Court refuses review of suspended sentence for firearm intimidation, citing delay and probation compliance.

THE COURT OF APPEAL

Record No. 13CJA/2016

Birmingham J.

Sheehan J.

Mahon J.

IN THE MATTER OF AN APPLICATION PURSUANT TO

SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

- AND–

STEPHEN WALSH

Respondent

JUDGEMENT (ex tempore) of the Court delivered on the 9th day of February 2017 by Mr. Justice Mahon

1. On 9th November 2015 at the Dublin Circuit Criminal Court the respondent pleaded guilty to two counts of having an article in an

public place with intention to intimidate another, namely Frances and Leanne Nevin, contrary to s. 9(5) of the Firearms and Offensive

Weapons Act 1990. On 14th December 2015 the respondent was sentenced to prison terms of two years and six months in respect of

each of the counts, sentences to run concurrently. The entire term was suspended for three years on condition that the respondent

would undergo supervision by the Probation Service for eighteen months, and avoid contact with the injured parties.

2. The appellant seeks a review of the said sentences on the ground that they are unduly lenient, pursuant to s. 2 of the Criminal

Justice Act 1993. The grounds on which the application is brought are as follows:-

(i) The offending behaviour was very serious;

(ii) the respondent has a serious record of violent crime;

(iii) the respondent’s presence on nearby streets to the location of the injured parties’ residence is having an adverse

effect on them;

(iv) the learned sentencing judge overly concentrated on the mitigating factors and on efforts at rehabilitation;

(v) the pleas of guilty had been entered on a full facts basis. Those facts concerned more than one confrontation

between the respondent and the victims, the making of threat to kill or cause serious harm to them and the showing of a

firearm by the respondent to the victims;

(vi) the sentence imposed, and in particular the suspension of the entire sentence, is inadequate punishment and is not a

sufficient deterrent to others;

3. On a date in December 2013 a verbal altercation arose as between, on one side the respondent and his partner, Isabel Byrne, and

on the other side, Frances Nevin, who also lived in the locality of Priorswood, Dublin 17. Later that day Ms. Nevin visited the home of

Ms. Byrne in an effort to sort out their differences. Ms. Nevin was again verbally abused by Ms. Byrne whereupon the respondent

arrived on the scene and joined in the verbal attack against Ms. Nevin. He threatened to kill Ms. Nevin and to have her killed by

someone else within the next twenty four hours. He lifted his jacket to reveal a handgun tucked into the waistband of his trousers.

The handgun was seen by Ms. Nevin and her daughter, Leanne, who was also present and both feared for their lives. It was also

alleged that the respondent had threatened Leanne Nevin at the same time as he threatened her mother, telling her that he would

bounce her head off a wall. The two women sought refuge with a neighbour, Carmel Garbutt, and the gardaí were contacted. Later

that day, the gardaí gave chase to the respondent through a park whereupon he was arrested and taken to Coolock garda station.

Gardaí located a hand gun and a number of silver metal capsules at the entrance to the park close to where the respondent was

arrested.

4. The gun in question was a low velocity weapon which fired pellets, and was not a firearm in the common use of that term.

However, it resembled a firearm and appeared to the victims to be a firearm capable of killing them or causing serious injury.

5. Section 2 of the Criminal Justice Act 1993 provides as follows:-

(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court … on conviction of a person

on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made on notice given to the convicted person within 28 days from the day

on which the sentence was imposed.

(3) On such an application the Court may either:-

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.”

6. The respondent has fifteen previous convictions most of them from some years ago, two which are for robbery and producing a

blood filled syringe, and also for assault causing harm. He also has a history of drug addiction and was deemed by the Probation

Service as having a moderate risk of re-offending.

7. In her sentencing judgment the learned sentencing judge described the offences as serious and which had significant ongoing

effects on the victims, particularly Leanne Nevin. She noted the previous existence of fifteen previous convictions but believed them

to be of “some antiquity”. She also noted that the respondent was struggling with his heroin addiction and had recently relapsed. She

deemed the offence to lie at the “lower upper end of the spectrum” in terms of its gravity. She went on to state:-

“In relation to his personal circumstances he is a recovering chronic heroin addict who had a difficult childhood. The

probation officer has categorised him in the moderate risk of re-offending over the next twelve months. For a man who

had such a traumatic childhood and addiction issues and for one who has spent so much time incarcerated he has coped

reasonably well and has been doing well within the community. He is now married, in a stable relationship, and has a

home which are significant stabilising factors for him having previously been homeless. The probation officer states that

she was told that he did not plead guilty earlier because he feared that he and his wife would lose their home. He

accepts responsibility for his actions and appears to accept the seriousness of the offence.”

8. Victim impact statements from both victims were made available to the court. Leanne Nevin described how she was in fifth year at

school at the time and that she missed a lot of school in the following year, being her leaving certificate year, because she was

terrified she would bump into the respondent in her neighbourhood. She said that she still continued to be fearful when leaving her

home because of the proximity of the respondent’s home. She said that she leaves early to go to college to avoid bumping into him.

Frances Nevin explained the concern she has for her daughter and the effect it has had on her daughter’s education. She describes

how she has become fearful when leaving her home or around the local shops in case she meets the respondent. She feels intimidated

by him when she sees him and alleges that he has laughed at her and said things to her.

9. It is well established that when considering an application by the appellant to review a sentence on the grounds that it was unduly

lenient, the court must be satisfied that the sentence imposed was more than simply lenient. In DPP v. McCormack [2000] I.R. 356,

Barron J. stated in the course of his judgment:-

“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 dependant 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…”

10. Unusually in this case, and of concern to the Court, is the fact that an entirely suspended sentence is being appealed on the

grounds of undue leniency some fifteen months after the event. While no blame is being attributed to any quarter for this delay the

fact is that the respondent is facing the prospect of imprisonment at a lengthy remove from his sentencing date, during which time he

has continued to enjoy his liberty. Had the respondent been sentenced to a custodial term fifteen months ago that sentence would

probably have by now been served or be close to being served.

11. The focus of the appeal is the fact that the two and a half year sentence was entirely suspended and that such a sentence did

not adequately reflect the gravity of the offending.

12. The serious nature of the offending is without question. It is absolutely understandable that the two victims were terrorised by

the respondent’s behaviour, and the fact that he continues to live in the same locality prolongs that sense of fear. That said, it is

understood that no incidents of concern have arisen in the intervening period.

13. In the Court’s view, these offences probably deserved an immediate custodial term, and indeed it is clear that on the date of

sentencing such an outcome was expected by the respondent. The decision to suspend the entire term of two and a half years was

extremely lenient and, arguably, outside the margin of discretion available to the learned sentencing judge.

14. However, some fifteen months later, this Court is reluctant to deem the sentence unduly lenient, and particularly so in

circumstances where there has been a delay in seeking a review of the sentence during which time the appellant has enjoyed his

freedom and has taken advantage of the chance given to him. The sentence imposed was not entirely without a punitive element. A

suspended sentence is nevertheless a punishment, and there remains the possibility of having to serve all or part of the suspended

element of a sentence for, in this case, a period of three years. In this case also, the respondent is required to meet certain

conditions for those three years including fully cooperating with the Probation Service for a period of eighteen months, and which the

Court has been advised, has indeed occurred to date. The respondent has clearly fully respected the trust placed in him by the

learned sentencing judge.

15. The application is therefore refused.