Court of Criminal Appeal reduces sentence from nine to seven years for excessive initial term and insufficient plea credit.

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

Supplemental Judgment of the Court delivered by Mr. Justice Clarke on the 17th July, 2014.

1. Introduction

1.1 This judgment is supplemental to a previous judgment given by this Court in this case (D.P.P. v. Ryan [2014] I.E.C.C.A. 11). For

the reasons identified in that judgment this Court considered that two errors of principle had been identified in the sentencing process

in this case. In summary, the Court concluded that the starting point of the sentencing judge's approach (being a term of

imprisonment of twelve years before any mitigation was taken into account) was, in the light of a detailed and careful analysis of

many judgments of this Court for like offences, excessive. The Court concluded, in the light of that analysis, that this case fell at the

upper end of the middle range of severity or, perhaps, at the bottom of the most serious range. In the light of the Court's analysis it

was suggested that a sentence of nine to ten years would be an appropriate starting point in those circumstances.

1.2 However, the Court also concluded that the sentencing judge had, in reducing Mr. Ryan's sentence by four years (or one third) in

the light of his plea of guilty, acted in what was perhaps an overly lenient fashion having regard, in particular, to the circumstances in

which Mr. Ryan was, as it were, caught red-handed, thus reducing the credit which might properly be given to his plea of guilty.

1.3 As noted at the end of its previous judgment, the Court put the matter in for further hearing to consider what the proper

sentence should be in all the circumstances of the case. As also noted in another judgment given by this Court today in D.P.P. v.

Fitzgibbon (unreported, Court of Criminal Appeal, Clarke J., 17th July, 2013), the judgment in this case together with an earlier

judgment in Fitzgibbon (D.P.P. v. Fitzgibbon [2014] I.E.C.C.A. 12) and a further judgment of this Court in D.P.P. v. Z [2014] I.E.C.C.A.

13, were all delivered on the same day and are somewhat interconnected. As had occurred when Fitzgibbon came back before this

Court to determine the proper sentence to be imposed, counsel for the D.P.P. in this case asked to be allowed make further

submissions in relation to some of the issues which had been addressed by this Court in Z relating to the precise obligations on the

D.P.P. to provide assistance at sentencing hearings. The submissions made in this case were identical to those made in Fitzgibbon.

This Court agrees with the way in which those issues were dealt with in Fitzgibbon and does not, therefore, feel that it is necessary

to readdress the issues raised in its judgment in this case.

1.4 This judgment is, therefore, solely related to the question of the proper sentence to be imposed in Mr. Ryan's case.

2. The Proper Sentence

2.1 This Court does not see any reason to depart from the view which it tentatively suggested in its first judgment concerning the

severity of the offence. This was a serious firearms offence involving a significant weapon and associated ammunition. As the Court

has previously noted, the circumstances in which Mr. Ryan was found in possession of the firearms in question can give rise only to an

inference of serious criminality. This Court has already identified that the margin between an appropriate sentence for the mid-range

and most serious range of offences of this type stands at ten years and has also indicated that the offence in this case must be

placed, for the reasons just briefly dealt with, towards the top of the mid-range or the bottom of the most serious range. The Court

sees no reason to depart from its previous view which was to the effect that the starting point has, therefore, to be a sentence of

imprisonment of between nine and ten years.

2.2 Two matters of mitigation arose at the second hearing. The first related to the issue of the plea of guilty already debated at the

first hearing. It is common case that, both as a matter of general principle and also under the provisions of s.29 of the Criminal Justice

Act, 1999, a court should take into account not only the fact of a plea of guilty but also the stage at which the accused indicated an

intention to so plead and the circumstances in which any such indication was given. There is no doubt that the plea of guilty in this

case was indicated at a very early stage. Mr. Ryan made full admissions concerning his involvement when interviewed by An Garda

Síochána in the immediate aftermath of his arrest. He went forward from the District Court on a signed plea of guilty and never

sought, in any way, to resile from that plea. It follows that the prosecution services were saved the difficulty of preparing for a trial.

So far as there is a utilitarian aspect to encouraging pleas of guilty for the purposes of easing the burden on prosecution services and

the courts, then a plea at such an early stage must necessarily be given greater weight than someone who, for example, pleads guilty

on the morning of a trial or, indeed, after a trial has commenced.

2.3 On the other hand, there can be little doubt but that Mr. Ryan was caught red-handed and that any prospect of successfully

avoiding conviction must always have been remote. It is true, as counsel argued, that he could, nonetheless, have created difficulties

for the prosecution by pleading not guilty, requiring the prosecution to prove its case and relying on such procedures (such as

disclosure) as might have been open to him even if there was little chance that any such action might have led to any result other

than a conviction. It follows that it is correct, as counsel for the D.P.P. conceded, that Mr. Ryan could have made a lot more trouble

for the prosecution. That is to his credit. However, it does not take away from the fact that the weight to be attached to his plea of

guilty must nonetheless be significantly limited by the circumstances in which that intimation of a plea was first given.

2.4 At the second hearing counsel also placed before the Court reports from the prison service and others which do, indeed, suggest

that Mr. Ryan has been a model prisoner. He is entitled to some credit for that as well. It is, of course, the case that sentencing

courts (whether at first instance or on appeal) must pay proper regard to the prospect of rehabilitation. In appropriate circumstances

a sentence may be crafted to encourage rehabilitation not least by suspending a portion of the sentence and imposing terms on that

suspension. However, in the circumstances of this case, two additional factors need to be taken into account. First, at the time of

Mr. Ryan's initial sentencing hearing, there did not appear to be any great prospect of rehabilitation. As noted in this Court's earlier

judgment, Mr. Ryan had a serious previous conviction for a major public order offence which warranted a sentence of four years

imprisonment. In assessing, at least during an initial sentencing hearing, the way in which the Court should approach the question of

rehabilitation, it is appropriate for a sentencing judge to consider the circumstances of the accused in question and to assess the

realistic prospects of rehabilitation in the circumstances of that accused. While it is true that this Court, if approaching the question

of sentence afresh having found that there was an error of principle, is entitled to consider the up to date position, nonetheless an

accused, such as Mr. Ryan, who would not have been entitled, at the time of his original sentencing, to be considered a significant

candidate for rehabilitation, cannot expect, by the happenstance that the question of his sentence is being considered afresh some

four years later, to a great deal of additional leniency by virtue of his record in prison. To place too much weight on such a factor

would be to run the risk of being unfair to those prisoners who, quite properly, did not impress a sentencing judge as having

established a strong case for rehabilitation, but who nonetheless had become model prisoners. Such prisoners, if they do not appeal

or if their appeal is unsuccessful, do not get the opportunity to have their sentence reassessed through the appellate process. While

some weight, therefore, must be attached to Mr. Ryan's good record in prison, the Court is not satisfied that the weight so to be

attached is particularly great.

2.5 Second, it must be kept in mind that the cumulative effect of a reduction in sentence to reflect mitigation and any partially

suspended sentence ought not exceed the appropriate allowance for all relevant factors.

2.6 Finally, any reduction to reflect mitigating factors must have regard to the fact that Mr. Ryan, by virtue of his previous record,

would not be entitled to any mitigation deriving either from a clean record or one which only involved minor offences or those well in

the past.

2.7 In all the circumstances of the case the Court does not see that it could be justified in reducing Mr. Ryan's sentence, by virtue of

those mitigating factors, by more than two years from his sentence of nine years. As indicated earlier, nine years is, in this Court's

view, the minimum sentence which would reflect the seriousness of the offence itself. A sentence of up to ten years would, indeed,

be justifiable. Having, as it were, given Mr. Ryan the benefit of the doubt in picking the lower end of that range it does not seem to

this Court that a reduction of more than two years to reflect both the plea of guilty and giving some, albeit relatively slight, weight to

his good record in prison, could be justified.

3. Conclusions

3.1 For those reasons the Court is of the view that the appropriate sentence, in all the circumstances of the case, is one of seven

years imprisonment.

3.2 The Court will allow the appeal and substitute for the sentence imposed by the trial judge a sentence of seven years

imprisonment.