THE COURT OF APPEAL
Birmingham J.
Mahon J.
Edwards J.Record No: CA41/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (ex tempore) delivered the 4th day of December, 2015 by Mr. Justice Edwards
Background to the Appeal :
1. In this case the appellant appeals against a sentence of six years imprisonment imposed upon him by the Dublin Circuit Criminal Court on the 16th of February 2015 to date from that date, following his plea to a count of arson, contrary to s. 2(1) and (4) of the Criminal Damage Act, 1991.
2. The facts of the case were that the appellant and another man deliberately set fire to a head shop premises called Nirvana situate at 164 Capel Street, Dublin 1, in the early hours of the 12th of February 2010. The shop specialised in the sale of psychotropic substances which, though now illegal, were legal at the time. in the sale of phototropic substances which were legal at the time. The fire also spread to the two premises on either side of Nirvana, namely to a premises called The Souvenir Seeds Store at 164A Capel Street, which also sold then legal psychotropic substances, and to Utopia at 163 Capel Street which was a sex shop.
3. Five units of Dublin Fire Brigade attended at the scene and twenty six firemen were engaged in fighting the fire.
4. A number of apartments in a neighbouring building had to be evacuated as a result of the fire and Capel Street was closed from Friday the 12th February to Monday the 15th February 2012 causing a huge amount of inconvenience and loss for the businesses on Capel Street.
5. The three buildings directly affected all had to be demolished and the site is now a vacant plot of land. There were two owners to these premises. A Mr. David Nugent owned numbers 163 and 164 Capel Street, but only one of the buildings was insured and he received a payment of €350,000 from the insurance company in respect of the insured building. The owner of the other building at 164A was a Mr. Bellamy and his building was uninsured. The overall cost in relation to the damage to the three buildings was in excess of €1,000,000.
6. In the subsequent investigation the seat of the fire was located at the back of the Nirvana premises, and the fire was believed to have been deliberately started using an accelerant. Gardaí recovered CCTV footage from various premises and as a result of doing so were able to print off 90 photographic stills. The CCTV footage showed a continuous flow of movement by two men, one of whom was subsequently identified as being the appellant, over the course of an hour, in and around the premises that were burnt. It showed, in particular, the appellant approaching the front of the security shutter of Nirvana with bolt cutters and attempting to gain entry. CCTV footage also showed the two men getting over the side gate leading from Little Strand Street to the rear of the Nirvana premises with a rucksack. They were there for a number of minutes following which they were seen to return by the same route. As they returned the rucksack was thrown over the gate and there was a flash of light when the accelerant was ignited.
7. The appellant was identified by a number of Gardaí who viewed the CCTV footage and stills, and was nominated as a suspect. Within two days of the fire the Gardaí had sought and obtained a warrant for the arrest of the appellant. However, they were unable to locate him and the warrant could not be executed. It was in course ascertained that the appellant had travelled to Spain in the early aftermath of the incident. He was in due course arrested and was subsequently charged with arson.
8. A European arrest warrant was then obtained from the High Court and forwarded to the Spanish authorities. The appellant was arrested in Spain on foot of that European arrest warrant and a Spanish Court ordered his rendition to Ireland. Upon his return to Ireland he was charged with arson and was initially granted bail by the District Court. However he did not adhere to his bail terms and his bail was subsequently revoked. He then successfully sought and obtained bail from the High Court, but again did not adhere to his bail terms. He in fact fled the jurisdiction a second time and went back to Spain. A second European Arrest Warrant was then applied for but before it was acted upon the appellant returned to this jurisdiction of his own volition, and handed himself in.
9. The sentencing judge was told that the appellant had sixty five previous convictions, two of which had been recorded outside of this jurisdiction. Thirty eight of those were for non-road traffic offences, and twenty seven were for road traffic offences. Of the thirty eight non road traffic convictions, seven were for robbery, four were for criminal damage, ten were for public order offences, three were for drugs offences, one was for burglary, one was for an offence under the Firearms and Offensive Weapons Act, nine were for theft, and three were for failing to appear before a Court. It was elicited in cross-examination that of the total of sixty five previous offences, thirty had been recorded since 2005 and none of those thirty were convictions on indictment.
10. Although the defence did not call any viva voce evidence, the sentencing judge was asked to receive and take account of a letter from Ushers Celtic Football Club and a report from a Mr Brian Glanville, Consulting Criminal Psychologist, and agreed to do so. The letter from Ushers Celtic Football Club confirmed his sporting skills and good standing with that club. The contents of the report from Mr Glanville, which has been provided to this Court, formed the basis for a detailed plea in mitigation advanced on the appellant’s behalf, which particularly emphasised his efforts at rehabilitation. The report runs to in excess of seven closely typed A4 pages, but its substance can be gleaned from the “Summary and Opinion” section of it, which states:
“Summary and Opinion.
In summary, this is a 42-year-old man who has pleaded guilty to a charge of arson. He grew up under highly adverse circumstances. As a child he felt alienated from his father, who was only partially present in the family and who was a heavy drinker. While he was close to his mother, she also seems to have had an alcohol problem. His mother's family were reportedly associated with the criminal underworld and, in the absence of a positive identification with his father, he identified with role models from this culture in adolescence.
While he seems to have done reasonably well at primary school, he dropped out of secondary school in the first year but later, while in prison, succeeded in obtaining the Junior Certificate.
He has a history of delinquent and criminal behaviour dating from his early teens. This was associated with drug abuse - principally heroin. He spent much of his life from his late teens to his early 30s in prison. However, about 2002, when he was 30 years of age and serving a prison sentence, he decided to stop using heroin. He reports that he has been substantially free of this drug since then.
On release from prison in 2004 he succeeded in obtaining employment and continued in work until the recession in the construction industry began about 2006/7. Subsequently he went to live in Spain where he managed to find casual work. I understand that from 2004 to 2010, when he committed the index offence, he managed to stay 'out of trouble'.
In 2009, at his mother's request, he returned to Dublin because his younger brother was reported to be dying following many years of increasingly heavy drug abuse (he died in 2011, reportedly of drug related causes). At that time his brother was abusing a cocktail of 'legal highs' which he was buying with the proceeds of an award from the Residential Institutions Redress Board. These drugs were purchased from a shop on the premises which are the object of the index offence.
He claims that his decision to burn down the premises was substantially motivated by feelings of anger at the injury being done to his brother through his consumption of drugs purchased there. He also claims to have long felt a sense of both responsibility and guilt for his brother's drug addiction because of his own failure to provide an appropriate role model to the younger boy/man. He admits to also being partly motivated to commit the offence by the belief that he might receive some financial reward.
Psychometric assessment of Davin's personality indicates a highly dependent personality style characterised by an excessively strong need for emotional and psychological attachment to others who can be depended upon to provide security, support and a sense of identity. This personality style is associated with a pattern of acquiescence in the wishes of others motivated by fear of losing their support. It seems likely that this would have been a factor in his response to his mother's request to return to Dublin to do something about his brother's plight.
While living in Spain, Davin established a relationship with his present partner with whom he has three young children. He appears strongly motivated by a desire to maintain this relationship and to fulfil an appropriate parenting role with his children. His plan, whenever he is released from custody, is to return to live in Spain and marry his girlfriend. He claims that his girlfriend's father is in a position to provide him with work and that there are also other opportunities to earn a living there.
Given that Davin has already demonstrated the ability to adapt to a pro-social lifestyle for some six years from 2004 onwards, his declared commitment to his girlfriend and children, his psychological needs for attachment which can be met by these relationships and if he can remain substantially drug-free, then, in my opinion, the risk of his reoffending is relatively low.”
The sentencing judge’s remarks:
11. In sentencing the appellant to imprisonment for six years the sentencing judge made the following remarks:
“On the day in question, the 12th of February 2010 it appears for some reason Mr Flynn had a grudge against this head shop. It may be that this head shop was selling drugs to his brother. It seems himself and another man hatched a scheme to burn down this shop. It seems they gained access to the rear of the head shop in the premises in question, poured some accelerant close to the back of it and set the fire. They were very successful in their ambition to burn down the shop or this premises because they certainly did it. Unfortunately for everybody else, not alone did they succeed in burning this shop down but they burnt also two premises down and caused a huge amount of inconvenience for the businesses on Capel Street and the general public. It seems that Capel Street was closed for a considerable period of time to allow the Dublin City Fire Brigade deal with the situation. It seems, due to good police work, Mr Flynn was nominated as a potential subject and he was arrested. It seems that there were various situations and it seems that Mr Flynn left the jurisdiction more than once. He was charged and eventually he pleaded guilty to this offence.
Now arson is a very, very serious offence because once a fire starts, it's difficult sometimes to know where it's going to stop. It happened in this case; Mr Flynn wanted to burn down a particular premises, the fire spread and caused considerable damage, and luckily for everybody it seems nobody was injured.
Now in dealing with Mr Flynn I have to take into account the seriousness of the crime he has pleaded guilty to and the particular facts of that crime. I have to take into account his own personal circumstances and I also have to take into account his record of conviction. It's a serious record of conviction but I accept the submissions that the seriousness of the offences had been lessening until this particular offence as Mr Flynn has got older. It seems that he's established a strong partnership with his current partner and they have children. It seems there's reason to believe that Mr Flynn has reformed himself and helped his own situation. I also have to take into account what's been told to me in relation to his background; it's an unfortunate background, and to put it bluntly, Mr Flynn has had many challenges to overcome. He seems to have some abilities, particularly in the sporting arena, and it seems that he has good characteristics too. It seems that he has a work record and it seems he's able to work. It seems that he has reformed himself considerably; he is no longer on drugs, and it seems his ambition is to leave prison and become a good father and partner to his partner and his children respectively. But I have to impose upon Mr Flynn a serious custodial sentence by reason of the seriousness of this offence; setting a fire in a built-up area in Capel Street is a serious offence, and if Mr Flynn had thought about it, he'd have known that. I have no doubt he had, at the time he had his plan, and unfortunately his plan worked only too well.
So I think the appropriate sentence in all the circumstances on the count he has pleaded guilty to is a term of imprisonment of six years. And the warrant should also I'll direct the warrant to state that he should be given full credit for all periods of time he has spent in custody in this jurisdiction or other jurisdictions in relation to this matter. So that's a matter for the Governor to calculate.
MR O'HIGGINS: May it please your lordship. I know, my lord, it's a sentence of six years' imprisonment; in view of his separation from his family and the other circumstances, is there any possibility you might consider suspending a portion of it?
JUDGE: No, I took that into account, but it is a rather serious offence.”
The grounds of appeal
12. The appeal is advanced on four main grounds:
i. The sentencing judge erred in failing to have any or any adequate regard to the issue of rehabilitation and in particular to the particular status of the appellant at the point of sentence and the lengthy period since he had last been convicted of a non-minor offence;
ii. The sentencing judge failed to identify an appropriate and proportionate pre-mitigation starting point in sentencing the appellant;
iii. The sentencing judge erred in failing to have any or any adequate regard to the fact the appellant’s sentence would be served far away from his immediate family in circumstances where his partner and children reside in Spain;
iv. The sentencing judge erred in failing to have any or any adequate regard to the appellant’s plea of guilty;
Discussion
13. It is convenient to deal first with the complaint that the judge failed to identify his starting point (ground ii) i.e. the appropriate headline sentence having regard to the available range based on an assessment of the seriousness of the offence taking into account aggravating factors but before applying any discount for mitigating factors. It is correct, and it represents a legitimate criticism, to say that the trial judge failed to indicate his starting point, and merely indicated where he ended up. The trial judge’s failure to do so represented a departure from best practice, and has made this Court’s task somewhat more difficult.
14. There is a strong line of authority starting with The People (Director of Public Prosecutions) v M [1994] 3 I.R. 306 ; and continuing through The People (Director of Public Prosecutions) v Renald (unreported, Court of Criminal Appeal, 23rd November 2001); The People (Director of Public Prosecutions) v Kelly [2005] 2 IR 321; and The People (Director of Public Prosecutions) v Farrell [2010] IECCA 116, amongst other cases, indicating that best practice involves in the first instance identifying the appropriate headline sentence having regard to the available range, based on an assessment of the seriousness of the offence taking into account aggravating factors (where seriousness is measured with reference to the offender’s moral culpability and the harm done), and then in the second instance taking account of mitigating factors so as to ultimately arrive at the proportionate sentence which is mandated by the Constitution as was emphasised in The People (Director of Public Prosecutions) v McCormack [2000] 4 I.R. 356.
15. Two quotations are sufficient to illustrate the point.
16. In The People (Director of Public Prosecutions) v M Egan J. in the Supreme Court said at p. 315 of the report:-
"It must be remembered also that a reduction in mitigation is not always to be calculated in direct regard to the maximum sentence available. One should look first at the range of penalties applicable to the offence and then decide whereabouts on the range the particular case should lie. The mitigating circumstances should then be looked at and an appropriate reduction made”
17. In The People (Director of Public Prosecutions) v Farrell , Finnegan J giving judgment for the Court of Criminal Appeal, reiterated yet again (at p.2 of the judgment) that:
“A sentencing court must first establish the range of penalties available for the type of offence and then the gravity of the particular offence, where on the range of penalties it would lie, and thus the level of the punishment to be imposed in principle. Then, having assessed what is the appropriate notional sentence for the particular offence, it is the duty of the sentencing court to consider the circumstances particular to the convicted person. It is within that ambit that the mitigating factors fall to be considered.”
18. Since its establishment this Court has repeatedly and consistently sought to emphasise that this approach is regarded by it as best practice and we have sought to commend to trial judges that they explain the rationale for their sentences in that structured way, not least because a sentence is much more likely to be upheld if the rationale behind it is properly explained. Equally if this Court when asked to review a sentence cannot readily discern the trial judge’s rationale or how he or she ended up where they did having regard to accepted principles of sentencing such as proportionality, the affording of due mitigation, totality and the need to incentivise rehabilitation in an appropriate case, it may not be possible to uphold the sentence under review even though the trial judge may have had perfectly good, but unspoken reasons, for imposing the sentence in question.
12. However, the mere fact that best practice has not been followed in terms of adequately stating the rationale behind the sentence does not necessarily imply an error of principle. At the end of the day if the final sentence imposed was correct and there was no obvious error of principle the sentence may be upheld. In the present case, however, this Court’s task has been made, as already stated, somewhat more difficult by an inability to discern from the sentencing judge’s ruling exactly where he started and how much discount he gave for mitigation. This creates a real difficulty in a situation where one of the grounds of appeal in effect complains that the sentencing judge over-assessed the seriousness of the case (ground no ii), and another complains that insufficient account was taken of mitigation, and specifically the plea of guilty (ground no iv).
13. While not specifically ruling on the submission that whatever the judge’s starting figure was, it must, by necessary inference, be regarded as having been too high, we would comment that the bottom line figure of six years arrived at after application of mitigation is not per se indicative of there having been an error of principle in that regard.
14. By the same token, it is clear that in this case the sentencing judge did give a discount for mitigation because he expressly stated that he had to take into account the plea of guilty, the appellant’s personal circumstances, his sporting abilities, his work record, the fact that he is free of drugs and his relationship with his partner and children. The difficulty is that it is not expressly stated how much overall discount was given, much less how much was attributable to the plea of guilty. Moreover, the missing information is not capable of being inferred from the bottom line figure and other information in the judge’s ruling.
15. The specific complaint in ground iv is that the trial judge failed to take adequate account of the plea of guilty. It bears commenting on that it would not be usual, or expected, that a trial judge, having indicated how much overall discount was being given, should go on to indicate precisely how much weight he or she had attributed to each individual factor. Accordingly, even if the trial judge had in fact indicated his starting point, from which by comparison with the final sentence figure the amount of overall discount could be inferred, it would not have indicated how much of that was attributable specifically to the plea of guilty.
16. In this Court’s view, notwithstanding the incontestable deficit of information, there is no prima facie reason to believe that this experienced judge in fact failed to take adequate account of the plea of guilty, in circumstances where he expressly stated that he was taking it into account and it was the very first thing that he mentioned when turning to address mitigation. Again, this view is offered without specifically determining the complaint in that regard.
17. At this point it is convenient to turn to the complaint based on rehabilitation (ground no i). Quite apart from the criticisms already levelled it is not apparent from the ruling of the trial judge that he adequately addressed the issue of rehabilitation which was so strongly pressed in the plea in mitigation. Although the judge did refer to the appellant’s efforts to reform himself we are not persuaded that it was sufficiently taken into account, given the evidence of a substantial demonstrated track record of progress already made in that regard. In that regard we consider it relevant that the recent (post 2005) convictions recorded against this appellant were not for serious matters. Upon enquiring as to the nature of them the court was told that for the most part they involved minor road traffic offences e.g., matters such entering a bus lane while driving. Accordingly the evidence supports the contention that up until the present offence a substantial period of time had elapsed since the last serious offence on the appellant’s record was committed, and that he had been making a real effort to turn his life around.
18. We consider that the failure to sufficiently address the issue of rehabilitation represented an error of principle in the circumstances of this case. We a re therefore disposed to uphold the first ground of appeal and it is unnecessary in the circumstances to go further and make specific rulings with respect to the remaining grounds of appeal.
19. Having upheld the first ground of appeal this Court must now set aside the sentence of six years and proceed to re-sentence the appellant. In accordance with established jurisprudence counsel on both sides were invited to place before the Court any additional materials that they might wish to have taken into account in the event of the Court having to proceed to a re-sentencing.
20. That was done and in the appellant’s case certain additional materials were placed before the Court. A booklet of documents was handed in which contained the letter from Ushers Celtic Football Club and the report of Mr. Glanville that were before the sentencing judge at first instance, plus new material consisting of a certificate from GOAL confirming his participation in a recent fundraising event for that charity and certificates of achievement in respect of training in typing. In addition the Court was asked to receive a certificate from the CDETB teacher at Mountjoy Education Centre indicating that Mr. Flynn has achieved 92% in an assessment in respect of the QQI Level 4 Health and Fitness Programme, and a further CDETB certificate from Ms. O’Reilly who is the Deputy Head Teacher at Mountjoy confirming that he had studied circuit training and craft mosaic. The Court has had due regard to those materials and takes them into account.
21. The Court has considered the range of available penalties in respect of the crime of arson. These range from a wholly non-custodial sentence to a custodial sentence of up to life imprisonment. Having considered the seriousness of this case, measured with respect both to culpability and harm caused, we consider that this case is to be appropriately located as meriting a sentence of seven years on the available range taking due account of aggravating factors. In so fixing the headline sentence
22. To take account of the plea of guilty and the other mitigating factors correctly identified by the sentencing judge; such as the appellant’s personal circumstances as so starkly set out in the report of Dr. Glanville, his sporting abilities as testified to in the certificate from Ushers Celtic Football Club, his work record, the fact that he is drugs free and the stable relationship in which he is now involved, and further with a view to acknowledging the progress that he has made towards rehabilitation and further incentivising continued rehabilitation, we will suspend the final two years of the seven years headline sentence that we have identified as appropriate, leaving a net sentence to be served of five years imprisonment. The suspension is subject to the appellant entering into a bond to keep the peace and be of good behaviour for a period of two years.
