Court of Appeal: Man involved in violent removal of family from home has sentence increased

About this case:

• Citation:
  [2019] IECA 111
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The Director of Public Prosecutions appealed the sentence of three years with the final year suspended on the grounds that it was unduly lenient, and Mr Justice George Birmingham agreed, increasing the sentence to four years with the final year suspended.

Background

One of the injured parties in this case, Martin Byrne, worked as close personal security for a businessman, JM, who provided Mr Byrne and his family accommodation at The Towers, Garter Lane, Saggart, Dublin. In May 2015, Mr Byrne attended a meeting at Keatings Business Park with with JM and two other men. In the aftermath of that meeting, Mr Byrne’s relationship with JM began to deteriorate.

On 9 June 2015, Mr Byrne was asked by JM to attend another meeting at Keatings Business Park. Seven men, including the respondent, Donal O’Hara, entered the room and JM left the premises. The men prevented Mr Byrne from leaving, told him that he and his family were going to be removed from his accommodation in The Towers, and that they were going to take him there to remove his family by the end of the day.

Mr Byrne was brought to one of three waiting vehicles, where he was punched and slapped and told that his life was in jeopardy if he failed to cooperate. He was driven to The Towers where the men were initially unable to get in due to a large, electronically operated gate. At this stage, a resident of the complex, John Roche, appeared but refused to open the gate and ran off. After being threatened with his life, Mr Byrne told the men how to open the gate and the three vehicles entered the complex.

Mr Byrne was brought to his house by a number of the men, while another group of the men went to look for John Roche – submitting him to a violent assault which was caught on CCTV. Mr Justice Birmingham said the assault was ‘quite shocking’, and that those involved were extremely lucky that it did not give rise to catastrophic injuries or even a fatality.

Mr Byrne’s wife and son were at home, and witnessed the assault on Mr Roche. They were prevented from leaving the house, and brought to separate rooms to get dressed and pack their belongings. Mr Byrne was physically assaulted again, and the incident only came to an end when another resident of the complex contacted the gardaí. When the gardaí arrived, Mr Byrne was threatened again by the men and sent out to get rid of the gardaí – however, the gardaí observed Mr Byrne’s facial injuries and distressed state.

The respondent in this appeal, Mr O’Hara, departed the scene, but was arrested a short time later in a nearby restaurant with blood on his clothing that matched a DNA profile of Mr Roche.

Since the incident, Mr Byrne and his family have effectively been living in secret, and Mr Justice Birmingham said it was clear from victim impact reports that the incident had a very significant effect on their lives.

Mr Roche declined to put a victim impact statement before the court, and indeed declined to furnish the gardaí with a statement.

Sentencing

Mr O’Hara pleaded guilty to the offences of false imprisonment and assault causing harm. At the time of sentencing at the Special Criminal Court in July 2018, Mr O’Hara was 26 years of age, and his criminal record had a significant number of relatively minor convictions along with some more serious convictions. Notably, when Mr O’Hara committed the offences in the present case, he was on bail for another offence.

Mr O’Hara was sentenced to three years’ imprisonment with the final year suspended for each of the offences in the present case, to run concurrently – but consecutive to another sentence of 12 years with the final seven years suspended for aggravated burglary, which had been imposed in October 2015.

Mr Justice Birmingham also noted that in March 2016, Mr O’Hara was sentenced to two-and-a-half years’ imprisonment for another offence of assault causing harm.

Court of Appeal

In the Court of Appeal, the Director of Public Prosecutions contended that the sentences of three years with the final year suspended were unduly lenient, on the grounds that:

1. The Court erred in principle in imposing an unduly lenient sentence in all the circumstances;
2. The Court failed to attach appropriate weight to the aggravating factors;
3. The Judges of the Special Criminal Court failed to have appropriate regard to the aggravating factors which obtained in relation to the offence of false imprisonment and erred in determining that the headline sentence was one of four years imprisonment; 
4. The Court erred in principle in failing to give sufficient weight to the evidence of the prosecution as to the circumstances of the commission of the offences, and in particular, in determining that the respondent’s conduct left him within the lower part of the range of offences of false imprisonment;
5. The Special Criminal Court failed to have appropriate regard to the intimidating and fear-inducing effects that the violent assault that was committed by the respondent during the currency of the false imprisonment which was witnessed by the injured parties, contributed the gravity of the nature of the offence of false imprisonment;
6. The members of the Special Criminal Court erred in according undue and excessive weight to the mitigating factors in the case, and in particular to the personal circumstances of the respondent, Mr. O’Hara; and
7. The sentences imposed failed to reflect the nature and gravity of the offences committed by the respondent and their effect on the injured parties.

Mr Justice Birmingham said that the Court was driven to the conclusion that the net sentence of two years was clearly unduly lenient to an appreciable extent. Mr Justice Birmingham said the offences were very serious by any standards, and the fact that a particularly s.3 assault had been directed at a party other than those who were the subject of the false imprisonment charges added an additional dimension. The fact that it all took place as part of a campaign designed to cause a family to leave their home was particularly disturbing.

The Court also had available to it “internal comparators”, in that other men, including, Declan Duffy and Daniel Keane had been charged with the same offences related to the incident. Mr Duffy received a sentence of six years’ imprisonment, and Mr Keane had been sentenced to five years with one year suspended.

Considering all the circumstances of the offence, and the fact that it was committed while on bail for another serious offence, Mr Justice Birmingham said the court would quash the sentence imposed by the Special Criminal Court and substitute it for a sentence of four years’ imprisonment with the final year suspended.

• by Seosamh Gráinséir for Irish Legal News