Court of Criminal Appeal allows appeal on sentencing error, reducing 9-10 year term to 8 years for serious offence.

THE COURT OF CRIMINAL APPEAL

[Record No: CCA 144/2011]

Clarke J.

McCarthy J.

Sheehan J.

Between/

The People at the Suit of the Director of Public Prosecutions

Prosecutor/Respondent

and

Kieran Ryan

Accused/Appellant

Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.

1. Introduction

1.1 There are many factors which are properly taken into account in coming to a view as to the appropriate sentence to be imposed

on a person pleading guilty to or convicted of criminal charges. The process is, as was pointed out in The People (Director of Public

Prosecutions) v. M [1994] 3 I.R. 306, “a complex matter in which principles, sometimes being in conflict, must be considered as part

of the total situation.” It has been said many times that the proper approach to sentencing requires both a consideration of the

gravity of the offence (including the level of culpability of the accused) and the circumstances of the offender. However, in addition,

it is important that the courts strive to maintain, notwithstanding that complexity, a level of consistency so that, in at least a general

way, like cases are treated in a similar fashion.

1.2 Because of the broad range of factors which can properly be taken into account in assessing the gravity of the offence, the

culpability of the offender and the individual circumstances of the accused, it will rarely be possible to engage in a direct comparison

between one case and the next. However, that does not mean that the courts could not, and in the view of this Court should not,

attempt to maintain a broad level of consistency. Furthermore, it might be said that it is part of the function of this Court, as a Court

of Appeal, to attempt to establish not only the broad legal principles by reference to which any sentencing exercise should be

conducted but also to give, where possible, some guidance as to the broad range of sentences which should be imposed, all else

being equal, across the spectrum of severity applicable to an offence under consideration.

1.3 That question comes into particular focus on this appeal as a result of the detailed and careful analysis presented to the Court by

counsel for the accused/appellant (“Mr. Ryan”) which addressed many recent decisions of this Court dealing with sentences for like

offences to the one under consideration. It will be necessary to return to the detail of that analysis in due course. That submission

does, however, raise the question of the extent to which there is a jurisdiction for this Court to give general guidance.

2. Giving of Guidance

2.1. The starting point has to be a consideration of the judgment of the Supreme Court in People (DPP) v. Tiernan [1988] I.R. 250.

This Court is, of course, bound by that decision. As noted in the judgment of Finlay C.J. (speaking for the Court), the case in question

came before the Supreme Court on a certificate issued by the Attorney General under s. 29 of the Courts of Justice Act 1924, in

which it was stated “that it was desirable in the public interest that an appeal should be taken to the Supreme Court” because the

case “involved the guidelines which the courts should apply in relation to sentences for the crime of rape.” In that context Finlay

C.J. said, at p. 254, the following:

“Having regard to the absence of any statistics or information before this Court in this appeal concerning any general

pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would

not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of

criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the

case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would

doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for

cases”.

2.2 For reasons which the Court will address in due course, the first of the concerns expressed by Finlay C.J. is, at least to a material

extent in respect of certain types of offences, significantly reduced today. The very detailed analysis conducted on this appeal by

counsel of the various sentencing cases in respect of a like offence allows, as a matter of practice, at least general observations to

be made on the view which this Court has taken of sentence for such offences. In addition, there are, increasingly, sentencing

surveys and statistics available which can provide the kind of assistance which the Supreme Court did not have available to it at the

time of Tiernan. For example, the ISIS (Irish Sentencing Information System) project provides details as to the range of sentences

which are typically imposed by sentencing judges for many types of offences.

2.3 Finlay C.J. did, in the passage just cited, make clear that he doubted the appropriateness of an appellate court, such as this

Court, appearing “to be laying down any standardisation or tariff of penalty”. That was, of course, because all relevant facts as to

the severity of the offence, the culpability of the accused and the circumstances of the accused need to be taken into account. In

those circumstances, to attempt any standardisation of penalty would clearly be inappropriate. However, this Court does not read the

judgment of the Supreme Court as precluding some broad level of guidance being given by this Court as to the range of sentences

which may be appropriate for an offence under consideration on an appeal, having regard to the severity of the offence and the

culpability of the accused. It clearly remains a matter for the sentencing judge to form a judgment, on all of the relevant facts, as to

where on that range the offence for which the accused is to be sentenced lies. It is also clearly a matter for the sentencing judge to

decide on the extent to which any aggravating or mitigating factors identified ought increase or decrease the sentence to be

imposed. Thus, any such range provides broad guidance but does not seek to impose any form of standardisation of penalty. In

addition, it needs to be emphasised, even at this early stage, that there will always be cases which disclose highly unusual features

and which will not readily fit into any particular pattern.

2.4 Finally, it is important to emphasise that such an exercise can only legitimately be carried out if the court has, as it had in this

case, the opportunity, through the industry of counsel, to conduct a comprehensive review of the views on sentences which this

Court has expressed and/or has available to it detailed information of sufficient quality on the type of sentences typically imposed by

sentencing judges. To attempt to give guidance without such assistance would, in this Court’s view, be inappropriate. Against that

background, it is next necessary to turn to the approach to sentencing which any such guidance might permit.

3. The Approach to Sentencing

3.1 There are, in general terms, two ways in which a determination of the appropriate sentence can be arrived at. First, a sentencing

judge, having assessed the gravity of the offence and the culpability of the accused, may seek to place the offence itself at an

appropriate point on the spectrum of offences of that type. Offences can typically be divided into lower, middle and upper parts of

the range with, perhaps, further refinements such as, for example, “the upper part of the middle range” or the like. There is, of

course, no necessary formula of words which must be used. It should also be emphasised, as has already been pointed out, that

there may always be exceptional or unusual cases which do not readily fit into any such range or ranges and where the sentencing

judge will have to engage in a somewhat novel analysis to come to an appropriate determination as to sentence. However, in most

cases, an offence can, by reason of its gravity and the culpability of the accused, be placed somewhere along the appropriate range

in the manner just identified.

3.2 One possible means of converting such an analysis into an actual sentence involves, as a first step, the sentencing judge

determining the appropriate sentence for the offence itself having regard to where the offence lies along that range. The sentencing

judge is then required, in accordance with the established jurisprudence, to take into account the circumstances of the individual

accused and make such adjustment (if any) as may be appropriate to reflect the individual circumstances of that accused. Where, for

example, there are significant mitigating and other personal factors, then a specified reduction in sentence and/or a suspension of

sentence in whole or in part may be appropriate to meet those factors. In adopting this methodology, the sentencing judge indicates

what the appropriate sentence might be, were it not for the individual circumstances of the accused concerned, and then adjusts the

sentence, as appropriate, to reflect those individual circumstances.

3.3 However, a sentencing judge does not necessarily have to indicate what sentence would be appropriate for the offence itself.

Rather the sentencing judge may determine where it is appropriate to place the offence in the spectrum and then adjust that place to

reflect any individual circumstances of the accused so as to determine where the sentence itself should lie along the range of

appropriate sentences having regard both to the offence and the circumstances of the accused. It seems to this Court that either of

such methodologies is an entirely appropriate way for a sentencing judge to approach the question.

3.4 As also noted earlier, where, as here, on appeal, there has been a detailed analysis of many recent decisions of this Court

concerning the sentence deemed appropriate for offences which might be described as at least broadly similar to the one under

consideration, it may be appropriate for this Court to attempt to set out broad guidance as to the range of sentences that would

ordinarily be appropriate for the offence in question across the spectrum. Against the background of those general observations, it is

appropriate to turn to the case made by Mr. Ryan.

4. The Defence Case - The Offences

4.1 In substance, the central argument made on behalf of Mr. Ryan is that the sentence imposed on him is out of line with the broad

range of sentences imposed in like cases, particularly when all relevant aspects of his case are taken into account. It should also be

recorded that the hearing of this appeal required to be re-listed before a slightly differently constituted panel of this Court by virtue

of the illness of one of the judges who originally sat. The issues and argument remained the same at the re-listed hearing save for

one additional authority which was referred to on behalf of the DPP and which is referenced later in this judgment. In any event, the

starting point has to be an analysis of the offences to which Mr. Ryan pleaded guilty.

4.2 Mr. Ryan pleaded guilty to two firearms offences arising from events which occurred on the 26th May, 2010, at Carrickmartin in

Co. Limerick. The first offence concerned possession of a Browning semi-automatic pistol in such circumstances as to give rise to a

reasonable inference that he did not have same in his possession for a lawful purpose. As noted by counsel, this offence is frequently

referred to colloquially as “suspicious possession” of a firearm. The second offence concerned the possession of ammunition suitable

for use in the Browning semi-automatic pistol in like suspicious circumstances.

4.3 The evidence was that Mr. Ryan was one of four occupants in a car which left the suburbs of Limerick heading in the direction of

Ballyneety, a rural area, on the occasion in question. The car turned onto a side road and stopped at the entrance to a field.

Members of An Garda Síochána were carrying out surveillance in the area. At various stages, two of the occupants of the car

(including an Edward Ryan, a brother to Mr. Ryan) got out of the car and searched undergrowth in a field. Eventually, Mr. Ryan got

out of the vehicle and pointed to a spot inside the fence into the field. As a result, a package was picked up and wrapped in a cloth

bag which was returned to the car. The car, which was owned by Mr. Ryan, then began to drive back towards Limerick City at which

point it was stopped by Gardaí attached to the Special Detective Unit and the Regional Support Unit. The firearm and ammunition

which were the subject of the charges were found in the cloth bag.

4.4 Under questioning Mr. Ryan admitted his involvement. When first interviewed, he made a number of admissions: see transcript at

page 9, lines 4-11. He admitted that he believed there was a gun in the package which he went to collect. When asked what brought

him to Ballyneety, he stated as follows:

"I got a phone call to collect a package." And he was asked, "What else were you told about it?" and he answered,

"That's all." And he accepted having a limited knowledge of what was in the package?

A. That's correct, yes.

Q. But he attempted to take sole responsibility for it?

A. That's correct, yes."

Mr. Ryan stated that he did not intend to use the firearm in question. He stated that he was simply asked to collect a weapon and

pass it on to a third party, whom he declined to name as he was in fear:

"Q. And I think he was asked, "Were the four of ye given the job to collect this firearm?" and he answered, "No."

And it was said, "Who was given the job?" Answer: "Me. I take full responsibility." He was then asked, "Was the

firearm hidden in a ditch or where?" Answer: "Behind the ditch, next to the gate"?

A. That's correct, yes.

Q. He said, "I'm holding my hands up 100%. It's all down to me." And he went on to state that he was collecting

the package as a favour for someone and that he was to receive €500 for collecting this package?

A. That's correct, yes.

Q. And he ultimately admitted that he was aware that he was to collect a firearm?

A. That's correct, your honour.

Q. And when the notes were read over to him at the first interview, he said -- he answered, he said, "That's my

confession, lads?

…

Q. Can you say who you were collecting the gun for?" Answer: "No, I'm in fear".

For this last question see transcript at page 10, lines 23-24.

4.5 Thus, Mr. Ryan’s admitted involvement was in collecting a gun at the request of a third party whom he was not prepared to name

due to fear. Before turning to Mr. Ryan’s personal circumstances, it is also necessary to refer to one aspect of the evidence heard at

the sentencing hearing which featured as an issue at the hearing of this appeal.

4.6 The background to that issue is a feud amongst criminal gangs which has notoriously been conducted in Limerick for a significant

number of years, giving rise to wholesale death, serious injury, destruction to property and misery inflicted on many inhabitants of the

areas of Limerick in which the feud was primarily focused. Many cases connected with that feud have come before the courts. The

existence of such a feud was not, nor could it have been, in dispute.

4.7 At the sentencing hearing, the prosecution sought to link the firearms offences in this case with the feud. No direct evidence of

any such link was given other than a statement that the gun and ammunition were in Mr. Ryan’s possession as part of the feud.

Evidence was given of a previous conviction for violent disorder in 2004 which was said to have arisen from Mr. Ryan’s involvement in

the same feud.

4.8 The sentencing judge was, however, careful in the way he approached this issue. He stated the following:-

“Now, the two accused were caught red-handed, so to speak. That's the case for the prosecution, and there seems to

be a basis to make that argument. Now, there is a challenge to the admissibility of the evidence as to why they had the

gun and the ammunition and maybe that objection is well based. But what can be -- and that the evidence maybe

should be given, evidence other than hearsay, but what can be asserted was that they were in possession of a gun, that

they -- that Kieran Ryan has a previous conviction for an offence of violent disorder which was connected with the --

what's called, if I may call it, the main feud in the city. It cannot be said that this possession of this gun was connected

with that feud but it can be said that he has a previous conviction for an offence related to the same feud. I think that's

the safest way of approaching this. And the other matters, which are hearsay and which have been challenged by the

defence, I won't take into -- I'll disregard, forget and will not take into account.”

4.9 Therefore, the sentencing judge concluded that it could not be said that the gun and ammunition in this case were connected

with the feud but was satisfied that Mr. Ryan was a person convicted of a serious disorder offence in the past warranting a sentence

of 4½ years which was connected with the feud.

4.10 Counsel for the prosecutor/respondent ("the DPP") also drew attention to the circumstances which had given rise to that

sentence. What counsel accurately described as a pitched battle between two factions occurred in a car park in Limerick. The

sentence of 4½ years ultimately imposed clearly reflects the seriousness of the offence of which Mr. Ryan was convicted on that

occasion. The trial judge was, therefore, clearly entitled to take those circumstances into general account. The trial judge was not,

of course, entitled to re-punish, in any way, Mr. Ryan for that earlier offence. However, the fact that it had been established that Mr.

Ryan was involved in serious criminality is a factor against which his possession of firearms in this case can, at least in part, be

judged.

4.11 This Court does not feel that there can be any criticism of the way in which the trial judge dealt with this question. He did not

approach the possession of weapons as having been established to be in connection with the feud. He did regard Mr. Ryan as having

been established to have been previously involved in serious criminality.

4.12 Against that background, it is next necessary to turn to the circumstances of Mr. Ryan on which reliance was placed on his

behalf at the sentencing hearing.

5. The Accused’s Circumstances and the Sentence

5.1 It is clear that a number of factors were taken into account by the sentencing judge under this heading. First, the sentencing

judge noted that Mr. Ryan had pleaded guilty at a very early point. However, the sentencing judge did also note that Mr. Ryan was

“caught red-handed, so to speak”. On the other hand, attention was drawn on behalf of Mr. Ryan at this appeal to the fact that he

made a number of important admissions at an early stage while being questioned in the Garda Station which would have facilitated his

conviction. The extent to which it might have been possible, in the absence of such admissions, for Mr. Ryan to have contested the

charges in the light of the evidence surrounding the circumstances in which the offence took place, might be open to some significant

doubt. However, it does need to be taken into account that Mr. Ryan’s admissions certainly put the matter beyond doubt and were

made at a very early stage.

5.2 In the course of his plea in mitigation, counsel who then appeared on behalf of Mr. Ryan had also referred to the tragic

circumstances in which the father of Mr. Ryan came to lose his life as part of the feud to which reference has already been made. A

reference was also made to his family circumstances where, having, it was said, “gone off the rails” after the death of his father, he

had re-established himself, in family terms, with a child and partner.

5.3 The sentencing judge indicated that, were it not for any relevant mitigating factors, most particularly the early plea of guilty, he

would have considered a sentence “very near the maximum. I would have been thinking of a sentence of 12 years”. However, in the

light of the early plea of guilty, a sentence of 8 years on both counts was imposed. In the course of argument before this Court,

counsel for Mr. Ryan accepted that it would not be possible to argue that a reduction of one third in the appropriate sentence was

insufficient to meet the early plea of guilty (taken in its context) and any other mitigating factors which might have been available.

Indeed, and this is a point to which it will be necessary to return, it might be possible to characterise such a reduction as being quite

or even over generous.

6. The Appeal

6.1 Counsel for Mr. Ryan suggested that, in the light of various decisions of this Court, a starting point of 12 years, before applying

an appropriate deduction for such mitigating factors as may have been present, was sufficiently out of line with what might be

described as the going rate as to render it an error in principle.

6.2 Against that background, it is necessary to turn to a series of decisions of this Court over the last 6 years. Counsel referred, in

total, to ten cases being Director of Public Prosecutions v. Eoin Barry [2008] IECCA 93, Director of Public Prosecutions v. James Melia

[2008] IECCA 106, Director of Public Prosecutions v. Darren Larkin [2008] IECCA 138, Director of Public Prosecutions v. Denis Dwyer

[2009] IECCA 12, Director of Public Prosecutions v. Owen Clail [2009] IECCA 13, Director of Public Prosecutions v. Martin Walsh

[2009] IECCA 150, Director of Public Prosecutions v. Dermot O’Callaghan [2010] IECCA 52, Director of Public Prosecutions v. Garrett

Fitzgerald [2010] IECCA 53, Director of Public Prosecutions v. Christopher Curtin [2010] IECCA 54 and Director of Public Prosecutions

v. Frank Ward [2012] IECCA 15.

7. Discussion

7.1 It is appropriate to start with the first such case, being Barry, for Finnegan J., at p. 2 of the judgment of this Court in that case,

noted what are undoubtedly relevant legislative developments. In that context, Finnegan J. said the following:-

“Section 59 of the Criminal Justice Act 2006 increases the maximum penalty for firearms offences to fourteen years.

The section also imposes a provision in the substituted section 27A subsection 4 requiring the court and (sic) imposing

sentence to specify a term of imprisonment to be served by the person.

The 2007 Act introduced subsection 4A into the substituted provision section 27A. Subsection 4A is unusual in that it sets

out the legislative policy to underline that provision in terms that it provides that the purposes of subsections 5 and 6 of

section 27A is to provide that in view of the harm caused to society by the unlawful use of possession of firearms the

court in imposing sentence on a person for an offence under that provision shall specify the minimum term of

imprisonment to be served by the person for a term of not less than five years.

The statutory scheme however where these provisions apply is such that under subsection 5 the court shall take into

account a plea of guilty. It will also take into account where there has been a plea of guilty the stage at which the

intention to plead guilty was indicated and the circumstances in which the indication was given. Again under section 5

the court will take into account whether the person materially assisted in the investigation of the offence. So these are

matters that have to be looked at. Under subsection 4A further matters are required to be taken into account by the

court. The court may determine or shall impose a five year term unless the court determines that by reason of

exceptional and specific circumstances relating to the offence or to the person convicted of the offence it would be

unjust in all the circumstances to impose the term of five years imprisonment”.

7.2 It is clear, therefore, that the statutory regime with which this Court is concerned is one where there has been a recent decision

of the Oireachtas to increase the maximum penalty to one of 14 years and where there has also been introduced what might be called

a presumptive, although non-mandatory, minimum sentence of 5 years which is to be applied in the absence of exceptional and

specific circumstances. As also noted by Finnegan J., a plea of guilty and the time it was made is expressly recognised as a factor to

be taken into account in the legislation itself.

7.3 It is also of some relevance to have regard, as counsel for the DPP suggested, to the range of different types of firearm offences

created by statute. Under s. 2(2) of the Firearms Act 1925, as substituted by s. 3(a) of Firearms Act 1971, it is an offence to

possess, use or carry a firearm or ammunition either without a firearm certificate or not in accordance with the certificate. Maximum

penalties on summary conviction are a fine not exceeding €2,500, 12 months imprisonment or both. On conviction on indictment, a

person can be fined €10,000, imprisoned for up to 5 years or both. Increased penalties apply when the unlawful possession relates to

a restricted firearm or ammunition, as defined in s. 2B of the Act. It is a specific offence to be in possession of a firearm whilst taking

a vehicle without authority pursuant to s. 26(1) of the Firearms Act 1964, as amended. A person is liable on conviction on indictment

to a maximum penalty of 14 years imprisonment and a fine. Section 27A(1) of the Firearms Act 1964, as amended, the offence in

question here, prohibits the possession or control of a firearm or ammunition in suspicious circumstances. Again, the maximum

sentence under this section is imprisonment for 14 years and a fine. The same maximum penalty applies to a person convicted of

carrying a firearm or an imitation firearm with intent to commit an indictable offence or resist arrest under s. 27B of the 1964 Act as

amended. The use of a firearm or an imitation firearm to resist arrest or to escape from lawful custody is an offence under s. 27 of

the 1964 Act, as amended. This offence carries a maximum sentence of life imprisonment and a fine. The presumptive minimum

sentence of 5 years imprisonment mentioned above also applies to convictions under ss. 26, 27, 27A and 27B. At the upper end of the

scale is the offence of possession or control of a firearm or ammunition with an intent to endanger life or cause serious injury to

property, pursuant to s. 15(1)(a) of the 1925 Act. It again carries a maximum penalty of life imprisonment and an unlimited fine.

However, the presumptive minimum sentence of imprisonment under s. 15 is 10 years imprisonment. It is next necessary to consider

the other sentencing cases for suspicious possession to which the Court’s attention was drawn.

7.4 Barry was a case where the accused had been sentenced to 4 years for the suspicious possession of firearms and ammunition but

also in circumstances where there was, as here, an early plea coupled with a very early admission of responsibility when being

questioned by An Garda Síochána. It should, however, also be noted that in that case garda witnesses accepted, as did the

sentencing judge, that the accused and members of his family were subjected to significant threats. The appeal in Barry, which was

rejected, was one taken by the D.P.P. under s. 2 of the Criminal Justice Act 1993.

7.5 The appeal in the next case, Melia, was likewise a section 2 appeal. That case had a complicating factor by virtue of certain

offences being committed while on bail. There were also a number of separate offences. Ultimately, this Court concluded that the

sentences imposed by the trial court were unduly lenient and imposed a series of sentences which had the effect of cumulatively

requiring the accused to serve a sentence of 6 years although to some extent it must be said that that overall period reflected, at

least in part, the fact that some offences were committed on bail. It should also be noted that some of the offences involved firearms

and some did not.

7.6 In Larkin, this Court varied sentences imposed by the sentencing judge to provide for a sentence of 15 years for attempted

murder and 10 years for each of the relevant firearms offences. The accused had pleaded not guilty and had, indeed, appealed his

conviction to this Court. As the conviction for attempted murder, however, demonstrates, this was a case where the firearms were

actually used rather than one where they were simply being transported.

7.7 In Dwyer, this Court, on appeal by the DPP, increased a sentence of 4 years to the presumptive minimum of 5 years where the

accused had pleaded guilty to a count of possession of a Kalashnikov rifle together with relevant ammunition. This was also a case

where the accused had, in the view of this Court, been caught red-handed.

7.8 In Clail, the accused had again pleaded guilty to offences relating to the possession of firearms and ammunition. One of the

relevant weapons was a non-functioning Glock semi-automatic pistol. This Court was, however, satisfied that, although non-

functioning, the firearm was intended for criminal purposes. The second firearm was a revolver which was effective. It is also the case

that the circumstances surrounding the finding of the weapons in question involved not just the weapons but also paramilitary

paraphernalia. This Court, before going on to consider any relevant mitigating factors, considered the appropriate range to be “7 to 8

years”. In the light of certain mitigating factors, the last 18 months of a sentence of 7½ years was suspended.

7.9 In Walsh, the accused was found, as a result of surveillance, in a car with a sawn-off shotgun. In delivering the judgment of this

Court, Finnegan J. noted that the nature of the weapon was a significant factor in determining the seriousness of the offence and

considered the sawn-off shotgun in that case should come to the top end of such a hierarchy. The sentencing judge had imposed a

term of 5 years which Finnegan J. described as “certainly at the very lowest end of what is appropriate in all the circumstances of the

case”.

7.10 In O’Callaghan, the Director of Public Prosecutions appealed on the basis of undue leniency. The sentences were imposed in

respect of a series of offences including firearms offences. However, that was a case where the trial judge accepted, and this Court

agreed, that there were exceptional circumstances. It is, perhaps, therefore, not particularly relevant to this case.

7.11 In Fitzgerald, the accused was sentenced for possession of a firearm and ammunition, the firearm in question being an automatic

shotgun. There was again a very early indication of a plea of guilty. In delivering the judgment of this Court, Denham J. indicated that

“8 years would be the appropriate starting point”. This was said to be the case by virtue of the nature of the gun and the fact that it

was brandished in a crowded bar. In the light of a plea of guilty, the sentence was reduced to 6 years.

7.12 In Curtin, the accused was sentenced to 7 years imprisonment for possession of a firearm and ammunition. This Court dismissed

an appeal brought by the Director of Public Prosecutions on the basis of undue leniency. It should be noted that the relevant accused

had a previous conviction for possession of a firearm with intent to endanger life. This Court concluded that the sentence might be

considered to be lenient but nonetheless was satisfied that the Director of Public Prosecutions had failed to establish a sufficient error

to warrant allowing the appeal.

7.13 Then, in Ward, the accused was sentenced in respect of offences which involved the shooting of the well known publican, Mr.

Charlie Chawke. While a number of the offences with which the sentencing judge was concerned, relating to possession of a firearm,

had attracted a sentence of 12 years, some of the more serious offences had attracted life imprisonment. The judgment of this Court

was principally concerned with whether a lengthy, although determinate, sentence was more appropriate than the life sentence.

7.14 When the case was re-listed for hearing, counsel for the DPP also brought the Court’s attention to Director of Public Prosecution

v. Geasley (Unreported, Court of Criminal Appeal, 10th June 2013). In that case this Court heard an appeal brought by the accused

against sentence. The sentencing judge had imposed a sentence of 7 years. The offence related to the possession of glock pistols.

This Court increased the sentence (notwithstanding the fact that it was the accused’s appeal) to one of 10 years with 1 year

suspended. The court described the possession of the glock pistol as being “the enormous crime of possessing a lethal weapon” and

stated that its judgment was necessary for the protection of the community and the deterrence of the prisoner. It should be said

that there was some ambivalence about the accused’s acceptance of guilt in that case which, doubtless, was a factor taken into

account.

7.15 From that exhaustive review, it seems clear that the principal factors which will normally require to be taken into account in

assessing the seriousness of an offence of possession of a firearm in suspicious circumstances are the nature and quantity of the

firearm or firearms concerned, the extent to which any firearm was either actually used or brandished in a way which would have

caused people to be concerned that it might be used, the extent that the offence arose or might be inferred to have arisen out of

criminality generally (and if so the seriousness of same) or out of specific and personal circumstances, and any circumstances

concerning the culpability of the accused, such as the extent of the involvement of the accused or the extent to which it might be

said that the accused was operating under a threat. Doubtless other factors could loom large on the facts of any individual case.

7.16 In the absence of exceptional and specific circumstances, there is, of course, a minimum presumptive, although non-mandatory,

sentence of 5 years. Before considering any appropriate adjustment to reflect mitigating factors, it seems to this Court that, in

general terms, an offence at the lower end of the range ought attract a sentence of 5 to 7 years, an offence in the middle of the

range ought attract a sentence of 7 to 10 years and an offence at the top of the range a sentence of 10 to 14 years. Against that

background, it is argued on behalf of Mr. Ryan that an indicative sentence of 12 years, before any mitigating factors were taken into

account, wrongly places this offence in the middle of the most serious end of the range. It is said that, in the light of the sort of

facts analysed in some of the cases to which reference has been made, a case of possession of an admittedly significant firearm (at

the upper end of the hierarchy to use the term adopted by Finnegan J. in Walsh) and one which, as counsel for the DPP pointed out,

cannot be lawfully held, but in circumstances where it was not used and where there was no evidence other than that the purpose of

the possession by Mr. Ryan was to deliver the firearm to a third, although unnamed, party, could not warrant such a finding.

7.17 It is also appropriate to note that the court raised, at the re-listed hearing, the different and lesser sentence imposed on Mr.

Ryan’s brother who was a co-accused. It was said on behalf of the DPP that the co-accused in question had a materially better

criminal record and was considered to be less culpable in the offence, thus justifying a lower sentence. On the other hand, it is

necessary to draw attention to the fact that the co-accused, unlike Mr. Ryan, did not make an early admission of guilt.

7.18 However, as a ground of appeal based on any possible disparity of sentencing between Mr. Ryan and his co-accused was not

pursued, this Court does not feel that it is either possible or appropriate to take those factors into account. If such a ground had

been pursued, then detailed materials concerning all relevant aspects of the case against the co-accused would need to have been

considered in order to assess whether there was any impermissible disparity.

7.19 It should also be noted that counsel who made the plea in mitigation before the trial judge on behalf of Mr. Ryan had raised the

question of the possibility of Mr. Ryan engaging in educational facilities while in prison. It may have been implicitly suggested that

such engagement by Mr. Ryan, if it were to occur, could properly lead the Court to conclude that he was truly engaged in

rehabilitation and, thus, that a reduced sentence might be justified. Ultimately this point did not find favour with the sentencing judge

and was not significantly pursued on this appeal. On that basis, this Court does not propose to deal with the point. However, in

passing, it is worth noting that there may be cases where there is a realistic prospect of rehabilitation connected with an accused

engaging in educational or training facilities while in prison. In an appropriate case, it may well be open to a sentencing judge to take

such factors into account by fashioning a sentence which provides the prospect of a partial suspension of sentence which is

conditional on the relevant accused engaging in a satisfactory way with such facilities. However, how such a sentence is to be

fashioned in an appropriate case is a matter to be addressed in detail when such a case comes for consideration.

7.20 Against that background, it is necessary to turn to a discussion of the issues which were actually before this Court on this

appeal.

8. Discussion

8.1 It seems to this Court that counsel was basically correct in his submission about where this case lies on the spectrum of

seriousness. There are undoubtedly serious features to this case. The nature of the weapon is one. The fact that it was found in

circumstances which, although unexplained, can only give rise to an inference of some significant degree of criminality is a second.

That is so notwithstanding the appropriate disregard by the sentencing judge of any connection with the so-called feud. However,

there was no evidence from which it could properly be inferred that the accused himself intended to use the weapon, and it most

certainly was not actually used in any way connected with the accused. In those circumstances, and in the light of how this Court

has placed the other offences which have been analysed in the relevant spectrum, it would be difficult to justify placing this offence

any higher than the bottom of the most serious range or towards the top of the middle end of that range. Thus, the maximum

sentence which, in the view of this Court, could have represented the starting point for the sentencing judge was one of 9 to 10

years.

8.2 In order for this Court to interfere with a sentence, it must, of course, be the case that this Court finds that there was an error in

principle. Where the contention made on behalf of an appellant is, as here, that the sentencing judge's view of where the offence

lies, in all the circumstances of the case, on the spectrum of seriousness, and the sentencing judge's decision as to how that

assessment converts into an actual sentence, is incorrect, then, in order to regard the case as involving one in which an error of

principle is established, it must necessarily be that this Court views the divergence from what would have been an appropriate

assessment of the seriousness of the offence and the culpability of the accused and the appropriate sentence to be imposed in that

context to be sufficiently significant to warrant a finding of error of principle. The fact that this Court might, had it been the

sentencing court, have imposed a slightly lower or slightly higher sentence or assessed the case at a slightly lower or higher point on

the spectrum of seriousness, would not, of itself, be sufficient to justify such a finding. However, in this Court's view the disparity

just identified in this case is sufficiently significant to justify finding that the initial assessment of the trial judge, as to the

seriousness of this offence and the sentence which it ought carry in the absence of mitigating factors, amounts to an error in

principle.

8.3 Finally, before leaving this aspect of the case, it should, of course, be particularly noted that the judgments of this Court which

have been analysed need to be seen in the light of the nature of the appeal under consideration in each case. As has just been

noted, a sentence imposed should only be varied where this Court is satisfied that there was an error in principle. Where the alleged

error concerns the length of the sentence and it being suggested that same is out of line with the norm, then this Court will only

intervene where the disparity is sufficiently significant to amount to such an error in principle.

8.4 The application of that rule in practice can be seen from a number of the comments made by this Court in the course of the

judgments which have been analysed. Certain sentences were, for example, described as lenient although not sufficiently so to

warrant allowing an appeal under section 2 by the Director of Public Prosecutions. In reaching its overall assessment as to the

appropriate range of sentences for firearms offences of this type, the Court has had regard to the fact that, in many of the previous

cases analysed, this Court was not being asked to specify what sentence it thought was exactly appropriate but rather was being

asked to decide whether the sentence actually imposed was sufficiently far away from what might be considered the norm, to amount

to an error in principle. Furthermore, the final sentence imposed in each case did, of course, also reflect any appropriate adjustment

to take proper regard of the individual circumstances of the relevant accused. In that context, it is necessary to turn to the

reduction of four years applied, to reflect mitigating factors, by the sentencing judge in this case.

9. Mitigation and the ultimate sentence

9.1 It does seem to this Court that the deduction made by the sentencing judge for the early plea of guilty (in the light of the fact

that Mr. Ryan was caught red-handed and notwithstanding whatever value his admissions to An Garda Síochána may have had in

making his prosecution more straightforward) was excessive. This is particularly so in the light of the fact that Mr. Ryan had a very

serious previous conviction for violent crime which would, in substance, have deprived him of any material entitlement to a reduction

in sentence by reason of previous good character or relatively good character punctuated only by much less serious wrongdoing. In

those circumstances, a reduction of 4 years (or one-third) in the overall sentence to reflect the mitigating factors present was, in the

view of this Court, excessive.

9.2 In a number of the cases already analysed, a reduction of the order of 2 years or, perhaps, of one-quarter, seems to have been

considered appropriate to reflect early admissions and an early plea of guilty. Given that there were no other significant mitigating

factors identified by the trial judge in this case, it is difficult to see how a reduction of 4 years or one-third was appropriate.

9.3 In the light of those two competing findings (that is, that the sentencing judge placed the offence at a point in the spectrum

which was excessive having regard to the overall seriousness of the offence, but that the trial judge was, perhaps, excessively

generous in determining the extent of reduction which would be appropriate in the light of the limited mitigating factors present), it

remains to be considered as to what the appropriate approach of this Court should be.

9.4 It seems to this Court that it is appropriate, in those circumstances, to look again at the reduction made by the sentencing judge.

Where, as here, the Court is satisfied that the starting point identified by the sentencing judge, before having regard to any individual

circumstances of the accused, was unduly harsh and so to a sufficient extent as to give rise to an error of principle, it seems that

the Court should also consider, as part of the overall process of determining whether the ultimate sentence determined on by the

sentencing judge should be sustained, whether the overall approach of the sentencing judge to any mitigating factors was likewise in

error.

9.5 Clearly the sentencing judge, who was, of course, in a good position to assess matters generally having heard the evidence, took

the view that a significant reduction was warranted to reflect such mitigating factors as were present. However, in the view of this

Court, for the reasons already analysed, the reduction allowed was excessive in the light of the case law. While this Court might have

considered an even smaller reduction as being appropriate, the Court is nonetheless satisfied that the largest reduction which could

be justified in the circumstances of this case would be 2 to 2½ years. Given a starting point of 9 to 10 years, a range of sentence

from 7 (or a little less) to 8 years would thus be indicated.

9.6 As this Court has established an error of principle, albeit one which is partly compensated for by an opposing error in the extent of

the reduction allowed for mitigating circumstances, the Court feels that it should allow the appeal and interfere with the sentence.

9.7 While a relatively small reduction from a sentence of 8 years would not, ordinarily, be justified in the light of the fact that this

Court would not normally regard such a disparity as being of a sufficient degree to justify a finding of error of principle, the Court is of

the view that it is appropriate to make such an adjustment in the unusual circumstances here present, where there is material error in

the assessment of the severity of the offence partly offset by an opposing error in the appropriate reduction to reflect mitigating

factors.

10. Conclusion

10.1 This Court is mindful of the fact that counsel for Mr. Ryan indicated that, in the event that the Court found an error in principle,

he would wish to place certain further materials, concerning Mr. Ryan's conduct in prison, before the Court. The Court has, for the

reasons analysed, found an error in principle in the starting point of the trial judge’s analysis in placing this offence on the spectrum of

seriousness. However, this Court has also found a partly compensating error in principle in the extent of reduction allowed for

mitigating factors by the trial judge. While counsel did not suggest that he wished for a further opportunity to address the issue, the

Court does require to hear both counsel on the proper sentence to be imposed in the light of all the circumstances of the case,

including the views expressed in this judgment and any materials relevant to Mr. Ryan's conduct in prison on which counsel wishes to

place reliance. In the light of the seriousness of the offence to which he has pleaded guilty and all the other circumstances of the

case the Court must make clear that it will not be possible to justify a significant reduction in sentence.

10.2 In all the circumstances, this Court is of the view that a sentence of 8 years is excessive and that the appeal should be allowed.

The Court will hear further submissions on what sentence should be imposed in those circumstances.