NI Court of Appeal: Unduly lenient sentence upheld due to unfair manner in which DPP presented its appeal



Court of Appeal
Court of Appeal

The Court of Appeal in Northern Ireland has refused to quash a sentence which it found to be unduly lenient because the Director of Public Prosecutions sought to advance an entirely new case on appeal – amounting to “conspicuous unfairness” to the respondent and to the trial judge. This, in combination with the fact that an increased sentence would involve the respondent returning to prison, led to the Court exercising its discretion not quash the sentence.

Background

In October 2016, Edward Corr was arrested after police found bags of firearms and ammunition in his garden shed. During an interview with the police, Mr Corr alleged that he had been outside his house one night when he saw a man attempting to place a bag on his property. Mr Corr said that he challenged the man, but that the man identified himself as a member of a paramilitary organisation and proceeded to threaten him with a handgun. Mr Corr said he felt in fear for himself and his family if he refused to store the bag.

The prosecution accepted that it could not disprove the possibility of Mr Corr having been pressurised. Further, Mr Corr did not have a criminal record, he was a vulnerable adult with a history of poor mental health, and suffered a personal tragedy of witnessing his brother’s “horrific death” when he was just seven years old.

On the basis of Mr Corr’s account, the prosecution and defence agreed to guilty pleas on two counts:

  • - Possession of firearms and ammunition with intent to endanger life or cause serious damage to property contrary to Article 58(1) of the Firearms (NI) Order 2004;
  • - Possession of a prohibited weapon (namely a Skorpion sub machine gun) contrary to Article 45(1) of the Firearms (NI) Order 2004.

Sentencing

In Belfast Crown Court in July 2018, Judge Paul Ramsey considered the four questions set out in R v Avis & Others [1998] 1 Cr App R 420:

  1. What sort of weapon is involved?

Judge Ramsey stated that while the machine gun was “functional” it was “described as being rusted and corroded”, and that the blank firing pistols could, “with work, if carried out, could potentially fire a cartridge with a ball bearing”.

  1. What (if any) use has been made of the firearm?

Judge Ramsey was satisfied that the weapons had not been used in any criminal offence and that they were not ready for use – markedly contrasting with cases where the weapons were effectively ready to go.

  • With what intention (if any) did the defendant possess or use the firearm?

In answer to this question, Judge Ramsey said: “well, as [defence counsel] pointed out in his plea, this is, of course, a second limb case”. However, Judge Ramsey did not elaborate on the serious significance of such an intent.

  1. What is the defendant’s criminal record?

Judge Ramsey was satisfied that Mr Corr had no criminal record, with the exception of a driving offence.

Addressing the question of whether there were exceptional circumstances allowing him to depart from the statutory minimum sentence of five years pursuant to Article 70 of the Firearms (NI) Order 2004, Judge Ramsey said Mr Corr was not a sympathiser or “fellow traveller” with terrorists and that he had been taken advantage of.

Exercising his power under Article 70, Judge Ramsey said “the contents of the medical reports which bear very heavily on the factual circumstances behind the case constitute exceptional circumstances” and sentenced Mr Corr to concurrent sentences of 18 months’ imprisonment, with the final nine months on licence.

Court of Appeal

In a reference under Section 36 of the Criminal Justice Act 1988 (as amended by Section 41(5) of the Justice (Northern Ireland) Act 2002), the Director of Public Prosecutions submitted that there were specific sentencing guidelines for an offence of this type recommending between 10 and 13 years’ imprisonment. Further, the DPP argued that Judge Ramsey’s decision finding “exceptional circumstances” to justify departure from the minimum sentence was wrong in principle.

Lord Justice Stephens said the starting point in Mr Corr’s case “ought to have been at least five years in custody”. Noting that Judge Ramsey had stated that he would have imposed a sentence of five years (i.e. 60 months) if Mr Corr had contested the case, Lord Justice Stephens said this “could only mean that the 60 month sentence took into account all the mitigating features except for the plea” – given the maximum discount for the plea should have been one third of the sentence, the sentence ought to have been 40 months. As such, the 18 month sentence was unduly lenient.

Discount for the plea was excessive

Noting that it was possible that Judge Ramsey may have “reduced from 60 months to 40 months for the plea and then reduced again by some 22 months for the mitigating factors to arrive at 18 months”, Lord Justice Stephens said that “if this was so, then the judge did not follow the approach set out by this court in DPP’s Reference No1 of 2016 (David Lee Stewart) in that he must have incorrectly applied the discount for the plea and then applied a further discount for the mitigating factors rather than applying the discount for the mitigating factors and then applying the discount for the plea”. He added that a “discount of 22 months for the mitigating factors would have been excessive”. Nevertheless, Lord Justice Stephens said the Court did not believe Judge Ramsey arrived at the sentence on this basis.

After addressing the questions in R v Avis, and the issue of “exceptional circumstances”, Lord Justice Stephens said that considering the combination of the offence and the offender, “holistically on the faces of this case”, Judge Ramsey was justified in finding exceptional circumstances.

However, finding the discount for the plea excessive, Lord Justice Stephens said the appropriate sentence ought to have been three years and six months custody.

Conspicuous unfairness

Explaining that the Court had discretion as to whether to quash the sentence, Lord Justice Stephens said some weight had to be given to the fact that Mr Corr had already served the custodial element of his sentence and therefore an increase would involve him returning to prison.

Of “particular importance” was that the prosecution was seeking to advance “an entirely new case”. Lord Justice Stephens said this was “unfair to the respondent because it exposes him to the risk of a significantly greater sentence on an entirely new basis not advanced before the judge”. Further, it was “unfair to the judge who gave detailed consideration to the sentencing exercise as it was advanced before him. The prosecution have the obligation to place before the trial judge any arguments or material that is relevant to the issue upon which the judge is called upon to make a decision”.

Considering that this “amounted to conspicuous unfairness to the respondent”, the Court did not quash the sentence.

© Irish Legal News Ltd 2019



Other judgments by Lord Justice Stephens