Court of Appeal dismisses DPP's undue leniency review of suspended sentences for violent disorder and assault.

THE COURT OF APPEAL

Record Number: 274CJA/18

The President

Edwards J.

Baker J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

MARTIN McDONAGH

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered on the 29th day of April 2019 by Mr. Justice Edwards

1. This is an undue leniency review brought at the behest of the Director of Public Prosecutions in respect of sentences imposed on

the respondent on 12th October 2017, being a sentence of six years imprisonment on Count No 1 which was a count of violent

disorder, contrary to s. 15 of the Non-Fatal Offences against the Person Act 1997, a sentence of three years imprisonment on Count

No 3 which was a count of assault causing harm, contrary to s. 3 of the Non-Fatal Offences against the Person Act 1997, and a

sentence of three years imprisonment on Count No 6, which was a count of possession of an article contrary to s. 11 of the Firearms

and Offensive Weapons Act 1990. All sentences were to run concurrently and were suspended in their entirety subject to the

respondent acknowledging himself bound to the people of Ireland in the sum of €100, the conditions being that he would keep the

peace and be of good behaviour for a period of five years.

BACKGROUND TO THE APPLICATION

2. The facts of the case were set out in the evidence of Sgt James Mangan who testified before the sentencing court on 10th

October 2017. This was in circumstances where the respondent was co-accused with three other persons. The respondent and two

of his co-accused had contested a trial and had been convicted by a jury. The other co-accused had pleaded guilty and was awaiting

sentencing. Sgt Mangan told the court that the events giving rise to the charges had occurred on 16th May 2016. The respondent in

this matter is Mr Martin McDonagh of The Big Isle, Manorcunningham, Letterkenny, Co Donegal, who was born on 12th July 1985. His

co-accused were all his brothers.

3. The injured parties in the matter were Mr Thomas McDonagh of 55A Ormonds Court, Bristol, England who was born on 24th April

1991 and Mr Martin McDonagh of 29 Speyside Court, Orton, Southgate, Peterborough, England, who was born on 10th August 1984.

In circumstances where both the respondent and one of the injured parties share the same name they may be referred to for

convenience as Martin ‘Tash’ McDonagh in the case of the respondent, and Martin ‘Screech’ McDonagh in the case of the relevant

injured party.

4. The background to the incident in which the offences were committed was a long standing feud between two branches of the

extended McDonagh family who are known in the Donegal area as the Black McDonagh’s. Although the four accused lived in Donegal

and the injured parties lived in England, both the accused and the injured parties had a common grandfather namely Martin Frank ‘Red

Breast’ McDonagh. The occasion on which the offences occurred was the funeral of Martin Frank ‘Red Breast’ McDonagh, which was

due to take place on 16th May 2016 in the church at Ballyhaunis, Co Mayo.

5. The evidence was that on the morning of the funeral the injured party, Martin Screech McDonagh, accompanied by his wife Ellie,

and by his brother Thomas and his wife Helena, was driving his Volkswagen Sharan, Reg number 04–LS–2114 in the direction of

Ballyhaunis when an oncoming vehicle, namely a Ford Galaxy driven by the respondent, Martin Tash McDonagh, and in which his three

co-accused brothers were also passengers, collided head-on with the vehicle being driven by Martin Screech McDonagh.

6. Martin Screech McDonagh and his brother, Thomas, immediately exited their vehicle and fled. They were pursued by the

respondent and his three brothers who were armed with various weapons. Specifically, the respondent was said to have been in

possession of a machete or bill hook (giving rise to Count No 6), while another member of the attacking group was said to have been

in possession of a baseball bat. The pursuing group caught up with those that were fleeing and set upon them. Both Martin Screech

McDonagh and Thomas McDonagh suffered significant injuries in this attack. The respondent was not charged with specifically

assaulting Thomas McDonagh, although he was charged with participating in the violent disorder in the course of which both Thomas

McDonagh and Martin Screech McDonagh were assaulted and suffered their injuries. The respondent was however charged with

specifically assaulting Martin Screech McDonagh causing him harm. This was the subject matter of Count No 3.

7. The sentencing court received victim impact statements from both injured parties as well as from Mrs Ellie McDonagh and Mrs

Helena McDonagh and these were read into the record, I should say, in the court below and were fully taken into account by the

sentencing judge. Fortunately for the respondent, Martin screech McDonagh, has at this stage fully recovered from his injuries while

Thomas McDonagh has largely recovered from his injuries. It requires to be emphasised once again that the respondent was not

charged with specifically causing harm to Thomas McDonagh, although he did engage in the violent disorder in the course of which

Thomas McDonagh was assaulted.

Personal Circumstances of the Respondent

8. The sentencing court heard that the respondent, Martin “Tash” McDonagh, had 25 previous convictions, which were comprised of

offences involving thefts, obstructing a peace officer, false imprisonment, dangerous driving, trespassing on a building, threatening to

kill or cause serious harm, criminal damage, assorted public order matters, assault, assault causing harm and possession of knives and

other articles. Clearly the most significant of these were the previous convictions for assaults and for possession of weapons. The

details of these convictions were as follows: he was sentenced to one year’s imprisonment on 31st October 2008 for an assault

causing harm contrary to s. 3 of the Non-Fatal Offence against the Person Act 1997; he received a sentence of nine months’

imprisonment, suspended for nine months, for a similar offence on 14th January 2006; and on 25th October 2006 he was sentenced to

4 months’ imprisonment, suspended for 12 months, for possession of knives and other articles.

9. The respondent was said to be a man in his late 30s and to be the father of four children. It was submitted on his behalf that he

was a very hands-on father and that he also contributed to the care of a brother who was seriously disabled. The court was told that

the respondent had been employed for the last two years, save for the period when he was on remand in prison, and that his job

remained open and that it would be available to him upon his release. The court was further told that as well as being a good father

and husband, and a good worker, the respondent did a lot of voluntary work in the community mainly as a boxing coach. A Mr Eddie

Harkin was called as a witness to provide confirmation of this.

The Plea in Mitigation

10. In a plea in mitigation presented on the respondent’s behalf it was urged upon the court that the respondent was anxious to move

beyond the feud and that he was open to engaging in mediation. The evidence was extremely vague as to the origins of the feud, but

it was expressly stated on behalf of the respondent that he wished to see an end to it. The sentencing judge put the matter back

several times so that the possibility of mediation could be explored. There was also an offer to pay compensation in the sum of

€5,000. Ultimately the offer to engage with the process of mediation did not find favour with the injured parties, and they were

unwilling to accept compensation. Despite this, and as an earnest of good faith, the proffered sum was paid to a charity.

The sentencing judge’s remarks

11. On the first occasion that the matter was before him for sentencing, the sentencing judge indicated the headline sentences he

had in mind, stating:

“JUDGE: These three accused were involved in a very serious public fracas on the streets of Ballyhaunis. It seems the

background was some sort of a long-standing feud between various members or sides of the same family. It isn't clear

how this feud started, nobody seems to know for sure, but the scene on this particular day was the funeral Mass of

their mutual grandfather. What happened that morning showed very little respect for the memory of their grandfather,

their conduct was disgraceful, it was a disgrace to themselves and to the memory of their grandfather. The injuries that

were caused were the responsibility of all of the accused. Weapons were used and it's beyond doubt that these offences

were premeditated, these are clear aggravating factors. The injuries that were sustained and their impact on the

victims and their families are matters that I take into account in determining where these offences stand on the scale

of gravity. Each of the offenders have previous convictions and I take this into account in determining the headline

sentence and their moral culpability for what they did.

I'm going to fix the headline sentences.

…In respect of Martin McDonagh, multiple previous convictions for a cocktail of different crimes over a considerable

period of time. The violent disorder offence stands, in his case, at the high side of medium and the headline sentence is

six years' imprisonment. Each of the Section 3 assault causing harm offences, are on the high side of medium and

attract a sentence of three years' imprisonment and the same for the production of an article.

…I propose to, while I have noted the matters that have been opened to me in mitigation, and I will take them into

account ultimately in determining what a proper sanction is going to be, I'm going to adjourn finalisation of sentence in

all three cases…”

12. The adjournment was to enable the suggestion of mediation to be explored. When the reticence of the injured parties became

known, the sentencing judge decided he needed yet more time and he put the matter back again stating: -

“JUDGE: The difficulty about these feuds that go on, is that they appear to go on from generation to generation, and

they may even have started in a previous generation, by the time it gets to the next generation, or even the generation

after, the feud still exists but if you were to ask somebody what it's about, they'd find it very difficult to explain, it's just

that it seems to go on in perpetuity. And, I have to say, that while I think it was no harm to explore the possibility of a

mediation agreement, and it shows on one interpretation of the situation, a willingness or a preparedness on the part of

the three accused, to explore the possibilities of coming to a mediated agreement that might bring an end to this feud.

It's hard to ignore the fact that in this -- with a backdrop of the prison gate clearly looming in front of them, only they

know the motivation for setting forth on this avenue, only they know whether they are doing it with a genuine view to

terminating the feud, or simply to keep them out of jail, or to keep them out of jail for as long as possible. At present, at

least, there is no preparedness on the part of the victim, or the people associated with the principal victim in this case,

to participate in this mediation, and he has stated his reasons for it, and I have to respect that situation. So, where do

the interests of justice lie at this stage? I'm asked not to finalise it, and of course, the victim would like it finalised, but

that mightn't necessarily be my primary consideration. I have to decide where the interests of justice lie. I think a little

bit more time might assist me in assessing where the accused, if you like the accuseds' side of this feud, are going, so

I'm going to put it back for six months…”

13. Ultimately, the matter was finalised by the sentencing judge, who in doing so stated:

“JUDGE: Okay. Well, some time has passed since this trial took place, had I been sentencing the accused at the

conclusion of the trial or in the immediate aftermath of it, they'd all be in jail now. However, time has passed, I'm

prepared to put these people to the test. I'm going to, in respect of Martin McDonagh, impose a six, three and three

sentence, I'm going to suspend them all for five years and he can enter into a bond to be of good behaviour.”

Discussion

14. The law in relation to undue leniency appeals is by now so well established that it is unnecessary to set it out in any detail. It is

sufficient to state that significant weight must be afforded to the reasons of the sentencing judge at first instance and that before a

sentence can be considered unduly lenient it must represent a clear and substantial departure from the norm.

15. The issue for this court is whether these sentences were unduly lenient in the sense of representing a clear and substantial

departure from the norm. They were undoubtedly very lenient sentences but that is not enough. The applicant must establish, if she

is to succeed, that they were outside of the norm, i.e. not within the judge’s legitimate range of discretion in the circumstances of

the particular case.

16. It is clear to us that the sentencing judge in this case took considerable care in the construction of his sentences. He put the

matter back not just once but twice. On the first occasion it was so that the question of mediation could be explored, and on the

second occasion, when it was clear that mediation would not be possible, so that he could reflect further on what he should

ultimately do, in a situation where he had indicated some time previously what in his view the headline sentences ought to be.

17. Much reliance is placed by the applicant on the seriousness of the offending conduct and on the aggravating factors in the case.

The applicant lists the relevant aggravating factors at paragraph 3 of the written submissions filed on her behalf. They are said to be

as follows: -

• The fact the attack was planned or premeditated;

• the use of weapons;

• the serious injuries sustained by the injured party, Mr. Martin McDonagh, and the psychological and emotional impact of

the attack on all of the injured parties;

• the degree of the violence involved;

• the protracted nature of the violence;

• the Respondent’s previous convictions for section 3 assault; and

• the use of violence at the solemn occasion of a family funeral.

18. However, it is important to appreciate that aggravation is to be taken into account in the assessment of gravity. It is clear from

the headline sentences fixed by the sentencing judge that he was fully cognizant of the gravity of the offending conduct. Moreover,

the Director of Public Prosecutions does not quarrel with how gravity was assessed or with the headline sentences that were

nominated. Her quarrel such as it is, is not with the level at which the headline sentences were set, but rather with the fact that the

sentencing judge went on to suspend the entirety of the headline sentences that he had nominated. That, of course, occurred in a

subsequent stage of the sentencing process but not in the course of assessing gravity. The real gravamen of the Director’s complaint

is that, in deciding to suspend the entirety of the headline sentences, the sentencing judge failed to have adequate regard to the

penal objective of retribution and to the need for deterrence, both general and specific.

19. In our view the headline sentences were set at a level which was sufficient to deprecate the offending conduct in this case and

to express society’s outrage and censure in respect of it. However, the applicant makes the case that censure on its own was not

enough and that the ultimate sentence ought to have been constructed in a fashion that backed up that censure by a meaningful

concrete sanction such as a term of imprisonment to be actually served. Accordingly, the applicant believes that there ought to have

been a carceral dimension to the sentence and that a wholly suspended sentence lacked that. The need for this is said to reside in

the desirability of providing both general and specific deterrence.

20. However, the sentencing judge clearly felt that the overall interests of society were best served by seeing if the feud could be

ended. The best chances of achieving desistance would be if the feud were no longer to exist. He reasonably wished to explore that

possibility in circumstances where the offender had expressed a willingness to engage in mediation. That did not prove possible but by

the time it became apparent that it was not possible passions had cooled and there had been no further incidents. The judge directed

that the matter be put back yet further and during the second period of adjournment there was again no further trouble. Moreover,

this Court has been told today that it remains the position that there has been no further trouble. It seems to us implicit in the way in

which the sentencing judge dealt with the matter that he was satisfied that the need for specific deterrence was low having regard

to how matters had transpired. Moreover, while general deterrence remained to be considered, any message aimed at general

deterrence would be at risk of being in fact undermined if a custodial sentence was imposed, by stoking further resentment between

the protagonists in this particular feud.

21. We have already mentioned that the law requires that great weight should be attached to the views of the sentencing judge at

first instance. We are satisfied that the decisions made by the sentencing judge in this case were within his legitimate range of

discretion. The ultimate sentences were undoubtedly very lenient but we are not satisfied that they were so lenient as to represent a

clear and significant departure from the norm. Cases such as this are finely balanced. It is clear that this judge approached the

matter with great care and conscientiousness. It is in precisely this type of situation that the careful exercise of judicial discretion is

required and most valuable. Accordingly, we find no error of principle in sentencing judge’s approach.

22. That having been said this respondent was extremely fortunate in the lenient way in which this case was dealt with. The

sentencing judge has, in effect, taken a chance on him. The period of suspension is lengthy. He ought to be reminded that if he sets

a foot wrong in any way during that lengthy period he is liable to be called upon to serve the entirety of the headline sentences that

was nominated in his case. He is to be commended for his continued good behaviour but he should not lose sight of the fact that his

commitment in that regard is lengthy and that it must be sustained on an ongoing basis.

23. In all the circumstances of this case, we dismiss the Director of Public Prosecutions application.