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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Ryan [2014] IECCA 11 (18 March 2014) URL: http://www.bailii.org/ie/cases/IECCA/2014/C11.html Cite as: [2014] IECCA 11, [2014] 2 ILRM 98 |
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Judgment Title: Director of Public Prosecutions -v- Ryan Neutral Citation: [2014] IECCA 11 Court of Criminal Appeal Record Number: CCA Ref: 144/11 Date of Delivery: 18/03/2014 Court: Court of Criminal Appeal Composition of Court: Clarke J., McCarthy Patrick J., Sheehan J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Error in principle found in sentence | ||||||||||||
THE COURT OF CRIMINAL APPEAL [Record No: CCA 144/2011] Clarke J. McCarthy J. Sheehan J.
The People at the Suit of the Director of Public Prosecutions Prosecutor/Respondent and
Kieran Ryan Accused/Appellant Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014. 1. Introduction 1.2 Because of the broad range of factors which can properly be taken into account in assessing the gravity of the offence, the culpability of the offender and the individual circumstances of the accused, it will rarely be possible to engage in a direct comparison between one case and the next. However, that does not mean that the courts could not, and in the view of this Court should not, attempt to maintain a broad level of consistency. Furthermore, it might be said that it is part of the function of this Court, as a Court of Appeal, to attempt to establish not only the broad legal principles by reference to which any sentencing exercise should be conducted but also to give, where possible, some guidance as to the broad range of sentences which should be imposed, all else being equal, across the spectrum of severity applicable to an offence under consideration. 1.3 That question comes into particular focus on this appeal as a result of the detailed and careful analysis presented to the Court by counsel for the accused/appellant (“Mr. Ryan”) which addressed many recent decisions of this Court dealing with sentences for like offences to the one under consideration. It will be necessary to return to the detail of that analysis in due course. That submission does, however, raise the question of the extent to which there is a jurisdiction for this Court to give general guidance. 2. Giving of Guidance
2.3 Finlay C.J. did, in the passage just cited, make clear that he doubted the appropriateness of an appellate court, such as this Court, appearing “to be laying down any standardisation or tariff of penalty”. That was, of course, because all relevant facts as to the severity of the offence, the culpability of the accused and the circumstances of the accused need to be taken into account. In those circumstances, to attempt any standardisation of penalty would clearly be inappropriate. However, this Court does not read the judgment of the Supreme Court as precluding some broad level of guidance being given by this Court as to the range of sentences which may be appropriate for an offence under consideration on an appeal, having regard to the severity of the offence and the culpability of the accused. It clearly remains a matter for the sentencing judge to form a judgment, on all of the relevant facts, as to where on that range the offence for which the accused is to be sentenced lies. It is also clearly a matter for the sentencing judge to decide on the extent to which any aggravating or mitigating factors identified ought increase or decrease the sentence to be imposed. Thus, any such range provides broad guidance but does not seek to impose any form of standardisation of penalty. In addition, it needs to be emphasised, even at this early stage, that there will always be cases which disclose highly unusual features and which will not readily fit into any particular pattern. 2.4 Finally, it is important to emphasise that such an exercise can only legitimately be carried out if the court has, as it had in this case, the opportunity, through the industry of counsel, to conduct a comprehensive review of the views on sentences which this Court has expressed and/or has available to it detailed information of sufficient quality on the type of sentences typically imposed by sentencing judges. To attempt to give guidance without such assistance would, in this Court’s view, be inappropriate. Against that background, it is next necessary to turn to the approach to sentencing which any such guidance might permit. 3. The Approach to Sentencing 3.2 One possible means of converting such an analysis into an actual sentence involves, as a first step, the sentencing judge determining the appropriate sentence for the offence itself having regard to where the offence lies along that range. The sentencing judge is then required, in accordance with the established jurisprudence, to take into account the circumstances of the individual accused and make such adjustment (if any) as may be appropriate to reflect the individual circumstances of that accused. Where, for example, there are significant mitigating and other personal factors, then a specified reduction in sentence and/or a suspension of sentence in whole or in part may be appropriate to meet those factors. In adopting this methodology, the sentencing judge indicates what the appropriate sentence might be, were it not for the individual circumstances of the accused concerned, and then adjusts the sentence, as appropriate, to reflect those individual circumstances. 3.3 However, a sentencing judge does not necessarily have to indicate what sentence would be appropriate for the offence itself. Rather the sentencing judge may determine where it is appropriate to place the offence in the spectrum and then adjust that place to reflect any individual circumstances of the accused so as to determine where the sentence itself should lie along the range of appropriate sentences having regard both to the offence and the circumstances of the accused. It seems to this Court that either of such methodologies is an entirely appropriate way for a sentencing judge to approach the question. 3.4 As also noted earlier, where, as here, on appeal, there has been a detailed analysis of many recent decisions of this Court concerning the sentence deemed appropriate for offences which might be described as at least broadly similar to the one under consideration, it may be appropriate for this Court to attempt to set out broad guidance as to the range of sentences that would ordinarily be appropriate for the offence in question across the spectrum. Against the background of those general observations, it is appropriate to turn to the case made by Mr. Ryan. 4. The Defence Case - The Offences 4.2 Mr. Ryan pleaded guilty to two firearms offences arising from events which occurred on the 26th May, 2010, at Carrickmartin in Co. Limerick. The first offence concerned possession of a Browning semi-automatic pistol in such circumstances as to give rise to a reasonable inference that he did not have same in his possession for a lawful purpose. As noted by counsel, this offence is frequently referred to colloquially as “suspicious possession” of a firearm. The second offence concerned the possession of ammunition suitable for use in the Browning semi-automatic pistol in like suspicious circumstances. 4.3 The evidence was that Mr. Ryan was one of four occupants in a car which left the suburbs of Limerick heading in the direction of Ballyneety, a rural area, on the occasion in question. The car turned onto a side road and stopped at the entrance to a field. Members of An Garda Síochána were carrying out surveillance in the area. At various stages, two of the occupants of the car (including an Edward Ryan, a brother to Mr. Ryan) got out of the car and searched undergrowth in a field. Eventually, Mr. Ryan got out of the vehicle and pointed to a spot inside the fence into the field. As a result, a package was picked up and wrapped in a cloth bag which was returned to the car. The car, which was owned by Mr. Ryan, then began to drive back towards Limerick City at which point it was stopped by Gardaí attached to the Special Detective Unit and the Regional Support Unit. The firearm and ammunition which were the subject of the charges were found in the cloth bag. 4.4 Under questioning Mr. Ryan admitted his involvement. When first interviewed, he made a number of admissions: see transcript at page 9, lines 4-11. He admitted that he believed there was a gun in the package which he went to collect. When asked what brought him to Ballyneety, he stated as follows:
A. That's correct, yes. Q. But he attempted to take sole responsibility for it? A. That's correct, yes."
A. That's correct, yes. Q. He said, "I'm holding my hands up 100%. It's all down to me." And he went on to state that he was collecting the package as a favour for someone and that he was to receive €500 for collecting this package? A. That's correct, yes. Q. And he ultimately admitted that he was aware that he was to collect a firearm? A. That's correct, your honour. Q. And when the notes were read over to him at the first interview, he said -- he answered, he said, "That's my confession, lads? … Q. Can you say who you were collecting the gun for?" Answer: "No, I'm in fear". 4.5 Thus, Mr. Ryan’s admitted involvement was in collecting a gun at the request of a third party whom he was not prepared to name due to fear. Before turning to Mr. Ryan’s personal circumstances, it is also necessary to refer to one aspect of the evidence heard at the sentencing hearing which featured as an issue at the hearing of this appeal. 4.6 The background to that issue is a feud amongst criminal gangs which has notoriously been conducted in Limerick for a significant number of years, giving rise to wholesale death, serious injury, destruction to property and misery inflicted on many inhabitants of the areas of Limerick in which the feud was primarily focused. Many cases connected with that feud have come before the courts. The existence of such a feud was not, nor could it have been, in dispute. 4.7 At the sentencing hearing, the prosecution sought to link the firearms offences in this case with the feud. No direct evidence of any such link was given other than a statement that the gun and ammunition were in Mr. Ryan’s possession as part of the feud. Evidence was given of a previous conviction for violent disorder in 2004 which was said to have arisen from Mr. Ryan’s involvement in the same feud. 4.8 The sentencing judge was, however, careful in the way he approached this issue. He stated the following:-
4.10 Counsel for the prosecutor/respondent ("the DPP") also drew attention to the circumstances which had given rise to that sentence. What counsel accurately described as a pitched battle between two factions occurred in a car park in Limerick. The sentence of 4½ years ultimately imposed clearly reflects the seriousness of the offence of which Mr. Ryan was convicted on that occasion. The trial judge was, therefore, clearly entitled to take those circumstances into general account. The trial judge was not, of course, entitled to re-punish, in any way, Mr. Ryan for that earlier offence. However, the fact that it had been established that Mr. Ryan was involved in serious criminality is a factor against which his possession of firearms in this case can, at least in part, be judged. 4.11 This Court does not feel that there can be any criticism of the way in which the trial judge dealt with this question. He did not approach the possession of weapons as having been established to be in connection with the feud. He did regard Mr. Ryan as having been established to have been previously involved in serious criminality. 4.12 Against that background, it is next necessary to turn to the circumstances of Mr. Ryan on which reliance was placed on his behalf at the sentencing hearing. 5. The Accused’s Circumstances and the Sentence 5.2 In the course of his plea in mitigation, counsel who then appeared on behalf of Mr. Ryan had also referred to the tragic circumstances in which the father of Mr. Ryan came to lose his life as part of the feud to which reference has already been made. A reference was also made to his family circumstances where, having, it was said, “gone off the rails” after the death of his father, he had re-established himself, in family terms, with a child and partner. 5.3 The sentencing judge indicated that, were it not for any relevant mitigating factors, most particularly the early plea of guilty, he would have considered a sentence “very near the maximum. I would have been thinking of a sentence of 12 years”. However, in the light of the early plea of guilty, a sentence of 8 years on both counts was imposed. In the course of argument before this Court, counsel for Mr. Ryan accepted that it would not be possible to argue that a reduction of one third in the appropriate sentence was insufficient to meet the early plea of guilty (taken in its context) and any other mitigating factors which might have been available. Indeed, and this is a point to which it will be necessary to return, it might be possible to characterise such a reduction as being quite or even over generous. 6. The Appeal 6.2 Against that background, it is necessary to turn to a series of decisions of this Court over the last 6 years. Counsel referred, in total, to ten cases being Director of Public Prosecutions v. Eoin Barry [2008] IECCA 93, Director of Public Prosecutions v. James Melia [2008] IECCA 106, Director of Public Prosecutions v. Darren Larkin [2008] IECCA 138, Director of Public Prosecutions v. Denis Dwyer [2009] IECCA 12, Director of Public Prosecutions v. Owen Clail [2009] IECCA 13, Director of Public Prosecutions v. Martin Walsh [2009] IECCA 150, Director of Public Prosecutions v. Dermot O’Callaghan [2010] IECCA 52, Director of Public Prosecutions v. Garrett Fitzgerald [2010] IECCA 53, Director of Public Prosecutions v. Christopher Curtin [2010] IECCA 54 and Director of Public Prosecutions v. Frank Ward [2012] IECCA 15. 7. Discussion
The 2007 Act introduced subsection 4A into the substituted provision section 27A. Subsection 4A is unusual in that it sets out the legislative policy to underline that provision in terms that it provides that the purposes of subsections 5 and 6 of section 27A is to provide that in view of the harm caused to society by the unlawful use of possession of firearms the court in imposing sentence on a person for an offence under that provision shall specify the minimum term of imprisonment to be served by the person for a term of not less than five years. The statutory scheme however where these provisions apply is such that under subsection 5 the court shall take into account a plea of guilty. It will also take into account where there has been a plea of guilty the stage at which the intention to plead guilty was indicated and the circumstances in which the indication was given. Again under section 5 the court will take into account whether the person materially assisted in the investigation of the offence. So these are matters that have to be looked at. Under subsection 4A further matters are required to be taken into account by the court. The court may determine or shall impose a five year term unless the court determines that by reason of exceptional and specific circumstances relating to the offence or to the person convicted of the offence it would be unjust in all the circumstances to impose the term of five years imprisonment”. 7.3 It is also of some relevance to have regard, as counsel for the DPP suggested, to the range of different types of firearm offences created by statute. Under s. 2(2) of the Firearms Act 1925, as substituted by s. 3(a) of Firearms Act 1971, it is an offence to possess, use or carry a firearm or ammunition either without a firearm certificate or not in accordance with the certificate. Maximum penalties on summary conviction are a fine not exceeding €2,500, 12 months imprisonment or both. On conviction on indictment, a person can be fined €10,000, imprisoned for up to 5 years or both. Increased penalties apply when the unlawful possession relates to a restricted firearm or ammunition, as defined in s. 2B of the Act. It is a specific offence to be in possession of a firearm whilst taking a vehicle without authority pursuant to s. 26(1) of the Firearms Act 1964, as amended. A person is liable on conviction on indictment to a maximum penalty of 14 years imprisonment and a fine. Section 27A(1) of the Firearms Act 1964, as amended, the offence in question here, prohibits the possession or control of a firearm or ammunition in suspicious circumstances. Again, the maximum sentence under this section is imprisonment for 14 years and a fine. The same maximum penalty applies to a person convicted of carrying a firearm or an imitation firearm with intent to commit an indictable offence or resist arrest under s. 27B of the 1964 Act as amended. The use of a firearm or an imitation firearm to resist arrest or to escape from lawful custody is an offence under s. 27 of the 1964 Act, as amended. This offence carries a maximum sentence of life imprisonment and a fine. The presumptive minimum sentence of 5 years imprisonment mentioned above also applies to convictions under ss. 26, 27, 27A and 27B. At the upper end of the scale is the offence of possession or control of a firearm or ammunition with an intent to endanger life or cause serious injury to property, pursuant to s. 15(1)(a) of the 1925 Act. It again carries a maximum penalty of life imprisonment and an unlimited fine. However, the presumptive minimum sentence of imprisonment under s. 15 is 10 years imprisonment. It is next necessary to consider the other sentencing cases for suspicious possession to which the Court’s attention was drawn. 7.4 Barry was a case where the accused had been sentenced to 4 years for the suspicious possession of firearms and ammunition but also in circumstances where there was, as here, an early plea coupled with a very early admission of responsibility when being questioned by An Garda Síochána. It should, however, also be noted that in that case garda witnesses accepted, as did the sentencing judge, that the accused and members of his family were subjected to significant threats. The appeal in Barry, which was rejected, was one taken by the D.P.P. under s. 2 of the Criminal Justice Act 1993. 7.5 The appeal in the next case, Melia, was likewise a section 2 appeal. That case had a complicating factor by virtue of certain offences being committed while on bail. There were also a number of separate offences. Ultimately, this Court concluded that the sentences imposed by the trial court were unduly lenient and imposed a series of sentences which had the effect of cumulatively requiring the accused to serve a sentence of 6 years although to some extent it must be said that that overall period reflected, at least in part, the fact that some offences were committed on bail. It should also be noted that some of the offences involved firearms and some did not. 7.6 In Larkin, this Court varied sentences imposed by the sentencing judge to provide for a sentence of 15 years for attempted murder and 10 years for each of the relevant firearms offences. The accused had pleaded not guilty and had, indeed, appealed his conviction to this Court. As the conviction for attempted murder, however, demonstrates, this was a case where the firearms were actually used rather than one where they were simply being transported. 7.7 In Dwyer, this Court, on appeal by the DPP, increased a sentence of 4 years to the presumptive minimum of 5 years where the accused had pleaded guilty to a count of possession of a Kalashnikov rifle together with relevant ammunition. This was also a case where the accused had, in the view of this Court, been caught red-handed. 7.8 In Clail, the accused had again pleaded guilty to offences relating to the possession of firearms and ammunition. One of the relevant weapons was a non-functioning Glock semi-automatic pistol. This Court was, however, satisfied that, although non-functioning, the firearm was intended for criminal purposes. The second firearm was a revolver which was effective. It is also the case that the circumstances surrounding the finding of the weapons in question involved not just the weapons but also paramilitary paraphernalia. This Court, before going on to consider any relevant mitigating factors, considered the appropriate range to be “7 to 8 years”. In the light of certain mitigating factors, the last 18 months of a sentence of 7½ years was suspended. 7.9 In Walsh, the accused was found, as a result of surveillance, in a car with a sawn-off shotgun. In delivering the judgment of this Court, Finnegan J. noted that the nature of the weapon was a significant factor in determining the seriousness of the offence and considered the sawn-off shotgun in that case should come to the top end of such a hierarchy. The sentencing judge had imposed a term of 5 years which Finnegan J. described as “certainly at the very lowest end of what is appropriate in all the circumstances of the case”. 7.10 In O’Callaghan, the Director of Public Prosecutions appealed on the basis of undue leniency. The sentences were imposed in respect of a series of offences including firearms offences. However, that was a case where the trial judge accepted, and this Court agreed, that there were exceptional circumstances. It is, perhaps, therefore, not particularly relevant to this case. 7.11 In Fitzgerald, the accused was sentenced for possession of a firearm and ammunition, the firearm in question being an automatic shotgun. There was again a very early indication of a plea of guilty. In delivering the judgment of this Court, Denham J. indicated that “8 years would be the appropriate starting point”. This was said to be the case by virtue of the nature of the gun and the fact that it was brandished in a crowded bar. In the light of a plea of guilty, the sentence was reduced to 6 years. 7.12 In Curtin, the accused was sentenced to 7 years imprisonment for possession of a firearm and ammunition. This Court dismissed an appeal brought by the Director of Public Prosecutions on the basis of undue leniency. It should be noted that the relevant accused had a previous conviction for possession of a firearm with intent to endanger life. This Court concluded that the sentence might be considered to be lenient but nonetheless was satisfied that the Director of Public Prosecutions had failed to establish a sufficient error to warrant allowing the appeal. 7.13 Then, in Ward, the accused was sentenced in respect of offences which involved the shooting of the well known publican, Mr. Charlie Chawke. While a number of the offences with which the sentencing judge was concerned, relating to possession of a firearm, had attracted a sentence of 12 years, some of the more serious offences had attracted life imprisonment. The judgment of this Court was principally concerned with whether a lengthy, although determinate, sentence was more appropriate than the life sentence. 7.14 When the case was re-listed for hearing, counsel for the DPP also brought the Court’s attention to Director of Public Prosecution v. Geasley (Unreported, Court of Criminal Appeal, 10th June 2013). In that case this Court heard an appeal brought by the accused against sentence. The sentencing judge had imposed a sentence of 7 years. The offence related to the possession of glock pistols. This Court increased the sentence (notwithstanding the fact that it was the accused’s appeal) to one of 10 years with 1 year suspended. The court described the possession of the glock pistol as being “the enormous crime of possessing a lethal weapon” and stated that its judgment was necessary for the protection of the community and the deterrence of the prisoner. It should be said that there was some ambivalence about the accused’s acceptance of guilt in that case which, doubtless, was a factor taken into account. 7.15 From that exhaustive review, it seems clear that the principal factors which will normally require to be taken into account in assessing the seriousness of an offence of possession of a firearm in suspicious circumstances are the nature and quantity of the firearm or firearms concerned, the extent to which any firearm was either actually used or brandished in a way which would have caused people to be concerned that it might be used, the extent that the offence arose or might be inferred to have arisen out of criminality generally (and if so the seriousness of same) or out of specific and personal circumstances, and any circumstances concerning the culpability of the accused, such as the extent of the involvement of the accused or the extent to which it might be said that the accused was operating under a threat. Doubtless other factors could loom large on the facts of any individual case. 7.16 In the absence of exceptional and specific circumstances, there is, of course, a minimum presumptive, although non-mandatory, sentence of 5 years. Before considering any appropriate adjustment to reflect mitigating factors, it seems to this Court that, in general terms, an offence at the lower end of the range ought attract a sentence of 5 to 7 years, an offence in the middle of the range ought attract a sentence of 7 to 10 years and an offence at the top of the range a sentence of 10 to 14 years. Against that background, it is argued on behalf of Mr. Ryan that an indicative sentence of 12 years, before any mitigating factors were taken into account, wrongly places this offence in the middle of the most serious end of the range. It is said that, in the light of the sort of facts analysed in some of the cases to which reference has been made, a case of possession of an admittedly significant firearm (at the upper end of the hierarchy to use the term adopted by Finnegan J. in Walsh) and one which, as counsel for the DPP pointed out, cannot be lawfully held, but in circumstances where it was not used and where there was no evidence other than that the purpose of the possession by Mr. Ryan was to deliver the firearm to a third, although unnamed, party, could not warrant such a finding. 7.17 It is also appropriate to note that the court raised, at the re-listed hearing, the different and lesser sentence imposed on Mr. Ryan’s brother who was a co-accused. It was said on behalf of the DPP that the co-accused in question had a materially better criminal record and was considered to be less culpable in the offence, thus justifying a lower sentence. On the other hand, it is necessary to draw attention to the fact that the co-accused, unlike Mr. Ryan, did not make an early admission of guilt. 7.18 However, as a ground of appeal based on any possible disparity of sentencing between Mr. Ryan and his co-accused was not pursued, this Court does not feel that it is either possible or appropriate to take those factors into account. If such a ground had been pursued, then detailed materials concerning all relevant aspects of the case against the co-accused would need to have been considered in order to assess whether there was any impermissible disparity. 7.19 It should also be noted that counsel who made the plea in mitigation before the trial judge on behalf of Mr. Ryan had raised the question of the possibility of Mr. Ryan engaging in educational facilities while in prison. It may have been implicitly suggested that such engagement by Mr. Ryan, if it were to occur, could properly lead the Court to conclude that he was truly engaged in rehabilitation and, thus, that a reduced sentence might be justified. Ultimately this point did not find favour with the sentencing judge and was not significantly pursued on this appeal. On that basis, this Court does not propose to deal with the point. However, in passing, it is worth noting that there may be cases where there is a realistic prospect of rehabilitation connected with an accused engaging in educational or training facilities while in prison. In an appropriate case, it may well be open to a sentencing judge to take such factors into account by fashioning a sentence which provides the prospect of a partial suspension of sentence which is conditional on the relevant accused engaging in a satisfactory way with such facilities. However, how such a sentence is to be fashioned in an appropriate case is a matter to be addressed in detail when such a case comes for consideration. 7.20 Against that background, it is necessary to turn to a discussion of the issues which were actually before this Court on this appeal. 8. Discussion 8.2 In order for this Court to interfere with a sentence, it must, of course, be the case that this Court finds that there was an error in principle. Where the contention made on behalf of an appellant is, as here, that the sentencing judge's view of where the offence lies, in all the circumstances of the case, on the spectrum of seriousness, and the sentencing judge's decision as to how that assessment converts into an actual sentence, is incorrect, then, in order to regard the case as involving one in which an error of principle is established, it must necessarily be that this Court views the divergence from what would have been an appropriate assessment of the seriousness of the offence and the culpability of the accused and the appropriate sentence to be imposed in that context to be sufficiently significant to warrant a finding of error of principle. The fact that this Court might, had it been the sentencing court, have imposed a slightly lower or slightly higher sentence or assessed the case at a slightly lower or higher point on the spectrum of seriousness, would not, of itself, be sufficient to justify such a finding. However, in this Court's view the disparity just identified in this case is sufficiently significant to justify finding that the initial assessment of the trial judge, as to the seriousness of this offence and the sentence which it ought carry in the absence of mitigating factors, amounts to an error in principle. 8.3 Finally, before leaving this aspect of the case, it should, of course, be particularly noted that the judgments of this Court which have been analysed need to be seen in the light of the nature of the appeal under consideration in each case. As has just been noted, a sentence imposed should only be varied where this Court is satisfied that there was an error in principle. Where the alleged error concerns the length of the sentence and it being suggested that same is out of line with the norm, then this Court will only intervene where the disparity is sufficiently significant to amount to such an error in principle. 8.4 The application of that rule in practice can be seen from a number of the comments made by this Court in the course of the judgments which have been analysed. Certain sentences were, for example, described as lenient although not sufficiently so to warrant allowing an appeal under section 2 by the Director of Public Prosecutions. In reaching its overall assessment as to the appropriate range of sentences for firearms offences of this type, the Court has had regard to the fact that, in many of the previous cases analysed, this Court was not being asked to specify what sentence it thought was exactly appropriate but rather was being asked to decide whether the sentence actually imposed was sufficiently far away from what might be considered the norm, to amount to an error in principle. Furthermore, the final sentence imposed in each case did, of course, also reflect any appropriate adjustment to take proper regard of the individual circumstances of the relevant accused. In that context, it is necessary to turn to the reduction of four years applied, to reflect mitigating factors, by the sentencing judge in this case. 9. Mitigation and the ultimate sentence 9.2 In a number of the cases already analysed, a reduction of the order of 2 years or, perhaps, of one-quarter, seems to have been considered appropriate to reflect early admissions and an early plea of guilty. Given that there were no other significant mitigating factors identified by the trial judge in this case, it is difficult to see how a reduction of 4 years or one-third was appropriate. 9.3 In the light of those two competing findings (that is, that the sentencing judge placed the offence at a point in the spectrum which was excessive having regard to the overall seriousness of the offence, but that the trial judge was, perhaps, excessively generous in determining the extent of reduction which would be appropriate in the light of the limited mitigating factors present), it remains to be considered as to what the appropriate approach of this Court should be. 9.4 It seems to this Court that it is appropriate, in those circumstances, to look again at the reduction made by the sentencing judge. Where, as here, the Court is satisfied that the starting point identified by the sentencing judge, before having regard to any individual circumstances of the accused, was unduly harsh and so to a sufficient extent as to give rise to an error of principle, it seems that the Court should also consider, as part of the overall process of determining whether the ultimate sentence determined on by the sentencing judge should be sustained, whether the overall approach of the sentencing judge to any mitigating factors was likewise in error. 9.5 Clearly the sentencing judge, who was, of course, in a good position to assess matters generally having heard the evidence, took the view that a significant reduction was warranted to reflect such mitigating factors as were present. However, in the view of this Court, for the reasons already analysed, the reduction allowed was excessive in the light of the case law. While this Court might have considered an even smaller reduction as being appropriate, the Court is nonetheless satisfied that the largest reduction which could be justified in the circumstances of this case would be 2 to 2½ years. Given a starting point of 9 to 10 years, a range of sentence from 7 (or a little less) to 8 years would thus be indicated. 9.6 As this Court has established an error of principle, albeit one which is partly compensated for by an opposing error in the extent of the reduction allowed for mitigating circumstances, the Court feels that it should allow the appeal and interfere with the sentence. 9.7 While a relatively small reduction from a sentence of 8 years would not, ordinarily, be justified in the light of the fact that this Court would not normally regard such a disparity as being of a sufficient degree to justify a finding of error of principle, the Court is of the view that it is appropriate to make such an adjustment in the unusual circumstances here present, where there is material error in the assessment of the severity of the offence partly offset by an opposing error in the appropriate reduction to reflect mitigating factors. 10. Conclusion 10.2 In all the circumstances, this Court is of the view that a sentence of 8 years is excessive and that the appeal should be allowed. The Court will hear further submissions on what sentence should be imposed in those circumstances.
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