Court of Appeal dismisses appeal against five-year sentence for possession of a sawn-off shotgun. Appeal fails as weapon is high-risk and sentence within range.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

165/16

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Edward Conroy

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 3rd day of November 2017 by Mr. Justice Birmingham

1. This is an appeal against severity of sentence. The appeal comes before this Court in circumstances where on 26th July, 2015 in

Galway Circuit Court the appellant was sentenced in respect of four counts that were on the indictment. The substantial penalty

imposed was one of five years imprisonment in respect of the offence of possession of a firearm, a single-barrel sawn-off shotgun, in

suspicious circumstances. The other matters relate to no insurance, driving while disqualified and drunk driving. The sentence was

made consecutive to a sentence that the appellant was serving.

2. The background facts to the case were that on 1st September, 2015 the Gardaí received a report that the appellant was driving a

vehicle at a particular location in East Galway and that he was in possession of a slash hook. The Gardaí went to the scene, but upon

arrival there the vehicle had left. However, some two minutes later, or thereabouts, Gardaí at St. Enda’s Avenue, Tuam, saw a vehicle

with the appellant in the driver’s seat. The vehicle took off at speed, mounting a footpath in the process. It was pursued by Gardaí,

blue lights and sirens were activated. The pursued vehicle then crashed into a wall. At that stage Gardaí saw the appellant get out of

the driver’s seat with a firearm in his hand. He jumped over a wall and then ran off across a field. Gardaí followed him over the wall

and came across a sawn-off shot gun. The appellant was apprehended, arrested, detained and interviewed and in the course of his

detention he made admissions. It is to be noted that at that stage he denied any role in a feud that was ongoing in that area and this

was accepted at the sentence hearing by Gardaí as having been a correct statement.

3. In terms of his background and personal circumstances, the appellant was a twenty-five-year-old married man, the father of three

children. He came from a troubled background having been exposed to domestic violence while being brought up. He had become

addicted to alcohol and was also misusing drugs. He had 74 previous convictions recorded including burglary, assault, theft and

dangerous driving. However, he had no previous convictions for firearms. This was a matter on which his counsel placed particular

emphasis in the course of the sentence hearing and it is a matter that has been emphasised today very strongly in the course of this

appeal hearing.

4. He was in prison at the time he came on for sentence and there was evidence before the Court that he had engaged well with the

services available there. There was a positive Governor’s report. However a probation report indicated that Mr Conroy presented as

being in the very high risk category of further offending in the next 12 months. Counsel on his behalf in the Circuit Court submitted

that the factors present, in particular the fact that there were no previous convictions for firearms meant that there was a basis that

justified departure from the mandatory presumptive minimum. The judge however said that he was not persuaded that the factors

present justified departure from the statutory minimum. In doing that, the judge drew attention to the fact that different explanations

for the firearm had been given to him in a letter from the appellant than had been given to the Probation Service. The grounds of

appeal that have featured in the written submissions and in the hearing today are that not enough weight was given to the fact that

there were no previous relevant offences. Further, on one view of certain remarks made by the judge when passing sentence, he

appeared to suggest that the fact that the appellant had no diagnosed mental illness was an aggravating factor. In that regard the

Court does not accept that the sentencing remarks bear that interpretation. The judge is criticised for wrongly placing reliance on the

divergent accounts in relation to the firearm and then not allowing counsel to intervene in order to attempt to clear up the

discrepancy. The judge indicated that he was not overly impressed by the number of courses that the appellant was pursuing in

custody and said that he saw this as an exercise in sugaring a very bitter pill. His approach to this issue is criticised by the appellant

and it is categorised as the judge in effect giving up on rehabilitation. It is also said that the judge never enquired as to the duration

of the offence in respect of which the appellant was serving a sentence, which was relevant because the sentencing that he was

imposing was going to be consecutive to it. This meant that the question of the totality principle could not be addressed.

5. The Court does see some substance in this point but it is a point that has to some extent fallen by the wayside. The Court at the

time was told that this offence was committed when the appellant was on bail in respect of a burglary. After some debate on the

issue in this Court that is confirmed as being a correct statement. However the sentences the appellant was serving were sentences

in respect of assaults, section 2 assaults, and sentences of nine months that had been imposed in a situation where the statutory

maximum was six months. Those sentences were quashed and the Court has been told that the prison authorities have been

operating on the basis that the sentence that Mr Conroy is serving is to be dated from 12th December, 2015 being the date on which

he went into custody in respect of the matters that were dealt with in Galway Circuit Court, his bail being withdrawn on that day.

6. When passing sentence the Judge saw the offence as being on the high side of the middle of the applicable sentencing range. The

appellant disagrees with this and says there were no factors present to put it into that range. In the case of DPP v. Martin Walsh

[2009] IECCA 150, Finnegan J. had some very pertinent remarks to make about the nature of a sawn-off shotgun. He said, in relation

to the particular offence, a firearm covers a very wide range of items, many of which would not in ordinary parlance be considered

firearms so there is within the offence a hierarchy of weapons. The weapon in this case is one that must come towards the top end

of that hierarchy. It was a sawn-off shotgun, with the barrel shortened and the stock shortened. It is a weapon that has no

conceivable lawful use. It is a weapon the sole function of which is use in criminal activity.

7. In DPP v. Ryan [2014] IECCA 11, the Court of Criminal Appeal offered guidance for sentence in courts in case such as this. The

judgment referred to sentences of five to seven years for low-range offences, seven to ten years for mid-range, and 10 to 14 or

high-range. All of these reflect the sentencing range before appropriate adjustments are made for mitigation. The judge, as we saw,

put this case at the high side of the middle range. This Court does not believe that the judge was in error when he concluded that

this was not a case for departing from the presumptive statutory minimum. The Court does not believe that the sentence imposed

was excessive or that any error in principle has been identified. The Court therefore will dismiss the appeal and the sentence will be,

as it was in the Circuit Court, one of five years imprisonment, that sentence to date from 11th December, 2015.