Court of Appeal dismisses appeal against six-year arson sentence due to high public safety risk and prior convictions.

THE COURT OF APPEAL

Record No. 84/2017

Birmingham P.

Mahon J.

Edwards J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

KARL McCARTHY

APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 1st day of June 2018 by Mr. Justice Mahon

1. The appellant pleaded guilty and was convicted of two counts of arson contrary to s. 2(4) of the Criminal Damage Act 1991 at

Galway Circuit Criminal Court on the 18th January 2017. He was sentenced on the 29th March 2017 to six years imprisonment and the

severity of that sentence is now appealed.

2. On the 4th October 2016 at Newcastle Road, Galway, a built up residential area, gardaí attended the scene of a fire. They found a

Ford Fiesta motor car engulfed in flames and they observed the appellant standing nearby on a wall, in an intoxicated state. He was

observed to be in possession of a lighter and a scissors. It was then established that on the previous night at approximately 10 p.m.

another vehicle, an Opel Corsa, was also destroyed by fire at the same location in almost identical circumstances.

3. The appellant was conveyed to Galway garda station and interviewed on three occasions. Initially he denied any involvement in

either incident, but ultimately made full admissions but did not provide any motive or explanation for his actions.

4. The appellant is thirty six years old. He has seventy previous convictions including seven for arson as well as others for burglary,

theft, harassment and many road traffic offences. The appellant was on bail in relation to a number of road traffic offences (in

respect of which he was later convicted and sentenced to ten months imprisonment) at the time of the commission of these

offences. Previously, on the 17th December 2013 the appellant was sentenced to four years imprisonment in respect of seven

incidents of arson in Galway in September 2012. He was released from that sentence in late 2015.

5. The grounds of appeal relied upon by the appellant are as follows:-

(i) the learned sentencing judge erred in law and in fact in that he failed to place adequate significance on the mitigating

factors in the case and failed to attach sufficient weight to the appellant’s plea of guilty, his remorse, his co-operation

with the gardaí, the influence of alcohol and his desire to change his life and rehabilitate himself;

(ii) the learned sentencing judge erred in law in failing to give sufficient weight to the evidence of Garda Paul McNulty

that the failure of the two cars was €500 each, nor did Garda McNulty give evidence that the burning of the cars posed a

danger to anyone;

(iii) the learned sentencing judge gave undue weight to the aggravating factors in relation to the offence, and

(iv) the learned sentencing judge erred in law and in fact in imposing a sentence which in all the circumstances was

excessive and disproportionate.

6. In the course of his sentencing remarks, the learned sentencing judge stated:-

“...He used a scissors to facilitate the burning of these two vehicles, to cut up the leather so that the interior, the

internal material of the seating would be exposed so as to make it more certain and easier for the cars to be burnt.

That shows an alarming element of premeditation on his part. It is a clear aggravating factor. ..”

and

“...These offences stand at, to my mind, the higher side of medium on the scale of gravity for similar offences, and the

headline sentence in respect of each of these offences is eight years imprisonment.”

7. He noted the content of the probation report and the fact that the risk of re-offending was very high.

8. The probation report prepared on the 29th March 2017 expresses a deep concern in relation to the appellant’s risk of re-offending.

It states, for example, that “..it is his offending behaviour seems to be ongoing and his level of risk increasing at an alarming rate…”

and suggests that he remained “..at real risk of harm to others.” The report concludes with the following observations:-

“Taking into consideration the very high, and real, risk of re-offending it is difficult to assess to what extent Probation

Supervision would benefit Mr. McCarthy on release. He has failed to co-operate to an extent in the past and seems

unlikely to do so in the future. He can address his alcohol issues while in custody and he can be directed as to access

after care and follow up on release if he so wishes. It is also recommended that he be referred for psychological

assessment and more specialised support services while in custody to allow him address his extremely dangerous

behaviour in the area of fire starting.”

9. The focus of the appellant’s appeal, based on Ms. Silke’s oral submissions, is the contention that the learned sentencing judge

erred in failing to structure the sentence in a manner which would likely aid the appellant’s rehabilitation, such as, for example, by

imposing a sentence incorporating a significant suspended element which would, perhaps, facilitate treatment or counselling for his

psychological issues and more particularly his propensity to start fires. It was submitted that the prospects for rehabilitation were

further enhanced as a result of an improved relationship and greater contact between the appellant and his son, Jake.

10. It is clear from the sentencing judgment that the learned sentencing judge did consider the issue of rehabilitation. Indeed, the

following extract from his sentencing judgment suggests that that issue and particularly the lack of any definite indication of what

might be done in terms of successfully treating the appellant’s propensity to start fires, was of particular concern:

“..Without doubt alcohol did play a role in the current offence before the Court but it is evident that there is a worrying

underlying issue which manifests itself in a pathological desire to start fires. Until this issue is addressed, if it can be

addressed, Mr McCarthy remains at a very high risk of harm to the public. Taking into consideration the very high and

real risk of re-offending, it is difficult to assess what extent probation supervision would benefit Mr McCarthy on his

release. He has failed to co-operate to an extent in the past and seems unlikely to do so in the future. He can address

his alcohol issues while in custody and he can be directed as to access to aftercare and follow-up on release, if he so

wishes. It is also recommended that he be referred to psychological assessment and more specialised support services

while in custody to allow him to address his extremely dangerous behaviour in the area of fire starting.”

11. Furthermore, the reports now available from a psychologist and a psychiatrist and which were prepared within recent weeks would

not have greatly enlightened the learned sentencing judge if they had been available to him at the time of sentencing. Both expressed

the view that the appellant does not suffer from any sort of mental disorder and both point to a high risk of re-offending. Neither

points to any probable benefit in the context of rehabilitation that would likely follow from an earlier release from custody. Both

identified alcohol as a major factor.

12. This case was a difficult one from a sentencing perspective. Arson is a most serious crime and its consequences can be truly

appalling. The fact that the appellant has seven previous arson convictions in addition to the two in the instant case, and also,

having regard to the absence of mental illness as a possible explanatory factor coupled with the high risk of repeat offending and the

consequential enormous risk to public safety, left the learned sentencing judge with little alternative other than to impose a relatively

lengthy custodial sentence.

13. The imposition of a six year sentence was, while possibly on the high side, nevertheless within the range of the discretion

reasonably available to the learned sentencing judge.

14. As no error of principle has been established the court will accordingly dismiss the appeal.