2023 IECA 341

THE COURT OF APPEAL Court of Appeal Record No. 98CJA/2022 Neutral Citation Number [2023] IECA 341 Edwards J McCarthy J Kennedy J IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993 BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) PROSECUTOR/APPLICANT -ANDMARK KEARNEY ACCUSED/RESPONDENT JUDGMENT (ex tempore) of the Court delivered on the 17th day of February 2023 by Mr Justice Patrick McCarthy

1. This is an application pursuant to section 2 of the Criminal Justice Act 1993 for a review on grounds of undue leniency. Mark Kearney, the respondent herein, pleaded guilty on the 13th of November 2020 to an offence of false imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act
2. The offence carries a maximum of life imprisonment. Sentencing was dealt with at Meath Circuit Criminal Court on the 28th of April 2022 on Bill No. MHDPOO81/2022 and the respondent received an effective sentence of three years’ imprisonment suspended in full on given terms.
3. We will briefly outline the facts of both matters. The offence was committed over a 10-hour period on the 10th of November
4. The accused and the injured party, one Patrick Lumumba, came into contact by chance at a property in Ballymun, Co. Dublin. There appears to have been some dispute between the respondent and the injured party as to monies owed. The parties engaged in illicit substance use at the property and while in the apartment the injured party’s passport and phone were taken from him by the respondent. After a number of hours, the injured party was taken from Ballymun to the respondent’s home at Cedarhurst, travelling by car with the respondent and two others. At some time between 5.14am and 6.26am the injured party was moved from the vehicle in which they had travelled and tied up by the respondent inside a disused car where he was left for a number of hours. A chain was used with a padlock to secure the injured party’s right wrist to the steering wheel although the vehicle itself remained unlocked. The injured party’s shoes and socks were taken. The respondent brought him a blanket and apologised to him for what he was doing; it has been sought to rely on these facts in diminution of the culpability of the respondent, but we can say now that they do not stand to his credit in that regard.
5. The injured party was left alone for a considerable period of time and after a number of hours, some time before 2.53pm, he managed to free himself from the vehicle and fled the area, flagging down a passing motorist who took him to Blanchardstown Garda Station where the chain still attached to his wrist was cut off. The respondent had told him, as he was leaving him in the car: “I'll see you in the morning. I'll bring you some coffee and we can go to Western Union and you can get us our money”. It was intended to force the injured party to obtain cash to pay an alleged drugs debt to the respondent and he was being detained until this could be done.
6. Subsequently a warrant was executed on the Cedarhurst property by Gardaí, in the course of which the complainant’s shoes, items of clothing, a Congolese passport and personal property were recovered. Gardaí also obtained CCTV footage which accounted for the movements of the respondent on the property whilst the injured party remained detained in the disused car. At interview, the respondent gave a description of what occurred and said that the injured party owed him a debt and that is why he imprisoned him. The respondent admitted taking the personal items to which we have referred in order to prevent the injured party from leaving.
7. The consequences of the offence upon the victim were summarised by him in a victim impact statement. He alleged that he is a grandson of Patrice Lumumba, an independence leader and first prime minister of the independent Republic of Congo. The injured party described meeting the respondent and co-accused as a “big misfortune” for him. We refer to a salient portion of the statement as follows: “The day when Mark kidnapped me began with psychological torture. I was verbally abused and kept under the eye of Mark and his friends and a growling Belgian Shepherd dog. He took my phone, my passport and my money, and racially abused me: 'Black bastard'. I knew I was being brought back to Mark's house but I didn't know when it was going to happen and I didn't know what they were going to do with me; it was torture and I was afraid. They eventually put me out of my misery and brought me back. I didn't want to go but I just kept calm. I was terrified and believed that I was to die. Instead, Mark tied me up like a dog to an old car in the yard with a link chain and he took off my shoes and socks and left me in the freezing cold overnight. If you can believe, I was so drained from this experience, I actually slept in the car when a normal person would not have been able to sleep. I slept because I accepted what I thought was going to happen.”
8. There were a number of documents handed into the trial court as part of the respondent’s plea in mitigation. The respondent was psychologically assessed by one Michael McCracken of Imagine Health and in his report he outlined the respondent’s limited educational history and his current lack of employment. It was noted that he began taking drugs at 15 years of age, consuming a wide quantity of a variety of different classes of drugs over his lifetime. The respondent gave no reason as to why he began taking drugs. Mr McCracken indicated his concern about the respondent’s antisocial behaviour and “moderate problems” in respect of insight. Mr McCracken’s principal recommendation was that the respondent enter into a drug rehabilitation programme. One Tom Bisset a co-ordinator of the Voyages Project outlined that the respondent was then engaged in a 16 week addiction/recovery programme which he was attending regularly and using one-on-one sessions to address inter alia his addiction. A report furnished by a Dr Hugh Gallagher of the Tolka River Project outlined that the respondent was his patient intermittently from 2013 and had what were described as “polysubstance misuse” issues. At the time of sentence, according to Dr Gallagher, when the respondent had attended him, there was no evidence that he was affected by drugs, was taking 100ml methadone daily to treat his addiction and in provided a clean urinalysis shortly before the sentence hearing.
9. There were three favourable character references provided to the sentencing court. Amy Butler, his estranged wife with whom he has an 11 year old child, outlined her support for him and said that the respondent had shown signs of turning his life around and was staying away from the “chaotic life of addiction”. A friend, David Dooris, described the respondent as a person deserving of a second chance and as playing a pivotal role in the lives of his young daughter and elderly mother. The final reference was from one Neil Dunne who had formed a close relationship with the respondent since meeting him at Narcotics Anonymous meetings and attested to the help that the respondent has shown him in dealing with his own addictions.
10. In sentencing, the judge heard that the respondent had 25 previous convictions excluding road traffic matters. The respondent made an apology in Court in the following terms saying: “[y]our honour, just very sorry for wasting everybody's time, your own time, the guard's time and especially Patrick Lumumba's time. My life was messed up from drugs, as you've obviously seen”. The judge nominated a headline sentence of three years and described the offending as a crime of frustration, referring to the fact that it may have been “a crime borne out of annoyance with this particular guy basically running up debts on his behalf and then not paying up”.
11. The judge went on to say that the respondent must accept the consequences legally of his actions, “that's the reality of it”. The judge accepted that the injured party was clearly terrified and that the respondent did not treat the injured party with any particular concern.
12. In turning to mitigation, the judge considered the relevant factors as follows: “There's a couple of straws in the wind that are significantly in his favour, I'd have to say, and I do deal with a lot of these cases where somebody says well, they're changing their habits around drugs and so forth. And obviously rehabilitation from drug use is, I think, a reasonable goal of a sentencing judge because these are offences, and his offending behaviour are intertwined with drug use….”
13. On the basis of the testimonials, the respondent’s approach to addiction issues and his efforts, to put the matter shortly, to reform, the judge described the respondent as “…a man who really the case made to me today [sic] by Mr White and in the documents is that this case has served as a wakeup call for him, that he has taken active steps”. The judge was particularly influenced by Mr Dunne’s testimonial and went on to say: “In other words, that this man has done good as well as bad and perhaps on balance, the good that he has done and the fact that he is attempting to turn himself around should be taken into account by me in assessing a sentence.” In suspending the entirety of the three-year sentence imposed, the judge imposed the following terms of suspension: “First of all, that he keeps the peace and is of good behaviour. Secondly, that he refrains from using illicit substances. Thirdly, that he engages with the probation service, keeps them appraised of his address, keeps all appointments with the probation services and follows their lawful advices. And in particular, their advices to assist him in (a) refraining from using illicit substances, (b) to provide urinalysis to the probation service when requested to do so or when requested by Dr Gallagher to do so. And then the final term of the suspension will be that he continues to attend Dr Gallagher with a view to following the medical treatment prescribed by Dr Gallagher with a view to ceasing using illicit substances. And if he enters into a bond of €100.” Grounds of Appeal
14. The applicant summarised their grounds of appeal in their written submissions as follows: – a. The sentence was unduly lenient having regard to the nature of the offence, the circumstances surroundings the commission thereof and the gravity thereof, in particular: b. I. The period over which the offence was committed. II. The physical restraint of the complainant. III. The humiliation and degradation of the complainant. IV. The impact on the complainant. The learned sentencing judge failed to have regard or sufficient regard to the victim impact evidence lead by the prosecution. c. The learned sentencing judge erred in nominating a headline sentence which was unduly lenient and failed to reflected [sic] the gravity of the offence and the aggravating features present. d. Having nominated an unduly lenient headline sentence of three years, the learned sentencing judge placed disproportionate weight upon and gave excessive discount for the mitigating features present and in particular placed disproportionate weight upon the character evidence advanced on behalf of the respondent and his apology. e. Having arrived at a headline sentence of three years, the learned sentencing Judge thereafter suspended the entirety thereof and in so doing gave the respondent excessive or double credit for the mitigating features present and imposed a sentence which was unduly lenient. We will deal with these together.
15. At the hearing, counsel submitted that the headline sentence was too low. He referred to the fact that the offence occurred over a period of 10 hours and that the restraint used was significant, uncomfortable, terrifying, and humiliating. Counsel for the applicant further submit that the gravity of the offence ought not to have been mitigated by the fact that the complainant owed the accused money and ultimately that the offence ought to have been placed in the upper band of the mid-range, implying a pre-mitigation sentence of, in his submission, between seven and nine years.
16. We reject the proposition that to some limited degree by apologising to the victim in advance and providing a blanket would in any sense mitigate the offence. The principal mitigating factors are the plea of guilty and the admissions made to Gardaí. The respondent clearly has battled a number of drug related issues over his lifetime and is making clear strides to improve this in his life. He told Mr McCracken he was unemployed and wished to devote his life to rehabilitation; it is not in dispute but that at the time of sentence, and up to now, he has made some return to car repair work.
17. On the 15th of February this Court gave judgment in The People (DPP) v. Damon Buggy [2023] IECA 34 – involving offences of assault causing harm and production of an article (a knuckleduster). That case, similarly, was an application for review of sentence; the core basis of the appeal was that “the ultimate determination to fully suspend the two year period of imprisonment was without any real evidential foundation, and accordingly afforded undue weight to the mitigating factors”. In that case no criticism was made of the headline but rather of the fact that an excessive proportion of the post mitigation sentence was suspended. Here there was a much more fundamental error. We are of the view that the headline sentence was simply wrong and it was too low on any view of it, and was too low to a significant degree. That necessarily impacted on every subsequent stage of the process and resulted in an ultimate sentence that was significantly outside the norm, which was unduly lenient on that account and requires correction.
18. We therefore quash the sentence and proceed to resentence. In resentencing we have regard to the facts and matters set out above and also a further letter from Dr Gallagher; it appears therefrom that the respondent is continuing his progress in respect of drug rehabilitation. We think that this offence falls within the midrange and accordingly attracts a headline sentence of between five and ten years. We think that the appropriate headline sentence is one of seven years. We think that in the light of the mitigating factors, the appropriate post-mitigation sentence is one of five years and we impose such sentence. We think that it is important in order to incentivise rehabilitation that a portion of the sentence be suspended on terms. We accordingly will suspend the last two years and six months thereof on the same terms as those imposed in the Circuit Court.