THE COURT OF APPEAL
Birmingham P.
Edwards J.
McCarthy J.
Record No: 7/2017
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant
Respondent
JUDGMENT of the Court ( ex tempore ) delivered on the 19th of October 2018 by Mr. Justice Edwards
Introduction
1. On the 27th of October 2015, the appellant herein was arraigned and pleaded not guilty before the Special Criminal Court to one count of membership of an unlawful organisation, being an organisation styling itself the Irish Republican Army ("IRA"), contrary to s. 21 of the Offences against the State Act 1939, as amended ("the Act of 1939"). In a trial lasting eight days, on the 11th of November 2016, the Special Criminal Court found the appellant guilty of the sole count on the indictment.
2. On the 5th of December 2016, the court sentenced the appellant to six years' imprisonment to be backdated to the date of conviction (i.e. the 11th of November 2016). The appellant appealed against both the conviction and the sentence imposed upon him in the Special Criminal Court. On the 28th of June 2018, this Court dismissed the appellant's appeal against conviction. Earlier today, this Court heard submissions from both parties in respect of the appellant's appeal against the severity of his sentence. Accordingly, this ex tempore judgment deals with the sentence aspect of the appeal.
Background facts
3. Detective Sergeant Padraig Boyce, one of the investigating officers in relation to the present offence, gave evidence at the sentence hearing that, on the 13th of May 2015, a search was conducted of a property at 19 Harbour Court, Courtown, Co. Wexford. It was accepted by the defence at trial that this house was the holiday home of the appellant's parents and that the appellant's family home is in Dublin. Within this house, there were two main locations from which a number of items were taken, analysed and found to be of an explosive nature. Firstly, a significant amount of explosives including rockets were retrieved from the downstairs toilet in the house. A large quantity of explosive component parts were also found in the kitchen area in a Tupperware tub. In respect of the downstairs bathroom area, a water tub mounted to a hand trolley was found. Upon examination, this water tub was found to contain four rockets along with Semtex and detonators and other material associated with explosives. The appellant's fingerprints were also found to be on the hand trolley. In relation to the kitchen area of the house, there was a plastic container which, subsequent to examination, was found to contain explosive related substances, namely fire extinguishers, a booster tube contained in a Lucozade bottle and Homemade fertilizer, or ground ammonium nitrate. Within this plastic container, a pair of gardening gloves containing the appellant's DNA was also retrieved in evidence.
4. At trial, a strand of the prosecution's case was surveillance evidence conducted on the premises in Dublin and Courtown Co. Wexford. On the 9th of May 2015, the appellant was seen in the company of a man by the name of Donal Costigan, driving from Dublin to the Courtown area in Co. Wexford. The appellant, along with Mr. Costigan and the appellant's brother, were observed at the house in Courtown.
5. On the 13th of May 2015, the appellant was arrested by Detective Garda Dunne pursuant to s. 30 of the Offences Against the State Act 1939. During the course of this detention, the appellant's fingerprints and buccal swabs were taken for the purposes of the investigation. The appellant was also interviewed pursuant to s. 2 of the Offences Against the State (Amendment) Act 1940. Gardaí conducted five interviews with the appellant, during which he failed to answer any questions. The appellant was charged, sent forward for trial, and ultimately convicted as outlined above. He was sentenced to six years' imprisonment and now appeals against the severity of this sentence.
The Appellant's personal circumstances
6. The appellant was born on the 29th of December 1990, making him twenty-five-years-old at the time of sentencing. He has been in a steady relationship for some time and has a three-year-old daughter with his partner. Since leaving school, the appellant has worked consistently, most recently working as a labourer in Dublin docks. Various testimonials were put before the sentencing court, one of which was from his former employer in the docks, a Mr. Kelly, which indicated that he has an excellent work and punctuality record.
7. The sentencing court was also furnished with a GP's letter, which states that the appellant suffers from epilepsy.
8. The appellant has one previous conviction for a minor road traffic offence. Counsel for the appellant urged upon the sentencing court that the appellant has never been arrested under s. 30 of the Act of 1939 before.
Sentencing Judge's Remarks
9. In sentencing the appellant, the sentencing court made the following remarks:
"The evidence in this case was particularly strong having regard to the finding of the contents of the holiday home at 19 Harbour Court in Courtown. These are aggravating factors in relation to this case, and the Court will take into account when fixing sentence. The maximum sentence in relation to membership of an illegal organisation is eight years in prison. There is no minimum sentence. The Court is of the view that the appropriate sentence in this case is six and a half years' imprisonment. The only mitigating factor in the case is that Ryan Glennon does not have any previous convictions, apart from a few minor road traffic matters. The Court is aware that he has a good work record, but the letter from his employer does not mention that the employer is aware of the conviction for membership and in this Court's view, it is not an appropriate letter in mitigation. The Court is also aware that he has a partner and child. The Court will impose a sentence of six years' imprisonment to date from the 11th of November 2016."
Grounds of Appeal 10. In seeking to impugn the sentence imposed by the sentencing court at first instance, counsel for the appellant seeks to rely on the following two grounds of appeal: Submissions 11. In respect of the first ground of appeal, counsel for the appellant has drawn this Court's attention to a well-established line of jurisprudence standing as authority for the proposition that previous good character, or a lack of previous convictions, is to be treated as a mitigating factor at sentencing; People (Director of Public Prosecutions) v Perry [2009] IECCA 161 at p. 3 of the report; People (Director of Public Prosecutions) v Hynes [2016] IECA 102 at para 52, and; People (Director of Public Prosecutions) v Kelly [2005] 2 IR 321 at 336. Counsel for the appellant focuses on the fact that the appellant has no previous convictions except for a " minor road traffic matter ". Thus, it is argued, the reduction of 6 months from the headline sentence for this mitigating factor was in error, considering that the appellant has no relevant previous convictions. Counsel for the appellant also deems it worthy of note that the appellant has never been arrested under s. 30 of the Act of 1939.
12. In relation to ground no. (ii), counsel for the appellant takes issue with the sentencing court's comment that " the letter from his employer does not mention that the employer is aware of the conviction for membership and in this Court's view, it is not an appropriate letter in mitigation. " However, whilst accepting that the sentencing court ultimately retains a discretion as to the weight to be attributed to factors relating to the sentencing decision, counsel for the appellant submits that it was slightly unusual that the court made this comment without asking the Garda witness or the respondent as to the nature of the letter. Moreover, the appellant takes further issue with the fact that the sentencing court completely excluded from his decision the fact that the appellant had been in full employment since he had left school. This, it is submitted, was a serious error of principle as the sentencing court treated the appellant as " being no different a candidate for sentence as compared to a defendant who had never worked a day in his life. "
13. In reply, counsel for the respondent has submitted that the trial judge did not err in principle. The reduction applied specifically referenced the appellant's lack of previous convictions. Moreover, in so far as the appellant was submitting that the sentencing court took the view that his work history had no mitigating relevance, it was submitted that, on the contrary, the sentencing court expressly stated that it was " aware that he has a good work history ". The sentencing court simply took the view that the letter furnished from the appellant's employer was not an appropriate letter to be considered as a testimonial, having regard to the fact that it made no reference to the employer being aware of the conviction of the appellant.
Discussion and Decision
14. Counsel for the appellant commenced his presentation at the oral hearing with the assertion that the sentence of six years that was imposed by the court below was " simply too high ". While contending that the headline sentence of six and a half years that was determined upon was at the severe end of the range open to the sentencing court, it was acknowledged that the grounds of appeal filed make no complaint concerning the assessment of gravity, and counsel confirmed that he was not seeking to do so now. Rather, the focus of his submission was on what he contends was a wholly inadequate discount for mitigation, leading to a disproportionately severe ultimate sentence.
15. The complaint based on alleged insufficiency of discount for mitigation is based on two contentions. First, it is suggested that there was insufficient discount to reflect the fact that the appellant was a first time offender and has no previous convictions. The second is that there was no discount to reflect the fact that the appellant has a good work record.
16. In the course of exchanges with this Court, counsel for the appellant suggested that ordinary sentencing principles apply as much to persons facing sentencing for membership offences before the Special Criminal Court as they do to persons facing sentencing for other offences before the ordinary courts. He is undoubtedly correct in this. Ordinary sentencing principles do apply, and there are no different or special rules relating to the sentencing of persons convicted of membership before the Special Criminal Court. The sentence imposed must be proportionate both to the gravity of the offence and to the circumstances of the offender. Moreover, the approach to sentencing must be individualistic and ought not to be the application of a pre-determined tariff that fails to take account of the circumstances of the individual offender.
17. That having been said, however, sentencing never takes place in a vacuum. Context is very important, particular when it comes to the exercise of discretion in sentencing and determining the appropriate balance to be applied between the concurrent, and sometimes competing, penal objectives of retribution and censure, deterrence (both specific and general), rehabilitation and the showing of mercy where there is a basis for doing so in the evidence.
18. A mitigating factor may be of greater or lesser importance depending on where the appropriate balance is considered to lie. To take an example, a plea of guilty will always, or almost always, entitle an offender to a discount in mitigation. Invariably cost and time will be saved by a plea. In addition, injured parties may be spared the ordeal of giving evidence. It is frequently, although not always, also an indicator of remorse and the taking of responsibility. In some cases, the discount will be substantial, perhaps in excess of 30%, while in other cases it may be less, depending on the circumstances. The weight to be given to a plea of guilty may depend on whether it is a genuine indicator of remorse, of the taking of responsibility and of a determination to reform, or simply a self-serving measure pragmatically entered into in the expectation of receiving some leniency. In either situation it is mitigatory. However, it clearly must be afforded greater weight if motivated by the former rather than the latter, and in that situation it may be very influential in the exercise of judicial discretion concerning how a sentence is to be structured, in circumstances where the court considers that a particular focus on the penal objective of rehabilitation is justified on the evidence.
19. To take another example, perhaps more relevant to the present case, a good previous work record may be afforded significant weight where the balance is tipped in favour of the incentivisation of rehabilitation and the showing of mercy. The court may be asking itself whether the particular offender, if given a chance, is likely to take that chance. Having a good work record will often, in such a situation, be regarded as a strong positive indicator of likely co-operation with, and adherence to, a proposed rehabilitative measure, and for that reason a court would be entitled to give it significant weight. However, if the balance favours retribution, censure and deterrence, the mitigatory effect of a good work record may be less influential.
20. A good work record also provides mitigation in part because it is indicative, and is evidence of a track record of, the making of a positive contribution to one's community. However, if one has at the same time been engaged in trying to undermine that community by participating in an organisation dedicated to promoting the overthrow of the State and its institutions, then the extent to which a previous good work record can be regarded as providing true mitigation will be modest.
21. The same is true of the absence of previous convictions. A first time offender who commits a crime on impulse, or in a moment of madness, or due to some adversity in his/her life such as financial trouble, may be, and frequently will be, shown mercy because the evidence suggests that the offending conduct was aberrational or out of character, and that circumstance taken with other circumstances suggests a low likelihood of re-offending. In such a case, absence of previous convictions is likely to be afforded great weight.
22. Conversely, if the circumstances of the offence indicate that the offending conduct was not aberrational or out of character, much less weight may be attached to the absence of convictions. The offender will be entitled to be afforded some discount in mitigation on account of having no record, but the extent to which that factor is likely to influence the structure and duration of the ultimate sentence may be considerably less than in the example just given.
23. In the present case the appellant was convicted of membership of an unlawful organisation. Although for the purposes of framing an indictment he was charged with having been such a member on a particular day, that does not represent the reality of the situation. This Court, and the former Court of Criminal Appeal, have recognised in earlier decisions that membership is a continuum and takes place over a period of time. It is not uncommon for persons convicted of membership to have no previous convictions, and many indeed have good work records. Such a profile is not untypical. In any individual case it is a matter for the sentencing court to determine what weight to give to these factors. Is there a hope for rehabilitation, or scope for the showing of mercy? If these factors exist against the background of an accused having pleaded guilty, and/or indicating an intention to dissociate, a court would be justified in attaching significant weight to them. Conversely, if the case has been contested, and/or no evidence of a willingness to cease, desist and dissociate, from the continuum detected on the date charged in the indictment, only modest weight can justifiably be given to the lack of previous convictions and a good employment record. The court's main focus in that event will almost certainly be on imposing a sentence that prioritises retribution, that adequately communicates censure, and that provides for deterrence both general and specific.
24. The offending conduct in this case was clearly to be located at the high end of the available range of sentences. This was an offender who was not just a member of a proscribed organisation, but who was on active service and engaged in activity with the potential to endanger the lives of many people. We regard the decision not to contest the headline sentence determined upon by the court below to have been sensible and wise.
25. It seems to us that in the circumstances of this case, while the appellant was entitled to some mitigation for his previous work record, and for the fact that he had no previous convictions, the amount of discount to which these factors cumulatively would have entitled him was always going to be modest. None of the most powerful potential mitigating factors that might have been available to him, such as a plea of guilty, co-operation and dissociation, were available to him. We are satisfied that both the work record factor and his lack of convictions were in fact taken into account, and that they were adequately reflected in the level of discount that was in fact afforded.
26. We find no error of principle and would dismiss the appeal.
