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Appeal of firearms sentence dismissed despite disparity with co-accused

By: Bakshi Mohit BL

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Court of appeal dismisses appeal against severity of sentence for possession of firearm, on the grounds that: (a) there is no basis for suggesting that the disparity in sentence between the accused and his co-accused could give rise to sense of grievance or was in any way unjustifiable; (b) having regard to the lateness of plea, court was right to reduce headline by one year only; and (c) the court was right that the other mitigating factors were minimal.

McCarthy J: Criminal Law – special criminal court – unlawful possession of a firearm – guilty plea entered on fifth day of trial after close of the prosecution case and after an application for a directed verdict – appeal against severity of sentence – sentence of nine years imprisonment imposed, backdated to when appellant first entered custody – surveillance operation by Garda National Drugs and Organised Crime Bureau – one stationary vehicle aroused suspicion – surveillance of vehicle was maintained and no one was observed coming or going to the vehicle – a decision was made to search the vehicle – vehicle was unlocked and a firearm was found under the passenger seat – firearm was found to be in a loaded and was briefly removed by Gardai and unloaded and returned – surveillance of the vehicle was maintained – Gardai were also monitoring another vehicle – appellant was observed exiting the second vehicle and going to the stationary vehicle which had the gun – he was seen bending down to the driver’s wheel and taking something from the wheel – decision made to intercept both vehicles – appellant arrested and a number of items fell to the ground, including two balaclavas, two black baseball caps, two pairs of gloves as well as a petrol can – co-accused was also arrested – appellant was interviewed but no cooperative – he merely claimed that he had come to Dublin to buy a car and denied any knowledge of the firearm and other items recovered – mitigating factors set out as appellant’s difficulties since an early age, addiction issues, lack of formal education, family support and he was the father of a young child – sentencing court determined that the appellant did not have the benefit of the mitigating factors available to his co-accused – co-accused headline sentence was ten years – period of eight years arrived to represent mitigation due to his much earlier plea of guilty – further 25% reduction applied in recognition of further mitigation factors – end result of co-accused’s sentence was six years imprisonment – factors available to co-accused included absence of previous criminal involvement, positive personal testimonials and tragic death of his son by a crime of violence has had adverse effects and his medical condition and proved to be significantly cooperative – appellant only got a reduction of 10% to the sentence imposed – whether the sentencing judges erred in terms of their assessment of the appropriate headline sentence and the mitigation discount to be applied – whether the sentencing Judges erred in law and principle in failing to afford a greater discount or give adequate credit or weight to the appellant’s guilty plea and the circumstances in which it arose – whether the sentencing judges failed to have any or any sufficient regard to the principles of parity in sentencing and by doing so allowed a sentence which was disproportionally in excess of his co-accused to be imposed – whether the sentencing judges erred in law in failing to structure a sentence balancing punitive, deterrent, and rehabilitative elements, and in failing to structure a sentence proportionate to the circumstances of the offender – whether the sentencing judges sentenced the appellant to a term of imprisonment which was excessive and unduly harsh – whether in all circumstances, the learned sentencing judges erred in law – all grounds of appeal dealt together – appellant’s argument pertains to the principle of parity with the sentence imposed on his co-accused and that certain mitigating factors were present but not taken into account – court should, where possible, impose a sentence in accordance with the general principles of parity – there is no basis for suggesting that the disparity in sentence could give rise to sense of grievance or was in any way unjustifiable – having regard to lateness of plea, court was right to reduce headline by one year only – court was right that the other mitigating factors were minimal – both were fortunate that a higher headline sentence was not imposed – appellant could not reasonably expect a lesser sentence than nine years imprisonment for an offence of such seriousness – appeal dismissed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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