Court of Appeal dismisses appeal where excessive headline sentence was offset by generous mitigation reduction.

THE COURT OF APPEAL APPROVED JUDGMENT NO REDACTION NEEDED

[2025] IECA 246 Record No: 10/2025 Charleton J. Edwards J. Owens J.

BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT V

ALAN FITZSIMONS

APPELLANT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 7th day of November, 2025.

Introduction

1. This is an appeal brought by Mr. Alan Fitzsimons (i.e., “the appellant”) against the severity of the sentence imposed on him by the Dublin Circuit Criminal Court in respect of a plea of guilty to one count of making an unwarranted demand with menaces, contrary to s. 17 of the Criminal Justice (Public Order) Act 1994 (“the Act of 1994”), as amended by s. 22 of the Intoxicating Liquor Act 2008 (Count No 6).

2. Following a hearing of the appeal on the 3rd of November 2025, and a deliberée by the Court, we announced our intention to dismiss the appeal, and to give our reasons in a written judgment to be delivered on today’s date. We now provide our reasons.

Factual Background

3. At the sentencing hearing of the 13th of January 2025, the court heard evidence from a Detective Sergeant Donal O’Connell in respect of the offending.

4. On the 6th of November 2021, a Mr. O’Neill (i.e., “the complainant”) was informed by his son that he had accumulated a debt and of his intention to leave the country. Later that evening, two men, being the appellant and his co-accused a Mr. Dominic Dynes, called to the complainant’s house looking for his son. The two men informed Mr. O’Neill that his son “owed a lot of money to dangerous people”, and that it was better that they were calling to his door rather than someone else. The complainant inferred from this that it would be more dangerous for himself and his family if others were to call. The men told the complainant that he had one week to pay his son’s debt. The complainant explained that he had no money as his son had “cleaned them out”.

5. A third party, described as having a “thick Scottish accent”, later contacted the complainant by telephone who suggested that should €100,000 be paid, the threats against his son would reduce significantly. It was also suggested to the complainant that following this payment of monies, a payment plan could be implemented which would involve him having to sell his home. The complainant described being devasted at this prospect.

6. The complainant gathered a sum of €41,000 by way of loans from family members, a colleague and a financial institution. He had also made arrangements to obtain a bank draft for €20,000.

7. On the 14th of November 2021, the appellant and Mr. Dynes called to the complainant’s home. Mr. O’Neill brought the two men into his sitting room, and described the appellant as being “almost friendly”. He also described that the appellant made a comment to the effect that he had a lump in his throat calling for the money, and stated that if his son returned, he could arrange to sort this situation out. The complainant handed over €41,000 on this occasion to the appellant and Mr. Dynes, who informed him that they would return in due course to collect the remainder of the monies owed.

8. The complainant received a phone call from the third party in the interim who stated that if the money was not paid on the following Tuesday that they would have to find his son.

The complainant described being petrified by this. He described that this phone call affected his sleeping, and he was concerned that the stress of this situation would compound health issues that were in the background of himself and his wife.

9. Ultimately, the complainant decided that he was not going to pay any further monies to the appellant and Mr. Dynes, and he contacted An Garda Síochána, who put in place a surveillance operation.

10. On the 16th of November 2021, shortly after 6 pm, the appellant and Mr. Dynes called to the complainant’s home who informed them that he only had €3,000 to hand over to them.

The two men accepted this sum and said they would return on Friday. The complainant informed them that there was no point and that there was no chance of any more money being handed over. They informed him that they would call back and that it was better if they called and not someone else. The appellant and Mr. Dynes informed the complainant that if they did not receive any monies on Friday they would be “pulled off the job and others would be put in their place”. Gardaí observed this transaction in the course of the surveillance operation.

11. Gardaí stopped the appellant and Mr. Dynes driving a short distance away from the complainant’s home. The car was searched and €3,000 was recovered in the door pocket of the front passenger door. The appellant accepted possession of this money, but informed gardaí that it was money belonging to his deceased brother and was for the sale of a car.

12. On the 22nd of November 2021, a search was conducted of the appellant’s home. He was arrested on this occasion and brought to Clontarf Garda Station, wherein he was detained and interviewed on five occasions. The appellant made admissions in respect of collecting the €3,000 and his presence at the complainant’s home on the 16th of November 2021. He described his role as being minor and suggested that a debt had been incurred by his deceased brother and that the debt had been passed onto him. A means for him to pay back that debt was to collect money from the son of the complainant. The appellant admitted to only being at the complainant’s home on one occasion (the 16th of November 2021), and he provided an apology for having called to the complainant’s home.

13. The appellant was arrested and charged on the 20th of December 2023 and was granted High Court bail in January 2024. He was returned for trial on various counts and later pleaded guilty to Counts No’s 4 and 6 on the indictment, i.e., charges of money laundering and of demanding money with menaces, respectively.

14. On the 14th of January 2025, the court below sentenced the appellant to 4 years and ten months imprisonment on Count No 6.

15. On imposing sentence, the court below took into consideration Count No 4 being an offence of money laundering contrary to ss. 7(1)(a)(ii), 7(1)(b) and 7(3) of the Criminal Justice (Money Laundering and Terrorist Financing) Act 2010. A nolle prosequi was entered in respect of Count No 5 on the indictment.

16. Counts No’s 1 to 3 on the indictment did not concern this appellant, but instead were similar charges relating to his co-accused, Mr. Dynes. The co-accused, who also pleaded guilty to demanding money with menaces, but who unlike the present appellant had significant previous convictions, received a sentence of six and a half years’ imprisonment, backdated to when he went into custody.

Personal Circumstances of the Appellant

17. The appellant was 48 years of age at the time of sentencing.

18. D/Sergeant O’Connell confirmed that the appellant had no previous convictions and accepted that he was cooperative with gardaí and expressed remorse. It was also accepted that the appellant was described by the complainant as the less threatening of the two men.

19. It was accepted that the appellant had described being under threat at the time of the offence, but D/Sergeant O’Connell clarified that there had been no complaint received by gardaí in that regard.

20. In mitigation, the court below was informed that the appellant is a father of four children.

The court was also provided with a number of letters from the appellant’s family and friends. Sentencing Judge’s Remarks

21. On the 14th of January 2025, the judge in the court below passed sentence on the appellant.

The sentencing judge noted the factual background of the case as described in evidence by D/Sergeant O’Connell. He then noted that the appellant had no previous convictions. He took into account that the appellant had a history of work which was to his credit and that he was a good family man.

22. The sentencing judge determined that this offending was at the “upper end of seriousness”.

He noted that while there was no actual violence involved, the behaviour was very sinister.

He identified a headline sentence of 10 years imprisonment.

23. In relation to mitigation, the sentencing judge took into account the appellant’s plea of guilty, and that he had no previous convictions. He also stated:

“To some degree, I take into account his explanation, which the guard couldn't disagree with. But it doesn't -- probably it's not -- it doesn't amount to great mitigation.”

24. The sentencing judge imposed a sentence of five years imprisonment which he then reduced to four years and ten months imprisonment to account for time spent in custody on Count No 6, with Count No 4 taken into consideration and a nolle prosequi entered in respect of Count No 5 on the indictment.

The Notice of Appeal

25. By a Notice of Appeal lodged the 17th of January 2025, the appellant appealed to this Court against the severity of the sentence imposed by the Circuit Criminal Court. In support of this application, he advanced six grounds which are as follows:

1. “The sentencing judge erred in setting a headline sentence of ten years where this was excessive and disproportionate to the offending behaviour in the circumstances of this case.

2. The sentencing judge failed to apply the principle of proportionality by not adequately differentiating between the culpability of the Appellant and his co-accused in both the headline sentence and the sentences imposed.

3. Having set a headline sentence which was excessive and disproportionate to the offence, the learned trial judge erred in principle in imposing a sentence in its totality which was excessive having regard to:

a. The culpability of the appellant;

b. The fact that the appellant is a person with no previous convictions and was regarded by the sentencing judge as unlikely to come to the courts’ attention again;

c. The guilty plea and admissions made; d. The personal circumstances of the appellant;

e. The nature and character of the offences.

4. The sentencing judge erred in failing to suspend a portion of the sentence or to impose a fully suspended sentence on the appellant, in light of the court’s determination that he is unlikely to come to the courts’ attention again.

5. The sentencing judge erred in prioritising the sentencing aim of deterrence over the sentencing aim of rehabilitation.

6. The sentencing court erred in imposing that a sentence was excessive in all of the circumstances.”

Submissions on Appeal Appellant’s Submissions

Ground 1

26. It was submitted that, in view of the maximum term of 14 years imprisonment, the headline sentence of 10 years imprisonment identified by the sentencing judge was excessive and disproportionate to the offending behaviour of the appellant in the circumstances of this case.

27. The appellant referred this Court to the case of People (DPP) v. Molloy [2021] 3 IR 494, wherein the Supreme Court provided general guidance on sentencing for offences of demanding with menaces or harassment. The Court in Molloy indicated that for cases in the upper category of offending, sentences of seven years might be appropriate as a headline tariff. Concerning cases in the medium category, the court stated that a sentence of two and a half to four years was appropriate. It was submitted that while the threats in the present case were serious and had a serious effect on the complainant, the appellant’s role was at the lower end in that he was not described as being threatening himself. It was contended that it is difficult to see how the appellant’s offending could have come within the high band identified by the sentencing judge, and if it did, how the appropriate sentence could have been 10 years.

28. Counsel for the appellant referred to People (DPP) v. Doyle [2023] IECA 80 and submitted that the offending behaviour of the appellant here fell far short of the level of threats and violence at issue in Doyle.

Ground 2

29. Counsel for the appellant stated that it is well established that a rule of parity operates in the sentencing of co-offenders, such that where all things are equal, parties to the commission of the same offence should receive a substantially similar sentence. However, it was submitted that the converse also applies, and co-offenders must receive markedly different sentences where there are appreciable variations in their levels of participation and culpability, in their personal circumstances, or in the mitigating factors attaching to their particular cases. Counsel for the appellant referred to People (DPP) v. Daly [2012] 1 IR 476 in support of this.

30. It was contended that the sentencing judge erred in nominating a headline sentence of 10 years imprisonment for both the appellant and his co-accused where the evidence was that the behaviour of the co-accused was of a more intimidating nature than the appellant.

31. It was submitted that the sentencing judge nominated a headline sentence that was disproportionate in the circumstances of this case and notwithstanding that a reduction was afforded for mitigating circumstances, the fact that the headline sentence was excessive renders the effective sentence disproportionate.

Ground 3

32. It was submitted that in setting a headline sentence which was at the upper end, any subsequent reduction for mitigation did not sufficiently reduce the sentence imposed such that in its totality it remained disproportionate and excessive in the circumstances. In this regard counsel for the appellant places reliance on the sentencing parameters set out in Molloy and the comparisons which can be drawn from Doyle.

33. Further, it was argued that the sentence imposed did not adequately reflect the fact that the appellant is a person with no previous convictions, had pleaded guilty and was described by the sentencing judge as someone who is unlikely to re-offend.

Grounds 4 and 5

34. Counsel for the appellant submitted that the sentencing judge erred in failing to suspend all or any portion of the sentence and further that the sentencing judge erred by not affording sufficient weight to the fact that the court itself came to the conclusion that the appellant was unlikely to re-offend.

35. It was submitted that the sentencing judge erred in failing to attach sufficient weight to the explanation for carrying out the offences by the appellant, which explanation had not been rebutted.

36. Further, it was contended that the explanation provided by the appellant for his involvement in the offences, together with the absence of previous convictions and the court’s own determination that he is unlikely to re-offend amounted to sufficient basis for the court to suspend at the very least a portion of the sentence imposed.

Ground 6

37. Counsel for the appellant argued that the sentence imposed was excessive in all of the circumstances of this case and placed reliance on the entirety of his submissions in support of this ground.

Respondent’s Submissions Ground 1

38. Counsel for the respondent submitted that the facts of this case bear a number of similar features to those summarised in People (DPP) v. Molloy (referenced in para. 27 above), as bringing the offending into the high culpability category. It is contended that the actions of the appellant and his co-accused had the sole intention of maximising fear and distress in the complainant, and ultimately maximising the money extracted from the complainant on behalf of the appellant’s principal.

39. It is argued that the harm caused to the complainant is seriously compounded by the €41,000 that the appellant and his co-accused had previously taken as a consequence of their extortion. It is submitted that an element of this case that is of importance is that the appellant was operating on behalf of a criminal enterprise in extorting this money.

40. In response to the appellant’s reliance on People (DPP) v. Doyle, it is contended that the offending behaviour in Doyle was quite different in nature to the instant case. It is noted that the sums involved were relatively small in comparison to what was demanded by the appellant of the complainant in this case. It is submitted that Doyle is relevant insofar as the court considered the offending behaviour in that case of being in the most serious category owing to the fact that the acts were carried out at the family home.

Ground 2

41. Counsel for the respondent contends that the sentencing judge was entitled to treat both the appellant and his co-accused equivalently culpable for the offending behaviour, as they both played the same role in the offending. It is argued that whether one appeared to the complainant as nicer or meaner is a meaningless distinction in assessing their criminality where it was their combined presence, their combined demands, and the threat of what would follow those demands if unmet which was distressing. The respondent submitted that it was therefore proper that the sentencing judge identified the same headline sentence for both men and then differentiated between the two to reflect the appropriate mitigation available to each.

Ground 3

42. It was submitted that the sentencing judge had due regard to the relevant factors relating to all available mitigation on behalf of the appellant.

43. Counsel for the respondent noted that the sentencing judge significantly reduced the headline sentence to reflect the mitigation present in this case. Having identified a headline sentence of 10 years imprisonment, a sentence of 5 years imprisonment was initially imposed, being a reduction of 50%. The sentencing judge further reduced this to 4 years and ten months imprisonment to allow credit for time served by the appellant. Ground 4

44. The respondent outlined that sentence structuring is a matter squarely within the discretion of the sentencing judge, and the imposition of a part-suspended element of a sentence is not mandated in circumstances where a court has determined that an offender is unlikely to come to the court’s attention in the future. It is contended that the sentencing judge marked mitigation in this case by way of a reduction of sentence, rather than suspension of any portion thereof.

45. It was outlined that while the appellant was considered unlikely to reoffend, he was not engaged in rehabilitation, and it was submitted that the appellant’s submissions in this respect are misguided.

Ground 5

46. The respondent outlined that it is within the discretion of the sentencing judge to structure a sentence which reflects one or more of the legitimate sentencing aims considered appropriate to the circumstances of a particular case.

47. It was submitted that the need for the sentence to incorporate a general deterrence arose in this case, in light of the criminality involved in the offence, and its objective seriousness.

Counsel for the respondent referred the Court to the cases of People (DPP) v. M.S. [2000]

2 IR 592; People (DPP) v. Duffy and Duffy Motors (Newbridge) Ltd [2009] 3 IR 613; and People (DPP) v. P.H. [2007] IEHC 335, in this regard.

48. It was argued that the offending in the instant case was of a type that significantly undermines the rule of law and the safety of communities; replacing legitimate processes with those underpinned by threats to those extorted that they, their loved ones and/or their homes would be profoundly damaged unless they can produce large sums of money at short notice.

Ground 6

49. Counsel for the respondent submitted that the sentencing judge correctly placed this offence at the upper end of seriousness, and correctly described it as sinister, as it involved planning, was designed to maximise fear in an innocent person, was designed to play on a particular vulnerability of the complainant and involved a substantial sum of money which necessitated the complainant to obtain loans to accumulate.

The Court’s Analysis & Decision

Preliminary observations

50. By any yardstick the circumstances of this case were grave. There were considerable menaces involved. The offending was pre-meditated and pre-planned. It was accepted by the appellant’s counsel during exchanges with the bench at the oral hearing of the appeal that it qualified as being gang action engaged in on behalf of organised criminals (albeit that the appellant asserted in interviews, and continues to maintain, that his personal motivation in becoming so involved was on account of pressure applied to him by sinister figures to whom his now deceased brother had in turn owed a debt and which they deemed the appellant to have, in effect, inherited responsibility for).

51. Further, the intimidation took place within the curtilage of a family home, thereby arguably engaging the victims’ rights to inviolability of their dwelling under Article 40.5 of the Constitution. It was indeed suggested to the unfortunate victims that, if necessary, they would have to sell their home to discharge what was said to be owing by their son. There were two visits in which the appellant was involved, and three contacts in all, the third being by the man with the Scottish accent. Significant monies were taken from the victims, which have not been recovered. The victims were clearly significantly distressed and traumatised by the intimidatory tactics of the appellant and Mr. Dynes. While Mr. Dynes was described as being the more overtly intimidatory of the two menacers, with the appellant being characterised as “almost friendly”, they acted as a team and in concert.

The appellant made no attempt to distance himself from, or to countermand, the especially threatening demeanour of Mr. Dynes during their visits to the victims’ home.

The headline sentence

52. It is complained that the headline sentence of ten years nominated by the sentencing judge was too high, having regard to comparators and the sentencing guideline judgment of the Supreme Court in People (DPP) v. Molloy (previously cited). The Molloy case considered both the offences of harassment arising under s. 10 of the Non-Fatal Offences Against the Person Act 1997 (“the Act of 1997”) and what was described as the “akin offence” often colloquially known as, and known at common law, as “blackmail”, and now provided for in statute in this jurisdiction as the offence of a person making an unwarranted demand with menaces with a view to gain for himself or another or with intent to cause loss to another, contrary to s. 17 of the Act of 1994, as amended.

53. As of the date of the Molloy judgment, the maximum available penalty for the offence of s.

10 harassment was both an indeterminate fine and imprisonment for a term not exceeding

7 years (the imprisonment option has since been increased to a term not exceeding 10 years). In contrast, the maximum available penalty for making an unwarranted demand for money with menaces, contrary to s. 17 of the Act of 1994, was (and remains) both an indeterminate fine and a term of imprisonment not exceeding 14 years.

54. With reference to these ranges, the Molloy guidance sought to survey and synthesise the available Irish authorities using a bottom up analysis and to suggest for future cases appropriate bands or sub-ranges within which the headline sentence appropriate to a case’s gravity could be located. The analysis also included consideration for its persuasive influence of certain guidance issued by the Sentencing Council (of England and Wales), as well as some case law from other common law jurisdictions for comparative purposes.

55. In so far as suggesting bands or sub ranges was concerned, the guidance in that regard offered in Molloy, although unquestionably helpful to first instance sentencers, is provided at a somewhat greater level of generality than is to be seen in certain other guideline judgments of both the Court of Appeal and Supreme Court, e.g., in People (DPP) v. Mahon [2019] 3 I.R. 151; in People (DPP) v. F.E. [2021] 1 I.R. 217 and People (DPP) v. Casey & Casey [2018] 2 I.R. 337. It is also, unlike in the cases just cited, provided without specific illustrations from existing Irish case law of the kinds of cases that might fall to be located in any suggested band or sub-range. Rather, the suggested ranges are neither specific to the s. 10 harassment offence nor to the s. 17 offence of making an unwarranted demand for money with menaces, both of which have different penalty ranges as we have seen, but instead the guidance articulates a general approach to subrange categorisation that may be applied to sentencing for either offence, albeit with adjustments needing to be made where required to take account of penalty range differences.

56. The guidance, which prima facie envisages an even subdivision of the appropriate theoretical penalty range into three bands or subranges, i.e., cases involving high gravity, medium gravity and low gravity, respectively, is to be found in paragraphs [37] to [39] inclusive of the Molloy judgment:

“[37] … By way of summary, and for the purpose of guidance, it is possible to state the following: a consideration of the maximum sentence for harassment or menaces or blackmailing type of offences should involve a consideration of structured and thought-through planning that aims to cause real distress to the victim, most especially where what is involved is not an aberration brought about by severe emotional distress, but a prolonged campaign. In that regard, what must be borne in mind is that these kinds of offences are very serious for victims and become more so where personal factors are identified by the perpetrator so that the victim is leant on in a way which undermines the integrity of their personality. This kind of conduct has the effect of pushing emotions to the edge of manageability and of shaking what may be, or what may thereby become, an already fragile emotional state. Sentences of seven years may be appropriate as a headline tariff and worse cases involving gang action for cynical gain may tend more towards the maximum.

[38] Many cases in the medium category arise from personal obsessions where, while the offender is culpable, a lack of planning may emerge that demonstrates that the offender is driven by emotion rather than thinking through a campaign and carefully putting the pieces of undermining the victim in place. Nonetheless, thought-through or driven by emotion, there are still victims who are likely to be deeply hurt. Hence, these offences are serious, and whether the offender is emotionally driven or not, where a victim has to put up with repeated encounters, threats, messages or interference with home or workplace amenities, this is serious and a consideration of beginning at four years’ imprisonment and upwards is appropriate.

[39] Where less distress is caused to the victim, where the campaign can hardly be so characterised because of lack of thought and planning, where the timespan is especially limited and where personal attributes of the victim are not sought out and exploited, perhaps silly lies or fantasies being invented and projected onto her or him instead, this is a lesser category. However, the impact on the victim should always be considered, since the protection of individuals from harm is the very heart of the criminal justice system. Factors such as failing to desist when asked or reverting to such conduct can bring the general sentence of two and a half years as a starting point towards the medium category. These are all headline sentence observations. It is possible that genuine remorse, cooperation and the offender suffering under personal emotional trauma can lessen the gravity of such offences but what should never be lost sight of, and responded to, is what the victim of such offences has been put through in consequence of, as all of these cases demonstrate, no fault of his or her own. Fundamentally, this kind of conduct is serious.”

57. The sentencing judge characterised the appellant’s offending conduct as being “at the upper end of seriousness” and nominated a headline sentence of 10 years imprisonment. Given that the maximum potential custodial penalty was 14 years, it may be deduced that on a three way even division of that theoretical range into 4 year and 8 month (i.e., 56 month)

subranges, the nominated headline sentence at 10 years (120 months) was towards the low end of the high range (i.e., just above the 112 month boundary between the medium gravity subrange and the high gravity subrange). In that regard, that the sentencing judge would have had a margin of appreciation, and the following cautionary words of Birmingham P giving judgment for this Court in People (DPP) v. Casey & Casey (cited previously) require to be borne in mind. Birmingham P said in that case:

“Again, the court recognises that there is no clear blue water between the ranges.

Often the most that can be said is that an offence falls in the upper mid-range/lower higher range. In many cases whether an offence is to be labelled as being at the high end of the mid-range or at the low end of the high range for an offence is often a fine call. The judge's legitimate margin of appreciation may well straddle both. In that event, how it is labelled may in fact not impact greatly on the sentence that will ultimately be imposed.”

58. The appellant contends that this headline sentence was excessive and disproportionate in circumstances where there was no accompanying violence or physical coercion, and though undeniably serious it was not “at the upper end of seriousness” or, indeed, at a level that merited location in the high gravity sub-range. We have considered this submission, bearing in mind the guidance as to the correct approach commended in Molloy, and in particular the need to focus on the level at which what was done was structured, planned in a thought through way rather than driven by emotion, and calibrated to cause distress to the victims. Having done so, we think that if both co-accused were legitimately to be treated as equally culpable, in circumstances where they were ostensibly engaged in a common design, this would arguably be one of those cases alluded to in Casey & Casey in which the judge’s margin of appreciation straddled both the high end of the medium gravity range and the lowest end of the high gravity range. In that situation, a ten year headline sentence would arguably have been towards the severe end of the sentencing judge’s margin of appreciation, but he could not be said to have exceeded his margin of appreciation. It begs the question, however, whether the sentencing judge was in fact correct to have treated both co-accused as having been equally culpable?

59. While there is no doubt that the offending action was engaged in jointly by the appellant and his co-accused, the appellant had claimed when interviewed by gardaí that, in effect, he had acted under duress; by maintaining that what had caused him to become involved was pressure applied to him by sinister figures to whom his now deceased brother had in turn owed a debt and which they deemed the appellant to have, in effect, inherited responsibility for. The respondent rightly contends that this was nothing more than an untested (in circumstances where the appellant did not testify and subject himself to crossexamination) and uncorroborated assertion, and that it was on that account deserving of little, if any, weight. As against that, if the assertion was correct, it was arguably a matter tending to reduce (somewhat, although we think only to a modest degree) this appellant’s culpability. The sentencing judge appears to have recognised this to the extent of saying:

“To some degree, I take into account his explanation, which the guard couldn't disagree with. But it doesn't -- probably it's not -- it doesn't amount to great mitigation.”

60. On balance, we think the sentencing judge was right to take the explanation proffered into account, although we disagree with how he did so. The sentencing judge’s approach to dealing with it was to take it into account to a modest extent in the second stage of sentencing. However, that was not correct. As it was a matter potentially bearing on culpability, it ought properly to have been taken into account in the setting of the appellant’s headline sentence. A headline sentence is determined by the gravity of the offending conduct. Gravity is in turn assessed on the basis of synthesised appraisal of both the offender’s culpability and the harm done. If a factor bears on culpability it affects this assessment. If this offender was potentially acting under a degree of duress that was a matter tending to reduce his culpability somewhat and something that should have resulted in a modest differentiation in headline sentences as between the two co-accused.

61. We therefore think that the nomination of a 10 year headline sentence in this appellant’s case was somewhat too high, and the sentencing judge’s legitimate margin of appreciation would only have allowed for the nomination of a headline sentence of between 8 years and

9 years imprisonment in his case.

62. Accordingly, the sentencing judge erred in principle in not differentiating as between the two co-accused in setting their respective headline sentences, and arising from that in setting a headline sentence that was somewhat too high in this appellant’s case. However, the existence of such errors is not necessarily dispositive of this appeal.

Discounting for mitigation

63. It is manifest that this appellant received a very generous, indeed quite extraordinarily generous, reduction from the headline sentence to take account of mitigating circumstances. The reduction, before any allowance was made for time served on remand, represented a discounting by 50% or 5 years from the headline sentence. The available mitigatory circumstances were the fact that he had pleaded guilty, albeit that it was a plea on a trial date and therefore not an early plea; the absence of previous convictions; the appellant’s “explanation” as offered to gardaí for how he had become involved; his asserted remorse; and his work record and personal circumstances. In our assessment these factors cumulatively did not justify a reduction for mitigation at the level that was afforded to this appellant.

64. Despite the very generous reduction that was afforded to the appellant, his grounds of appeal contain a complaint that he received an overall sentence that was excessive.

However, we would only be justified in intervening if the post-mitigation ultimate sentence was incorrect to such an extent as to have been outside the margin of appreciation in that regard which the sentencing judge had. If this Court were to proceed to quash the existing sentence on account of the errors which we have identified in relation to the headline sentence, and discounting for mitigation, it would then be necessary to re-sentence the appellant afresh, and in that regard we would not be in any way bound by the assessment of the sentencing judge at first instance as to the level of reduction for mitigation to be afforded. In that event, were we to nominate a headline sentence of 8 years as we would be minded to do, we do not envisage that the appellant could justifiably be entitled to a reduction from that in excess of three years or circa 35% for mitigating factors, leaving a post mitigation sentence of 5 years which is what was imposed at first instance. This suggests that while the sentencing judge at first instance may have deviated from the correct path in arriving at his ultimate destination, he nonetheless did arrive at the correct destination, albeit by an irregular route.

65. We think the sentencing judge’s erroneous approach to the setting of the headline sentence may have been influenced by a legitimate concern on his part to emphasise the need for censure and deterrence in a case such as this in his setting of a severe headline sentence, which we believe may have been accompanied by a resolve to compensate the appellant for that to an extent by then showing generosity towards him in discounting for mitigation.

However, the calculus in that regard became skewed by his failure to recognise that he needed to differentiate between the two co-accused in setting headline sentences, thereby necessitating the making of an excessive allowance for mitigation to allow him to arrive at the correct figure.

66. As ultimately, notwithstanding the criticisms we have made, a correct post-mitigation sentence figure was arrived at, we do not consider that any intervention on the Court of Appeal’s part is required or necessary.

67. For the avoidance of doubt, the issue as to whether or not any portion of a sentence should be suspended is entirely a matter for judicial discretion. Given the circumstances of this case, the implicit prioritisation of the penal objectives of communicating censure and deterrence (which we think was justified), and the extraordinarily generous discount that was in fact afforded for mitigation, we think the sentencing judge is not to be criticised for not opting to suspend a portion of the sentence.

Conclusion

68. In all the circumstances of the case the appeal should be dismissed.