Mandatory Sentences

Table of Contents

Cases

Ellis v Minister for Justice and Equality

[2017] IECA237,

JUDGMENT of Mr. Justice Birmingham delivered on the 31st day of July 2017

1. This is an appeal from a decision of the High Court (Twomey J.) refusing a declaration that s. 27A (8) of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act 2006 is unconstitutional. I should say at the outset that I am in complete agreement with the conclusions arrived at by Twomey J. and indeed with his reasoning. I would therefore be in favour of dismissing the appeal. I propose to state briefly the reasons why I have come to the decision that I have.

2. The background to this case is that the appellant was charged with two offences arising out of events at Knocklyon Shopping Centre on 5th July, 2012. He was charged with the offence of possession of a sawn off shotgun contrary to s. 27A(1) of the 1964 Act and also charged with an offence contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act 2001 in relation to the possession of a sledgehammer, a plastic bottle containing petrol and socks with the intention that they be used in connection with an offence. A sentence hearing was held in the Dublin Circuit Court on 7th May, 2013. On that occasion the Court was told that the appellant had 26 previous convictions. Of particular relevance is that the previous convictions included two previous convictions of carrying a firearm with criminal intent contrary to s. 27B of the Act of 1964. One of these convictions gave rise to a seven year term of imprisonment with two years suspended on 7th July, 2009 and the other had given rise to a six year term of imprisonment with 5 months suspended on 7th May, 2003.

3. Having heard the evidence and plea in mitigation, Judge Ring adjourned matters to 29th July, 2013 so that she could consider the contents of a number of reports that had been submitted on behalf of the appellant. These reports indicated that Mr. Ellis was addressing a drug problem at Coolmine Drug Treatment Centre and also indicated that he had not come to garda attention since his release from custody almost a year earlier. In fact matters were not finalised on the adjourned date of the 29th July, 2013, but instead Judge Ring further adjourned the matter on a further three occasions in order to assess the progress of the appellant. Eventually, on 26th May, 2014, matters were finalised so far as the Circuit Court is concerned when a sentence of five years imprisonment in respect of the offence contrary to s. 27A(1) of the 1964 Act was imposed but suspended in its entirety for a period of five years upon his entering into his own bond in the sum of €200 to keep the peace and be of good behaviour. A concurrent three year sentence was imposed in respect of the s. 15(1) Criminal Justice (Theft and Fraud Offences) Act 2001 matter which was likewise suspended on the same terms. The Director of Public Prosecutions sought a review of the sentence on grounds of undue leniency. Before the review application came on for hearing this Court delivered a decision in the case of DPP v. Prenderville [2015] IECA 33 in which it was held that the wording of s. 27A(8) of the Act of 1964, i.e. “a term of imprisonment of not less than five years as the minimum term of imprisonment to be served”, required that a minimum of five years imprisonment must actually be imposed as distinct from imposed and suspended.

4. On 25th July, 2016, the Court of Appeal delivered judgment in respect of the undue leniency review and concluded that the trial judge had not been entitled to suspend any part of the five year sentence imposed on the firearms offence and thus proceeded to impose a term of five years imprisonment. Before the High Court and again before this Court it has been submitted on behalf of the appellant that the effect of the sentencing provisions of the Firearms Act 1964 (as inserted by s. 59 of the Criminal Justice Act 2006) was, in the case of persons appearing before the court with relevant prior convictions, to impermissibly fetter the discretion of a sentencing court and to do so in a manner that offended the Constitution.
The statute in issue
5. Section 27A of the Firearms Act 1964 (as inserted by s. 59 of the Criminal Justice Act 2006) so far as relevant provides as follows:

“(2) A person guilty of an offence under this section is liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to s. 27A(4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and
…
(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005.
(4) Where a person … is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

(4A) The purpose of subsections (5) and (6) is to provide that, in view of the harm caused to society by the unlawful use of firearms, a court, in imposing a sentence on a person … for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 5 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so.
(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may, subject to subsection (6), have regard to any matters it considers appropriate, including —
( a ) whether the person pleaded guilty to the offence and, if so —
(i) the stage at which the intention to plead guilty was indicated, and
(ii) the circumstances in which the indication was given,

and

( b ) whether the person materially assisted in the investigation of the offence.
(6) The court, in considering for the purposes of s. 27A (5) whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to —
( a ) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006 , the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
( b ) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.

(7) Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section … and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.
(8) Where a person … —

( a ) is convicted of a second or subsequent offence under this section, and
( b ) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.”
6. In essence the situation was, given that Mr. Ellis had relevant previous convictions for possession of firearms, that the Court had no discretion to impose a sentence of less than five years imprisonment to be served. It was on this basis that the matter was approached by the Court of Appeal when dealing with the application to review the Circuit Court sentence as unduly lenient.

7. On behalf of the appellant it is submitted that the elimination or restriction of sentencing discretion offends the notion of the separation of powers and also conflicts with the requirement that sentences imposed should be proportionate. In the light of a number of decided cases, the appellant recognises that the Oireachtas has a role when it comes to sentencing policy. In the case of Deaton v. Attorney General [1963] 1 IR 170 Ó Dálaigh C.J. had commented

The Legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular ease, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain.”

8. In Osmanovic v. Director of Public Prosecutions [2006] 3 IR 504 the applicant relied on the importance attached to the principle of the separation of powers in Deaton when arguing that what he saw as a fixed financial penalty for evasion of excise duty was unconstitutional. The Supreme Court took the view that the Act in fact provided for a range of penalties which could be imposed. In the course of his judgment Murray C.J. noted that the decision in Deaton contemplated fixed penalties. He commented:
It is quite clear from the judgment of Ó Dálaigh C.J. in Deaton v. The Attorney General and the Revenue Commissioners [1963] I.R. 170 that the Oireachtas does have powers to lay down general parameters within which a sentence is to be imposed. There is no necessity in this judgment and indeed it would be wholly undesirable to consider what the limits might be (if any) on the power of the Oireachtas to provide for either fixed sentences or mandatory sentences. One could postulate extreme situations where the sentencing powers of judges were removed altogether and every offence had a mandatory sentence. The constitutionality of such a law would obviously be questionable. But it has always been accepted and indeed was accepted, in Deaton v. The Attorney General and the Revenue Commissioners that, within reason at least, the Oireachtas has power to lay down those parameters.”
9. Other cases where the courts in recent time have considered the question of mandatory sentences include Lynch and Whelan v. Minister for Justice [2012] 1 IR 1 where what was at issue was the mandatory life sentence for murder and Gilligan v. Ireland [2013] 2 IR 745 where what was in issue was the provision for mandatory consecutive sentences in the case of offences committed in custody.
10. In challenging the statutory provision it is contended that there is no rational relationship between the requirement for a mandatory sentence and the offence at issue and the conclusion of the High Court judge to the contrary is challenged. It is said that the constitutional dimension is brought into focus by the fact that Judge Ring had felt that the just and proportionate sentence was a suspended one and the fact that the courts were in effect compelled by the Oireachtas to impose an actual sentence of a specified minimum duration to be served.

11. On behalf of the appellant it is said that there is no logical or rational basis for isolating possession of firearms cases from other areas of criminality. What is the rational basis, it is asked, for providing a mandatory presumptive minimum in the case of firearms offences and an absolute minimum in the case of second or subsequent offences for firearms and not doing it for serious crimes of violence, serious sexual offences or other areas of very grave criminality? A further point made is that the regime does not apply to all citizens which was something that Ó Dálaigh C.J. had insisted upon. It is said that it applies only to persons with relevant previous convictions and not others and that it also does not apply in the cases of persons under 18 years. I should say immediately that I regard this last argument as completely without merit. There is nothing unusual about the fact that a different sentencing regime is to apply in the case of second or subsequent offences. I regard the argument that the exclusion of those under 18 offends against the principles set out in Deaton as lacking in reality. There are sound constitutional and statutory bases for exempting children from the full rigours of a sentencing regime.

12. In the course of his judgment Twomey J. referred to the fact that Ireland has decided that its police force should be unarmed as providing a clear rationale for viewing firearms offences in a particularly serious light. I agree that in a country where even the police do not routinely carry arms that the possession of firearms unlawfully is a particularly serious matter and that the legislature is quite entitled to so treat it. I would, though, point out that Ireland is not alone in being concerned about the threat posed by the misuse of firearms. Prof. O’Malley at para. 18.18 in his text Sentencing Law and Practice (3rd Ed.) comments:

“One constant theme running through the jurisprudence on sentencing for firearm offences across all common law jurisdictions is that courts must be aware of the intense and, apparently growing danger posed by the misuse of firearms. The same concern is reflected in the legislative introduction of minimum sentences which have become increasingly common.”
13. It seems to me that the Oireachtas has a legitimate role in setting sentencing parameters. The Oireachtas is entitled to fix maximum penalties. There have been occasions when judges have expressed frustration about the low maximum that has been prescribed in certain cases.
14. By the same token the Oireachtas can prescribe minimum sentences. To use the language of Murray C.J. the Oireachtas has within reason at least the power to lay down parameters.

15. The approach of the Oireachtas has been a very measured one. It has provided for a mandatory presumptive minimum in the case of certain firearms offences. However, in general courts are permitted to depart from that minimum and impose lesser sentences where it identifies the fact that there are exceptional and specific circumstances relating to the offence or the offender present. As the Court pointed out in the course of its Prenderville judgment, departures from the mandatory presumptive minimum are far from uncommon. In the case of second or subsequent offences there is an actual mandatory minimum. However, even here the courts are left with a considerable discretion in that judges are free to impose a sentence between the minimum stipulated of five years and the maximum provided for of 14 years.

16. In my view the Oireachtas is entitled to a considerable margin of appreciation when addressing sentencing policy. The threat to society posed by the unlawful use and possession of firearms is so serious that the approach they have opted for cannot be seen as irrational or disproportionate.

17. As I indicated earlier, I am in no doubt that the High Court judge was correct in rejecting the constitutional challenge and I would dismiss the appeal.

DPP v Ellis

[2016] IECA 358
JUDGMENT of the Court delivered on the 25th day of July 2016 by
Mr. Justice Sheehan

1. This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the sentence imposed on the respondent at the Dublin Circuit Criminal Court on the 25th May, 2014, on grounds of undue leniency.

2. On the 8th April, 2013, Wayne Elli pleaded guilty to two counts on in the indictment. Count 1, possession of a firearm in suspicious circumstances contrary to s. 27A(1) of the Firearms Act 1964, as substituted by s. 59 of the Criminal Justice Act 2006, as amended by s. 38 of the Criminal Justice Act 2007. Count 2 possession of certain articles contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Following a number of adjournments, the appellant was finally sentenced on the 26th May, 2014. He received a fully suspended five year sentence in respect of the charge on count 1 and he received fully suspended sentence of three years imprisonment in respect of the charge on count 2.

3. Following his plea of guilty Mr. Ellis’s case was adjourned until the 7th May, 2013, for sentence. On that date evidence was given by Detective Garda Shane Graham that on the 5th July, 2012, as a result of confidential information an operation was put in place and as a consequence of that gardaí monitored the movements of a particular car namely a Ford Focus 00 4 451 which was kept this car under surveillance. The occupants of the car included the accused and his two co-accused Paul Walsh and Alex Irwin. The three men proceeded to the Penny Hill Pub area of Lucan where they met an innocent party and purchased a car from him. They then left with both vehicles. Paul Walsh drove the Audi 95 D 29009 to Oldmill Court, Tallaght, where he was met by Mr. Irwin and Mr. Ellis in the Ford Focus and they all then left in the Ford Focus, but returned some time later having been dropped off by a fourth person in the Ford Focus. The three men then got into the Audi motor car registration No. 95 D 29009. The gardaí continued to monitor this motor car and shortly afterwards it was observed in the vicinity of the Knocklyon Shopping Centre. It turned into the car park of that shopping centre and drove slowly past the post office and a cash in transit van that was parked nearby. It then continued on to the bottom of the car park, turned and headed back in the direction of the post office and cash van. At that point the gardaí were in position of the car park of the shopping centre and decided to intercept the vehicle. The Audi was surrounded by armed gardaí who looked into the car and observed a shotgun and a sledge hammer in the rear passenger seat foot well. There was an unlabeled bottle which contained a yellow substance which proved to be petrol in between the front seat of the car.

4. Detective Garda Monaghan arrested and detained Wayne Ellis and conveyed him to Tallaght garda station. The respondent was interviewed but nothing of probative value emerged.

5. Garda Graham told the court that Paul Walsh was the driver, that Alex Irwin was in the front passenger seat and that the respondent was the sole occupant of the rear of the car. The sawn off double barrelled loading breach shotgun which was unloaded was sent to the ballistics section where it was examined and found to be in fair condition. It was designed to discharge suitable 12 gauge shotgun.

6. With regard to the personal circumstances of the respondent the court was told that he was 31 years of age at the time of sentence and that he had 26 previous convictions which included a conviction in 2003 for carrying a firearm with intent and robbery. A sentence of six year imprisonment with the final five months suspended was imposed in respect of these charges. The court was also told that he had a further conviction in 2009 for carrying a firearm in the course of a robbery as a result of which he received a sentence of seven years imprisonment with the final two years suspended.

7. On the 7th May, 2013, a plea of mitigation was addressed to the court by defence counsel which focused primarily on the fact that the respondent had successfully engaged with the Coolmine Therapeutic Community, completed a rehabilitation programme and was in the process of dealing with his addiction.

8. The sentencing judge adjourned the matter for finalisation to the 29th July, 2013 and ordered urine analysis reports.

9. On the 29th July, 2013 sentencing of the respondent was further adjourned to facilitate his continued drug rehabilitation at the Coolmine Therapeutic Community and at the Ashling Centre and the respondent was remanded on bail initially to the 21st October, 2013, but later of the 18th November, 2013, the 17th February, 2014 and finally then to the 26th May, 2014. On that the date the learned sentencing judge imposed a sentence of five years imprisonment on count No. 1 and a sentence of three years imprisonment on count No. 2 and suspended both sentences in their entirety on the respondent entering his own bond of €200 to keep the peace and be of good behaviour for a period of five years.

10. While counsel for the Director of Public Prosecutions advanced a number of grounds in support of her application that the sentence imposed was unduly lenient, the principal argument focused on whether or not the Circuit Court judge was entitled to suspend the sentence of five years imprisonment imposed on count No. 1 in view of the fact that the respondent had a previous conviction for a firearms offence.

11. In order to consider the submission of counsel for the Director of Public Prosecutions that a mandatory minimum sentence of five years imprisonment applied in the present case, it is necessary in the first instance to set out the statutory framework in which a court imposes a sentence in a firearms case.

12. The following are the relevant portions of s. 27A of the Firearms Act 1964 (as inserted by s. 59 of the Criminal Justice Act 2006) and provides as follows:-

“…

(2) A person guilty of an offence under this section is liable on conviction on indictment.

(a) to imprisonment for a term not exceeding fourteen years or such shorter term as the court may determine, subject to s. 27A(4) – (6) and
(b) …

(3) The court, in imposing sentence on a person for an offence under this section, may, in particular, have regard to whether the person has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005 .…
(4) Where a person … is convicted of an offence under this section, the court shall in imposing sentence, specify a term of imprisonment of not less than five years as the minimum term of imprisonment to be served by the person.

(4A) the purpose of subsections (5) and (6) is to provide that in view of the harm caused to society by the unlawful use of firearms, a court, in imposing a sentence on a person … for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person of not less than five years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, would be unjust in all the circumstances to do so.

(5) Subsection (4) does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose, the court may, subject to subsection (6), have regard to any matters it considers appropriate including:

(a) Whether the person pleaded guilty to the offence and if so,
(i) the stage at which the intention to plead guilty was indicated
(ii) the circumstances in which the indication was given and

(b) Whether the person materially assisted in the investigation of the offence

(6) The court, in considering for the purposes of s, 27A(5) whether a sentence of not less than five years imprisonment is unjust in all the circumstances, may have regard, in particular, to:

(a) Whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and
(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.

(a) is convicted of a second or subsequent offence under this section,
(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.”

13. It should be noted at this point that when this appeal was originally listed for hearing before us, counsel on behalf of the respondent told the court that proceedings had been instituted challenging the constitutionality of the relevant section and the court granted an adjournment to the respondent on the basis that those proceedings would be prosecuted speedily.
14. This duly happened and judgment was delivered on the 9th May, 2016. On that date the High Court (Twomey J.) upheld the constitutionality of s. 27A(8) of the Firearms Act 1964 as substituted by s. 59 of the Criminal Justice Act 2006 and as amended by s. 38 of the Criminal Justice Act 200. The High Court also refused a declaration pursuant to s. 5(1) of the European Convention on Human Rights Act 2003, that the mandatory minimum five years prison sentence for a second firearms offence was incompatible with the European Convention on Human Rights.

15. At the sentence hearing in the Circuit Court the appellant was 33 years of age and had 26 previous convictions including relevant previous convictions for firearms offences in 2003 and 2009. The sentencing judge believed at the time of sentence that she was entitled to suspend the mandatory minimum five year sentence which the respondent was liable to following his earlier firearms conviction. The appellant had a young child and partner and by the 26th May, 2014, when sentence was imposed in this case he had been drug free for a period of two years. There had been evidence before the court that the appellant had been a heroin addict, had been abusing illegal substances since the age of thirteen, and had spend most of his 20’s in prison. The fact that the appellant had been drug free for a period of two years was something which seriously influenced the sentencing judge. When finalising sentence she stated as follows:-

“We are now at a period nearly two years after the date of the offence and in light of his prior history it is significantly to his credit that there is no information of any offending in the interim. . . . As indicated Mr. Ellis has remained in the community without reoffending. He has used all the services provided to him and the testimonials before the court confirm that not only did he participate, but he participated well with the various agencies that he used in the interim so in that regard I will suspend the operation of the sentence of five years imprisonment for a period of five years.”
16. The principle issue before us in this appeal was whether or not the Circuit Court judge was entitled to depart from the minimum five year sentence given the evidence before her of previous convictions of firearms offences. That matter has now been settled. The trial judge was not entitled to suspend any part of the five year sentence imposed on the firearms offence and we must approach sentence on the basis that the starting point is a sentence of five years imprisonment. We allowed the appeal to be adjourned to enable proceedings to be taken in the High Court by the respondent to test the constitutionality of the relevant legislation. The appellant did so and was unsuccessful, the judgment of the High Court being delivered on the 9th day of May 2016, by Twomey J. in which he upheld the constitutionality of the mandatory five year sentence for a second firearms offence.
17. We are satisfied therefore that the trial judge was not entitled to suspend any part of the five year sentence imposed on the firearms offence and we must approach sentence on the basis that the starting point is a sentence of five years.

18. This respondent has made a significant breakthrough in his life. While we were told at the conclusion of the oral hearing at this appeal that he may have committed an offence since his release on bail, it is of significance that there appears to be no more than one slip up. He appears to have made huge strides in overcoming his addiction. The court is satisfied that there is no need to impose any sentence in excess of the mandatory minimum sentence of five years imprisonment on the five year firearms charge.

19. The court therefore will accede to the application by the Director of Public Prosecutions for a review of this sentence. We will set aside the original sentence on the firearms charge and impose in lieu thereof a sentence of five years imprisonment from today. Credit to be given for the time spent in custody on this matter.

20. With regard to the second count on the indictment, we propose to uphold the suspended sentence imposed here by the trial judge for the following reasons. The offence committed by the appellant at the Knocklyon Shopping Centre was without doubt extremely serious. It is clear that an armed robbery was intended and the appellant was part of a group which also intended to destroy forensic evidence following the commission of the crime. The previous convictions of the appellant are such that in normal circumstances an immediate custodial sentence was to be expected. The fact that an experienced trial judge decided that this was one of those unusual cases where the public interest was best served by a suspended sentence arose in circumstances where there was evidence before her that the appellant had struggled successfully to rehabilitate and had become drug free. In our view the trial judge marked the huge significance of this by effectively giving the appellant an opportunity to further prove he could become a productive member of society albeit with the inducement of a suspended sentence hanging over him. This occasional imposition of a suspended sentence in circumstances where one might normally expect immediate imprisonment has always been part of Irish sentencing practice. O’Malley, in Sentencing Law and Practice (2nd Ed.) at para. 6.51 says under the heading “Last Chance Principle”

“Some authority exists for the proposition that a person with a criminal record and perhaps a lengthy one should be given a last chance if there are indications that he is now intent on relinquishing a criminal way of life. This was clearly the view of the Court of Criminal Appeal in People (DPP) v. Jennings, where the applicant was given a two and a half year prison sentence, with provision for review for his role in a robbery. Reducing his sentence the court per O’Flaherty J. said:

‘But there comes a time in everyone’s life and it is a principle of sentencing as well, where the court detects that it may be make or break time. If he is given this his last chance perhaps, he will hopefully take it and rehabilitee himself, get employment and become a useful member of society.”
(Ex tempore, Court of Criminal Appeal 15th February, 1999)”

21. For the reasons set out in the above quotation from O’Malley, we will not interfere with the sentencing judge’s order on the second count.

Wayne Ellis v The Minister for Justice and Equality v The Attorney General

2015 4533P

High Court

9 May 2016

unreported
[2016] IEHC 234
Mr. Justice Twomey

May 9, 2016

JUDGMENT
1. This case concerns the constitutional validity of s. 27A(8) of the Firearms Act, 1964 (“the 1964 Act”), as substituted by s. 59 of the Criminal Justice Act, 2006, and as amended by s. 38 of the Criminal Justice Act, 2007. The applicant seeks a declaration of unconstitutionality of the above provision and also a declaration pursuant to s. 5(1) of the European Convention on Human Rights Act, 2003, that the said provision is incompatible with the European Convention on Human Rights.

Background
2. On 7th July, 2012, the applicant was charged with an offence of possession of a sawn off shotgun at Knocklyon Shopping Centre on 5th July, 2012, contrary to s. 27A(1) of the 1964 Act.

3. On 30th November, 2012, he was charged with an offence of possession of a sledge hammer, plastic bottle containing petrol and socks with the intention that they be used in connection with that same offence at Knocklyon Shopping Centre, contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

4. On 8th April, 2013, the applicant pleaded guilty to both offences. At the sentencing hearing on 7th May, 2013, evidence was given that the applicant had some 26 previous convictions, including an offence of carrying a firearm with criminal intent, contrary to s. 27B of the 1964 Act, in respect of which he was sentenced to a seven year term of imprisonment with two years suspended. He had also been convicted on 7th May, 2001, under s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, of robbery and a charge of carrying a firearm with criminal intent and was sentenced to 6 years.

5. Therefore, on 7th May, 2013, at his sentencing hearing for the offence contrary to s. 27A(1) of the 1964 Act, the applicant was also guilty of a previous offence under s. 27B of the 1964 Act. For this reason, the provisions of s. 27A(8) of the 1964 Act are relevant:-

“(8) Where a person (except a person under the age of 18 years)-

(a) is convicted of a second or subsequent offence under this section,

(b) is convicted of a first offence under this section and has been convicted of an offence under section 15 of the Principal Act, section 26, 27 or 27B of this Act or section 12A of the Firearms and Offensive Weapons Act 1990,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served (emphasis added) by the person.”

6. The sentencing judge heard evidence of the applicant’s history of addiction and rehabilitation. It was accepted by the investigating officer that the offences committed by the applicant were as a result of addiction. The evidence before the sentencing judge demonstrated the applicant was engaging with drug treatment. The Court was provided with letters from the Coolmine Drug Treatment Centre, the Ana Liffey Drug Project and a psychological report. These documents demonstrated the considerable effort made by the applicant to overcome his addiction. The applicant progressed from the Coolmine Centre to Cuan Dara, to Keltoi and was then transferred to a Community Links Project.

7. The matter was adjourned before the sentencing judge on a number of occasions on receipt of evidence that the applicant’s drug rehabilitation was ongoing and he had not come to adverse Garda attention.

8. On 26th May, 2014, a sentence of five years imprisonment was imposed on the applicant in respect of the offence contrary to s. 27A(1) of the 1964 Act. This sentence was suspended in full for the whole period of five years on the applicant’s own bond of €200 to keep the peace and be of good behaviour. A three year sentence, suspended on the same terms, was imposed in respect of the offence contrary to s. 15(1) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. In passing sentence, the sentencing judge noted in particular the applicant’s efforts to effect his rehabilitation as well as the fact he had not reoffended in the two years since the date of the offence, which was significant in light of his prior history of re-offending.

9. On 17th June, 2014, the Director of Public Prosecutions served notice on the applicant of her intention to apply to the Court of Criminal Appeal for a review of the sentence. This application was based on the grounds of undue leniency as provided for in s. 2 of the Criminal Justice Act, 1993.

10. Since the date of the sentencing of the applicant in this case under s. 27A of the 1964 Act, the Court of Appeal considered the terms of that statutory provision in DPP v. Prenderville [2015] IECA 33. Accordingly, it is important to set out the relevant sections of s. 27A in full:-

“(1) It is an offence for a person to possess or control a firearm or ammunition in circumstances that give rise to a reasonable inference that the person does not possess or control it for a lawful purpose, unless the person possesses or controls it for such a purpose.

(2) A person guilty of an offence under this section is liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 14 years or such shorter term as the court may determine, subject to subsections (4) to (6) of this section or, where subsection (8) of this section applies, to that subsection, and

(b) at the court’s discretion, to a fine of such amount as the court considers appropriate.

(4) Where a person (other than a person under the age of 18 years) is convicted of an offence under this section, the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.

(4A) The purpose of subsections (5) and (6) of this section is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 5 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so.

(5) Subsection (4) of this section does not apply where the court is satisfied that there are exceptional and specific circumstances relating to the offence, or the person convicted of it, which would make the minimum term unjust in all the circumstances, and for this purpose the court may, subject to subsection (6), have regard to any matters it considers appropriate, including—

(a) whether the person pleaded guilty to the offence and, if so—

(i) the stage at which the intention to plead guilty was indicated, and

(ii) the circumstances in which the indication was given, and

(b) whether the person materially assisted in the investigation of the offence.

(6) The court, in considering for the purposes of subsection (5) of this section whether a sentence of not less than 5 years imprisonment is unjust in all the circumstances, may have regard, in particular, to—

(a) whether the person convicted of the offence has a previous conviction for an offence under the Firearms Acts 1925 to 2006, the Offences Against the State Acts 1939 to 1998 or the Criminal Justice (Terrorist Offences) Act 2005, and

(b) whether the public interest in preventing the unlawful possession or use of firearms would be served by the imposition of a lesser sentence.

(7) Subsections (4) to (6) of this section apply and have effect only in relation to a person convicted of a first offence under this section (other than a person who falls under subsection (8)(b) of this section), and accordingly references in those first-mentioned subsections to an offence under this section are to be construed as references to a first such offence.

(8) Where a person (except a person under the age of 18 years)—

(a) is convicted of a second or subsequent offence under this section,

the court shall, in imposing sentence, specify a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person.”

11. In the Prenderville case the DPP sought a review of the sentence handed down to the applicant based on undue leniency. In that case, the sentencing judge had found that there were no exceptional and specific circumstances which would make it unjust to impose the presumptive minimum term of five years set out in s. 27A(4). On this basis, she imposed a six year sentence, but suspended the final eighteen months, so that the sentence ended up being for four and a half years. The Court of Appeal had to consider, whether having been obliged under s. 27A(4) to impose the presumptive minimum sentence of five years, the sentencing judge was correct, after fixing a sentence of six years, to suspend 18 months of the six year sentence, so that the presumptive minimum sentence of five years would not in fact be served by the appellant in that case, but a lesser sentence of four and a half years. At paragraphs 15 to 16 of the judgment, Birmingham J. held that:-

“In the Court’s view the plain and ordinary language of the section makes it very clear that, unless there are exceptional and specific circumstances present which would make a sentence of five years or more unjust, the court is required to impose a sentence of five years as a minimum to be actually served in custody. Only if there are exceptional and specific circumstances identified is it possible to suspend all or part of the sentence so as to reduce the sentence to be served in custody below five years.

If the section had been couched in terms of “the court shall impose a five years sentence or shall impose a sentence of five years imprisonment” there might be an argument to be made, but the reference to specifying a term of imprisonment of not less than five years as the minimum term of imprisonment to be served puts the matter beyond doubt. An interpretation that would permit a suspension of circumstances of a sentence in the absence of exceptional and specific circumstances would be to set the clearly expressed intentions of the Oireachtas at nought.”

On this basis, the Court of Appeal ruled that the sentencing judge had erred in principle by handing down a sentence which was below the five year sentence set out in s. 27A(4). In essence, the presumptive minimum sentence under s. 27A(4) had, by virtue of the absence of exceptional and specific circumstances, become a mandatory minimum sentence of five years and the Court of Appeal therefore held that it could not be suspended since, to use colloquial language, ‘mandatory’ meant ‘mandatory’.

12. Since ss. 27A(4) and 27A(8) use the same phrase – “a term of imprisonment of not less than 5 years as the minimum term of imprisonment to be served by the person” – the applicant in this case argues that, as a result of the decision in Prenderville, in the appeal of his case by the DPP to the Court of Criminal Appeal, that Court will have no option but to interpret s. 27A(8) of the 1964 Act to find that the sentencing judge should have given the plaintiff the mandatory minimum term of imprisonment of five years and had no authority to suspend the five year sentence she imposed.

13. On this basis, the applicant alleges that the discretion of the sentencing judge before sentencing, to take account of all of the circumstances of a convicted person, including rehabilitation (which was clearly a relevant factor to the sentencing judge in the applicant’s case), is removed. This, counsel for the applicant argues, is an impermissible encroachment on the administration of justice, since the passing of sentences (including the decision to suspend a sentence in the interests of the convicted person’s rehabilitation) is an integral part of the administration of justice. It was argued on behalf of the applicant that this discretion should not have been removed from the sentencing judge, as it has been by s. 27A(8) of the 1964 Act, as now interpreted in light of the Court of Appeal decision in Prenderville.

Analysis
14. The net issue in this case is whether, in order to protect its citizens from the effects of gun violence, the elected representatives of this State can pass laws which provide for a minimum mandatory sentence of five years for a person who is found guilty of a second firearms offence, which sentence cannot be suspended.

15. The key argument being made in this case is that the passing of sentences is part of the administration of justice. It was submitted on behalf of the applicant that a law which takes away the discretion of the judge in passing sentences, by having minimum mandatory sentences, is unconstitutional as it amounts to an encroachment by the legislature on the judicial function, in light of the separation of powers between the legislative, executive and judicial function in Article 6 of the Constitution and the vesting in the Courts of the sole and exclusive jurisdiction for the administration of justice in Articles 34 to 37.

Caselaw
16. Two cases are of particular relevance to this Court’s consideration of this matter. The first is Deaton v. Attorney General [1963] IR 170 in which there was a challenge to the constitutionality of legislation which permitted the executive (through the Revenue Commissioners) to select the penalty in relation to customs offences under s. 186 of the Customs (Consolidation) Act, 1876. This section entitled the Revenue Commissioners to elect that a person who was guilty of a customs offence could be liable to a penalty of £100 or to forfeit treble the value of the goods the subject of the offence. The statutory provision was found to be unconstitutional since it involved the executive choosing between different penalties in individual cases, rather than the courts. At p. 181 of the report, Ó’Dálaigh C.J. states:-

“It is common ground that it is for the Legislature, when it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty or alternative penalties, or a range of penalties. Where a choice of penalty is prescribed by the Legislature, either by reference to alternatives or a range of penalties, the choice of the penalty to be imposed in a particular case cannot, the appellant says, be committed to any person or body not being a judge or Court. […..]

There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. It is here that the logic of the respondents’ argument breaks down. The Legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment.”

17. The second case is Lynch & Whelan v. Minister for Justice [2012] IR 1. That case involved a challenge to the constitutionality of the Oireachtas fixing a mandatory life sentence for murder under s. 2 of the Criminal Justice Act, 1990. This challenge was rejected by the Supreme Court and the entitlement of the Oireachtas to fix a mandatory sentence for murder was upheld. It was stated by Murray C.J. at para 49:-

“The court is satisfied, as O Dálaigh C.J. explained in [Deaton v. Attorney General] that the Oireachtas in the exercise of its legislative powers may choose in particular cases to impose a fixed or mandatory penalty for a particular offence. That is not to say that legislation which imposed a fixed penalty could not have its compatibility with the Constitution called in question if there was no rational relationship between the penalty and the requirements of justice with regard to the punishment of the offence specified.”

18. The following principles can be extracted from these two decisions to assist this Court in considering the constitutionality of s. 27A(8) of the 1964 Act:-

i. It is permissible as a matter of principle for the Oireachtas to impose a fixed or mandatory penalty for a particular offence.

ii. The mandatory penalty must apply to all citizens.

iii. There must be a rational relationship between the fixed penalty and the requirements of justice.

Turning now to consider s. 27A(8) under each of these headings:

i. It is permissible as a matter of principle for the Oireachtas to impose a fixed or mandatory penalty for a particular offence.

19. Relying on Murray C.J.’s statement, above, that there is no constitutional prohibition on the legislature imposing “a mandatory penalty for a particular offence”, this Court concludes that it is the settled law that the legislature is entitled as a matter of principle under our Constitution to fix a mandatory sentence. This principle is based on the role of the Oireachtas as the sole and exclusive law maker and on the principle of the separation of powers, since Article 15.2.1° of our Constitution states:-

“The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.”

20. The Lynch & Whelan case itself concerned a mandatory life sentence for murder and this is why Murray C.J. refers to a “mandatory penalty” being permissible. Yet, this Court sees no substantive difference between the Oireachtas choosing a mandatory or fixed penalty for a particular offence as in the Lynch & Whelan case, and the applicant’s case here, where it is not in fact a ‘fixed penalty’ for the second firearms offence under s. 27A(8), since the penalty is a sentence in the range between the mandatory minimum sentence of five years and the maximum sentence of 14 years. The Court takes this view because the underlying principle, that the Courts should not encroach on the Oireachtas’ exclusive law-making function set out in Article 15.2.1°, applies whether the Oireachtas chooses a fixed penalty for the offence, as in the Lynch & Whelan case, or a mandatory minimum penalty, as in the applicant’s case. This Court would therefore conclude that as a general principle it is permissible for the Oireachtas to impose for a particular offence, a fixed or mandatory penalty, including a minimum mandatory penalty as exemplified by s. 27A(8) of 1964 Act.

Does the fact that the minimum mandatory penalty in s. 27A(8) cannot be suspended by a sentencing judge make it per se unconstitutional?

21. This Court is being asked to find that, because s. 27A has recently been interpreted by the Court of Appeal as meaning that a sentencing judge cannot suspend a sentence under that section, as the sentence must be ‘served’, this must mean that s. 27A(8) is unconstitutional, since not only is there a minimum mandatory sentence, but there is no prospect of the sentence being suspended.

22. This Court does not agree with this argument, as it is of the view that the Lynch & Whelan case makes clear that the Oireachtas is entitled to take away completely the discretion of the judge regarding sentencing, since in that case life imprisonment was mandatory and there was no prospect of that sentence being suspended. This is clear from the Lynch & Whelan case, where at page 10 of the judgment Murray C.J. quoted Mustill L.J. in Reg. v. Secretary, Ex p. Doody [1994] 1 AC 531 at pp 549 to 500:-

“Although it is a very grave occasion it is a formality in this sense, that the task of the judge is entirely mechanical. Once a verdict of guilty is returned the outcome is preordained. No matter what the opinion of the judge on the moral quality of the act, no matter what circumstances there may be of mitigation or aggravation there is only one course for him to take, namely to pass a sentence of life imprisonment.”

Having noted as aforesaid the entirely mechanical role of the sentencing judge in the case of a sentence of life for murder, Murray C.J. then went on to state at p. 21 of his judgment:-

“Since, as the court has concluded, the stipulation of a mandatory sentence of life imprisonment in s. 2 of the Act of 1990 for the crime of murder is consistent with the Constitution it cannot be accepted that the Constitution, in some other fashion, requires that a trial judge should be able to give consideration to imposing a different sentence which he or she might consider more appropriate or proportionate to the particular circumstances of the case.”

23. Relying on Lynch & Whelan, it is this Court’s view that to hold s. 27A(8) unconstitutional, on the basis that the job of the sentencing judge becomes mechanical in the sense that she must impose a mandatory minimum sentence of five years and that there is no prospect of the sentence being suspended, would be a thwarting of the legislative intention of ensuring that mandatory sentences means mandatory sentences, and would constitute an encroachment by the judiciary on the exclusive domain of the Oireachtas as the law-maker in this State.

24. In support of this conclusion is the fact that if the applicant were correct in his argument that the determination of sentences is part of the judicial function to such a degree that it is unconstitutional to have it fettered by the Oireachtas in the manner suggested in this case, a logical corollary of this would be that, not only is it unconstitutional for the Oireachtas to have mandatory minimum sentences, but it is also unconstitutional for the Oireachtas to have mandatory maximum sentences, since this equally involves a fettering of the judge’s discretion, albeit on the upside rather than the downside.

25. Just as a judge in an individual case may like to have the discretion to give a lighter sentence than is permitted by law, he also may wish in an individual case to have the discretion to give a heavier sentence than is permitted by law. One example of such a situation is the case involving Carney J. sentencing a man guilty of the sexual abuse of his sister at their home in Roscommon. Since sentencing judgments are usually given ex tempore, and are often not contained in law reports, but in national newspapers, Carney J.’s comments that ‘if he were not constrained by a such a low maximum term, he would have imposed a higher sentence’ are reported in the Irish Times on 21st October 2009.

26. However, it is this Court’s view that it is the role of the Oireachtas to create offences and set the sentences for those offences, whether mandatory minimum sentences or mandatory maximum sentences. In doing so, it is entitled if it wishes to provide, not just in relation to maximum sentences, but also in relation to minimum sentences, that ‘mandatory means mandatory’. It is not a fettering of the judicial function that a judge cannot give a lesser sentence than is permitted by law by seeking to suspend the sentence, just as it is not a fettering of the judicial function that a sentencing judge cannot give a greater sentence than is permitted by law. The judge’s function is to apply the law, not to seek to change the law by thwarting the intention of the Oireachtas in those cases where the Oireachtas provides for mandatory minimum sentences for particular offences.

27. On the basis of the foregoing, this Court concludes that it is constitutional as a matter of principle for the Oireachtas to enact laws which provide for mandatory minimum sentences, which cannot be suspended by a sentencing judge. This Court must next consider whether in the particular circumstances of this case, the mandatory minimum sentence in s. 27A(8) of the 1964 Act is constitutional.

ii. The mandatory penalty must apply to all citizens.

28. The second principle to be extracted from the foregoing two cases, is the statement of Ó’Dálaigh C.J. in Deaton v. Attorney General that:-

“If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment”.

29. In the present case, the argument was made on behalf of the applicant that, since the mandatory minimum sentence in s. 27A(8) only applies to persons who have previous firearms convictions and does not apply to persons under 18 years of age, it does not apply to all citizens and therefore is unconstitutional.

30. This Court does not find this reasoning persuasive and is of the view that Ó’Dálaigh C.J. did not intend the principle he enunciated to be interpreted as meaning that the Oireachtas could not create fixed penalty offences, unless those offences were capable of being committed by every single citizen of the State, regardless of age, gender, capacity etc. Otherwise, it could be argued, to take but one example, that it would be unconstitutional for the Oireachtas to make certain male-specific sexual offences subject to mandatory sentencing because they could only be committed by a male, a proposition which this Court could not accept.

31. It is this Court’s view that what Ó’Dálaigh C.J. meant by requiring mandatory sentences to apply to all citizens, is that a fixed penalty cannot be applied irrationality to a sub-set of citizens, e.g. that people from a certain part of the country might be subject to a fixed penalty for an offence, whereas people from a different part of the country would not be subject to the same fixed penalty for the same offence. His statement is not to be interpreted as meaning that a fixed penalty should be applied to a sub-set of citizens even where there are good policy or other reasons why it should not be so applied. There are good policy reasons why the Oireachtas might decide that the mandatory minimum sentence in s. 27A(8) only applies to persons over 18 years of age, since the circumstances of a person of tender age are such and can change so quickly that it may be appropriate for the sentencing judge to have discretion as to whether to suspend the sentence. Similarly, there are good policy reasons as to why the Oireachtas might decide that the mandatory minimum sentence in s. 27A(8) only applies to persons who have previously committed a firearms offence, since it gives an incentive to those persons who have been found guilty of a firearms offence to make sure that they do not re-offend.

32. For this reason, the application of this minimum mandatory penalty to only those persons who are over 18 and have committed a previous firearms offence, is not irrationally applied to sub-set of citizens and so does not render the fixed penalty unconstitutional.

33. In any case, it is this Court’s view that the true character of the reference in s. 27A(8) to a person having a previous conviction for a firearms offence is, in fact, simply a pre-condition for the offence under s. 27A(8) to be committed. It is not a characteristic or category of citizen, so as to fall foul of the principle enunciated by Ó’Dálaigh C.J. and create an offence which is not capable of being committed by all citizens. To use an analogy, it is this Court’s view that if there were a fixed penalty offence for dog-owners, the suggestion that this offence does not apply to all citizens, but only to dog-owning citizens, so as to fall foul of Ó’Dálaigh C.J.’s principle, is not sustainable. On this basis, it is this Court’s view that the mandatory penalty in s. 27A(8) applies to all citizens, save those who are under 18 years of age.

iii. There must be a rational relationship between the fixed penalty and requirements of justice.

34. The final principle to be taken from these two Supreme Court cases is the principle enunciated by Murray C.J. that there must be a rational relationship between the fixed penalty, in this case a mandatory minimum sentence of 5 years for a second firearms offence, and the requirements of justice.

35. In this regard, it is noteworthy that we live in a country where a very conscious decision has been taken by our elected representatives to maintain our police force as an unarmed force, despite the easy availability of guns and the prevalence of gun crime. As a result of this decision, the Gardaí are at even greater risk, in this State than in many other countries, from criminals who ignore the law on firearms and choose to carry weapons. For this reason, it is not surprising that our elected representatives would wish to set down in law, in the strongest possible terms, society’s abhorrence of any person who would put, not only the lives of Gardaí in danger, but also the lives of innocent persons.

36. Indeed some indication of what the Oireachtas might have been thinking in passing s. 27A(8) is provided by the wording of s. 27A(4A) which states:-

“The purpose of subsections (5) and (6) of this section is to provide that in view of the harm caused to society by the unlawful possession and use of firearms, a court, in imposing sentence on a person (other than a person under the age of 18 years) for an offence under this section, shall specify as the minimum term of imprisonment to be served by the person a term of not less than 5 years, unless the court determines that by reason of exceptional and specific circumstances relating to the offence, or the person convicted of it, it would be unjust in all the circumstances to do so.”

37. This section was inserted by the Criminal Justice Act, 2007, and thus postdates s. 27A(8) which was inserted by the Criminal Justice Act, 2006. Nonetheless, the express reference to the harm caused to society by firearms is likely to have been a factor in the Oireachtas’ decision during the previous year to enact the mandatory minimum sentences for repeat firearms offenders in s. 27A(8).

38. To consider whether there is a rational relationship between the fixed penalty and the requirements of justice, it is important to consider not only the foregoing likely legislative intent but also s. 27A in its totality:-

• under s. 27A(2) the maximum sentence for possessing a fire-arm in suspicious circumstances is 14 years;
• under s. 27A(4) there is a presumptive minimum sentence of five years for this offence;
• this presumptive minimum five year sentence can be disapplied in the case of a first offender, since s. 27A(5) allows for a sentencing judge to fix a different sentence if there are exceptional and specific circumstances which would make the minimum term unjust;
• s. 27A(7) provides that these subsections (4) and (5), which allow for the disapplication of the five year minimum sentence, only apply to a person who is convicted of a firearms offence as a first offence;
• s. 27A(8) imposes, inter alia, a minimum term of imprisonment of five years for a person who is guilty of a first offence under s. 27A but who has committed a previous offence under s. 27B of the 1964 Act. Since pursuant to s. 27A(7) the possibility of having the five year sentence reduced only applies to first offenders, it is therefore clear that s. 27A(8) imposes a mandatory minimum sentence of five years for second offenders.
39. On the basis of the foregoing, for a person to be subject to the mandatory minimum sentence of five years, he must be guilty of an offence under s. 27A, namely the offence of possessing a firearm or ammunition in circumstances which give rise to a reasonable inference that the person does not control it for a lawful purpose, which is itself a serious offence (and is subject to a maximum sentence of 14 years). However, he must also have been guilty of a previous offence under s. 15 of the Firearms Act 1925, section 26, 27 or 27B of the 1964 Act or section 12A of the Firearms and Offensive Weapons Act, 1990. In this case, the applicant is guilty of an offence under s. 27B of the 1964 Act. This is an offence of carrying a firearm with intent to commit an indictable offence or to resist or prevent the arrest of the person or another person, which is clearly a serious offence and which itself is subject to a maximum sentence of 14 years.

40. In view of the foregoing, it seems to this Court that the Oireachtas decided, in light of the harm to society caused by gun crime, to provide for a maximum 14 year sentence upon conviction for all offenders of serious firearms offences, but a presumptive minimum sentence of five years for first offenders, which sentence for first offenders could be reduced to zero if the sentencing judge felt that the circumstances justified it. In essence, the Oireachtas empowered the sentencing judge to give the first offender a second chance, while making it clear that because of the harm to society, a person who was guilty of a second serious firearms offence was subject to a mandatory minimum five year sentence, and mandatory means mandatory (save of course that, as counsel for the applicant advised, the reduction on remission of the five years to three years and nine months continued to be available to a convicted person).

41. This Court is of the view that it is well within the rights of the Oireachtas as the exclusive law-maker in the State to seek to discourage gun crime in this State by giving a second chance to first time firearms offenders, while at the same time making it absolutely clear that if someone is guilty of a second offence, there is a mandatory sentence.

42. In considering whether there is a rational relationship between the penalty in this case and the requirements of justice, it is noteworthy that no argument was made by the applicant that the presumptive minimum sentence of five years for first offenders, or that the maximum sentence of 14 years for all offenders, bears no rational relationship to the requirements of justice for these serious firearms offences. On this basis, it seems that it is not the five year length of the minimum mandatory sentence under s. 27A(8) that is the issue for the applicant, but the fact that it is mandatory.

43. It is this Court’s view that it could not in any way be described as an irrational penalty to have a sentence length of five years (which could be reduced to three years and nine months, with remission) for a person, such as the applicant, found guilty of possession of a firearm in suspicious circumstances (which is subject to a maximum sentence of 14 years) who has a pervious conviction of possession of a firearm with criminal intent (which is subject to a maximum sentence of 14 years). If the minimum mandatory sentence were say 13 years, then perhaps an argument could be made that there was no rational relationship between the fixed penalty and the requirements of justice. However, a mandatory minimum sentence of five years is just over a third of the maximum sentence for both offences and in this Court’s view, this amounts to a clear rational relationship between the fixed penalty and the requirements of justice.

44. Although not determinative of the Court’s finding in relation to the rationality of the penalty, it is worth noting that under s. 25 of the Criminal Justice Act, 2007, a court is obliged, in sentencing a person who commits another offence within 7 years of the first offence, to specify as the minimum term of imprisonment, a term of not less than three quarters of the maximum term of imprisonment prescribed by law in respect of such an offence. Applying this section to the s. 27A(8) offence, would lead to the Court being required to impose a sentence of three quarters of the maximum of 14 years on a second offender, being 10 ½ years. In this context, a mandatory minimum sentence of five years under s. 27A(8), less than half what is the position under s. 25 of the Criminal Justice Act, 2007, does not appear to be an irrational penalty.

45. To conclude, this Court does not believe that a sentence length of five years, for a person who has been guilty of possessing a firearm in suspicious circumstances, where he has a previous offence of carrying a firearm with intent, is so irrational as to be unconstitutional. In this Court’s view there exists an obvious rational relationship between the length of that sentence and the requirements of justice and, in particular, the desire of the Oireachtas to seek to address gun-crime in a country where the Gardaí are unarmed.

46. For the reasons set out in this judgement, it has already been held that the mandatory nature of the sentence in s. 27A(8) does not make that section unconstitutional and this Court is of the view that the combination of the length of the sentence at five years and its mandatory nature bear a rational relationship to the requirements of justice in light of the serious nature of the offences at issue. Accordingly, the relief sought by the applicant under the Constitution is being refused.

ECHR
47. As regards the plaintiff’s argument that the fixing of a mandatory minimum sentence of five years for a repeat firearms offender breaches Article 6 of the European Convention on Human Rights, no specific caselaw was opened to the Court by the applicant on this point. The applicant appears to be relying on the case law, opened to the Court for the purpose of challenging the constitutionality of the legislation, in his challenge to the legislation under the ECHR. As this case law has not persuaded the Court in relation to the constitutional challenge for the reasons stated, it also does not persuade the Court in relation to the challenge to the legislation under the ECHR.

Conclusion
48. This Court refuses the relief sought since if this Court were to strike down s. 27A(8) of the Firearms Act, 1964, it would, in this Court’s view, amount to a very significant fetter on the right of elected representatives of this State to make laws which they believe are designed to protect the citizens of this State.

People (DPP) v Paulauskas

[2017] IECA 306

JUDGMENT of the Court (ex tempore) delivered on the 2nd day of November 2017 by
Mr. Justice Birmingham

1. On 11th May, 2016, at Galway Circuit Court, the appellant was convicted by a jury on two counts, one of robbery and one of possession of an imitation firearm. On 12th May, 2016, he was sentenced to 14 years imprisonment in respect of the robbery offence and to a concurrent sentence of five years imprisonment, the statutory presumptive minimum, in respect of the firearms matter. So far as the conviction aspect is concerned, essentially two grounds of appeal were identified in the notice of appeal and in the written submissions, these being that:

1. The verdict of the jury was perverse and contrary to the evidence; and,
2. The judge erred in law in refusing the request of counsel to particularise the Casey warning.

The appellant says that force is given to his arguments by reason of the fact that the jury spent only 32 minutes deliberating having heard evidence over six days.
2. The first ground of appeal that the verdict of the jury was perverse has not been argued today, and very wisely so. It is the case that there was no application for a direction nor could there realistically ever have been and it was clearly a case that was properly one to be considered by a jury.

3. This Court will now turn to the second ground in relation to the Casey warning. The background to the trial and conviction is to be found in events that occurred on Wednesday, 11th February, 2015. At approximately 10:42 a.m., four males dressed in dark clothing, wearing gloves and with their faces partially covered entered Hartmanns Jewellers situated at William Street in Galway city centre. Approximately 90 seconds later the same four men, having held up the staff at gunpoint, left the premises with two bags containing diamond rings and Rolex watches with a retail value of approximately €1.139 m. There was CCTV footage at trial from Hartmanns jeweller shop and also from the William Street, Shop Street and Abbeygate Street area of Galway. Gardaí were alerted to the fact that a robbery was under way and responded to the call at 10:48 a.m. Shortly thereafter, two suspects were arrested at Middle Street, Galway, which is not far from Hartmanns jewellers. One of those was the appellant. The other was found to be in possession of a pistol, as it happens, an imitation pistol with a silencer attached. Two other suspects were arrested a little later at Fairgreen Road as they waited for the departure of a bus from Galway to Dublin. That was at 11:30 a.m. A follow up search in the Fairgreen Road area saw the stolen jewellery which was contained in two rucksacks recovered. Everything was recovered with the exception of one ring and as it happened a member of the public later contacted Galway Garda Station and handed over the remaining diamond ring which she had found on Dock Road, Galway.

4. The prosecution case was that, fortuitously, there were a number of Gardaí in Galway city centre that day and they were in the general Shop Street area. Two of those were Detective Sergeant John McElroy and Detective Garda Gerry Carroll. They were alerted to the fact that a robbery had taken place and responded. At Abbeygate Street, they saw a male moving quickly with a phone to his ear and it turned out that this individual was a civilian who was in contact with Gardaí and was reporting to them what was going on in real time. That was Mr. Christopher O’Brien who later appeared as a prosecution witness. The detectives spoke to him and then they proceeded down Middle Street in pursuit. Two people were apprehended and restrained and were then arrested. This was after a struggle. One of those detained was the appellant, Irmantas Paulauskas. The other was a man by the name of Saulius Ripecka who subsequently pleaded guilty to offences in relation to the incident as did the other individuals detained at the bus stop. It is the case that a number of individuals, responsible citizens, witnessed the robbery or its aftermath, saw a number of men walking in single file from the robbery scene and decided to follow those people.

5. The prosecution case in particular turned on eyewitness evidence from Christopher O’Brien and Ken Jackson. In essence, it was the prosecution case that the appellant and a co-accused were caught in the act, or if not actually caught in the act, all but caught in the act. The defence, on the other hand, emphasised the absence of any DNA or other forensic evidence, the absence of any admissions and made the point that the case was essentially one of visual identification, with all the frailties that would entail. The prosecution case was that the civilian witnesses had been in active pursuit and were observing the individuals throughout. In cross examination, it was put to Mr. O’Brien that he was not correct when he said that he was close behind those that he was following at all times and he accepted that there was a few brief seconds when those that he was pursuing had turned a corner and were out of sight. Mr. Jackson was also cross examined. He was asked:

“Q. Now, there is a period of time when you were out of sight of these people, all four of them, isn’t that right?
A. Yes

Q. So you don’t know what could have happened in that period of time, isn’t that right?

A. Hypothetically, but unless they swapped their clothes with somebody else, they’re the four people that I saw.

Q. Mr. Jackson, you either saw or you didn’t see, and I’m putting it to you that there’s a period of time in which you had not sight of these gentlemen and you couldn’t possibly have known what happened in that period of time. Do you agree?

A. My answer to you, sir, is that I am certain that the four people I identified to the Gardaí are the four people I saw come out of Hartmann’s jewellers.

Q. That isn’t the question I asked you. Now, would you please answer the question?

A. Certainly.

Q. Do you agree that there’s a period of time in which these four individuals are not in your sight?

A. I agree with that sir.”

6. The judge dealt with the question of identification in these terms:-
“The accused is linked with this robbery by the evidence of two civilian witnesses who followed four men from Hartmann’s that morning. Now, history shows, ladies and gentlemen, that plenty of cases of mistaken identity by persons who had adequate opportunity to observe people have resulted in people being convicted, convicted by honest and diligent juries like yourselves, only for the truth to emerge later that these people weren’t the people in fact and that the people who were convicted were innocent; that’s a fact. So be careful, ladies and gentlemen, when you’re deliberating on this aspect of the case. Consider the opportunity that both civilian witnesses had to observe the people. Ask yourself is there a reasonable chance that both of them were wrong when they said that the two men who were tackled to the ground in Middle Street were two of the men that they had followed from Hartmann’s. If you’re satisfied that the accused was one of the four in Hartmann’s and they were followed as far as Middle Street, then you’re fully at liberty to act on it. You have the CCTV evidence of what happened that morning and what is, in effect, real time coverage of the scene; the street outside, movements of people on the street before, during and after the robbery. You’ve the evidence of two brave, some might describe them as foolhardy, civilian witnesses who, when they saw what was happening in Hartmann’s, did what they could to help the Gardaí to apprehend the people who they saw leaving the jewellery shop and who they followed down Shop Street, turning left into Abbeygate Street, and then turning right into Middle Street.”
7. When the judge concluded his charge, counsel for the defence, by way of requisition, commented that the judge had given what might be described as a Casey warning in general terms but that he thought that a specific Casey warning with particular reference to the facts of the particular case would be preferable to contextualise the warning. In response, the judge reviewed what he had said where he pointed out that he had already indicated to the jury that there was a gap and that he had emphasised to the jury what counsel had said. It is indeed the case that when reviewing the evidence, the judge had referred to the fact that Mr. O’Brien had accepted in cross examination that there was maybe four seconds when those he was following were out of sight. The judge also reviewed the evidence of Mr. Jackson, the other key civilian witness, a former soldier and naval cadet. The jury were reminded that, in cross examination, he too had accepted that there was a moment when those he was following were out of sight. Having heard from counsel, the judge indicated that he was satisfied that he had dealt with the Casey warning in a non-stereotypical fashion and that there was no need to recharge the jury.
8. In the view of the Court, what was said by the judge in relation to identification was, in all the circumstances of this case, adequate. This was not a classic identification case. The facts are as far removed from the facts of Casey as it is possible to imagine. This was in truth a “caught-in-the-act” or “hot pursuit” case.

9. The appellant attaches significance to the fact that the jury returned their verdict after a very short period of deliberation but it must be said that the case was a particularly strong case. The robbers had been followed by responsible and concerned citizens from the scene of the robbery. There were other factors that added weight to the prosecution case. The appellant, when arrested, was wearing glasses, black gloves and a black hat, and was in possession of silver handcuffs. He engaged in a struggle and that was a matter of significance. Subsequently, Mr. Paulauskas gave the explanation that he thought that he was being kidnapped. It seems likely the jury would not have been impressed with that suggestion. Again, during the course of his detention various items of his own clothing that he had been wearing were put to him and in response to each item he responded, “Not mine, nothing to do with me.” Again, it would be very understandable if the jury was unimpressed by this approach.

10. The Court is satisfied that the conviction in the circumstances of this case was safe and proper and the Court dismisses the appeal against conviction.
Sentence Appeal
11. The Court turns then to the question of sentence. So far as the question of sentence is concerned, the judge dealt with the appellant and his three accomplices who had entered guilty pleas in a single sentencing hearing. In the course of that hearing, the trial judge identified 15 years imprisonment as the starting point, having regard to the gravity of the offence. In respect of all four, he then discounted one year to take account of the hardship that they, as foreign nationals, would experience serving a lengthy prison sentence. In the case of those who had entered pleas, he further discounted the sentences and imposed sentences of eight years. This reflected the admissions, the pleas and indications of steps that were under way towards rehabilitation in terms of time being put to productive use while in custody. In the case of the appellant, the judge imposed the 14 year sentence which is now the subject of the appeal. In doing so, the judge referred to the appellant’s significant prior criminal record including, most notably, a sentence of eight years imprisonment in respect of the offence of causing grievous bodily harm, and said that the extent of the record meant that a higher starting point might be considered in his case than for the co-accused although he did not in fact go further down that road.

12. In the view of the Court, this was a very serious offence. It was obviously planned. It was premeditated. For the members of staff who were held up, it must have been a terrifying experience. The rewards that would have been achieved if this robbery had been successful were very considerable indeed, €1.139 m being the value of the items stolen. In those circumstances, it was a case that had to be met with a very significant sentence indeed. In the case of the appellant, there was no plea of guilty, no expression of remorse, even at the time of the sentence hearing there was no willingness to belatedly accept the validity of the jury verdict and in those circumstances there was really nothing before the court by way of mitigation. In those circumstances it was inevitable that Mr. Paulauskas would receive a sentence towards the top end of the available spectrum.

13. The sentence imposed of 14 years was obviously a substantial and severe sentence. The Court does pay some attention to the fact that this was a case that involved imitation firearms rather than actual loaded firearms. Now, let it be said clearly and without equivocation that the use of imitation firearms, and in this instance they were realistic imitations, is a very serious matter. By definition, those to whom the firearms are produced do not know whether what is being pointed at them are real or otherwise so the production of an imitation firearm in support of a robbery is a very grave matter indeed. On the other hand, it must be said that if what was produced was an actual loaded firearm, that would add an additional dimension of gravity and it seems to the Court that robbery offences involving actual loaded firearms are in a more grave category still than what the Court was dealing with here. It seems to the Court that it is proper to draw some distinction between imitation and actual loaded, lest the view be taken that one might as well bring an actual loaded firearm on the robbery. For that reason, the Court feels that some limited modification of the sentence imposed in the Circuit Court is appropriate. It does, however, remain the case that the offence was a very serious one committed by someone with effectively no mitigation available to him and committed by somebody with a very significant record.

14. In the circumstances the Court will identify as the starting point a sentence of 13 years imprisonment rather than the starting point of 15 years identified by the trial judge. The Court will then, as the Circuit Court did, discount from that identified starting point leaving in the case of Mr. Paulauskas a net sentence of 12 years imprisonment in respect of the robbery count and the Court will leave unaltered the concurrent sentence in respect of the imitation firearm of five years.

DPP v Ryan

[2014] IECCA 11
Judgment of the Court delivered by Mr. Justice Clarke on the 18th March, 2014.
1. Introduction
1.1 There are many factors which are properly taken into account in coming to a view as to the appropriate sentence to be imposed on a person pleading guilty to or convicted of criminal charges. The process is, as was pointed out in The People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306, “a complex matter in which principles, sometimes being in conflict, must be considered as part of the total situation.” It has been said many times that the proper approach to sentencing requires both a consideration of the gravity of the offence (including the level of culpability of the accused) and the circumstances of the offender. However, in addition, it is important that the courts strive to maintain, notwithstanding that complexity, a level of consistency so that, in at least a general way, like cases are treated in a similar fashion.

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
2.1. The starting point has to be a consideration of the judgment of the Supreme Court in People (DPP) v. Tiernan [1988] I.R. 250. This Court is, of course, bound by that decision. As noted in the judgment of Finlay C.J. (speaking for the Court), the case in question came before the Supreme Court on a certificate issued by the Attorney General under s. 29 of the Courts of Justice Act 1924, in which it was stated “that it was desirable in the public interest that an appeal should be taken to the Supreme Court” because the case “involved the guidelines which the courts should apply in relation to sentences for the crime of rape.” In that context Finlay C.J. said, at p. 254, the following:

“Having regard to the absence of any statistics or information before this Court in this appeal concerning any general pattern of sentences imposed for the crime of rape within this jurisdiction, general observations on such patterns would not be appropriate. Furthermore, having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases”.
2.2 For reasons which the Court will address in due course, the first of the concerns expressed by Finlay C.J. is, at least to a material extent in respect of certain types of offences, significantly reduced today. The very detailed analysis conducted on this appeal by counsel of the various sentencing cases in respect of a like offence allows, as a matter of practice, at least general observations to be made on the view which this Court has taken of sentence for such offences. In addition, there are, increasingly, sentencing surveys and statistics available which can provide the kind of assistance which the Supreme Court did not have available to it at the time of Tiernan. For example, the ISIS (Irish Sentencing Information System) project provides details as to the range of sentences which are typically imposed by sentencing judges for many types of offences.
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
3.1 There are, in general terms, two ways in which a determination of the appropriate sentence can be arrived at. First, a sentencing judge, having assessed the gravity of the offence and the culpability of the accused, may seek to place the offence itself at an appropriate point on the spectrum of offences of that type. Offences can typically be divided into lower, middle and upper parts of the range with, perhaps, further refinements such as, for example, “the upper part of the middle range” or the like. There is, of course, no necessary formula of words which must be used. It should also be emphasised, as has already been pointed out, that there may always be exceptional or unusual cases which do not readily fit into any such range or ranges and where the sentencing judge will have to engage in a somewhat novel analysis to come to an appropriate determination as to sentence. However, in most cases, an offence can, by reason of its gravity and the culpability of the accused, be placed somewhere along the appropriate range in the manner just identified.

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
4.1 In substance, the central argument made on behalf of Mr. Ryan is that the sentence imposed on him is out of line with the broad range of sentences imposed in like cases, particularly when all relevant aspects of his case are taken into account. It should also be recorded that the hearing of this appeal required to be re-listed before a slightly differently constituted panel of this Court by virtue of the illness of one of the judges who originally sat. The issues and argument remained the same at the re-listed hearing save for one additional authority which was referred to on behalf of the DPP and which is referenced later in this judgment. In any event, the starting point has to be an analysis of the offences to which Mr. Ryan pleaded guilty.

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:

“I got a phone call to collect a package.” And he was asked, “What else were you told about it?” and he answered, “That’s all.” And he accepted having a limited knowledge of what was in the package?

A. That’s correct, yes.
Q. But he attempted to take sole responsibility for it?

A. That’s correct, yes.”

Mr. Ryan stated that he did not intend to use the firearm in question. He stated that he was simply asked to collect a weapon and pass it on to a third party, whom he declined to name as he was in fear:
“Q. And I think he was asked, “Were the four of ye given the job to collect this firearm?” and he answered, “No.” And it was said, “Who was given the job?” Answer: “Me. I take full responsibility.” He was then asked, “Was the firearm hidden in a ditch or where?” Answer: “Behind the ditch, next to the gate”?
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”.

For this last question see transcript at page 10, lines 23-24.
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:-

“Now, the two accused were caught red-handed, so to speak. That’s the case for the prosecution, and there seems to be a basis to make that argument. Now, there is a challenge to the admissibility of the evidence as to why they had the gun and the ammunition and maybe that objection is well based. But what can be — and that the evidence maybe should be given, evidence other than hearsay, but what can be asserted was that they were in possession of a gun, that they — that Kieran Ryan has a previous conviction for an offence of violent disorder which was connected with the — what’s called, if I may call it, the main feud in the city. It cannot be said that this possession of this gun was connected with that feud but it can be said that he has a previous conviction for an offence related to the same feud. I think that’s the safest way of approaching this. And the other matters, which are hearsay and which have been challenged by the defence, I won’t take into — I’ll disregard, forget and will not take into account.”
4.9 Therefore, the sentencing judge concluded that it could not be said that the gun and ammunition in this case were connected with the feud but was satisfied that Mr. Ryan was a person convicted of a serious disorder offence in the past warranting a sentence of 4½ years which was connected with the feud.
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
5.1 It is clear that a number of factors were taken into account by the sentencing judge under this heading. First, the sentencing judge noted that Mr. Ryan had pleaded guilty at a very early point. However, the sentencing judge did also note that Mr. Ryan was “caught red-handed, so to speak”. On the other hand, attention was drawn on behalf of Mr. Ryan at this appeal to the fact that he made a number of important admissions at an early stage while being questioned in the Garda Station which would have facilitated his conviction. The extent to which it might have been possible, in the absence of such admissions, for Mr. Ryan to have contested the charges in the light of the evidence surrounding the circumstances in which the offence took place, might be open to some significant doubt. However, it does need to be taken into account that Mr. Ryan’s admissions certainly put the matter beyond doubt and were made at a very early stage.

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
6.1 Counsel for Mr. Ryan suggested that, in the light of various decisions of this Court, a starting point of 12 years, before applying an appropriate deduction for such mitigating factors as may have been present, was sufficiently out of line with what might be described as the going rate as to render it an error in principle.

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
7.1 It is appropriate to start with the first such case, being Barry, for Finnegan J., at p. 2 of the judgment of this Court in that case, noted what are undoubtedly relevant legislative developments. In that context, Finnegan J. said the following:-

“Section 59 of the Criminal Justice Act 2006 increases the maximum penalty for firearms offences to fourteen years. The section also imposes a provision in the substituted section 27A subsection 4 requiring the court and (sic) imposing sentence to specify a term of imprisonment to be served by the person.
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”.

7.2 It is clear, therefore, that the statutory regime with which this Court is concerned is one where there has been a recent decision of the Oireachtas to increase the maximum penalty to one of 14 years and where there has also been introduced what might be called a presumptive, although non-mandatory, minimum sentence of 5 years which is to be applied in the absence of exceptional and specific circumstances. As also noted by Finnegan J., a plea of guilty and the time it was made is expressly recognised as a factor to be taken into account in the legislation itself.
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
8.1 It seems to this Court that counsel was basically correct in his submission about where this case lies on the spectrum of seriousness. There are undoubtedly serious features to this case. The nature of the weapon is one. The fact that it was found in circumstances which, although unexplained, can only give rise to an inference of some significant degree of criminality is a second. That is so notwithstanding the appropriate disregard by the sentencing judge of any connection with the so-called feud. However, there was no evidence from which it could properly be inferred that the accused himself intended to use the weapon, and it most certainly was not actually used in any way connected with the accused. In those circumstances, and in the light of how this Court has placed the other offences which have been analysed in the relevant spectrum, it would be difficult to justify placing this offence any higher than the bottom of the most serious range or towards the top of the middle end of that range. Thus, the maximum sentence which, in the view of this Court, could have represented the starting point for the sentencing judge was one of 9 to 10 years.

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
9.1 It does seem to this Court that the deduction made by the sentencing judge for the early plea of guilty (in the light of the fact that Mr. Ryan was caught red-handed and notwithstanding whatever value his admissions to An Garda Síochána may have had in making his prosecution more straightforward) was excessive. This is particularly so in the light of the fact that Mr. Ryan had a very serious previous conviction for violent crime which would, in substance, have deprived him of any material entitlement to a reduction in sentence by reason of previous good character or relatively good character punctuated only by much less serious wrongdoing. In those circumstances, a reduction of 4 years (or one-third) in the overall sentence to reflect the mitigating factors present was, in the view of this Court, excessive.

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
10.1 This Court is mindful of the fact that counsel for Mr. Ryan indicated that, in the event that the Court found an error in principle, he would wish to place certain further materials, concerning Mr. Ryan’s conduct in prison, before the Court. The Court has, for the reasons analysed, found an error in principle in the starting point of the trial judge’s analysis in placing this offence on the spectrum of seriousness. However, this Court has also found a partly compensating error in principle in the extent of reduction allowed for mitigating factors by the trial judge. While counsel did not suggest that he wished for a further opportunity to address the issue, the Court does require to hear both counsel on the proper sentence to be imposed in the light of all the circumstances of the case, including the views expressed in this judgment and any materials relevant to Mr. Ryan’s conduct in prison on which counsel wishes to place reliance. In the light of the seriousness of the offence to which he has pleaded guilty and all the other circumstances of the case the Court must make clear that it will not be possible to justify a significant reduction in sentence.

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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