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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> McCann, D.P.P. (People) v. [2008] IECCA 129 (13 October 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_129.html
Cite as: [2008] IECCA 129
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No CCA 121/08
Macken, J.
Budd, J.
McCarthy, J.
Between/
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
-and-
DEREK MCCANN
Applicant
Judgment of the Court (ex tempore) delivered on the 13th day of October 2008 by Macken, J.
The court is going to deliver an ex tempore judgment in this matter but we need a little clarification on one aspect of the case. In the Notice of Appeal which was filed, the court thinks probably personally by the applicant, rather than through a solicitor, he lists his appeal in a rather unusual way. He was sentenced to seven years but then when he gave particulars of the trial and conviction he says the sentence was ten years with the last three suspended. In the description which we have from the Court of Criminal Appeal we are told that there were two sentences: possession of firearms, seven years and unlawful use of a stolen motor vehicle three years, and it has been listed as the three years being consecutive to the seven year sentence. But if you actually look at the Judge's sentence you will see that at page 20 of the transcript she says the sentences are "concurrent" and it is only the question of the suspension aspect
that gives the impression that it is slightly different, so we need to have clarification of that. [Clarified].
The position in this case, very fairly put by both parties, is that there was a pretty serious offence of being in possession of a firearm, which was a .45 Revolver that fired blanks but nevertheless was a serious firearm and it was found in a motor vehicle on the passenger side, whereas the accused in the present case was actually driving the car and was charged, apart from the firearms offence, with the unlawful driving of the stolen vehicle. It has been clarified to the court that the sentence in respect of the unlawful user of the motor vehicle was to run concurrently with an offence with which we are not concerned in this court, but the sentence was to run consecutively to the seven year sentence imposed in respect of the firearms.
As it happens, during the course of the sentencing or at least during the course of the trial, it was indicated to the learned sentencing judge that the maximum sentence in the case of the firearms offence was 14 years. Again it is very fairly said before this court that that was an error, and that sometimes can happen. The maximum sentence in the present case is in fact ten years. The trial Judge having regard to several factors which she was entitled to take into account, fixed the sentence at seven years. Giving the highest possible respect and recognition to the sentence which was thereby erroneously imposed by the learned sentencing judge, it would appear to this court that she had in mind imposing a sentence that was somewhere midway between the minimum and the maximum sentence taking into account mitigating factors, the seven years arsing by virtue of the fact that that would have been midway in relation to a sentence carrying a maximum of 14 years.
It seems to the court that whereas the case is a very serious case in terms of the firearm in question, it is not the most serious of these types of offences and therefore it ought to be pitched in terms of seriousness, as this court has stated on several occasions, at an appropriate level. In the court's opinion the appropriate level is somewhere around two thirds or three quarters of the way up to the top in terms of seriousness, which would ordinarily carry a maximum sentence in the range of perhaps seven to eight years. In the present case that would allow for no deduction for the plea which was tendered or indeed for any of the other factors, possibly factors that would not carry as much a reduction as the plea.
Having regard to the various factors that ought to be taken into account and even allowing for the fact that the applicant, although he has some alcohol and drug abuse problems, appeared to be sufficiently sober or sufficiently level headed to be in a car with a balaclava and woollen gloves and with a partner in the car who had possession of a serious firearm, it is difficult to imagine granting any substantial amount of reduction in respect of his personal circumstances insofar as they might have affected the offence. Nevertheless the applicant is entitled to have an appropriate reduction in respect of the plea and some further reduction in respect of his personal circumstances. Overall the court considers that those reductions should bring the sentence down to a sentence of five years rather than seven years which again would be pretty well analogous to the mid sentence range that the sentencing court might have imposed had the court been alert to the actual maximum sentence available.
In relation to the unlawful user of the motor vehicle the three year stands. The court does not consider that that is an overly harsh sentence in respect of the
charge but it is a charge that arises out of the same events. If he had been charged with a different charge such as stealing the motor vehicle it would have been an entirely different offence and not related directly to the firearms events in question, then the court might consider that a consecutive sentence would have been appropriate. But since the unlawful user of the motor vehicle was intimately tied up with the arrest in question on the firearms charge the court considers that an appropriate sentence is a concurrent sentence with the firearms offence, and will therefore strike down the consecutive nature of that sentence but leave the sentence at three years. The final sentence to be imposed in the present case, the court finding that there was an unavoidable error in principle arising from the factors that have been mentioned, the appropriate sentence should be five years on the possession of firearms offence and three years under the s.112 offence, the latter to run concurrently with the former. [After further discussion]
It would seem to make sense that the two sentences which are now to run concurrently with each other, will also run concurrently with the first of the sentences dated on the 3rd April 2008 and date from that date, with an appropriate allowance to be given for whatever number of days there are between the 29th June 2007 and the 17ih September 2007, when the applicant was not on bail.