Court of Appeal allows DPP appeal, finding sentences for firearms and arson unduly lenient.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 143

Birmingham J.

Sheehan J.

Edwards J.

211CJA/14

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Robert Murphy

Respondent

Judgment of the Court delivered on the 12th day of June 2015 by Mr. Justice Sheehan

1. This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of two

sentences imposed on the respondent at the Dublin Circuit Criminal Court on the 10th October, 2014.

2. On that date the respondent received an overall sentence of nine years imprisonment with the final five years suspended on terms

designed to encourage his rehabilitation. The sentencing judge also made a post release supervision order directing him to comply with

all directions of the Probation Service for a period two years following his release from prison.

3. The respondent received the following three sentences:

1. Two years imprisonment for the unlawful possession of a flick knife on the 14th May, 2012.

2. Six years imprisonment with the final four years suspended on the terms already set out for the unlawful possession of

a firearm in suspicious circumstances. This offence was committed while the respondent was on bail for the first offence

and was therefore made consecutive to the sentence of two years imprisonment for the possession of a flick knife.

3. Seven years imprisonment with the final five years suspended on terms for a count of arson in which the respondent

pleaded to an offence of recklessly setting fire to a house which was occupied by a couple and their child.

4. Both the applicant and the respondent have filed helpful written submissions in the course of which both parties referred this Court

to previous sentencing judgments. The Director of Public Prosecutions submitted that apart from the imposition of a sentence of two

years imprisonment in respect of the first offence, the remaining two sentences were unduly lenient when viewed from an overall

point of view as well as when viewed individually.

5. The Director of Public Prosecutions contended inter alia that the learned trial judge failed to give adequate weight to the

aggravating factors and gave undue weight to the mitigating factors that existed in the case. In particular counsel on behalf of the

Director of Public Prosecutions submitted that the learned sentencing judge failed to give any adequate consideration to the

superficial wounding of the householder when the sawn off shotgun was discharged into the house nor did he give sufficient weight to

the danger posed to a young mother, her boyfriend and her four year old child when they responded to a fire in their dwelling in the

early hours of the morning.

6. In order to consider this application it is necessary to set out the background to these offences.

Background

7. On Monday the 14th May, 2012, Robert Murphy was observed speaking with the occupants of a car at Fortlawn Park,

Blanchardstown, Dublin 15. He was approached by Garda McGrath and when he was approached he threw away an object which

transpired to be a flick knife, six inches in length. Robert Murphy made admissions to Garda McGrath at the scene indicting that the

knife had been in his possession for his protection and alleging that he had been recently stabbed.

8. The second offence relating to the possession of a firearm relates to an incident that occurred on the early morning of Sunday, the

22nd July, 2012, at approximately 5.02 am. At that time Alen Ademovic was at home at 33 Fortlawn Park, when Robert Murphy called

to his home. A verbal disagreement occurred which led to a physical altercation which moved from the front door to the sitting room.

Mr. Ademovic was apparently getting the better of the situation when Robert Murphy went to the front garden and retrieved a firearm

causing Mr. Ademovic to flee into the house, shut the front door and continue up the stairs. At this point he heard a gunshot and

received superficial wounds to his lower extremities the respondent in this case having discharged the sawn off shotgun through the

letter box in the hall door of the house where Mr. Ademovic was staying.

9. After the shooting various members of An Garda Síochána, including the aerial unit of An Garda Síochána and an armed unit

searched the area.

10. At Robert Murphy’s family home, his brother Paul Murphy Junior, was woken by the sound of the garda helicopter and observed his

brother Robert in the back garden. He then informed his parents who rang Blanchardstown garda station and told the gardaí that their

son Robert was in the back garden. The Murphy family left their home and armed gardaí surrounded the garden. At the request of the

gardaí, Robert Murphy lay on the ground with his hands outstretched and was arrested and taken to Clondalkin garda station. He was

detained under s. 30 of the Offences Against the State Act 1939 to 1998.

11. Gardaí conducting a search of the area found a firearm which they described as a Stevens single barrelled shotgun whose barrel

had been shortened to the length of less than 61 cms. This gun was found at 9 Fortlawn Avenue. Gardaí also found shotgun pellets

and a discharged shotgun cartridge at the scene of the shooting.

12. Robert Murphy was detained under s. 30, interviewed five times and during the course of these interviews, he made a number of

admissions concerning the discharge of the firearm at 33 Fortlawn Park, Blanchardstown, Dublin 15 and accepted that the firearm

found in the garden of 9 Fortlawn Avenue was the one that he had been in possession of.

13. Following these interviews the respondent Robert Murphy was released on station bail and a file was prepared for consideration by

the Director of Public Prosecutions. He appeared in court on the 20th November 2012, when charges were struck out because full

directions were not available on that date. He was subsequently recharged with offences relating to the firearm, returned for trial on

the 6th December, 2013 and pleaded guilty to possession of a firearm in suspicious circumstances on the 30th January, 2014, that

offence was contrary to s. 37A(1) of the Firearms Act 1964, substituted by s. 59 of the Criminal Justice Act 2006 and amended by s.

38 of the Criminal Justice Act 2007.

14. With regard to the final matter that was before the court namely, Bill No. 153/14, a Ms. Susan Cahill of Kiltipper Drive, Tallaght,

Dublin 24, was awakened by noise of persons banging on her front door at about 1.00 am in the morning of the 27th November. 2013.

She went down to investigate and found “flames dripping through to the letter box”. She opened the door where two unknown males

had been banging from the door to alert her about the fire. Refuse bins had been moved from their normal place and were burning

close to her front door. She shouted to alert her boyfriend who was sleeping upstairs and she brought her four year old child

downstairs to safety. The gardaí and fire brigade were alerted and attended at the scene. The fire was extinguished and

investigations commenced and later that morning Robert Murphy was interviewed by the gardaí at Blanchardstown garda station and

he made full admissions to the arson at Kiltipper Drive. Later the same day he was charged with arson and was remanded in custody.

On the 7th April, 2014, he pleaded guilty to arson contrary to s. 2(2) of the Criminal Damage Act 1991, that on Wednesday the 27th

November, 2013, he without lawful excuse damaged by fire, property to wit a house at 63A Kiltipper Drive, Tallaght, belonging to

another being reckless as to whether the life of another would be thereby endangered.

15. The personal circumstances of the respondent at the time of sentence were that he was a 31 year old man who had a partner

and young child. The court was told that he came from a good family and that as a young man he had worked for a number of years

as a roofer and plumber, but developed serious mental health problems as well as drug and alcohol problems which prevailed

throughout his 20’s. The court was also told that the respondent had 60 previous convictions. The court was told that 21 of these

convictions related to road traffic matters and 9 were for failing to appear in court when obliged to do so and that a further 10

offences were for public order crimes. The more serious previous convictions were 5 for the possession of knives and other articles, a

conviction for the possession of drugs with intent to supply and one for possession of a knife with intent to commit an offence and

another for obstructing a member of An Garda Síochána.

16. The court was also furnished with a psychiatric report. The psychiatric report concluded by saying that the respondent had a

diagnosis of poly substance dependence and abuse, but that the respondent reported as of the 22nd May, 2014, that he was absent

from drugs in prison. The psychiatric report also stated that the respondent had had intermittent contact with the psychiatric

services from 2010 and had been admitted on three occasions to a psychiatric hospital having presented on one occasion following an

overdose and on the other two occasions with suicidal ideation. Mr. Murphy’s suicidal behaviour had occurred in the context of his

extensive use of drugs and alcohol and according to the psychiatrist appeared to be precipitated by psycho social crises. The

respondent has been documented as having personality difficulties and these are likely to be significantly exacerbated by his drug and

alcohol use.

17. The principles governing undue leniency appeals have been set out in a number of previous judgments of this Court and have been

conveniently summarised in a judgment of the Court of Criminal Appeal in The People at the suite of Director of Public Prosecutions v.

Derick Stronge [2011] 5 JIC 230.

18. In the course of his oral submissions on behalf of the Director, counsel contended that the learned trial judge had erred in

principle in this case by placing far too much emphasis on the mitigating factors and insufficient attention on the very serious nature

of the crimes involved. Counsel argued that the particular facts of the firearms offence and the arson offence which have already

been summarised in the earlier part of this judgment were exceptionally serious. The facts of both those cases speak for themselves.

Notwithstanding the mental health problems which the sentencing judge found to exist independent of the substance abuse, it is clear

from the evidence that was before the learned sentencing judge that the respondent in this case had failed to take any responsibility

for his drug and alcohol addiction until he went to prison following the arson offence. Undoubtedly this failure was a factor in his

criminal offending but it does no excuse that behaviour.

19. The respondent received an effective sentence of nine years imprisonment with the final five years suspended in respect of the

three offence to which he pleaded guilty. The primary complaint of the Director of Public Prosecutions lies with the period of the

sentence that has been suspended, but the Director also complains about the fact that in reality the respondent only received a

further year’s imprisonment in respect of the arson offence, which might well have had catastrophic consequences and which also

resulted in excess of €50,000 worth of damage to two properties.

20. While the learned judge was careful to apply the principle of proportionality and to include a rehabilitative element in his sentence,

this court finds that he erred in failing to attach sufficient weight to the serious aggravating factors in these two cases which

included in the firearms case discharging a shotgun into the home of an associate who he was then in dispute with and in the arson

case setting fire to the home of a young woman at a time when she was residing there with her child and partner. Accordingly while

this court notes the care taken by the sentencing judge it is the Court's view that the overall sentences imposed in respect of the

firearms charge and the arson charge were unduly lenient. In view of this finding the Court will now proceed to hear if the applicant

and the respondent have anything further to say before it proceeds to impose its own sentence in substitution for the one imposed in

the Circuit Court.