Irish Court of Criminal Appeal

No CCA 10CJA & 188CJA/08

Macken, J.

Budd, J.

McCarthy, J.

THE COURT OF CRIMINAL APPEAL

Between/

AND IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-and-

BRENDAN GUY

Respondent

Judgment of the Court (ex tempore) delivered on the 13th day of October 2008 by Macken, J.

The court is in a position to deal with this application subject to one reservation. The court is satisfied, on the argument put forward by Ms. Baxter, counsel for the DPP, that having regard to the seriousness of all four offences, and in particular to the premeditated nature of the offences and in addition the escalation of the activities of the respondent in relation to these matters, the learned trial judge, while he listed all the several appropriate mitigating factors and aggravating factors, did not have sufficient regard to the aggravating element of the offences in the sentence which was actually imposed which was a sentence dealing with all of the offences, that is sentences of three years concurrent, with the last year suspended. It is true that there was no element of compulsion on the learned sentencing judge to impose consecutive sentences but he would have been entitled, having regard to the offences and the time scale, to have dealt with them on a consecutive basis. Having

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regard to all of these matters the court considers that, despite Mr. Rea's very able submissions for the respondent in which it is probably fair to say that it would be accepted the sentences were on the lenient side, the court is of the view that they were actually unduly lenient. Normally in such circumstances the court then turns to impose the appropriate sentence. [Counsel not seeking to adduce any additional evidence]

The court will turn to what it considers to be the appropriate sentences in this case. Having regard to the nature of the offences and the premeditative nature of them, even though at first glance some of them appear to have been rather naive and amateurish, and the court takes into account the unfortunate personal circumstances of the respondent, the court proposes to deal with the two offences which occurred on the 5^th September 2006 even though one of them was tried later in time, on the following basis: that there will be a three year sentence in relation to each of those matters, to run concurrently and with no element of those sentences suspended. The court takes the view that after that, when the trial judge was dealing with the later offences of the 2^nd November 2006 and the 5^th December 2006, they must be dealt with on a different and more serious basis. In respect of each of those two offences, the sentence will be five years, to run concurrently, but with 12 months suspended in relation to each of them, on the same terms as the suspension was dealt with in the Circuit Court. So two sentences remain at three years but with no suspension, and the final two offences five years with a year suspended.

[After a further application on behalf of the applicant clarifying that two of the offences occurred on the 2^nd November, and not on the 5^th September as originally stated.]

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If that is the case then the order should be amended because the two cases we thought were on the 5^th September 2006 were being sentenced on the lower basis and then the basis for increasing the other two was because they were part of a series of escalating incidences.

The court will modify the order in the following respect or will make a fresh order, which would be the tidiest thing to do.

The sentence in respect of the charge for the offence that occurred on the 5^th September 2006 will be three years with no suspension and all other three offences, to follow the logic of our judgment, will be five years each all of these sentences to run concurrently but with the final 12 months suspended in respect of the two offences on the 2^nd November 2006 and the offence that occurred on 5^th December 2006 and you can add the Bill numbers to them, all to run from the first of the dates upon which any of the sentences is to run.