Court of Appeal allows appeal against sentence for explosive possession, ruling eight years with suspension unduly severe.

THE COURT OF APPEAL

Finlay Geoghegan J.

Peart J

Hogan J

CCA265-13

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

KARL HARFORD

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Gerard Hogan on 28th January 2015

1. The applicant pleaded guilty before the Circuit Court on 19th July 2013 to a single court of possession of a explosive substance

contrary to s. 4 of the Explosive Substances Act 1883 (as amended)(“the 1883 Act”). The sentencing judge imposed a sentence of

eight years imprisonment with the final two years suspended. The present appeal is against the severity of the sentence as so

imposed.

2. At the conclusion of the hearing the Court announced that the appeal would be allowed, with the reasons to be given later. The

reasons for that decision are now contained in this judgment.

Background facts

3. The background to the present appeal is as follows: Mr. Harford was a front seat passenger in a vehicle stopped by Gardaí at a

routine checkpoint in Ballyfermot, Dublin 10, on 5th November 2010. The Gardaí proceeded to conduct a search of the vehicle

pursuant to the provisions of the Misuse of Drugs Act 1977. As a result, a glass jar with a wick was discovered in the passenger

footwell where Mr. Harford had been sitting. On forensic examination the jar was found to have potassium nitrate and potassium

perchlorate. The Garda evidence at the sentencing hearing was that this jar represented a form of a viable blast incendiary device.

4. Following this discovery the applicant was abusive to Gardaí and had to be restrained. He was then arrested. He originally denied all

knowledge of this matter. There was, moreover, no forensic evidence to link him with the incendiary device. There was, however, a

strong smell of petrol from the device in the car. A trial date was originally obtained, but the applicant later pleaded guilty in advance

of the trial. The applicant has one hundred and forty previous convictions. While these convictions are mainly for public order

offences, they also include convictions for possession of knives and drugs. The applicant was just nineteen at the time of the

offence. The sentencing judge took account of the help which the applicant ultimately gave to the Gardaí and the fact that the plea

was of assistance. These mitigating factors were counter balanced by the applicant’s aggressive behaviour and the gravity of the

crime, the denials by the accused of his involvement and the very large number of previous convictions.

5. The appellant advanced effectively two separate grounds of appeal. First, it was said that the learned trial judge failed to have

sufficient regard to the applicant’s age at the time of the commission of the offence and what was said to be his growing maturity. It

was also contended that a lengthy sentence of this kind would effectively lead to his institutionalisation as a prisoner, given that he

had already spent significant periods of his young adult life in custody. Second, it was submitted that the sentence was, in any

event, too severe. We propose to consider these arguments in turn.

The age and maturity of the accused

6. The applicant was born on 24th October 1991, so that he had just turned 19 at the time of the offence in question. By that stage

he had amassed a quite remarkable number of convictions (some 140 in total). At the same time it was clear that he had come from a

troubled background. Despite of all these difficulties, it appears that he had done well at school and he had achieved an impressive

Junior Certificate. Upon leaving school he then attended various FÁS courses and he subsequently worked as a roofer and in sheet

fabrication. In sum, therefore, he was a young man of some ability who had demonstrated that with the right supports and

encouragement he could participate in society in a meaningful way.

7. Mr. Harford’s counsel, Mr. Le Vert, suggested at the sentencing hearing that, in view of his client’s desire to put his past re-

offending behind him, a report from the Probation and Welfare Service might be of some assistance. This suggestion was not,

however, acted upon by the learned sentencing judge, as she stated that she did not think that it would have been of any assistance

to her in the circumstances.

8. We cannot but observe, however, that when later pronouncing sentence the sentencing judge rejected the argument advanced on

behalf of the accused to the effect that he was maturing and that, by extension, the prospects of re-offending had diminished. On

this point the sentencing judge observed that:

“No character references were put before the Court and there was no other material before the Court to support the

suggestion of growing maturity of the accused….”

9. We think that the sentencing judge fell into error at this point. While it is true that the question of whether a probation report

should be commissioned is largely a matter for the sentencing judge, she was nonetheless not entitled to reject the request for such

a report on the one hand, while at the same time later commenting adversely on the absence of any evidence to support the growing

maturity argument on the other. The most effective way in the circumstances of this case by which such evidence (such as it was)

could have been put before the Court was by means of a probation report. We accordingly consider that by making these comments

and in not seeking the assistance of a probation report (which might have addressed these concerns and the related concerns in

relation to the institutionalisation of this young offender) the sentencing judge thereby erred in principle.

The appeal against the severity of the sentence

10. Section 4 of the 1883 Act (as amended by s. 15(4) of the Offences against the State (Amendment) Act 1998) provides:

“Any person who makes or knowingly has in his possession or under his control any explosive substance, under such

circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or

under his control for a lawful object, shall, unless he can show that he made it or had it in his possession or under his

control for a lawful object, be guilty of an offence and shall be liable, on conviction on indictment, to a fine or

imprisonment for a term not exceeding 14 years or both, and the explosive substance shall be forfeited.”

11. Accordingly, the gist of the offence under s. 4 of the 1883 Act is that the accused has knowing possession of an explosive

substance for a purpose which is not a lawful one. Given that the maximum penalty is fourteen years, the fact that the sentencing

judge imposed a sentence of eight years (albeit with two suspended) after taking into account both aggravating and mitigating factor

suggests that she considered that this offence should be placed at least in the upper mid-range of this type of s. 4 offence.

12. We consider that this represented a further error in principle on the part of the learned sentencing judge. Given the terrible

consequences for life and limb which can be indiscriminately brought about by explosive substances, it necessarily follows that any

offence under s. 4 of the 1883 Act – involving, as it does, the unlawful possession of an explosive substance - is an intrinsically

serious offence. It is nonetheless necessary for this Court to make an assessment of the inherent gravity of this actual offence

measured against the range of penalties prescribed by the section.

13. In this context it must be recalled that the accused was found in possession of an admittedly viable improvised incendiary device

contained in a (relatively small) 500gm. jar. There is no doubt at all but that if this device were to be used it could endanger life, limb

and property. It would have to be admitted nonetheless that this blast device did not pose the same level of indiscriminate and

widespread threat to public safety as would have been the case, for example, as a result of the unlawful possession of conventional

explosives.

14. In these particular circumstances we consider that a sentence of eight years (with two suspended) was unduly severe. We

further consider that the error of principle made in not seeking a probation report may have contributed to this. While there is not

much by way of contemporary authority on the appropriate sentence for this type of offence, it may nonetheless be noted that in

The People (Director of Public Prosecutions) v. Creighton [2010] IECCA 56 a sentence of five years (with three years suspended) was

imposed by the sentencing judge on an accused who was found in possession of two pipe bombs, contrary to s. 4 of the 1883 Act.

The Director of Public Prosecutions then brought an application under s. 2 of the Criminal Justice Act 1993 to review the sentence on

the grounds of undue leniency, but that appeal was rejected by the Court of Criminal Appeal. While the decision in Creighton does not

purport to lay down any general principle, it nonetheless gives some guidance as to the range of sentence to which possession of a

device of this kind might properly attract, even making all due allowance for the fact that the decision related to a person with no

prior convictions and involved an undue leniency appeal by the prosecution where the test for establishing an error of principle on the

part of the sentencing judge is all the more demanding.

Conclusions

15. It was for these reasons, therefore, that this Court has allowed the appeal.