Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 79

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Neutral Citation: [2008] IECCA 79

COURT OF CRIMINAL APPEAL

Finnegan J.

Herbert J.

de Valera J.

IN THE MATTER OF SECTION 2 CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

JASON FOSTER

RESPONDENT

Judgment of the Court (ex tempore) delivered on the 26th day of May 2008 by Finnegan J.

The respondent on this application pursuant to section 2 of the Criminal Justice Act 1993 for a review of sentence was sentenced on the 4th October 2007 having pleaded guilty to Count 2 on an indictment to a charge of arson contrary to

section 2 subsection (2) of the Criminal Damage Act 1991, an offence for which the maximum sentence is one of life imprisonment. The circumstances of the offence are as follows.

The offence was committed on the 1st July 2005 at 1 Mornington Grove, Artane, between 4.30 and 5.30 a.m. in the morning. On the previous day the respondent and some companions had been in a SPAR store and the respondent's companion was caught stealing beer. They made a get away from the store but on a complaint being made to the Gardai they were arrested not long afterwards on a bus. Then at between 4.30 and 5.30 a.m. the following morning, under the influence of drink or drugs or both, the respondent knowing that the staff from the SPAR supermarket lived in 1 Mornington Grove determined to set fire to a moped outside that house presumably in the knowledge or at least the belief that it belonged to one member of the staff His account is that he put a lighter to the rear mudguard of the moped having first moved the same slightly away from the house and that he then made his way along Mornington Road and climbed a wall to make his way home. There are a number of factors in this. The moped is undoubtedly a valuable item to the person who owned it and he was deprived of that. That is the first matter. The second matter which troubles this court very greatly is the relationship between what occurred at the SPAR supermarket the previous day and the conduct of the respondent. Whatever way one looks at it, it is an attack on the system of justice that

we administer in this country. Whether intended to or not it is calculated to have the effect of discouraging persons from reporting matters to the Gardai or co-operating in the prosecutions which should ensue where crimes are committed.

Some difficulty is presented to the court by the way in which a plea was accepted following an alteration to the indictment. Count 1 on the indictment which did not proceed related to the damage to the house at 1 Mornington Grove because as

a result of the respondent's conduct that house caught fire and €150,000 damage was caused to the same. It is also clear that the personal possessions of the six persons within the house were lost. Those persons suffered smoke inhalation but fortunately

did not sustain any further injury. A plea was entered to Count 2 but all the circumstances surrounding both offences were opened to the court and one must assume that was by agreement. Count 2 however is very limited. It charges that on

the 1 July 2005 at 1 Mornington Grove, Malahide Road, Artane, in the County and City of Dublin without lawful excuse the respondent damaged by fire a moped registration unknown the property of Joe Keane intending to damage such property.

So it is not the house with which the court is concerned: the offence related to the moped. The charge was amended by direction of the court and it reads following on from what I have just quoted "being reckless as to whether the life of another would be thereby endangered". Setting light to a moped in any circumstances represents a danger, it is likely to explode and no matter what one's state of intoxication one would appreciate that danger and certainly the respondent here did not stand around in the vicinity of the moped. So there was a risk to the lives of others. That is a serious matter. It could be a passer-by. It could be the owner of the moped who seeing the fire tries to put it out. It could be, as happened here, that adjoining properties could be set alight putting the occupants at risk. So this is a very serious offence indeed for those reasons.

The learned trial judge, it must be said, did indeed look at all the relevant circumstances surrounding the offence. He did indeed look at the circumstances affecting the respondent here and have regard to his very special circumstances but having made the correct analysis and having taken into account the facts this court is satisfied that he was in error and seriously in error in imposing as a sentence a term of two years imprisonment. Such a sentence was unduly lenient. An appropriate sentence for the offence to which the respondent pleaded guilty this court is satisfied is a term of five years imprisonment. However the court has regard to the personal circumstances of the respondent as detailed by the learned trial judge at the sentence hearing. It has regard to the remorse which he expressed to the Gardai. It has regard to his plea of guilty. Taking these matters into account the court suspends of that sentence the last three years thereof on condition that the respondent enter into a bond to keep the peace and be of good behaviour for a period of three years following his release from prison having served the sentence hereby imposed.