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Page 1 ⇓
THE COURT OF APPEAL
Record No’s: 252 & 253 CJA /18
Birmingham P.
Edwards J.
McCarthy J.
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
BETWEEN/
DAVID NOONEY AND EDWARD O’BRIEN
RESPONDENTS
-AND-
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
ALSO/
APPLICANT
Record No’s: 240, 251 & 254/18
Birmingham P.
Edwards J.
McCarthy J.
BETWEEN/
KEVIN HANNAWAY, EVA SHANNON, SEAN HANNAWAY,
APPELLANTS
-AND-
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
JUDGMENT (ex tempore) of the Court delivered on 14th of February 2020 by Mr
Justice Edwards.
Introduction
1. For the avoidance of confusion, this judgment will refer individually by name to Kevin
Hannaway, Eva Shannon, Sean Hannaway, David Nooney and Edward O’Brien,
respectively, alternatively refer to them collectively as “the accused”; and will refer to the
Director of Public Prosecutions simply as “the DPP”; rather than using designations such
as applicant, appellant and respondent.
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2. On 29th June 2018, following a fifty-day trial, Kevin Hannaway and Eva Shannon, were
convicted of the offence of providing assistance to an unlawful organisation contrary to s.
21A of the Offences Against the State Act 1939, as inserted. On the same date and in the
same trial Sean Hannaway, David Nooney and Edward O’Brien, were convicted of the
offence of membership of an unlawful organisation, contrary to section 21 of the Offences
Against the State Act 1939.
3. On 31st July 2018, following a sentencing hearing which took place on 24th July 2018,
the Special Criminal Court, sentenced Kevin Hannaway to a term of three years and nine
months imprisonment, Eva Shannon to a term of four years imprisonment, Sean
Hannaway to a term of five years and six months imprisonment, David Nooney to a term
of three years and nine months imprisonment, and Edward O’Brien to a term of sixteen
months imprisonment.
4. The accused have each appealed unsuccessfully against their respective convictions, and
this Court has already given judgment on the 6th of February 2020 dismissing those
appeals. Kevin Hannaway, Eva Shannon and Sean Hannaway have also appealed against
the severity of their respective sentences. In the cases of David Nooney and Edward
O’Brien, the Director of Public Prosecutions has sought to review the sentences imposed
on them on grounds of undue leniency.
Background to the matter
5. The background to this matter is fully set out in the reserved judgment of this court
delivered on the 6th of February 2020 in respect of the conviction appeals by the accused,
and it is not proposed to repeat it. Accordingly, these remarks should be considered, and
any record of this ex-tempore judgment should be read, in conjunction with the said
reserved judgment.
Submissions
6. The Court has received detailed written submissions on behalf of all of the accused, and
on behalf of the DPP. These have amplified in oral submissions made to us today, and we
wish to express our appreciation to counsel on all sides for their assistance.
The Undue Leniency Reviews
7. It is convenient to deal in the first instance with the undue leniency reviews. Both David
Nooney and Edward O’Brien were convicted of the offence of membership of an unlawful
organisation, contrary to s. 21 of the Offences Against the State Act 1939. The legislation
sets the maximum penalty for that offence at eight years imprisonment. Accordingly, the
spectrum of penalties available to a sentencing court ranges from non-custodial options
up to imprisonment for a maximum of eight years. In truth, given the intrinsic gravity of
the offence, it will only be in rare cases that a sentencing court would not determine upon
a custodial sentence as representing the starting point or headline sentence.
8. In the present case the headline sentences set in respect of David Nooney and Edward
O’Brien were five years imprisonment and three years imprisonment respectively. Counsel
for the DPP indicated that her client was raising no issue with respect to these headline
sentences. However, the DPP was contending that the sentences ultimately imposed were
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in each case unduly lenient. It follows therefore that her quarrel was with the extent or
degree of discounting from the headline sentence to reflect mitigation and to incentivise
rehabilitation.
9. The law with respect to the conduct of undue leniency appeals is well-settled at this
stage. The jurisdiction to review a sentence on the grounds that it was unduly lenient
derives from s. 2 of the Criminal Justice Act of 1993, as amended, which (to the extent
relevant) provides:
2.—(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a
court (in this Act referred to as the “sentencing court”) on conviction of a person on
indictment was unduly lenient, he may apply to the Court of Appeal to review the
sentence.
(2) An application under this section shall be made, on notice given to the convicted
person, within 28 days, or such longer period not exceeding 56 days as the Court
may, on application to it in that behalf, determine, from the day on which the
sentence was imposed.
(3) On such an application, the Court may either—
(a) quash the sentence and in place of it impose on the convicted person
such sentence as it considers appropriate, being a sentence which
could have been imposed on him by the sentencing court concerned, or
(b) refuse the application.
10. In terms of the general principles governing such reviews, the leading authority is The
People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279. This was a
judgment of the former Court of Criminal Appeal in the first case referred to it under s. 2
of the Act of 1993, and in it, O’Flaherty J giving judgment for the court, sets out a
number of principles and considerations relevant to the conduct of such reviews. He said:
“In the first place, since the Director of Public Prosecutions brings the appeal the
onus of proof clearly rests on him to show that the sentence called in question was
‘unduly lenient’.
Secondly, the court should always afford great weight to the trial judge's reasons
for imposing the sentence that is called in question. He is the one who receives the
evidence at first hand; even where the victims chose not to come to court as in this
case — both women were very adamant that they did not want to come to court —
he may detect nuances in the evidence that may not be as readily discernible to an
appellate court. In particular, if the trial judge has kept a balance between the
particular circumstances of the commission of the offence and the relevant personal
circumstances of the person sentenced: what Flood J has termed the ‘constitutional
principle of proportionality’
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(see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be
disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask if there had been
imposed a more severe sentence, would it be upheld on appeal by an appellant as
being right in principle. And that is because, as submitted by Mr Grogan SC, the
test to be applied under the section is not the converse of the enquiry the court
makes where there is an appeal by an appellant. The inquiry the court makes in
this form of appeal is to determine whether the sentence was ‘unduly lenient’.
Finally, it is clear from the wording of the section that, since the finding must be
one of undue leniency, nothing but a substantial departure from what would be
regarded as the appropriate sentence would justify the intervention of this Court.”
11. Since then, the relevant statutory provision has also been considered by the Supreme
Court in The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R.356. In
that case Barron J. stated:
“In the view of the court, undue leniency connotes a clear divergence by the court
of trial from the norm and would, save perhaps in exceptional circumstances, have
been caused by an obvious error of principle.
Each case must depend upon its special circumstances. The appropriate sentence
depends not only upon its own facts but also upon the personal circumstances of
the accused. The sentence to be imposed is not the appropriate sentence for the
crime, but the appropriate sentence for the crime because it has been committed
by that accused. The range of potential penalties is dependent upon those two
factors. It is only when the penalty is below the range as determined on this basis
that the question of undue leniency may be considered.”
12. More recently in The People (Director of Public Prosecutions) v Stronge, [2011] IECCA 79,
McKechnie J. distilled the case law on s. 2 applications into the following propositions:
“(i) the onus of proving undue leniency is on the D.P.P.;
(ii) to establish undue leniency it must be proved that the sentence imposed
constituted a substantial or gross departure from what would be the appropriate
sentence in the circumstances. There must be a clear divergence and discernible
difference between the latter and the former;
(iii) in the absence of guidelines or specified tariffs for individual offences, such
departure will not be established unless the sentence imposed falls outside the
ambit or scope of sentence which is within the judge's discretion to impose:
sentencing is not capable of mathematical structuring and the trial judge must have
a margin within which to operate;
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(iv) this task is not enhanced by the application of principles appropriate to an appeal
against severity of sentence. The test under s. 2 is not the converse to the test on
such appeal;
(v) the fact that the appellate court disagrees with the sentence imposed is not
sufficient to justify intervention. Nor is the fact that if such court was the trial court
a more severe sentence would have been imposed. The function of each court is
quite different: on a s. 2 application it is truly one of review and not otherwise;
(vi) it is necessary for the divergence between that imposed and that which ought to
have been imposed to amount to an error of principle, before intervention is
justified; and finally
(vii) due and proper regard must be accorded to the trial judge's reasons for the
imposition of sentence, as it is that judge who receives, evaluates and considers at
first hand the evidence and submissions so made.”
13. It is appropriate to consider the discounts afforded in cases of David Nooney and Edward
O’Brien separately.
David Nooney
14. The ultimate sentence imposed in David Nooney’s case was one of three years and nine
months imprisonment. In circumstances where the court had set a headline sentence of
five years or 60 months, this indicates that the discount for mitigation was of the order of
15 months or 25%. The mitigating circumstances in David Nooney’s case were principally
the fact that he had no relevant previous convictions, and some medical difficulties in the
nature of a chronic back condition. He was born in 1963. The court below had heard that
he had until recently been caring for his late mother.
15. On the issue of previous convictions David Nooney did have some non-relevant previous
convictions that were recorded in the District Court in the 1980s. While in theory these
could engage the principle of progressive loss of mitigation we consider that they were so
old that the court below was right to disregard them and no complaint has been made
about that.
16. We have given careful consideration to the issue as to whether a 25% discount was
excessive in Mr. Nooney’s case. For the DPP to succeed in demonstrating that Mr.
Nooney’s ultimate sentence was unduly lenient she would have to persuade us that
affording a discount of 25% for the mitigating circumstances in Mr. Nooney’s case was
“outside the norm”. We are not persuaded that it was. Some might possibly characterize
it as a generous level of discount in the circumstances of the case (although we are not to
be taken as necessarily agreeing with that) but even if that were so we are in no doubt
that it was a discount within the sentencing court’s reasonable margin of appreciation. We
find no error of principle and do not consider that the discount afforded resulted in a
sentence that was outside of the norm.
17. We therefore dismiss the application in Mr. Nooney’s case.
Page 6 ⇓
Mr Edward O’Brien.
18. In Edward O’Brien’s case the court below determined on a headline sentence of three
years or 36 months imprisonment. It is then discounted from that by 20 months or 56%
to take account of mitigating circumstances and to incentivise rehabilitation. Once again,
the DPP contends that the sentence ultimately imposed which was one of 16 months
imprisonment was unduly lenient. As in the case of Mr. Nooney it follows that the DPP’s
contention is that a discount of 56% from the headline sentence was excessive in Mr.
O’Brien’s case and outside of the norm, resulting in an ultimate sentence which was also
outside the norm and unduly lenient on that account.
19. The discount of 56% was afforded in circumstances where Mr. O’Brien also had no
relevant previous convictions. Moreover, he had a series of medical problems which were
supported by a medical report from a Doctor Desmond Kennedy. These included chronic
obstructive pulmonary disease, irritable bowel syndrome, asthma, hyperlipidemia,
hypertension and left ventricular hypertrophy. The report indicated that Mr. O’Brien was
on 10 different prescribed medications. The court below heard that Mr. O’Brien is a
married man with two teenage children. He was born on 23 October 1973 and by trade
was a self-employed kitchen fitter. A number of positive testimonials were supplied to the
court below which it also took into account. Once again it was the case that Mr. O’Brien
had some non relevant convictions dating from the 1980s and again we consider that the
court below was justified in the circumstances of the case in disregarding these and in
effect treating Mr. O’Brien as a person with no previous convictions.
20. While it is undoubtedly true that a discount of 56% was generous, indeed very generous,
in Mr. O’Brien’s case we have not been persuaded that the sentencing court exceeded its
margin of appreciation and that it was outside of the norm. Moreover, we would observe
that while it might perhaps have been better if some of the discount afforded to Mr
O’Brien had been effected by means of a part suspension of the sentence, the fact that
his sentence was structured in the manner in which it was structured is not something
that would per se justify us in intervening in the context of a s.2 undue leniency review.
Accordingly, we are not disposed to uphold the claim of undue leniency in Mr. O’Brien’s
case either.
The Severity Appeals
21. Sean Hannaway, Eva Shannon and Kevin Hannaway have each appealed against the
severity of their respective sentences and it is appropriate to consider their situations
both collectively and individually. These cases may be considered collectively to the
extent that they each complain that the sentencing court over assessed the gravity of
their respective cases and, in particular, treated as aggravating certain circumstances
which they say ought not properly to have been treated as aggravating.
22. The first thing to be said is that this court recognizes that Sean Hannaway was convicted
and faced sentencing for the offence of membership of an unlawful organization, whereas
Eva Shannon and Kevin Hannaway were each convicted of the different offence of
providing assistance to an unlawful organization. Nevertheless, the legislature in enacting
s.21 and s.21A of the Offences Against State Act 1939 chose to afford those two separate
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offenses an equal ranking in terms of their cardinal seriousness. Both were afforded a
potential maximum penalty of imprisonment for up to eight years. As is usual, no specific
guidance was provided by the legislature in respect of how offenders were to be
sentenced for such offences. The ordinal ranking of the severity of individual cases was
left to the courts.
23. In the case of Sean Hannaway the court below fixed a headline sentence of seven years.
In the case of Eva Shannon it fixed a headline sentence of 5 ½ years in circumstances
where it considered that her culpability was slightly lower than that of Sean Hannaway
and Kevin Hannaway on the evidence. Finally, in the case of Kevin Hannaway it fixed a
headline sentence of six years.
24. The differentiation between each accused was in part explained, and is in part to be
inferred, from the judgment of the court below, and it was quite nuanced. The court
looked at the activity that was underway in which all three had participated, albeit at
slightly differing levels of culpability. They were satisfied that this was the conduct of an
IRA inquiry requiring the attendance of persons for the purpose of interrogation and the
conduct of inquiries of the sort revealed on the audio recordings. As counsel for the DPP
pointed out to us in the course of her oral submissions it was clear that there was a high
level of planning and prior organization and that all of those involved were acting in
concert. The court was entitled to regard this as criminal conduct that justified placing the
offenses in the high range. This was not just passive assistance or support for an illegal
organization, or passive membership of such an organization. All of the participants were
actively engaged in the furtherance of the activities of an illegal organization, either as a
member (in one instance) or persons providing assistance/support. Each of the accused
has complained that the court below effectively “tarred them all with the same brush”
(this court’s characterization) in that it attributed activities identified as having been
performed by specific individuals to all of the accused. An example in that regard is that
the renting of the property, which was clearly identified as having been the work of David
Nooney. Despite this the fact that a property had been rented for the purpose of
conducting an IRA inquiry was treated as an aggravating factor in all cases.
25. We do not consider that this criticism stands up to critical analysis. The court below was
perfectly entitled to take an overview of the nature of the illegal activity that was being
conducted. It did not treat all accused in the same way, either with respect to the
assessment of gravity or with respect to discounting for mitigation.
26. Sticking for a moment with the assessment of gravity, the court was perfectly entitled to
treat Sean Hannaway and Kevin Hannaway as having been the most culpable. However,
in circumstances where Sean Hannaway was not merely a participant in conducting the
inquiry, but was so engaged in his capacity as a member of the unlawful organization for
whom the inquiry was being conducted, the court was justified in fixing a marginally
higher headline sentence in his case than in Kevin Hannaway’s case. There was also a
possible basis for differentiating somewhat between the culpability of Sean Hannaway and
Kevin Hannaway on the one hand, and that of Eva Hannaway on the other hand. This was
Page 8 ⇓
acknowledged and reflected in the judgment of the sentencing court, in as much as the
headline sentence in Eva Hannaway’s case was set at six months lower than Kevin
Hannaway’s in circumstances where the court below, which had heard evidence in the
case over 50 days, considered that that differentiation was justified on the evidence. The
court below was best placed to make that assessment and we are not disposed to
interfere with it.
27. Accordingly, we are not disposed to uphold the complaints of Sean Hannaway, Eva
Shannon and Kevin Hannaway, respectively, in so far as they relate to the assessment of
the gravity of their offending conduct.
28. At this point is appropriate to consider their further complaints in respect of alleged
insufficient discounting for mitigation. Regarding this facet of the case the circumstances
of each accused need to be considered separately.
Sean Hannaway
29. In Sean Hannaway’s case there was a discounting from seven years (or 84 months) to
five years and six months (or 66 months), representing a discount of 18 months or in
percentage terms 21%. In his case the mitigating circumstances were the absence of
previous convictions, a good work history and his family circumstances. While the
discount was modest we consider that it was within the range of the sentencing court’s
margin of appreciation. Even if this court would itself have been prepared to grant a
somewhat greater discount if it had been sentencing at first instance, that is irrelevant.
What is relevant is whether the level of discount afforded was adequate having regard to
the evidence. We are satisfied that it was and find no error of principle. Accordingly, we
dismiss Mr Sean Hannaway’s appeal against the severity of his sentence.
Eva Shannon
30. In Eva Shannon’s case there was a discounting from a headline sentence of 5 ½ years (or
66 months) imprisonment to an ultimate sentence of four years (or 48 months)
imprisonment. This represented a discount of 27% in circumstances where she also had
no previous convictions and it had been represented to the court that she would most
likely be required to serve her sentence in Limerick prison and that it would be difficult for
her family to visit her there. (As we noted during the hearing, Eva Shannon was in fact
transferred to the Dòchas Center in Dublin within a short time of being committed. That,
however, has no bearing on the issue before us today) We consider that the discount
afforded to her was well within the Special Criminal Court’s margin of appreciation and
that there was no error of principle. In the circumstances we also dismiss Ms Eva
Shannon’s appeal against the severity of her sentence.
Kevin Hannaway
31. The situation of Kevin Hannaway is the most complex. He received a very substantial
discount, of the order of 37.5%. This was in circumstances where he had no relevant
previous convictions, was 70 years of age, and had an unfortunate history of having been
subjected to torture in Northern Ireland at the hands of the security services there many
years ago. This has left him with post-traumatic stress disorder, and the court has the
Page 9 ⇓
benefit of a very detailed medical report from Professor Harry Kennedy in relation to that.
It is appropriate to quote briefly from the Opinion section of that report:
“9. Mr. Hannaway is now 70 years old. I understand that he has suffered two cardiac
events and one transient ischemic attack (minor stroke with left-sided
hemiparesis).
9.1 Mr. Hannaway has marginal impairments of memory, likely related to
cardiovascular disease and his minor stroke.
9.2 Mr. Hannaway describes episodes of anxiety attacks related to his posttraumatic
stress disorder which are accompanied by symptoms strongly suggestive of angina
pectoris. These are currently being triggered by aspects of his current
imprisonment. For example he is confined in a wing where there is a constant
undercurrent of the noises of a prison institution and in particular the white noise of
an air conditioning system. These are triggering intrusive memories, nightmares
and emotions associated with his arrest and interrogation in 1971.
10. The coinciding of triggered anxiety attacks due to PTSD and angina pectoris
triggered by the anxiety attacks of PTSD is in my opinion particularly life-
threatening and requires urgent investigation. I have written today to the General
Practitioner at Portlaoise Prison.
11. I would respectfully recommend to the Court that Mr. Hannaway is not fit for
imprisonment in the conditions of E wing at Portlaoise Prison.”
32. While counsel for Kevin Hannaway accepts that his client received a significant discount
he contends that Mr. Hannaway’s circumstances are so unusual and exceptional that the
sentencing court would have been justified in imposing a wholly suspended sentence on
Mr. Hannaway, or at least in affording him an even greater discount for mitigation that he
was in fact afforded. We do not consider that there was any error of principle. The issues
arising from Mr. Hannaway’s PTSD were matters for the prison service in so far as they
related to his management and care while in prison. It was for the Prison Service to
manage and implement any sentence lawfully imposed on him. There was no evidence
put before the court below that the prison services would not be able to accommodate Mr.
Hannaway’s situation. The proper concern of the court below was to sentence him
appropriately, i.e., impose a sentence on him that was proportionate both to the gravity
of his offending conduct and to his personal circumstances. Mr Hannaway was certainly
entitled to some extra discount on the basis that prison would be harder for him to bear
in the light of his particular physical ailments and his psychological/psychiatric difficulties.
In that regard, however, he received a significant amount of additional discount,
compared to his co-accused. We consider that neither a wholly suspended sentence, nor a
greater level of discount than he was in fact afforded, would have been warranted in the
circumstances of his case. The sentence imposed was in our judgment appropriate both to
the gravity of the offence and the circumstances of Mr. Hannaway. We must therefore
dismiss his appeal also.
Result: Refuse Application & Dismiss
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