Court of Appeal increases suspended sentence term due to insufficient mitigation credit and unclear sentencing starting point.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

246/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Glen Kiely

Appellant

JUDGMENT of the Court (Ex tempore) delivered on the 19th day of July 2016 by

Mr. Justice Sheehan

1. This is an appeal against sentence.

2. The appellant pleaded guilty to violent disorder contrary to s. 15 of the Criminal Justice Public Order Act 1994, in respect of an

incident that occurred on the 27th November, 2013, near Balbutcher Lane, Ballymun. He received a sentence of three and a half

years imprisonment with the final twelve months suspended on the usual terms.

3. The facts are that a young man who later refused to make a complaint to the gardaí was attacked by a group of three men, one of

whom was the appellant. The appellant was believed to be wearing a knuckleduster and carrying a hurley which was thrown at the

injured party. The injured party received a severe beating.

4. The appellant is 28 years old and living with his partner and four children at an address in Ballymun. He has 47 previous convictions,

including five for offences contrary to s. 3 of the Misuse of Drugs Act, as amended, two for offences contrary to s. 15 of the Misuse

of Drugs Act, three for obstruction under the Misuse of Drugs Act. He has two convictions for endangerment, one for dangerous

driving, one for drunken driving, two for unauthorised taking, two for driving without insurance and the rest of his convictions relate

to Road Traffic Act matters.

5. At the sentence hearing on the 18th May, 2015, the court was told that his last conviction had occurred on the 4th September,

2014, when he had received a community service order of 120 hours in respect of an offence contrary to s. 15 of the Misuse of Drugs

Act.

6. There was evidence before the sentencing court that the appellant had made huge efforts to overcome his serious drug addiction

problem. The appellant had written letters of apology about his behaviour on the night in question, had secured a work placement at

the Dogs Trust and had completed a drug detoxification programme. Oral evidence was given on his behalf by Anne O’Connell, Team

Leader with the Ballymun Youth Action Project. A number of other references were handed into court, including letters from the Peter

McVerry Trust, a letter from Jennifer Hughes of the Ballymun Job Centre and a letter of apology from the appellant himself.

7. Counsel for the appellant submits that the learned sentencing judge failed to have any adequate regard to the social, domestic and

other circumstances of the appellant by the date of sentence and in particular failed to have adequate regard to the mitigating

factors especially the huge progress which the appellant had made in dealing with his drug addiction. Counsel for the appellant

submitted that in all the circumstances of the case the sentence was excessive particularly in light of the exceptional mitigation.

8. The appellant relied on a number of judgments namely People (DPP) v. McCormack [2000] 4 I.R. 356, People (DPP) v. Jennings CCA,

143/98, (Unreported, 15th February, 1999), People (DPP ) v. Billy O’Driscoll and People (DPP) v. Nicholas O’Driscoll CCA, 4th July, 2008,

Appeal No. 51/07 and Appeal 57/07 [2008] IECCA 97, People (AG) v. Michael O’Driscoll CCA Nos. 45 and 46 1971 3rd March, 1971,

Frewan Vol. 1 351.

9. In the People (DPP) v. Jennings, the court stated the following:-

“This young man has had a troubled background and he has not taken his hope in the past. But there comes a time in

everyone’s life, and it is a principle of sentencing as well, where the court detects that it may be make or break time. If

he is given this, his last chance perhaps, he will hopefully take it and rehabilitate himself, get employment and become a

useful member of the community.”

10. In that case the court went on to reduce the sentence that was then being served.

11. Counsel for the Director of Public Prosecutions on the other hand while acknowledging the rehabilitative efforts of the appellant

nevertheless maintains that in this case, there is no error of principle in the judge’s approach to sentence. Counsel further concludes

that the rehabilitative efforts as evidenced by the appellant were adequately factored into the sentence that was imposed.

12. Counsel for the Director submits that the sentencing judge had due regard to all of the mitigating factors including the appellant’s

efforts to control his addiction, the remorse he had shown and his personal circumstances. Counsel went on to refer to the following

remarks of the sentencing judge:-

“The mitigating factors are his plea, the efforts he made to rehabilitate himself and the remorse he has shown. The court

is taking into account and well into account the testimony of Ms. Anne O’Connell and the probation and welfare service

reports and the letter from the Dogs Trust, as well as letters from the Fr. Peter McVerry Trust and the court in marking

the seriousness of the offences has also taken into account the personal circumstances of Glen Kiely and will impose a

prison sentence of three and a half years imprisonment with one year suspended.”

13. Counsel for the respondent relied on People (DPP) v. Loving [2006] 3 I.R. 355, People (Director of Public Prosecutions) v. Keane

[2008] 3 I.R. 177, DPP v P.H. [2007] IEHC 335, People (DPP) v. O’Halloran CCA ex tempore judgment of Denham J. delivered on the

21st October, 2002, People (AG) v. Earles [1969] I.R. 414.

14. The question that arises for our consideration in this case is whether we should now interfere with the sentence that was

imposed on the 19th October, 2015. A person in the appellant’s position is particularly vulnerable. At the time that the sentence was

imposed he appears to have made significant progress and it may well have been in the interests of society and in the interests of

crime reduction had he been given a further opportunity to prove that he was a person who could be trusted to continue with what

was for him significant rehabilitative effort.

15. On the other hand it was open to the sentencing judge to impose a sentence of imprisonment notwithstanding the efforts made

by the appellant and this she did. We accordingly do not find an error in the sentencing judge’s approach under this particular

heading.

16. The difficulty however that we have with this case is that we are unable to identify the trial judge’s starting point. The

sentencing judge did not identify a headline sentence and we find ourselves in the position of having to speculate as to what that

was and what allowance the judge made for mitigation.

17. This Court’s view on the preferred approach to sentencing has been set out in an ex tempore judgment of this Court in DPP v

Flynn delivered by Edwards J. [2015]. Accordingly we find an error in the trial judge’s approach and we also hold that insufficient

credit was allowed for what both parties agree is significant mitigation. In proceeding to resentence the appellant we have had the

benefit of documentary evidence that the appellant is engaging with the psychology service in Mountjoy Prison and we have also had

the benefit of seeing certificates confirming that he has completed courses in food safety and personal development. There is also a

letter confirming that he has employment available on release from prison and we have been told by Counsel that the appellant is now

in a position where he wants to assume a proper and responsible role as partner and father to his children.

18. The documentation that we have been presented with tends to confirm that the appellant continues to make progress. In view of

the seriousness of the offending behaviour we cannot accede to Mr. Rea’s request that the balance of the appellant’s sentence be

suspended. However in view of all the efforts that he has made, we will increase the suspended part of the sentence by one year.

This means and the appellant will know this, that he must be of good behaviour for a period of two years following his release from

prison. If he is not of such good behaviour he will return to prison for a further two years in respect of this offence for which he has

already served a period of time in prison. Accordingly the court will set aside the original sentence in this case and substitute it in its

place a sentence of three and a half years imprisonment with the final two years suspended. We will impose the same terms that the

Circuit Court judge imposed when suspending one year of the sentence, namely that for the period of two years following release the

appellant keep the peace and be of good behaviour and be subject to the supervision of the Probation Service for that period of time.