Court of Appeal quashes sentence for arson, increasing suspension from one to two years due to youth and rehabilitation prospects.

APPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

Neutral Citation No. [2025] IECA 219

Record No: 46/2025

Kennedy J. Butler J. Owens J.

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

ANDY DONOHUE

Appellant

JUDGMENT of the Court delivered (ex tempore) by Ms. Justice Butler on the 7th of October 2025

Introduction

1. This is an appeal brought by Mr. Andy Donohue (“the appellant”) against the severity of the sentence imposed on him by Dublin Circuit Criminal Court in respect of his conviction for one count of arson contrary to s.2(1) and (4) of the Criminal Damage Act 1991.

2. On 15th November 2024 the appellant pleaded guilty to the offence of arson. On 18th February 2025 the appellant was sentenced to six years imprisonment with one year suspended. This sentence was backdated to 27th May 2024.

3. The thrust of the appellant’s appeal is that the headline sentence of 10 years was excessive, and that inadequate consideration was given to the mitigating factors in the case.

Background to the Offence

4. At the sentencing hearing, Detective Garda Monahan gave evidence to the effect that on the night of 21st May 2024 the appellant deployed petrol bombs to set fire to St. John’s House in Tallaght, a premises designated as an International Protection Accommodation Service (IPAS) centre to house applicants for international protection. The building was subject to frequent protests and had not yet become occupied on a residential basis. However, there was a security guard present in the building at the time of the offence who, fortunately, exited the building through a back door, and was physically unharmed.

5. The offence was captured on CCTV and the appellant’s DNA was found on a lighter at the scene. There was substantial damage done to the building, amounting to a value of approximately €28,000.

Personal Circumstances of the Appellant

6. The appellant was 18 years old at the time of the offending and has no previous convictions. It was outlined in a psychological report that the appellant experienced a problematic and challenging childhood with an absent father and a mother with addiction and mental health issues. It was also noted that he was very dedicated to his academic studies although he left school early to pursue a career in martial arts, which he found to be an escape from the hardship of his homelife. At the time of his sentencing the appellant was actively pursuing the educational opportunities available to him in Wheatfield prison and was considering the possibility of pursuing third level education after his release. The appellant also previously had a good work history.

Sentencing Judge’s Determination

7. The judge considered the seriousness of the crime and identified the appellant’s racist and political motives as an aggravating feature. The judge had regard to the appellant’s background, in particular his youth, lack of criminal record, his good working history and his academic and sporting dedication. He also noted that the psychological report suggested that the appellant “was led astray to some degree, by a party who had certain influence over him”. The sentencing judge acknowledged that there is “very good mitigation” in this case, but nonetheless the seriousness of the crime warranted a 10- year headline sentence. Taking account of the mitigating factors the judge then imposed a term of six years imprisonment with the final year suspended to aid his rehabilitation.

Grounds of Appeal

8. The appellant contends that having regard to his personal circumstances and his role in the offence, the headline sentence was excessive. It is the appellant’s submission that the sentencing judge failed to balance the mitigating factors appropriately and in doing so, was “unduly swayed by the seriousness of the offence and to a degree which clouded his consideration of the prospects of rehabilitation”, citing DPP v. McNamee [2015] IECA 134. McNamee involved arson resulting in criminal damage amounting to €2.2. million and an appellant who had a number of previous convictions. A sentence of four years imprisonment had been imposed by the Circuit Court judge, which was reduced on appeal by the suspension of the final 18 months.

9. The appellant submits the headline sentence should have been placed in the “middle of the mid-range” as per DPP v. Shannon [2023] IECA 325.

10. The appellant contends that DPP v. Goodchild [2022] IECA 232, which is discussed further below, should be distinguished on the basis that the appellant in Goodchild had knowledge there were people present in the building which was set ablaze, whereas in this case “it was not at all to be taken the appellant knew a security guard was inside the building at the time”.

11. The argument made by the appellant at the hearing of the appeal varied somewhat from the written legal submissions which had been filed on his behalf. This argument was to the effect that in fixing the headline sentence the judge had erred in failing to take account of the appellant’s age and vulnerability (due to his difficult background) in assessing his moral culpability. In circumstances where the appellant’s age and vulnerability were taken into account by the sentencing judge in the mitigation phase, counsel was pressed by the court as to whether his argument necessarily meant that there would be “double counting” of these factors. Counsel initially conceded that he was making the case that benefit should be afforded to the appellant for these factors under both headings. At a later stage he withdrew the suggestion that double counting was acceptable but did so in terms where he suggested that the appellant’s age should be taken into account in fixing the headline sentence but that the same level of discount should be applied to the reduced headline sentence.

Respondent’s Submissions

12. The respondent’s position is that the sentencing judge was well within his margin of appreciation in nominating a 10-year headline for an offence which the appellant concedes was “inherently extremely serious”. The maximum sentence available for arson is life imprisonment.

13. The respondent submits that DPP v. Shannon (above), cited by the appellant, should be differentiated from the present case on the basis that it was an undue leniency appeal. In Shannon, it was contended by the DPP that a sentence of 5 years for a count of arson was too lenient. The Court of Appeal agreed and resentenced, nominating a headline sentence of eight years on the count of arson, which was then reduced to six years having regard to mitigation.

14. The respondent points to the case of DPP v. Goodchild [2022] IECA 232 in which a 10-year headline sentence for an arson offence was upheld on appeal as this court was not persuaded the sentencing judge fell into error given the aggravating features in the case, namely that the arson attack was on the home of a young woman when she was residing there with her child. This court concluded that although the 10-year sentence may have been “somewhat on the high side” it was nonetheless within the sentencing judge’s margin of appreciation. The sentence was then reduced by 25%, to 7 and a half years with the final 18 months suspended, and this reduction was upheld on appeal.

15. The respondent submits that in circumstances where the reduction in the present case is even greater than the reduction afforded in Goodchild, there is no error of principle and the appellant’s challenge must be rejected.

Discussion and Conclusions

16. The task of this court in a sentencing appeal is to ascertain whether the sentencing judge made an error of principle in the approach taken by him or her to the various elements of the sentencing exercise. Here, the appellant contends that the sentencing judge erred both in fixing a headline sentence that was too high and then in failing to reduce that headline sentence sufficiently to take account of all of the mitigating factors present in the case. The appellant relied on the passage in DPP v. Flynn [2015] IECA 290 to the effect that the appropriate headline sentence should be identified “based on an assessment of the seriousness of the offence taking into account the aggravating factors (where seriousness is measured with reference to the offender’s moral culpability and the harm done)”.

17. The maximum sentence in respect of arson is life imprisonment. In DPP v. Shannon [2023] IECA 325 this court identified the sentence ranges for arson as being 1-5 years, 5-10 years, a “higher band” of 10-15 years and 15 years plus being appropriate for “the most egregious offending”. This means that in this case the headline sentence chosen by the sentencing judge can be characterised as being at the highest point of the middle band or at the lowest point of the higher (but not the highest) band. Either way, we do not think that a headline sentence of 10 years was outside the acceptable range or the margin of appreciation of the sentencing judge.

18. We agree with the sentencing judge’s view that this was a very serious crime and that the racially and politically motivated nature of the arson was a significant aggravating factor. The appellant seeks to characterise the incident as an aberration which occurred because he was temporarily led astray by social media sites and the malign influence of a third party. However, on the evening of the offence it is clear that the appellant’s behaviour was planned and premeditated. He attended at the premises twice. Having failed to gain access on the first occasion he returned with the materials necessary to start a fire and, having set the fire, then used an accelerant. There was a security guard present in the building who, fortunately, escaped unharmed but the fire undoubtedly posed a risk to her life and to the lives of the fire fighters who had to attend the scene to put it out.

19. The level of harm or damage in some of the comparator cases relied on by the appellant was undoubtedly higher in financial terms – although the financial cost here of some €28,000 is itself significant. However, “harm” in this case has to take account of the fact that the arson deliberately targeted a building intended to house a group of vulnerable people, international protection applicants, and that there had been on-going, racially motivated protests at the site immediately prior to the arson. The court cannot lightly dismiss the fact that this crime was intended to let a group of vulnerable nonnationals know that they were not welcome to live in our community. The principle of general deterrence must feature strongly in the circumstances.

20. Notwithstanding the appellant’s youth and the fact that he may have been easily influenced, his level of culpability was high. Consequently, a headline sentence of 10 years for this particular arson was not outside the margin of appreciation of the sentencing judge.

21. As regards the argument that the appellant’s age and vulnerability should have been taken into account at this stage to produce a lower headline sentence, no authority was initially cited to support the contention that these are factors to be taken into account at the headline stage. More importantly no authority was produced to support the contention that if these factors are taken into account at the mitigation stage (as they clearly were in this case), they should also be taken into account in fixing the headline sentence thus leading to an element of double counting.

22. In his reply, counsel for the appellant relied on DPP v. MW [2020] IECA 272 where this court indicated that that appellant’s youth at the time of the offending operated as an extenuating factor bearing on his moral culpability. In circumstances where these factors were taken into account in mitigation here, we cannot agree that the sentencing judge made an error of principle in this regard. We do not think that this case is on all fours with M.W. In M.W. the offending had occurred over a period of time more than a decade earlier. While the exact date range was unclear, it seemed likely that some of the offending took place during a period when the offender was between 17 and 19 years of age. Therefore, it spanned a period from when the accused was a minor to a point where he was clearly an adult, albeit a young adult. Although counsel suggested that the M.W.’s youth had been taken into account in mitigation (thus the decision would have allowed for double counting), his age is not listed as one of the mitigating factors taken into account by the sentencing judge (at para. 6 of the judgment).

23. Counsel very fairly also drew the court’s attention to DPP v. Dullaghan [2024] IECA

115. This was an undue leniency appeal against the sentence imposed on a 20-year-old offender for a serious, violent offence. On appeal, the DPP contended that the offender’s age was not a factor which was appropriate for the sentencing judge to have taken into account in fixing the headline sentence. The court agreed holding that “the question of his personal circumstances including the fact that he was a young adult were matters to be factored in at a later stage of the sentencing exercise, when considering mitigating factors…”.

24. In light of this judgment we cannot conclude that the sentencing judge erred in principle in not treating the appellant’s age and vulnerability as matters relevant to fixing the headline sentence and instead in treating them as matters relevant to mitigation. We do not see any basis for taking the appellant’s age into account at both stages as this would amount to “double counting”.

25. The sentencing judge took account of the mitigating factors identified by counsel on the appellant’s behalf. These included his age and the fact that he had no prior convictions. His age/youth is expressly mentioned three times and treated as a something which the court must “principally” recognise as a mitigating factor. He noted that “but for his age the custodial element would have been substantially longer”. The judge also acknowledged that the appellant had entered an early plea, albeit that he did so in circumstances where the evidence against him was very strong given that he was captured committing the crime on CCTV and linked to the scene by DNA. He did not afford the Gardaí any significant assistance in their investigation. His academic ability and work history were also acknowledged.

26. Counsel for the appellant suggested that although these factors are listed by the sentencing judge, insufficient weight was afforded to them. It is difficult to understand this argument in circumstances where a 40% discount was allowed in respect of mitigation and the headline sentence was reduced from 10 to 6 years. In all of the circumstances we cannot see any error of principle in the way the sentencing judge handled the mitigating factors in this case, factors which he described as “very good mitigation”.

27. Finally, the last year of this sentence was suspended to aid the appellant’s rehabilitation. While no specific reason was given for this, it no doubt reflects the very positive reports of the appellant’s engagement with the educational opportunities available to him in Wheatfield prison and the report from the Head Teacher responsible for educational services there. However, in our view we feel that the sentencing judge did not take sufficient account of the real prospects for rehabilitation for this very young, first-time offender. The report from Wheatfield demonstrated his positive engagement with the opportunities now available to him as a result of his incarceration. In the circumstances we are of the view that the sentencing judge fell into error in suspending only one year of the sentence.

28. In light of the above conclusions, we will proceed to quash the sentence imposed by the Circuit Criminal Court and we will re-sentence the appellant as of today’s date. We have considered all of the evidence before the trial court and the additional submissions made today on the appellant’s behalf (although no new documentary evidence was submitted). As indicated above, we are satisfied that a headline sentence of 10 years is appropriate in light of the seriousness of the crime for which the racial motivation was a significant aggravating factor. The mitigating factors as described and taken into account by the sentencing judge warrant a 40% discount from the headline sentence. Therefore, we will impose a sentence of 6 years imprisonment in respect of this charge of arson. However, in light of the very real prospects for rehabilitation, we will suspend the final two years of this sentence on the same conditions as imposed by the sentencing judge save that the period of one year be amended to two years.