was initially prescribed the prescription drugs in question following the

suicide of his brother in 2003 when the appellant was aged 15. He said he would later buy them on the street.

16. The court heard that the appellant had been one of ten children, six boys and four girls, and both of his parents had been chronic

alcoholics. He is not in contact with any of his family. Some of his siblings are also heroin addicts or former heroin addicts. The

appellant told the court that prior to his arrest he had been injecting heroin. He had already spent eleven months in prison on remand

and was now on prescribed Methadone in the prison as well as antidepressant medication and sleeping tablets. He told the court that

he had been receiving addiction counselling while in prison provided by the Merchants Quay project.

17. The appellant stated that he had never had a visit from anyone while in prison in respect of this offence. However, prior to going

into prison he had been in an on-off relationship with a young lady for approximately four years. He had recently re-established

contact with her by telephone.

18. The appellant further stated that he had been expelled from the Catherine MacAuley School where he had been a pupil at the age

of 12 due to anger management issues. He was subsequently psychiatrically assessed and had been diagnosed as suffering from post

traumatic stress disorder on account of physical abuse at the hands of his parents and sexual abuse in state institutions while in

care. Since then he had been admitted on two occasions to Unit 5B (the psychiatric unit) at Limerick Regional Hospital with manic

depression and suicidal behaviour. He had also cut his wrists on one occasion while in Mountjoy Prison and had been treated at the

Mater Hospital.

19. Under cross-examination the appellant accepted that he finds it hard to control himself when he has substances taken. He also

accepted that he had told the court previously that he was going to give up heroin, and on that basis had had one year of the four

year sentence imposed on him on the 19th of October 2011 suspended. He confirmed that he had committed the present offence just

three or four months after he had been conditionally released.

The impact on the victim

20. The sentencing court was told that while the victim Mr Seaghan Gleeson, who had given evidence before the jury, had stated

that he had found the whole incident to be a terrifying experience, he had declined to make a formal victim impact statement and did

not wish to say anything further.

The sentencing judge’s remarks

21. In sentencing the appellant, the sentencing judge, having noted that the offence carried a maximum sentence of ten years

imprisonment, and having stated his understanding of the applicable sentencing principles, remarked (inter alia):

“If we can turn to the aggravating factors in this particular case. … this must have been an extremely frightening

experience for Mr Gleeson on the day in question. The whole circumstances, the swiftness with which the incident arose,

the swiftness with which the syringe was produced, his efforts to try and retreat to his shop, effectively running into his

own glass doors, finding they were closed automatically as such and then having to take refuge behind a car further

down Glentworth Street. The continuous threats that were made to him and he gave evidence of being very, very

frightened that he was going to be injured by the syringe.

The previous convictions of the accused are a cause of considerable concern. The accused has several previous

convictions for crimes of violence, particularly section 2 assaults as such and also possession of weapons on occasions.

He also has a very serious conviction for a section 3 assault going back to 2001 [sic] and the fact that this is the source

of an application to invoke part of a suspended sentence that was imposed in respect of that very, very serious

matter.”

Sorry, 2011, my apologies. … There also are the anger management issues which are still, in my view, matters that

clearly have to be addressed and are still ongoing. And unfortunately, given the past record of the accused, there is the

serious risk of reoffending as such. It is an aggravating factor -and I come to the mitigation side at the moment - that

one of the concerns that the Court has is the fact that unfortunately the accused, Mr O'Brien, can get himself into such

a drugged state from his addiction, as such, that there are times, I believe, that he doesn't know what's going to

happen next and the people that have to deal with him and cope with him don't know what's going to happen next and

that makes this situation extremely volatile and, on occasions, extremely dangerous.

Insofar as the mitigating factors are concerned the personal circumstances of the accused, the family circumstances

effectively, the family circumstances don't exist. I've heard very, very clearly from Mr O'Brien in the witness box of his

"family" history and the circumstances by civilised standards are appalling to say the least. A large family, as I

understand, of 10 siblings and that it would appear that none of them have any huge interest in each other or know

where each other is at this particular time. And I think this is evidenced by the fact that the accused, Mr O'Brien, has

been in custody since October last and hasn't had one single family visit as such. There is the chronic heroin addiction

and that is of huge significance. It is quite clear that the chronic heroin addiction gets this young man into severe

difficulties, as such, and not just difficulties but very, very serious and, dare I say it, very dangerous situations at times.

I would have to be of the view that one clearly must mark the fact that this is an addiction and an addiction,

unfortunately when this young man seems to be out of custody, that he seems to fall back into very, very quickly and

another situation arises.

I don't want to sound disparaging in any way but it's quite clear that the accused volatility is a -- I take it as a mitigating

factor. I have to deal with people as I find them as such and it is quite clear that the accused is a person of an excitable

disposition as such. There is the very poor education that he had, again evidenced by his own evidence that effectively

he was expelled from school at the age of 12 and doesn't appear to have had any worthwhile education in the past. I

take it as a mitigating factor his remorse shown in the memos of interviews about getting into this particular difficulty. I

have to balance that by saying that even though he is adamant that he has been wrongly convicted of these particular

crimes, however the memos of interview were read into the evidence of the trial and he made certain very clear

admissions and accepted certain responsibility.

I am taking it as a mitigating factor that the accused wants the matter disposed of in the absence of any reports which

I understand may be on the prison file and that might be proffered in further mitigation but at his sole request. And

counsel has advised on the clear instructions that counsel has been given that this matter is to proceed as such.

I don't want to make too much of a social commentary on matters. It is quite clear - it is quite clear - that Mr O'Brien's

personal circumstances as described by counsel are pathetic and I can't disagree with that as such. He's had a very

difficult upbringing. He is fighting against enormous odds all of the time and I get the very strong impression that after

his travails of this particular week that he in fact -- his spirit is somewhat broken.

As against that I have a duty as such to not lose sight of the fact that the law is there. These syringe type offences are

treated as very, very serious and while the general evidence that we've had today is that thank god these are not

frequent offences, nevertheless they are offences which the Oireachtas have recognised as very, very serious offences.

Not just potentially but very, very serious offences and have brought in specific legislation to deal with it, carrying

substantial sentences. There's also the issue that the shopkeepers of Limerick have a difficult time at the best of times

trying to keep their trade and their task is made none the easier by encountering such difficulties as Mr Gleeson

encountered … on this fateful day on the 10th of October 2013.

There was also the issue again that I can't lose sight of, the application by the State to re-enter a matter whereby the

accused pleaded guilty to a very serious assault matter on the 27th of September 2011 where he pleaded guilty to an

assault charge causing harm contrary to section 3, in which my colleague, now Mr Justice Moran, imposed a sentence of

four years' imprisonment with the final year suspended for four years on condition that he keep the peace and be of

good behaviour in his own bond. And that was backdated to the 7th of April 2011.

I have taken the decision as such, the currency - if that's the correct word - of that particular suspended sentence

would be spent by April of this year. In those particular circumstances I am not going to invoke that particular sentence

as such. However, … I have to be extremely conscious of the fact that there was a weapon used in this particular

matter, I have to be extremely conscious of the fact the accused has an appalling record insofar as violence is

concerned and … I'm going to impose a sentence of five years and I'm going to backdate it the 21st of October 2014.

MR O'SULLIVAN: Thank you very much.

MR NIX: Can I ask if you will suspend any portion of that, Judge?

JUDGE: I'm not prepared to do that on the basis that I factor that in to the fact that I haven't invoked the sentence

from Judge Moran.”

The grounds of appeal

22. The appeal has been advanced on a number of grounds. First, it is complained that the sentencing judge failed to assess the

seriousness of the case with reference to the range of available penalties. Secondly, it is complained that the sentencing judge failed

to have adequate regard to the fact that the syringe was brandished reactively in circumstances where the accused was being

pursued by personnel from the shop from which he had stolen produce, and that he had not produced the syringe in the shop, nor

threatened anybody with it in the course of stealing the Bounty Bar. Thirdly, it is complained that the sentencing judge failed to have

adequate regard to the need to incentivise rehabilitation, and fourthly it is contended that the sentence was simply too severe in all

the circumstances of the case.

23. Counsel for the respondent who opposes the appeal, has contended that the trial judge went as far as he could reasonably have

been expected to do for the appellant having regard to his previous record and the bad circumstances of the case. Moreover, while it

was conceded that the sentencing judge had not followed recommended best practice in terms of assessing in the first instance, and

before taking account of mitigation, where on the scale of penalties the case lay having regard to its circumstances, it was submitted

that the failure to do so has been held to be not necessarily an error of principle.

24. Counsel for the respondent also submitted that s. 6 of the Act of 1997 represents a strong statement of legislative policy, and in

support of that the Court was invited to contrast its terms with those contained in ss. 9(1) and 9(5) of the Firearms and Offensive

Weapons Act 1990 which deal respectively with the possession in a public place of knives and other articles, and the production in a

public place of knives and other articles with the intention of causing injury, incapacitation or intimidation. A significantly higher

maximum sentence is provided by the legislature for syringe offences.

Discussion and Decision

25. The Court agrees that s. 6 of the Act of 1997 represents the strong deprecation by the legislature of syringe attacks, and a

statement of legislative policy that they are to be treated as serious offences. In exchanges with defence counsel during the oral

hearing in this appeal the Court expressed the view that the main emphasis in the provision was on the threat of infection likely to be

perceived by the victim of such an attack, and the inevitable distress, anxiety and trauma resulting from that. While counsel for the

appellant did not demur from that, he sought to emphasise that in the circumstances of the case there had been no express threat to

injure, or to infect the victim.

26. In our view, while the absence of an express threat to injure or to infect the victim is not wholly irrelevant to the assessment of

the seriousness of the offence, the more important consideration is the degree to which such a threat was in fact perceived or was

likely to be perceived. The judgment of this court on the appellant’s appeal against his conviction contains several quotations from

the injured party which make it clear that he feared being stabbed with the syringe, and it is perfectly reasonable to infer that any

person in the victim’s position would perceive a risk of infection were such a stabbing to occur.

27. We attach relatively little importance to the fact that the syringe is said to have been brandished reactively. The fact of the

matter is that the appellant had brought it with him when going out to steal produce from the shop. He must have realised he was

likely to be pursued and he produced the syringe specifically to intimidate and ward off his pursuers.

28. While it is true that the trial judge did not formally assess the seriousness of the offence with reference to the scale, this Court

has held in The People (Director of Public Prosecutions) v Davin Flynn [2015] IECA 290 and other cases that the failure to do so will

not necessarily be treated as an error of principle justifying interference if the sentence ultimately imposed was ostensibly correct and

within the expected range for the offence in question.

29. The sentencing judge did specifically note that the maximum penalty was one of ten years imprisonment. Although he did not

indicate his starting point, he identified a number of aggravating circumstances which, had he done so, would have moved the case

further along the scale towards the maximum penalty. No complaint is made about the aggravating factors he identified. He then went

on to identify all of the relevant mitigating factors in the case. Again, no complaint was made about that either. These would have

had the effect of bringing the case back somewhat towards the lower end of the scale. We do know where he ended up, which is at

exactly the mid range point on the scale.

30. A syringe attack such as occurred in this case (taking into account culpability and harm done) required to be treated in the first

instance as being at the higher end of the mid range in circumstances where there was a maximum penalty of ten years. In

circumstances where both aggravating and mitigating factors were taken into account in the appropriate way, and where a penalty at

exactly the mid point on the scale was the end result, we find nothing in the circumstances to suggest an error of principle in the

sentencing judge’s approach.

31. In so far as the need to incentivise rehabilitation was concerned, the appellant had previously received such an incentive but had

spurned it. Indeed the present offence was committed during the suspended portion of the sentence in which that incentive had been

provided. Moreover, while there was evidence that the appellant had received some addiction counselling while in prison, no concrete

proposals concerning how he proposed to continue rehabilitation upon his release had been put before the Court. In those

circumstances it was not an appropriate case in which to part suspend any portion of the sentence, and in our view the sentencing

judge was correct to decline to do so.

32. The appeal against the severity of the appellant’s sentence is therefore dismissed.