Court of Appeal dismisses DPP's appeal against sentence for arson as it was not unduly lenient.

THE COURT OF APPEAL

276CJA/2018]

The President

Edwards J.

Kennedy J.

BETWEEN/

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

- AND -

MICHAEL FARRELL

RESPONDENT

JUDGMENT of the Court (ex tempore) delivered on the 30th day of April 2019 by Ms. Justice Kennedy

1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of s. 2 of the Criminal Justice Act

1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 19th October 2018. Following a

trial in the Circuit Criminal Court which concluded on the 18th July 2018, the respondent was found guilty of four counts of arson

contrary to s.2 of the Criminal Damage Act, 1991 and two counts of unauthorised interference of a vehicle contrary to s.113 of the

Road Traffic Offence Act, 1961. The respondent was sentenced to four and a half years’ imprisonment with the final eighteen months

suspended on terms.

Background

2. The offences in question relate to two separate incidents. On the 11th January 2017, three cars were set alight at Tomar Court in

Palatine Square, Dublin 7, causing extensive damage to the vehicles. This was a residential estate and residents in the vicinity had to

be evacuated. Following this, Garda surveillance was placed in the area and on the 18th January 2017, a member of an Garda

Síochána, observed the respondent on the North Circular Road where he set alight a bag of rubbish. Other Gardaí in the area were

alerted, who then followed the respondent to Cavalry Row, Dublin 7 where they observed him in the back of a vehicle which was

shortly afterwards set alight.

3. The respondent was arrested and interviewed in respect of both incidents and made no admissions in relation to either. CCTV

footage in respect of the incident at Tomar Court was gathered and showed a man entering the housing estate in the early hours of

the morning. The respondent accepted that he was on the CCTV but maintained that he had nothing to do with the fire. He pleaded

not guilty and following a trial of three days’ duration, unanimous verdicts of guilty were returned in respect of all counts on

indictment.

The Sentence

4. At the sentence hearing, a number of victim impact reports were handed into the court which detailed the financial loss suffered by

the victims and the significant emotional impact of the offences on them. The sentencing judge identified the serious nature of the

offending in relation to the arson as the primary aggravating factor in circumstances where the arson took place in a built-up

residential area and led to residents having to leave their premises. The judge also referred to the emotional and economic impact on

the victims and the pre-meditated nature of the offending as aggravating factors and noted that the respondent had 159 previous

convictions but accepted that many of these were for road traffic or minor matters.

5. In relation to mitigating circumstances, the judge observed that the most important mitigating factor, that being a plea of guilty,

was not present in this case. She referred to the report of Dr Fitzpatrick, Clinical Psychologist, which details the respondent’s various

difficulties including poor cognitive abilities, the fact that he suffered a head injury as a child and his subsequent history of substance

abuse. The respondent has engaged in personal and vocational training, which we note was something which Dr Fitzpatrick was of the

opinion, should be prioritised in his case. The Court also referred to a letter from the respondent’s mother but noted that the

respondent’s numerous previous convictions diluted the character testimony available to him.

6. The judge went on to identify a headline sentence of six years’ imprisonment and, taking into account the mitigating

circumstances, she then imposed a sentence of four and a half years’ imprisonment and suspended the final eighteen months on

terms. The terms of that suspension, as we have already indicated, reflected the recommendation of the psychologist.

Personal Circumstances

7. At the time of sentencing, the respondent was 26 years of age. He had 159 previous convictions, 23 of which are Circuit Court

convictions. At the sentence hearing, the report of Dr Fitzpatrick, was furnished and that stated that the respondent sustained an

acquired brain injury as a young child, as a result of a road traffic accident which led to behavioural and cognitive difficulties which

resulted in him being referred to the child and adult mental health service in the Mater Hospital when he was six years of age, during

which time he was reportedly diagnosed with a certain disability. The report also detailed his history of poly-substance dependency

which has had a significant impact on him.

Grounds of Appeal

8. The DPP puts forward 8 grounds of appeal, as outlined in written submissions: -

(i) The learned sentencing judge erred in principle in failing to properly formulate and structure the sentence in

accordance with approved sentencing practice as enunciated by the Court of Criminal Appeal.

(ii) The learned sentencing judge erred in principle in failing to adequately reflect the seriousness of the offences by

marking a "headline sentence" as being one of 6 years’ imprisonment.

(iii) The learned sentencing judge erred in principle in failing to adequately reflect the seriousness of the offence by

imposing a sentence of 4 and a half years’ imprisonment and suspending the final 18 months of that sentence.

(iv) The learned sentencing judge erred in principle in failing to attach sufficient weight to the aggravating factors in the

case, in particular the potential risk to the lives of a number of people in a residential estate.

(v) The learned sentencing judge erred in principle in failing to attach sufficient weight to the evidence of the

respondent's previous convictions, including previous convictions for a number of indictable offences.

(vi) The learned sentencing judge erred in principle in giving undue weight to mitigating factors in the case.

(vii) The learned sentencing judge erred in principle by failing to provide the respondent with a sufficient deterrent not to

reoffend.

(viii) In all the circumstances the sentence imposed by the learned sentencing judge was unduly lenient.

9. The DPP submits that the headline sentence of six years' imprisonment does not reflect the gravity of the offences, and coupled

with the respondent's persistent offending, make the headline sentence unduly lenient. The appellant emphasis that the maximum

sentence for arson is one of life imprisonment and in circumstances where the respondent was found guilty of four separate counts of

arson, gravity is on the upper end of the scale in terms of potential harm. Moreover, when one considers the impact on the victims,

the premeditated nature of the offending behaviour, the respondent’s previous convictions and the fact that the offences were

carried out seven days apart; the pre mitigation sentence, it is argued by the appellant, was inadequate.

10. Furthermore, the DPP argues that the sentencing judge gave excessive credit for the mitigating factors. It is argued that the

mitigating features that reduced the sentence from six years to four and a half years, and then down to a net three years'

imprisonment, were essentially the same factors, namely, his psychological issues and his drug addiction and it is submitted that an

effective 50% reduction was excessive in circumstances where the respondent had pleaded not guilty. Finally, the argument is

advanced that the sentencing judge erred in not referring to the principle of deterrence in the course of sentencing.

11. In reply on behalf of the respondent, Mr McCarthy BL submits by written submissions that the headline sentence of six years not

only reflects the gravity of the offence but also reflects the particular circumstances of the respondent and in effect, his moral

culpability. Moreover, it is submitted that the sentencing judge was conscious of the need to consider both the offence and the

offender and stated very clearly how seriously she viewed the offences. Moreover, he says that the mitigating factors in this case are

unique to the respondent as he suffers from extremely low cognitive ability as a result of an acquired brain injury, and has a

longstanding drug habit. In the circumstances, it is submitted that the appropriate balance was struck.

12. In relation to deterrence, the respondent submits that the concept of deterrence might be beyond the respondent’s capacity to

understand and fully appreciate given his intellectual difficulties and it is submitted that a term of incarceration of four and a half

years with the final eighteen months suspended by its nature and duration must and can only be seen as a deterrent.

Discussion and Conclusion

13. Grounds 2 – 5 inclusive concern the pre mitigation sentence of six years’ imprisonment, which, it is argued does not adequately

reflect the gravity of the offences. These were undoubtedly serious offences which is reflected by the maximum sentence of life

imprisonment. The offences were committed in a residential area. Mr Farrell is a man with 157 previous convictions. The impact on the

victims was significant.

14. The appellant argues that double credit was given for the mitigating factors, these included Mr Farrell’s psychological condition

and his drug addiction difficulties. Testimonials were furnished to the court but the judge was of the view that his previous

convictions diluted the value of such testimonials. In the latter respect, it is correct that his previous convictions give rise to a

progressive loss of mitigation. He was given every possible credit for the mitigating factors, reducing the sentence by a quarter in the

first analysis and the judge then proceeded to suspend the final eighteen months on terms as recommended by the clinical

psychologist.

15. In the Court’s view, the sentence imposed was lenient. However, the judge applied the correct legal principles and imposed a

sentence for the offences as committed by this offender with his particular set of circumstances. The issue is whether the sentence

is so unduly lenient, so as to warrant intervention by this Court, we are fully satisfied in the particular circumstances of the

respondent that intervention is not warranted.

16. We are satisfied that the sentence imposed fell entirely within the discretionary range available to the sentencing judge and in the

circumstances we have no hesitation in dismissing the appeal.