Court of Appeal quashes unduly lenient sentence for firearms offences, ordering new sentencing hearing.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 115

Appeal No. 337CJA/12

Peart J.

Sheehan J.

Mahon J.

The People at the Suit of the Director of Public Prosecutions

Applicant

- and -

Lee McDonnell

Respondent

Judgment of the Court delivered by Mr. Justice Alan Mahon on 8th day of June 2015

1. This is an application by the respondent pursuant to s. 2 of the Criminal Justice Act 1993 to review a sentence imposed on the

respondent on the ground that it was unduly lenient.

2. Section 2 of the Criminal Justice Act 1993, insofar as it is relevant, provides:-

"(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this act referred to as the

sentencing court) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal

Appeal to review the sentence.

(3) On such an application, the court may either:-

(a) Quash the sentence and in place of it impose on the convicted person such sentences as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) Refuse the application.”

3. In DPP v Byrne [1995] 1 ILRM 279 at p. 287, the Court of Criminal Appeal identified four principles to be applied when a review of

sentence under s. 2 of the Act of 1993 is brought. They are:-

1. The onus of proof to show that the sentence was “unduly lenient” rests on the DPP.

2. Great weight should be afforded to the trial judge’s reasons for imposing the sentence at issue. If the trial in particular,

if the trial judge has kept a balance between the circumstances of the case and the relevant circumstances of the

offender the decision should not be disturbed.

3. The test is not the converse of that when there is an appeal by an appellant; it is not a query as to whether or a more

severe sentence could have been imposed and upheld as being right in principle. Rather it is an enquiry as to whether the

sentence was “unduly lenient”.

4. Nothing but a substantial departure from what would be regarded as the appropriate sentence would justify

intervention.

4. “Undue leniency” was considered in the case of DPP v. McCormick [2000] 4 I.R. 356. In that case Barron J. stated at p. 359:-

“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save

perhaps in exceptional circumstances, have been caused by an obvious error in principle.

The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime

because it has been committed by that accused. The range of possible penalties is dependent upon those two factors. It

is only when the penalty is below the range as determined on this basis that the question of undue leniency may be

considered.”

5. The respondent pleaded guilty to two counts of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act

2001 and one count of carrying a firearm with criminal intent contrary to s. 27 (B) of the Firearms Act 1964, as substituted by s. 60

of the Criminal Justice Act 2006 as amended by s. 39 of the Criminal Justice Act 2007. The respondent was sentenced in Dublin Circuit

Criminal Court on 19th November 2012 to six years imprisonment on the first robbery count, with the final three years of that

sentence being suspended for a period of three years from the date of his release, subject to conditions. The second robbery count

and the firearms count were taken into consideration. The overall sentence therefore provided for a custodial period of three years.

6. The facts of the case are as follows. On the morning of 21st January 2012, the respondent and another man entered a filling

station shop in Ballyfermot, Dublin. Both men were hooded, the respondent carried a firearm, albeit a replica firearm, and his

companion carried a knife. The attempt to steal money in the premises failed because there was a time lock on the safe in the

premises. An employee in the premises was pistol whipped in the face by the respondent with the replica firearm. That employee was

also robbed of his personal possessions, including his mobile telephone and a wallet containing approximately €300. There was no

resistance by that individual and no necessity for the violence inflicted on him. As the respondent left the premises he pointed the

replica firearm at a member of the public who attempted to photograph him while he made good his getaway. The replica firearm

appeared real and was even believed to be so by a witness who had knowledge of firearms.

7. The respondent was known to the gardaí, and was recognised from CCTV images at the crime scene. He was quickly arrested, and,

to his credit, he co-operated with the gardaí in the provision of a DNA sample, and subsequently pleaded guilty to the offences.

8. The respondent was twenty one years of age at the time of the commission of the offences. He had a very large number of

previous convictions, being eighty eight in total, including convictions for robbery, assault and hijacking a car. He previously served a

four year prison sentence. He came from a difficult background, including family problems, addiction problems and other difficulties.

9. Section 60 of the Criminal Justice Act 2006 requires the imposition of a five year minimum sentence in respect of the firearms

offence (the third count referred to above). It provides that:-

“Where a person (other than a person under the age of eighteen years) is convicted of an offence under this section, the

court shall, in imposing sentence, specify a term of imprisonment of not less than five years as the minimum term of

imprisonment to be served by the person.”

10. It is further provided that:-

“..this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating

to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for

this purpose the court may have regard to any matters it considers appropriate, including:-

(a) whether the person pleaded guilty to the offence, and if so:-

(i) the stage at which the intention to plead guilty was indicated,

and

(ii) the circumstances in which the indication was given,

and

(b) whether the person materially assisted in the investigation of the offence.

11. In the course of his judgment, the learned sentencing judge referred to the mandatory minimum provision, and stated as follows:-

“And I have to bear in mind what the Oireachtas has directed me to do, that is to impose a mandatory minimum sentence

in relation to count 3, unless I find there is good and sufficient reasons for not doing so. Now, in this case I find his plea

of guilty and his co-operation as it was, to allow me to depart, so therefore I am at large to sentence Mr. McDonnell.”

12. The learned sentencing judge proceeded to impose a six year sentence on the respondent, with the final three years of that

sentence suspended on conditions. He imposed the sentence in respect of count no. 1, and took the remaining two counts, including

the firearms offence, into consideration. No sentence was therefore imposed in respect of the firearms offence although it appears to

have been the case that the learned sentencing judge approached the sentencing process, and imposed the sentence which he did,

on a global basis in respect of the three counts to which the respondent had pleaded guilty.

13. It was indicated on behalf of the Director that, essentially, her criticism of the overall sentence was the fact that half of the six

year term was suspended, and that this amounted to an unduly lenient sentence having regard to, in particular, the large number of

previous convictions, including one which resulted in a four year prison sentence.

14. The learned sentencing judge decided that there were exceptional and specific circumstances in this case which permitted him to

depart from the mandatory minimum sentence. Arguably, exceptional and specific circumstances were present but only to a minimal

extent in that the respondent’s plea of guilty, albeit given at an early stage, was given in circumstances where there was compelling

evidence confirming his involvement in the incident, and where his only co-operation with the gardaí was his agreement to provide a

DNA sample. The discovery of the discarded stolen wallet and phone, and the replica firearm, being crucial items of evidence, only

came about as a result of good police work, rather than any co-operation on the part of the respondent.

15. The crimes committed by the respondent on 21st January 2012 were extremely serious. The respondent engaged in extreme

violence on the occasion, and unnecessarily so to the extent that the victim of that violence did not challenge him or resist in any

way. The use of a replica firearm in circumstances where it appeared genuine to those who were confronted with it, and its use in a

very threatening manner, was particularly serious. This was recognised by the learned sentencing judge when he stated that:-

“He was thoroughly violent in relation to this robbery. It seems on the way out he encountered other parties and it seems

that he attempted to dissuade them from becoming involved by pointing the gun at them, a replica firearm admittedly, but

it seems to have been a fairly persuasive imitation firearm.”

16. The very serious nature of the crimes, and particularly the use of the firearm, requires, in this court’s view, a significantly greater

sentence than the sentence imposed by the learned sentencing judge. While the court is always grateful for submissions from the

Director as to the particular aspects of the sentence which she contends are unduly lenient, and subject to any further submissions

that have yet to be made in relation to the sentence which this court will direct in place of the existing sentence, it is the court’s

view that the lack of any sentence for the firearm offence, in circumstances where a firearm was used to threaten two individuals

and to violently strike one of them, amounts to an error of principle on the part of the sentencing judge and furthermore, and even

having regard to the global nature of the sentence imposed, cannot justifiably result in a custodial sentence as low as three years,

save in quite exceptional circumstances, one of which might be a lack of any (or almost any) previous convictions. In this case the

number of previous convictions was exceptionally high, and furthermore, the respondent had previously served a significant prison

sentence. It is also noted that the learned sentencing judge did not identify the point on the scale at which these offences should be

placed or the appropriate sentence in the absence of mitigating factors.

17. It is this court’s view that the sentence imposed was not only lenient, but was unduly lenient. While the respondent’s pleas of

guilty and his co-operation (such as it was) may have justified a departure from the requirement to impose a sentence of at least five

years it was not appropriate that the offence be merely taken into account with another offence, albeit in circumstances where the

sentence for that other offence was one of six years, with 50% of that term suspended. A firearms offence, and particularly one as

serious as in this case, should normally attract its own sentence, unless there are exceptional reasons for doing otherwise. The

correct approach is to arrive at an appropriate sentence for a firearms offence in the context of, and with due regard to, the

mandatory minimum five year term. There was an error of principle in relation to the extent to which the learned sentencing judge did

not approach the sentence for the firearm offence in this manner.

18. On a scale, these offences were very serious; they involved what might be described as gratuitous violence and the use of a

firearm in a gravely threatening manner. The appropriate sentence on the basis that there is a reasonable basis to depart from the

imposition of the mandatory minimum sentence of five years, will be the subject of a separate sentence hearing by this Court, as will

be the appropriate sentence for the robbery offences. The extent to which an element of these sentences should be suspended is a

matter for submissions to be heard in due course, as is the issue as to whether such sentences as are finally imposed by this court

should be served consecutively or concurrently. Certainly, it is the court’s view that the large number of previous convictions should

militate against any significant part of the term being suspended.