Court of Appeal quashes unduly lenient sentence for threatening to kill Garda, ordering re-sentence within 2-4 years.

THE COURT OF APPEAL

IN THE MATTER OF AN APPLICATION UNDER SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

Birmingham J.

Mahon J.

Edwards J.

Record No: 293/2016

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

KRISTIAN FRIEL

Respondent

JUDGMENT of the Court delivered on 2nd July 2018 by Mr. Justice Edwards.

Introduction

1. On the 26th of October 2016 the respondent was sentenced a term of five months’ imprisonment on Bill No KKDP0028/16 (Bill No

28/16) in respect of an assault causing harm, contrary to s.5 of the Non Fatal Offences Against the Person Act 1997, which had

occurred on the 8th of March 2016, the respondent having pleaded guilty to that offence on the 11th of October 2016.

2. He was further sentenced on the same day to another term of five months’ imprisonment on Bill No KKDP0029/16 (Bill No 29/16) in

respect of an offence of threatening to kill or cause serious harm to Garda Matthew Donnellan, contrary to s.5 of the Non Fatal

Offences Against the Person Act 1997, this offence having occurred on the 31st of May 2016, and the respondent having pleaded

guilty to that offence on the 4th of October 2016. This sentence was made consecutive to the sentence imposed on Bill No 28/16.

3. Bill No 29/16 had also contained a further count of possession of a knife, contrary to s.9 of the Firearms and Offensive Weapons

Act, 1990, and two more counts of threatening to kill or cause serious harm to two other Gardaí and the respondent had also pleaded

guilty to these. These matters were simply taken into consideration.

4. The DPP now seeks a review of the sentence on Bill No 29/16 on the grounds that it was unduly lenient.

The Facts of the Case

5. Garda Edel Maher told the Court that on the 8th of March 2016 she received a report that a male had been assaulted on Market

Street, Thomastown, Co. Kilkenny. When she arrived at the scene she met John Cahill. She observed he had blood on his head, hands

and shirt and seemed very distressed. He alleged that he had been stabbed by the respondent. The area was searched and the

respondent was arrested.

6. Mr Cahill told Gardaí he had been socialising with Mr Friel, that Mr Friel had asked him to go down by the riverbank and have a few

drinks but he felt uncomfortable and didn’t want to go. Mr Friel kept pushing and telling him “come on over and we’ll have a drink,

with me, down at the bridge”. Mr Cahill pushed him back and the respondent became very angry and assaulted Mr Cahill. The

respondent stabbed Mr Cahill in the head with a small dagger, resulting in a small cut or laceration in his cheek.

7. In the early hours of the 31st of May 2016 Detective Garda Matthew Donnellan attended at Market Street, Thomastown, Co.

Kilkenny, on foot of a call from the respondent. The respondent had been feeling suicidal and had called Gardaí himself. On arrival

Garda Donnellan observed the respondent outside a restaurant, roaring and shouting and drinking cider while brandishing a knife. When

Garda Donnellan approached he shouted “[d]on’t come any further or I’ll gut you” and made a gutting motion across his own stomach

with the knife. Garda Donnellan was also told “I’ll get you before they get me and I’m not dying alone tonight”, forcing him to retreat

back to the car. Gardaí from a number of other Garda Stations then arrived to lend assistance. There were five Gardaí in total and

they formed a cordon around Mr Friel. At one point Mr Friel threatened two of the Gardaí “I’m going to do you two first”. Mr Friel was

directed to drop the knife but refused to do so and proceeded to hold the knife to his own neck. At this point Gardaí deployed pepper

spray, causing him to step forward and begin swinging the knife wildly towards the Gardaí. The Gardaí had to strike him with a baton

on the leg so that he could be subdued, which Gardaí succeeded in doing.

The Impact on the Victims

8. Although Mr Cahill gave victim impact evidence at the sentencing hearing, he was the victim of the offence charged on Bill No

28/16 and the sentence in that matter is not under appeal. Accordingly, the evidence as to how Mr Cahill was impacted is not

relevant to the present appeal.

9. The victims of the offences charged on Bill No 29/16 were in fact Garda Donnellan and his two Garda colleagues who were also

threatened. No specific evidence was presented by or on behalf of any of these victims to suggest that they were particularly

affected in an adverse way. Most likely this was because they were professionals and it may be inferred that they very likely had

training in, and experience of, how to deal with aggressive and hostile persons. Certainly the evidence suggests that the very difficult

and indeed frightening situation with which the Gardaí were presented on this night was managed by them with consummate skill and

great professionalism. That professionalism was further reflected by the evidence of their colleagues Garda Maher and Detective

Sergeant Phelan at the sentencing hearing who were at pains to emphasise to the court that “when sober Mr Friel is a nice young

man” and that “when he doesn’t have alcohol in him he’s the finest” and “very nice to deal with”.

The Respondent’s Personal Circumstances

10. At the time of sentencing the respondent had 43 previous convictions, including two for s. 2 assaults and five for s. 3 assaults. All

bar one of his convictions had been dealt with in the District Court. An offence of assault causing harm had been dealt with in the

Circuit Court, for which he was sentenced to two years’ imprisonment.

11. He was on bail in respect of the offence committed on Bill No 28/16 at the time of commission of the offences on Bill No 29/16.

12. The respondent is a 21-year-old male who lives with his mother. His father is deceased and his family circumstances were

described as “tough”. He has substance abuse issues, and has a history of taking heroin, cannabis and prescription drugs. His

relationship with alcohol is particularly troublesome. As mentioned already, Gardaí described how he was “very nice to deal with” when

sober, but would spiral out of control when intoxicated.

13. The respondent also has psychiatric problems. The sentencing court was provided with a medical report from his General

Practitioner, Dr. Drynan, who advised that he is a vulnerable and disturbed young man who has a long history of mood disturbance,

suicidal ideation, and depression. His history also includes alcohol and drug abuse. Since 2012 he has been involved with Social

Services and Aislinn Adolescent Treatment Centre, and has also received treatment at the Central Mental Hospital, from The Midlands

Prison Portlaoise psychiatric service, and from the Department of Psychiatry at St Luke’s Hospital in Kilkenny. He is currently on

prescribed anti-depressant medication and has previously also been prescribed anti-psychotic and sedative medications.

14. At the hearing his counsel conveyed his apologies to Gardaí on his behalf.

The Sentence Imposed

15. In sentencing the respondent on both Bill No 28/16 and Bill No 29/16, the sentencing judge made the following remarks:

“The accused had initially admitted socialising with him and the injured party suffers with an intellectual disability. The

case would have depended on the testimony of the complainant and a specialist interviewer and the playing of the DVD

would have had to be necessary in that case and the injured party indicated that the accused had asked him to go to

the riverbank and have a few drinks. He felt uncomfortable and the accused had inflicted the injuries to his -- the main

injury being to the top of his head and the accused was arrested and detained.

The accused has 43 previous convictions. Seven of them are for assault, five of them are section 3 assaults, two of

them are section 2 assaults and there was consent to summary disposal in the District Court and the accused is a drug

user who uses heroin and cannabis. Garda Maher said, very fairly, that when the accused doesn't have alcohol he's the

finest of fellows. When he does, he's obviously a nuisance to the gardaí and causes them huge problems. Clearly, had he

fought the case, there may very well have been issues, so his plea of guilty was an early plea and a valuable plea.

In relation to Bill 29/2016, Detective Sergeant Matt Phelan gave evidence and the Court heard that the accused has

pleaded guilty to counts 1 to 4 on that bill and count 1 is possession of a knife; count 2, 3 and 4 are threats to kill the

various gardaí who arrived and again, on this occasion, the garda, as the Detective Sergeant has very fairly said, that

Mr Friel, when he's sober, he's fine; when he is drunk he's a complete nuisance and can be a menace and in this case,

Mr Friel himself phoned 999, told the person on the phone he had a gun and other weapons and a number of gardaí

attended at the scene. Garda Donnellan attended initially and thankfully Garda Donnellan took steps for his own safety

and didn't approach the accused initially until backup arrived. The accused was there. Initially, he wasn't at the area

where he had been reported, but then he made another phone call and Garda Donnellan arrived, saw him holding the

knife, roaring and shouting, brandishing the knife and he was also drinking a flagon of cider and he approached Garda

Donnellan who was in the car at the time. A number of other gardaí arrived; there were five gardaí in total. They

approached the accused and he was pepper sprayed in order to render him incapable. He lashed out with the knife but it

was after being pepper sprayed. Thankfully, he was subdued and there was nobody injured.

He has served two months already in relation to the -- he was sentenced to two months in relation to the public order

matters separately and I take that into account. He has been remanded in custody on this matter since the 1st October

and also perhaps a week before that and -- sorry, exclusively since the 1st October, but he's been remanded on it

initially since the 7th June 2016.

In cross-examination, the Detective Sergeant agreed that he'd indicated that he was feeling suicidal and he'd asked for

an ambulance. He was effectively out of his mind. There weren't any members of the public there, but make no mistake

about it, there could have been a serious incident and somebody could have been seriously injured, but thankfully,

because the gardaí acted in a proportional and reasonable manner, nobody was injured. He has apologised for his actions

in relation to both matters. I'm told he is now drug-free and he is stabilised on medication and again, the second matter

was an early plea.

So, in relation to the first matter, Bill 28/2016, the aggravating circumstances are that it was an assault which was

carried out. Injuries were sustained. The injured party was clearly a vulnerable person. The mitigating circumstances

are it was an early plea and it was a valuable plea. If there was a trial, there could have been difficulties in coming up to

the high standard of proof in criminal cases and the Director had also directed summary disposal.

So, in relation to that matter, in -- I'll come back to it, but in relation to Bill 28/2016, the accused was on bail on that

matter when he committed Bill 29/2016 then. So, the sentence on Bill 28, am I correct in that, Mr O'Shea?

MR O'SHEA: Yes, Judge.

JUDGE: Yes. The sentence on Bill 28/2016 has to be consecutive. There's a mandatory consecutive sentence has to be

passed, but I have to take into account the totality principle when imposing that sentence.

In relation to Bill 29/2016, the aggravating factors were the possession of the knife and the fact that he had threatened

gardaí and that he lunged at them with the knife, albeit he had been pepper sprayed. The mitigating factors are he was

intoxicated; he was threatening self-harm. The summary offences have been dealt with. He pleaded guilty at an early

stage. He has apologised and the gardaí have spoken up to him. So, on Bill 28/2016 which I think is count number --

MR O'SHEA: Number 2, Judge, yes.

JUDGE: -- two, I am going to impose a sentence of five months and on Bill 29/2016 on count no. 2, I'm going to impose a

sentence of five months and I'm going order that that sentence be consecutive to the sentence on Bill 28/2016 and I'll

take the remaining counts into consideration on full facts, which are count no. 1, 3 and 4 and to give him -- and I don't

propose to suspend any part of the sentence, but to give him some credit for the time he has spent in custody, I'm

going to backdate the sentence to the 1st September 2016, to give him some credit for the time he has spent in

custody. So, that's a sentence of five months plus five months consecutive.

MR O'SHEA: The 1st September is it, Judge?

JUDGE: Backdated to the 1st September 2016.”

Grounds of Appeal

16. The applicant seeks a review of the sentence imposed on Bill No 29/16 on the grounds that the sentencing judge:

i. failed to fully appreciate the gravity of the offences as committed by the offender;

ii. departed in a significant way from the norm that would reasonably be expected in a case of this nature;

iii. failed to follow the established sentencing process which would have led to a more appropriate and proportionate

sentence, and one that would have been more readily reviewable;

iv. failed to properly identify the aggravating factors and attached insufficient weight to those that were identified.

v. attached too much weight to the mitigating factors.

The Applicant’s Submissions

17. The applicant complains that the sentencing judge failed to nominate a headline sentence that had regard to the range of

available punishments while reflecting both the culpability of the offender and the harm done. Moreover, it is said, the sentencing

judge failed to follow recommended best practice in sentencing both in terms of the process and in terms of elucidating how he

arrived at his ultimate sentence.

18. The appellant submits that in so far as there was reference to aggravating factors, one matter was taken into account which it is

contended was not in fact aggravating namely, the respondent’s possession of a weapon, because that was an ingredient of one of

the offences charged on a separate count which was later taken into consideration; and also in so far as there was reference to

mitigating factors, that a matter was taken into account that was not in fact mitigating, namely self induced intoxication. In addition,

there was no indication of what weight was being afforded to mitigation overall, much less to each individual mitigating factor.

19. The appellant surmises that to have ended up where he did the sentencing judge must have viewed the offence as to belonging

at the very lowest end of the scale It has been submitted that this was an error as the offences involving threats to kill or cause

serious injury matters were serious by any standards. They occurred along the main street in a small rural town where Gardaí had to

come from around the county in order to create a cordon around the respondent to contain the danger he posed. He was drunk,

shouting and roaring, and he had brandished a knife at them, threatened them, and lunged at them. Even after being subjected to

pepper spray he had lashed out at them with the knife. It was submitted that those offences should have been placed higher on the

scale of gravity in all the circumstances.

20. The appellant contends that there is also a basis for concern that the sentencing judge may have afforded too much allowance

for mitigation. The difficulty, of course, is that in the absence of a properly structured and explained sentence it is impossible to

discern the precise quantum of discount afforded for mitigation. Nevertheless, the appellant points to the following. In respect of the

counts involving threats to kill or cause serious harm, the sentencing judge concluded that there were four mitigating factors: (1) the

respondent’s intoxication, (2) the fact that he was threatening self-harm, (3) that he pleaded guilty at an early stage, and (4) that

he had apologised. It is reasonable to infer, says the appellant, that the sentencing judge attached significant weight to these

factors given the sentence ultimately imposed. The appellant has submitted that the sentencing judge fell into error when he

concluded that self induced intoxication is a mitigating factor. Further, she submits, it is difficult to envisage circumstances in which

threatening self-harm could be a mitigating factor.

21. The appellant has submitted that the sentence of 5 months’ imprisonment not only failed to sufficiently reflect the gravity of the

offence committed by the respondent but also does not act as a deterrent to prospective offenders. It was submitted that the courts

must have regard to the unique function that the Gardaí perform in terms of protecting citizens from criminal activity and public order

offenders. They put themselves in harm’s way in this regard, and indeed they have a duty to do so. In those circumstances it was

submitted that a sentencing court must take a firm view of threats to kill or seriously injure a garda. It is submitted that the courts

must deter people from criminal behaviour generally, but towards Gardaí in the lawful execution of their duty more specifically. Put

another way, if the Gardaí are going to put their own personal safety at risk to protect citizens, then the courts must be seen to

protect them from gratuitous criminal behaviour such as in this case.

The Respondent’s Submissions

22. Counsel for the respondent has sought to emphasise the principles to be followed in an application by the Director of Public

Prosecutions pursuant to s.2 of the Criminal Justice Act 1993 for the review of a sentence on the grounds of undue leniency, and we

have been referred in particular to the remarks of O’Flaherty J in The People (Director of Public Prosecutions) v Byrne [1995] I.L.R.M.

279, where he said:

"In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the

sentence called into question was 'unduly lenient'.

Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is

called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to

court as in this case … he may detect nuances in the evidence that may not be as readily discernible to an appellate

court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the

offence and the relevant personal circumstances of the person sentenced: what Flood, J. has termed the 'constitutional

principle of proportionality' (see The People (D.P.P.) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.

Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence,

would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr. Grogan

S.C. the test to be applied under the section is not the converse of the court makes where there is an appeal by an

appellant. The enquiry the court makes in this form of appeal is to determine whether the sentence was 'unduly lenient'.

Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a

substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this

court."

23. We were also reminded of Barron J’s statement in The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R. 356,

where he said:

"Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts

but also upon the personal circumstances of the accused. 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."

24. Counsel for the respondent stresses that the Court must not engage in an exercise of adjudicating on the application by reference

to the sentence it would itself have imposed had it been the sentencing court. The exercise is one of review, namely to determine

whether the sentencing judge misdirected himself in law by committing an error in principle leading to a sentence which was not

merely lenient but unduly lenient - The People (Director of Public Prosecutions) v Redmond [2001] 3 I.R. 390.

25. Stress was also laid on the requirement to afford significant defence to the reasoning of the sentencing judge. However, this was,

it has to be said, a difficult argument to press where the judge at first instance arguably did not clearly explain his reasoning. Counsel

for the respondent maintains, however, that the sentencing judge approached the matter in a very careful manner and in his written

submissions he points out that:

“Great efforts were made by the sentencing judge to grasp the full extent of the evidence of both prosecuting members in

relation to the injuries suffered by the complainant in Bill [29/16] including enquiring into why the State had failed to

obtain a medical report in respect of the complainant’s injuries, the nature of the complainant’s disability, which matters

remained before the District Court how they were disposed of by the District Judge, whether the accused was on bail at

the time either offence was committed, how long the accused had spent in custody on these matters prior to sentencing,

at what stage the pleas were entered in respect of both matters, enquiring as to what risk Garda Donnellan was actually

exposed to as the first responder in relation to Bill 29[/16], as well as reading a medical report prepared on behalf of the

accused before Court.

The learned sentencing Judge brought all this information to bear when sentencing the accused. His sentencing remarks

very substantial and no glib summary of proceedings. The sentencing Judge made reference to the factual matrix of both

offences and the particular personal circumstances of the accused. It is submitted by the Respondent that the

sentencing Judge’s reasoning is clear from the transcript, that the sentencing Judge entered into a very careful weighing

and assessment of the facts of both offences and the personal circumstances of the accused.”

26. It was further submitted that there were significant mitigating circumstances that the trial judge was obliged to take into

account. Counsel lists these as follows:

i. There was an early plea of guilty;

ii. The respondent had psychiatric problems and he was suicidal and troubled at the time of the incident and he had rung

for an ambulance. The trial judge noted that the Gardaí accepted that the respondent was “out of his mind” at the time

of the commission of the offences. Dr. Drynan at the conclusion of his medical report dated 24th October 2016 at page 2

refers to the respondent as a “vulnerable disturbed young man” who is generally a “very pleasant, co-operative and

amenable” person.

iii. The respondent had significant addiction problems and when sober the Gardaí accepted that he was a fine fellow;

iv. The respondent had already received a 2-month custodial sentence from the District Court in respect of summary

charges arising from the same incident;

v. No member of the Garda was injured in the incident;

vi. The respondent had apologised to the Gardaí;

vii. The respondent had a difficult upbringing and came from a dysfunctional family background;

viii. The respondent had abstained from drugs since the incident and his mental health difficulties had stabilised due to

taking medication.

27. The respondent has submitted that the sentencing judge did not treat the accused’s intoxication as a mitigating factor per se but

rather the effect that intoxication had on the accused in light of the accused’s particular circumstances. Counsel reminds us that this

Court has approved of this approach very recently in The People (Director of Public Prosecutions) v Hynes [2016] IECA 102, an appeal

against a sentence of four years with eighteen months suspended for a section 3 assault causing harm where the accused inflicted

six stab wounds during a frenzied attack on his daughter’s partner following a threatening and abusive phone call by the victim to the

accused’s daughter. The attack was carried out when the accused was intoxicated. The Court of Appeal held that in view of the

evidence available the case was exceptional involving significant genuine provocation offered to a psychologically vulnerable party

who had commenced using drink as an ill conceived coping mechanism for dealing with multiple adversities in his life and who at the

time of the index offence was in fact intoxicated. Giving the single judgment of the Court, Edwards J stated at para 54 and 59.

“[54] The trial judge was absolutely correct in his statement of the general rule which is that excessive alcohol

consumption is not a mitigating or excusing factor when it comes to sentencing. However, in the case of many general

rules there may be exceptions to the rule, or perhaps more commonly a requirement that the rule be applied in a

nuanced and sensitive way which in some cases may result in a less than rigid or absolute application of the rule. That is

in fact the position in relation to intoxication by alcohol or other substance as is clear from “Sentencing Law & Practice”,

Second Edition, by Thomas O'Malley. Mr O'Malley, at paras 6-56 & 6-57, makes the following statements, which we

endorse and approve of as being correct in principle:

‘Intoxication may function as a mitigating, aggravating or neutral factor depending on the circumstances. Courts

are obviously reluctant to treat it as a mitigating factor, especially when the crime committed was of a violent

nature. It is only when there is evidence of the offender having acted out of character as a result of the

intoxication that some mitigation may be allowed on that account.’

…

[59] We consider that on any view of the available evidence this was an exceptional case involving, as it did, a significant

genuine provocation offered to a psychologically vulnerable party who had commenced using drink as an ill conceived,

and indeed ill advised, coping mechanism for dealing with multiple adversities in his life, and who at the time of the index

offence was in fact intoxicated. These various circumstances form the background to his loss of self control, and in our

view were, in the circumstances of this case, properly to be regarded as mitigating factors of which account required to

be taken.”

28. It was further submitted that the sentencing judge was not bound by any rule of law to incorporate a deterrent element in the

sentence simply because the victims of the offences charged on Bill No 29/16 were members of An Garda Siochána.

29. Finally, it was submitted that the sentencing judge in arriving at his decision clearly saw that the respondent had serious mental

health issues and was suicidal at the time of the commission of the offences which was a significant mitigating factor.

It was also clear that the sentencing judge had viewed the threats to kill through the prism of the respondent’s psychiatric condition

at the time of the commission of the offences and Dr. Drynan’s assessment of the respondent as a “vulnerable disturbed young man”.

Discussion and Decision

30. The problem in this case is the sentencing judge’s failure to indicate either his view of the gravity of the offending conduct with

reference to the range of available penalties, or to quantify the extent to which there required to be a discounting to reflect, what it

must be accepted, were the significant mitigating factors in the case.

31. While a failure to follow best practice in setting out the reasons for a sentence will not necessarily always amount to an error of

principle, it is also true that if this Court when asked to review a sentence cannot readily discern the trial judge’s rationale for how he

or she ended up where they did having regard to accepted principles of sentencing it may not be possible to uphold the sentence

under review even though the trial judge may have had perfectly good, but unspoken reasons, for imposing the sentence in question -

The People (Director of Public Prosecutions) v Davin Flynn [2015] IECA 290.

32. This was a complex case requiring a reflective approach, and a carefully constructed sentence that took account in the correct

way of all of the relevant factors and nuances. We agree with counsel for the respondent that the transcript reveals that the

sentencing judge made great efforts to ensure that he had all the necessary information to enable him to arrive at a just and proper

sentence in the case. He made appropriate enquiries and sought appropriate reports. Moreover, we are satisfied that he did in fact

have all of the necessary information at his disposal, and that he was aware of it, when he came to construct his sentence. However,

what he did not do, and in the circumstances of this case it was an error, was to explain how he arrived at his ultimate sentence of

five months.

33. The curial part of the judgment simply does not address the assessment of gravity at all. There is no indication given as to how

the judge views the offending conduct. The range of available penalties is nowhere alluded to, and in those circumstances it is not

apparent where on that range he was prepared to located the offence before consideration of aggravating factors, and mitigating

factors potentially bearing on culpability. Moreover, although he did identify both aggravating factors, and some mitigating factors

potentially bearing on culpability, there is no indication of by how much he was prepared to move the needle further along the scale

to take account of those aggravating factors, and conversely to what extent he was prepared to move the needle in the other

direction to take account of relevant mitigating factors. In addition, there is no indication as to what further discount he was then

prepared to give in order to factor in additional mitigation not bearing on culpability, such the plea of guilty and the expression of

remorse.

34. We do not agree with the submission by the applicant that the sentencing judge was wrong to have regard to the possession of a

weapon as an aggravating factor in the circumstances of sentencing the respondent for threatening to kill or cause serious harm. It

was clearly aggravating and was not an ingredient of that offence. Moreover, in circumstances where the sentencing judge clearly did

not intend to impose a separate sentence on the possession of a weapon count, but merely to take it into consideration in sentencing

the respondent for the offence of threatening to kill or cause serious harm, it was absolutely appropriate to regard it as a

circumstance that had aggravated the offence for which the respondent was actually being sentenced.

35. We also disagree with counsel for the appellant that the trial judge was wrong to take into account the respondent’s intoxication.

In that regard we agree with counsel for the respondent that it was apposite to adopt the more nuanced approach commended in

The People (Director of Public Prosecutions) v Hynes [2016] IECA 102 in the circumstances of this case.

36. Be all of that as it may, the essential question that this Court must ask itself is whether the sentence imposed by the sentencing

judge was not just a lenient one but unduly lenient. We consider that it was. The Oireachtas has provided that the offence of

threatening to kill or cause serious injury contrary to s.5 of the Non-Fatal Offences Against the Person Act 1997 shall attract a

maximum penalty upon trial on indictment of 10 years’ imprisonment. We consider that this was a case of moderate seriousness when

the aggravating factors and mitigating factors bearing on culpability are taken into account. In particular, the combination of the

brandishing of a potentially lethal weapon, namely a knife, in conjunction with the utterance of the threats made, coupled with the

actual use of that weapon in an attempt to make physical contact with the Gardaí who were trying to subdue him, and the fact that

the threats were uttered to members of An Garda Siochána in the performance of their duty, were all significant aggravating factors.

Undoubtedly the appellant’s intoxication on the background of his mental health issues was also a significant factor that required to

be placed on the other side of the scales in the assessment of gravity exercise. It is also of significance, as the sentencing judge

rightly alluded to, that happily nobody was in fact injured.

37. We consider that in the circumstances the sentencing judge could not have been criticised if he had determined upon a headline

sentence that fell anywhere within the range from 2 years to 4 years’ imprisonment. Moreover, he would have been entitled to further

discount against a headline sentence in that range for additional mitigation not already taken into account, and in particular the

respondent’s plea and his remorse. However, even allowing a very significant margin of appreciation to the sentencing judge he ought

not to have ended up with a final sentence as low as he did. We consider that it was significantly outside the norm and unduly

lenient.

38. We suspect that the sentencing judge may have been significantly influenced by the fact that the Director of Public Prosecutions

had consented to summary disposal. On summary conviction a person guilty of this offence is liable to a fine not exceeding £1,500 or

to imprisonment for a term not exceeding 12 months or to both. A sentence of five months’ imprisonment would perhaps have been

within the appropriate range of penalties if the case was being tried summarily. However, it was not being tried summarily and the

sentencing judge ought not to have treated it as though it was.

39. In the circumstances we will quash the sentence imposed by the Court below and proceed to re-sentence the respondent.