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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Ryan [2014] IECCA 24 (17 July 2014) URL: http://www.bailii.org/ie/cases/IECCA/2014/C24.html Cite as: [2014] IECCA 24 |
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Judgment Title: Director of Public Prosecutions -v- Ryan Neutral Citation: [2014] IECCA 24 Court of Criminal Appeal Record Number: 144/11 Date of Delivery: 17/07/2014 Court: Court of Criminal Appeal Composition of Court: Clarke J., McCarthy J., Sheehan J. Judgment by: Clarke J. Status of Judgment: Approved
Notes on Memo: Allow appeal against 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 Supplemental Judgment of the Court delivered by Mr. Justice Clarke on the 17th July, 2014. 1. Introduction 1.1 This judgment is supplemental to a previous judgment given by this Court in this case (D.P.P. v. Ryan [2014] IECCA 11). For the reasons identified in that judgment this Court considered that two errors of principle had been identified in the sentencing process in this case. In summary, the Court concluded that the starting point of the sentencing judge's approach (being a term of imprisonment of twelve years before any mitigation was taken into account) was, in the light of a detailed and careful analysis of many judgments of this Court for like offences, excessive. The Court concluded, in the light of that analysis, that this case fell at the upper end of the middle range of severity or, perhaps, at the bottom of the most serious range. In the light of the Court's analysis it was suggested that a sentence of nine to ten years would be an appropriate starting point in those circumstances. 1.2 However, the Court also concluded that the sentencing judge had, in reducing Mr. Ryan's sentence by four years (or one third) in the light of his plea of guilty, acted in what was perhaps an overly lenient fashion having regard, in particular, to the circumstances in which Mr. Ryan was, as it were, caught red-handed, thus reducing the credit which might properly be given to his plea of guilty. 1.3 As noted at the end of its previous judgment, the Court put the matter in for further hearing to consider what the proper sentence should be in all the circumstances of the case. As also noted in another judgment given by this Court today in D.P.P. v. Fitzgibbon (unreported, Court of Criminal Appeal, Clarke J., 17th July, 2013), the judgment in this case together with an earlier judgment in Fitzgibbon (D.P.P. v. Fitzgibbon [2014] IECCA 12) and a further judgment of this Court in D.P.P. v. Z [2014] IECCA 13, were all delivered on the same day and are somewhat interconnected. As had occurred when Fitzgibbon came back before this Court to determine the proper sentence to be imposed, counsel for the D.P.P. in this case asked to be allowed make further submissions in relation to some of the issues which had been addressed by this Court in Z relating to the precise obligations on the D.P.P. to provide assistance at sentencing hearings. The submissions made in this case were identical to those made in Fitzgibbon. This Court agrees with the way in which those issues were dealt with in Fitzgibbon and does not, therefore, feel that it is necessary to readdress the issues raised in its judgment in this case. 1.4 This judgment is, therefore, solely related to the question of the proper sentence to be imposed in Mr. Ryan's case. 2. The Proper Sentence 2.2 Two matters of mitigation arose at the second hearing. The first related to the issue of the plea of guilty already debated at the first hearing. It is common case that, both as a matter of general principle and also under the provisions of s.29 of the Criminal Justice Act, 1999, a court should take into account not only the fact of a plea of guilty but also the stage at which the accused indicated an intention to so plead and the circumstances in which any such indication was given. There is no doubt that the plea of guilty in this case was indicated at a very early stage. Mr. Ryan made full admissions concerning his involvement when interviewed by An Garda Síochána in the immediate aftermath of his arrest. He went forward from the District Court on a signed plea of guilty and never sought, in any way, to resile from that plea. It follows that the prosecution services were saved the difficulty of preparing for a trial. So far as there is a utilitarian aspect to encouraging pleas of guilty for the purposes of easing the burden on prosecution services and the courts, then a plea at such an early stage must necessarily be given greater weight than someone who, for example, pleads guilty on the morning of a trial or, indeed, after a trial has commenced. 2.3 On the other hand, there can be little doubt but that Mr. Ryan was caught red-handed and that any prospect of successfully avoiding conviction must always have been remote. It is true, as counsel argued, that he could, nonetheless, have created difficulties for the prosecution by pleading not guilty, requiring the prosecution to prove its case and relying on such procedures (such as disclosure) as might have been open to him even if there was little chance that any such action might have led to any result other than a conviction. It follows that it is correct, as counsel for the D.P.P. conceded, that Mr. Ryan could have made a lot more trouble for the prosecution. That is to his credit. However, it does not take away from the fact that the weight to be attached to his plea of guilty must nonetheless be significantly limited by the circumstances in which that intimation of a plea was first given. 2.4 At the second hearing counsel also placed before the Court reports from the prison service and others which do, indeed, suggest that Mr. Ryan has been a model prisoner. He is entitled to some credit for that as well. It is, of course, the case that sentencing courts (whether at first instance or on appeal) must pay proper regard to the prospect of rehabilitation. In appropriate circumstances a sentence may be crafted to encourage rehabilitation not least by suspending a portion of the sentence and imposing terms on that suspension. However, in the circumstances of this case, two additional factors need to be taken into account. First, at the time of Mr. Ryan's initial sentencing hearing, there did not appear to be any great prospect of rehabilitation. As noted in this Court's earlier judgment, Mr. Ryan had a serious previous conviction for a major public order offence which warranted a sentence of four years imprisonment. In assessing, at least during an initial sentencing hearing, the way in which the Court should approach the question of rehabilitation, it is appropriate for a sentencing judge to consider the circumstances of the accused in question and to assess the realistic prospects of rehabilitation in the circumstances of that accused. While it is true that this Court, if approaching the question of sentence afresh having found that there was an error of principle, is entitled to consider the up to date position, nonetheless an accused, such as Mr. Ryan, who would not have been entitled, at the time of his original sentencing, to be considered a significant candidate for rehabilitation, cannot expect, by the happenstance that the question of his sentence is being considered afresh some four years later, to a great deal of additional leniency by virtue of his record in prison. To place too much weight on such a factor would be to run the risk of being unfair to those prisoners who, quite properly, did not impress a sentencing judge as having established a strong case for rehabilitation, but who nonetheless had become model prisoners. Such prisoners, if they do not appeal or if their appeal is unsuccessful, do not get the opportunity to have their sentence reassessed through the appellate process. While some weight, therefore, must be attached to Mr. Ryan's good record in prison, the Court is not satisfied that the weight so to be attached is particularly great. 2.5 Second, it must be kept in mind that the cumulative effect of a reduction in sentence to reflect mitigation and any partially suspended sentence ought not exceed the appropriate allowance for all relevant factors. 2.6 Finally, any reduction to reflect mitigating factors must have regard to the fact that Mr. Ryan, by virtue of his previous record, would not be entitled to any mitigation deriving either from a clean record or one which only involved minor offences or those well in the past. 2.7 In all the circumstances of the case the Court does not see that it could be justified in reducing Mr. Ryan's sentence, by virtue of those mitigating factors, by more than two years from his sentence of nine years. As indicated earlier, nine years is, in this Court's view, the minimum sentence which would reflect the seriousness of the offence itself. A sentence of up to ten years would, indeed, be justifiable. Having, as it were, given Mr. Ryan the benefit of the doubt in picking the lower end of that range it does not seem to this Court that a reduction of more than two years to reflect both the plea of guilty and giving some, albeit relatively slight, weight to his good record in prison, could be justified. 3. Conclusions 3.2 The Court will allow the appeal and substitute for the sentence imposed by the trial judge a sentence of seven years imprisonment. | ||||||||||||
