About this case:

• Citation:
  [2023] IECA 5
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

The sentence was initially set by the trial judge at four years with the final 18 months suspended but the Court of Appeal held that the appropriate sentence was six years with the final 18 months suspended.

Delivering judgment in the case, Mr Justice George Birmingham held that the judge fell into “significant error” in sentencing the defendant because the appropriate sentence had been reduced to account for the fact that the defendant was already in prison. However, the defendant had fully served a previous sentence at the time of the sentencing hearing and therefore the sentence should not have been reduced.

Background

In April 2016, Mr Thomas Farnan was killed at his home in an assassination-style shooting. During the course of the garda investigation, the defendant was identified as a person of interest. When forensically examined, firearms residue was found on his clothing which was similar to the residue on the discharged bullet casings at the scene of the crime.

In May 2016, a further search of the defendant’s dwelling uncovered a submachine gun, two magazines and 25 rounds of ammunition. However, this firearm was not the gun that was used in the murder of Mr Farnan. In July 2018, the defendant was sentenced to five years’ imprisonment following a guilty plea to two counts of possessing firearms and ammunition in suspicious circumstances. The sentence was backdated to March 2018.

In October 2021, the defendant went on trial charged with the murder of Mr Farnan. However, during the course of the trial, the DPP abandoned the murder charge when the defendant pleaded guilty to impeding the apprehension of the murderer contrary to section 7(2) of the Criminal Law Act 1997. Specifically, it was accepted that the defendant had disposed of the murder weapon which was never recovered.

In imposing sentence, the trial judge noted that the maximum sentence was 10 years’ imprisonment and identified a headline sentence of eight years. The court outlined the aggravating factors, including the manner of the murder, the fact that the disposal of the firearm arose out of serious criminality, that the murderer was never found and the devastating effect that the offending had on Mr Farnan’s family and friends.

Mitigating factors were also considered, which included the guilty plea, the defendant’s personal circumstances and his efforts to rehabilitate in prison. After considering all the factors, the court identified the appropriate sentence as being six years’ imprisonment with the final 18 months suspended. The sentence was made consecutive to the earlier sentence.

However, the court went on to reduce the final sentence further to one of four years’ imprisonment with 18 months suspended. The court referred to the totality principle in the context of consecutive sentences as the reason for reducing the sentence.

In particular, the court held that the previous firearms offence and the section 7(2) offence were not linked and therefore it was appropriate to have sentences run consecutively. It was said that if the sentences ran concurrently, then the court would have to backdate the sentence for the section 7(2) offence which meant that the defendant would get a “two-for-one discount”.

Court of Appeal

The DPP appealed the decision on the basis that the sentence was unduly lenient. The DPP accepted that the trial judge was entitled to impose the six-year sentence but said that the further reduction based on the totality principle and consecutive sentences was made in error.

The court noted that the defendant had been entitled to remission for the previous firearms offence and was released from prison on 26 December 2021, having served the sentence in full. The sentencing hearing for the section 7(2) offence occurred in March 2022.

The court held that the trial judge fell into “significant error” because, at the time of sentencing, the defendant was not actually serving a sentence. It followed that the appropriate course of action was to impose the sentence that the trial judge had identified as appropriate and then consider the question of the date from which the sentence would run.

While a trial judge’s consideration of the totality principle was not confined to cases where consecutive sentences were in issue, the reference to the principle in this case was based on a significant error, the court said.

The court agreed with the DPP that the six-year sentence with 18 months suspended was lenient, but that the sentence was within the trial judge’s discretion. However, the further reduction was an error that required intervention by the appellate court.

The court held that the proper sentence was six years imprisonment, with the final 18 months suspended. The court also imposed a condition that the defendant would be supervised by the Probation Service during the suspended period. It was held that the sentence date was to run from the 26 December 2021, being the date that the previous sentence expired.

Conclusion

The court quashed the sentence imposed by the Central Criminal Court and substituted a sentence of six years with the final 18 months suspended.

The People at the Suit of the Director of Public Prosecutions v. Merriman [2023] IECA 5