About this case:

• Citation:
  [2023] IECA 37
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering the judgment, the president of the Court of Appeal, Mr Justice George Birmingham, determined that the Circuit Court had erred in determining that there were grounds to treat the appellant differently than his co-accused for sentencing. The court found it difficult to see any basis for this different treatment.

Background

This was an appeal against severity of sentence for a sentence of six years’ imprisonment, with the final 12 months suspended, for the offence of possession of a firearm in suspicious circumstances contrary to s.27A(1) of the Firearms Act 1964.

A point raised by the appellant was that, on the same occasion, a sentence of five years’ imprisonment, with the final year suspended, was imposed on a co-accused, Mr Madden.

In May 2020, gardaí stopped a vehicle in a rural area of Kilkenny. There were three occupants of the vehicle, which was driven by the appellant. Mr Madden was a rear seat passenger. As the vehicle was stopped, a small black object was thrown into hedging from the rear window.

Having searched the vehicle and the hedge, gardaí found a sock with 47 rounds of ammunition between Mr Madden’s legs and a 9mm semi-automatic pistol in the hedge.

During the trial, Mr Madden claimed that the men in the vehicle were acting on the orders of a more senior and violent man, which allegedly related to a quite serious alcohol and drug habit which Madden had developed during lockdown. The garda involved believed that Mr Madden had a drugs debt.

The appellant’s counsel also argued that he was unaware of what was in the package; he was asked to transport it and believed it to be drugs. Counsel clarified that he had been paid a sum of money to do so.

The original sentence

The sentencing judge noted several points, including that the gun was thrown from the rear window, where Mr Madden was seated, the sock containing ammunition was found between Mr Madden’s legs, and both accused were wearing light, transparent, disposable gloves.

For the appellant, the judge noted an early plea, and accepted that he believed the package contained drugs. However, the judge highlighted that the appellant was being paid to transport the package, stating: “That distinguishes him from Mr Madden.” She further noted that the appellant was driving the car.

Ultimately, in respect of the appellant, the judge found that the court was not bound by the minimum mandatory sentence, but nonetheless the court viewed the case as a serious matter and nominated a headline sentence of seven years. In light of mitigating circumstances, she imposed a sentence of six years’ imprisonment, with the final 12 months suspended.

In appealing the severity of the sentence, the appellant contended that the sentence was disproportionate to the gravity of the offence, and that there was unjust differentiation in the sentence imposed on him, compared to the sentence imposed on his co-accused. He argued that this different treatment was unwarranted and an error in principle.

Consideration

First, the court found that there was nothing wrong with the sentence selected for the appellant per se. A sentence of six years, with 12 months suspended, was effectively the statutory minimum, which could not be regarded as disproportionate.

Next, the court considered the divergence between the sentences imposed on the two offenders. In her sentencing remarks, the trial judge referred to the fact that the appellant was being paid a sum of money for transporting the package.

This was noted by his own counsel, presumably because it suggested that this criminal activity was a once-off engagement rather than an ongoing activity. However, the court was “at a loss to see how it differentiates the appellant from Mr Madden. It seems unlikely that Mr Madden was in the car with ammunition between his legs for the fun of it or was doing it by reason of natural love and affection.”

In fact, the court found it difficult to see any basis for treating the appellant more severely than Mr Madden. The court felt that the case against Mr Madden was probably the stronger of the two, given that the firearm was thrown from the back seat, where he was the only occupant, and the ammunition was in the sock between his legs.

Further, the court noted that if the appellant had not entered a plea, the prosecution would have had the difficult task of establishing some of the elements of the criminal activity in question.

The appellant also did not have any relevant previous record, except for a single s.3 Misuse of Drugs Act 1977 conviction for cannabis, which was “certainly no worse” than Mr Madden’s list of previous convictions. Overall, the court found that this was a case where there was little basis for distinguishing between the two men.

Having established this, the court asked themselves whether they should intervene. They accepted that the appellant was likely to harbour a sense of grievance based on the difference of treatment. Yet, in a situation where the sentence was effectively the statutory presumptive minimum, the court questioned whether such a sense of grievance would be legitimate.

Ultimately, however, the court did decide to intervene, and re-sentenced the appellant. In doing so, the court had regard to up-to-date information, which included that the appellant was using his time in custody productively, and an “impressive and moving letter from his father”.

Conclusion

Having considered all relevant matters, the court concluded that it was appropriate to quash the sentence imposed on the appellant in the Circuit Court and to substitute a sentence of five years’ imprisonment, with the final 12 months of the sentence suspended. This sentence was ultimately the same sentence as was imposed on his co-accused, Mr Madden.

The sentence will date from the same day as the sentence in the Circuit Court.

Director of Public Prosecutions v. Kelly [2023] IECA 37