About this case:

• Citation:
  [2023] NICA 36
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court also noted that the crime involved aggravating sentencing factors, including repeated threats of stabbing and a physical altercation. Further, the court found that the court was correct to activate a suspended sentence during this sentencing, which increased the overall imprisonment period.

Background

The appellant appealed a 2022 sentence imposed by Mr Justice Irvine KC. This was after a guilty plea to hijacking, contrary to section 2(1)(a) of the Criminal Jurisdiction Act 1975; driving whilst disqualified, contrary to Article 168A(1)(c) of the Road Traffic (Northern Ireland) Order 1981; and using a motor vehicle without insurance, contrary to Article 90(4) of the 1981 Order.

The judge found that the appropriate starting point for the hijacking offence was three years’ imprisonment. He then considered aggravating factors, including threats to stab the victim, the appellant’s substantial criminal record, and the fact that the appellant was highly intoxicated during the offences.

In relation to mitigating factors, the sentencing remarks noted the early guilty plea, that the offence was not premeditated, and remorse expressed by the appellant. As such, the hijacking sentence imposed was four years’ imprisonment, reduced to three years to reflect a 25 per cent reduction for the guilty plea.

However, there was also a 15-month suspended sentence for an earlier offence of bringing drugs into prison. The court activated that suspended sentence, and decided that one year of the sentence should be activated and added to the current sentence, creating a total sentence of four years.

The Offences

In February 2022, the complainant was sitting in his white Berlingo van in Ballyclare when the appellant shouted “get out of the van before I stab you”. This threat was repeated three times and the appellant tried to grab the keys from the ignition. He then pulled the complainant out of the van and reversed the vehicle, striking a wing mirror of another car and causing further damage.

The complainant described the appellant as being under the influence and carrying three bottles of alcohol. The appellant had a cut to the back of his head which was bleeding.

Police drove to the appellant’s address in Newtownabbey, where they found the van, and the car keys in a child’s toy box in the living room. When arrested and cautioned, the appellant replied “why the fuck would I drive a van”.

During an interview, the appellant initially made no comment, and later denied being in the area. He was identified as the culprit by all of the witnesses, and thereafter pled guilty.

Grounds of appeal

The grounds of appeal were threefold. Firstly, that the judge chose an excessively high starting point, particularly due to the circumstances of the appellant’s head injury at the time of the offences. Secondly, that the sentence was higher than previous authorities. Thirdly, that the case attracted a sentence which was manifestly excessive.

The court was also cognisant of the personal circumstances of the appellant. His criminal record included 83 previous convictions, including blackmail, burglary and making threats to kill.

The appellant told his probation officer that on the day of the offences he was leaving a pub when he was chased by four males, who caused his head injury using a claw hammer, possibly due to an outstanding drug debt.

Consideration

The court noted that hijacking will almost always require a custodial sentence. Further, comparing a hijacking sentence to other cases is unhelpful, as these types of cases are fact-sensitive. In this case a custodial sentence was merited.

The court accepted the trial court’s aggravating factors, namely the repeated threats, the physical altercation of the van driver, the criminal record of the appellant and his substantial intoxication.

In relation to mitigation, the court again accepted the judge’s approach. They found that the reduction in the sentence properly reflected the guilty plea, especially where the appellant initially lied about events before giving a guilty plea.

Next, the court considered the new claim about being attacked due to a drug debt. It was argued that this issue should have been mentioned by the judge in his sentencing remarks as part of the background circumstances. However, this omission did not, in their view, amount to much in the overall serious circumstances of the case.

The court found that the appellant probably was assaulted. However, the hijacking did not appear to be a frantic escape, and there was no evidence that the injury caused any impairment to the appellant so as to reduce his culpability.

Notably, the injury to his head was raised during an interview with the appellant, and his solicitor declared that it was irrelevant. The appellant similarly said that nothing had happened.

Given these previous comments, the court had “difficulty in a revised, refined and strengthened case being made on appeal in relation to facts which would have been known to the appellant and his legal advisers at the time”.

Ultimately, the court emphasised that carjacking is a frightening experience, and should result in custodial sentences commensurate with the type of offending. They saw no error in the judge’s assessment of the relevant factors in the case. The range was three to four years, and having considered aggravation and mitigation, the sentence was neither wrong in principle nor manifestly excessive.

The court also found that the judge was correct to activate the suspended sentence for the drug offence. The court did question whether the judge should have activated a lesser period than one year of this sentence, but noted that this was discretionary, and he did not go beyond the parameters of his discretion in imposing a one-year consecutive sentence.

The court noted that the appellant would have been warned when he was sentenced for the drugs offence that further offending could result in the activation of his sentence.

Conclusion

In the court’s view, the sentence reflected the overall seriousness of the circumstances of the case. It was neither manifestly excessive nor wrong in principle. As such, the appeal was dismissed.