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You are here: BAILII >> Databases >> Irish Court of Appeal >> The Director of Public Prosecutions v Noel McLoughlin (Approved) [2025] IECA 86 (10 March 2025) URL: https://www.bailii.org/ie/cases/IECA/2025/2025IECA86.html Cite as: [2025] IECA 86 |
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THE COURT OF APPEAL
Neutral Citation No. [2025] IECA 86
Court of Appeal Record No. 28/2024
Edwards J
McCarthy J
Burns J
BETWEEN/
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
-AND-
NOEL MCLOUGHLIN
APPELLANT
JUDGMENT of the Court delivered (ex tempore) on the 10th day of March 2025 by Mr Justice Patrick McCarthy
1. This is an appeal against a sentence imposed in Longford Circuit Court on the 11th of January 2024 on bill no. LDDP0043/2023. Noel McLoughlin, 'the appellant' herein, was indicted on two counts namely one count of carrying a firearm with criminal intent, contrary to section 27B of the Firearms Act 1964, as amended; and one count of attempted robbery contrary to common law. The appellant entered a signed plea of guilty on both counts in the District Court on a so-called 'full-facts basis'. The sentencing judge imposed a post-mitigation sentence of 5 years' imprisonment on the count of carrying a firearm with criminal intent, the count of attempted robbery having been taken into consideration.
Factual background
2. We will briefly outline the facts of the matter insofar as they relate to this appeal.
3. The offending behaviour occurred on the 14th of September 2023 at a service station on the Dublin Road in County Longford owned by one Joe Raleigh, 'the injured party' herein. One Detective Garda Órla Geraghty provided evidence that, at approximately 8:15 a.m. on the date in question, a hooded male entered the filling station and appeared to be concealing his face. The male approached the counter and was served by the injured party. He requested a packet of tobacco, and when the injured party turned around to fetch this item, the male produced a firearm and pointed it at the injured party. The evidence was that the injured party was shocked and feared for the safety of himself and his staff. The injured party instructed the male to leave the filling station, armed himself with a bottle of wine and chased the male from the premises and out into a nearby estate, where the male pointed the firearm at him again. The injured party returned to the filling station and an Garda Síochána were alerted.
4. There followed an investigation by an Garda Síochána during which a pair of gloves used by the male were recovered and CCTV footage was harvested by gardaí from the surrounding area. This investigation eventually led to the appellant being identified as the hooded male. During the investigation, gardaí recovered the firearm used during the incident, described as being a 6mm calibre imitation air revolver, designed to imitate a magnum revolver, with four so-called "inserts" resembling ammunition, which fell within the definition of a "firearm" for the purposes of the applicable legislation. DNA was extracted from the firearm which matched the DNA profile of the appellant.
5. The appellant was arrested, detained and interviewed. Despite initially adopting a "no comment" position during these interviews, the appellant eventually cooperated with gardaí upon being presented with CCTV footage of the incident and made certain admissions which were of some assistance to the investigation.
Personal circumstances
6. At the time of sentencing, the appellant was 32 years of age, married and had five children, though his wife was expecting another child at that time. The judge was informed that three of his children live in Wales with his former partner, whom he was not on good terms with. The Court was told that the appellant lacked formal education, was not in employment and was then suffering from addiction issues. The appellant has 76 previous convictions including for burglary, robbery, public order offences, criminal damage, and assault among others.
Sentencing remarks
7. The judge noted that, by their nature, offences under the Firearms Act are very serious and that there is strong public interest in ensuring that firearms do not become more prolific in society.
8. As regards the aggravating factors, the judge observed that the act of producing a firearm and pointing it at somebody is a substantial act of violence which is likely to cause great distress to the unfortunate victims of such offences. The judge observed that this remained true in the instant case notwithstanding the fact that the firearm produced was an imitation, or air, pistol which was 'loaded' with 'inserts' which do not meet the legal definition of 'ammunition', and despite the fact that he did not have the benefit of a formal victim impact statement. Additionally, the judge acknowledged the harm done to society in general by this category of offending and noted that the offending in the present case was witnessed by a young passer-by. The judge remarked that, although it was not a sophisticated operation, the offending in this case was premeditated to involve the use of a firearm and occurred at a time when the appellant was serving a suspended sentence for another offence—both of which aggravated the offending behaviour. The fact that the appellant had 76 previous convictions before the offences in this matter was also taken to be an aggravating factor.
9. Finally, the judge made the following remarks vis-à-vis recognising the extensive investigation of an Garda Síochána as an aggravating factor of the offending in this matter:
"I will also take into account as an aggravating factor, the extreme level of investigation that was required in this particular case by An Garda Síochána, which as I say, involved not only the quite usual trawling of CCTV, but a very extensive ground search over what was undoubtedly quite a significant area to locate the firearm in this case, which had been secreted in an area of rough land behind a wooden fence, as is depicted in the photographs and the book of evidence. And also the gloves that Mr McLoughlin had worn that were secreted inside a discarded vehicle tyre on further rough ground. And involved, as I say, the search of a certain premises to locate the clothing et cetera that had been involved in the incident."
10. Before he undertook the task of assessing the gravity of the offences and nominating a headline sentence, the judge noted that he understood that the jurisprudence of this Court suggests that a charge of robbery ought, in general, to be considered more serious than that of possession of a firearm with criminal intent. Having had regard to the particular facts of the offending in this case, the judge was satisfied that the charge of possession of a firearm with criminal intent was the more serious of the two charges in this case, and he accordingly proposed to impose sentence on that basis. We agree with the latter proposition.
11. Having regard to the gravity of the offences as well as the above-mentioned aggravating factors, the judge stated that the offending behaviour fell on the mid-range of the scale of gravity for such offences. He identified a headline sentence of seven years and six months' imprisonment as being appropriate on the count of possession of a firearm with criminal intent.
12. After nominating the headline sentence, the judge had regard to the mitigation available to the appellant. The judge recognised that the appellant had come forward on a signed plea of guilty from the District Court and stated that the appellant was accordingly entitled to a discount of one-third of the headline sentence in mitigation. The judge referred to submissions made by counsel that the appellant had expressed remorse for his offending behaviour and was making efforts to tackle his addiction to controlled drugs, though he said that he could only have limited regard to the former because of the appellant's extensive record of previous offending. The judge accepted that the appellant was a person of limited education (the appellant never completed his primary education or any formal state examinations) who has suffered tragedy in his life having lost his brother in tragic circumstances when the appellant was an adolescent.
13. Having had regard to all the mitigating factors present, the judge imposed an actual sentence of 5 years' imprisonment on the appellant. The count of attempted robbery was taken into consideration when imposing sentence. The judge remarked that it would be inappropriate to suspend a portion of the sentence imposed because the appellant had the benefit of significant suspended sentences previously and had committed these offences during the currency of a suspended sentence.
14. Finally, the judge noted that section 27B of the Firearms Act 1964, as amended, provides for a presumptive minimum sentence of 5 years' imprisonment on a charge of possession of a firearm with criminal intent; however, he stated that it was unnecessary to formally consider this issue in circumstances where he had imposed a post-mitigation sentence of 5 years' imprisonment. The judge proceeded to comment that, in his view, it would be difficult to conclude that the public interest would be best served by a sentence less than the presumptive minimum sentence of 5 years' imprisonment in the circumstances of the present case.
Grounds of appeal
15. The appellant appeals against the sentence imposed upon him on the following grounds:
"a. The Learned Judge erred in principle in failing to take proper or adequate account of the mitigating factors put forward on behalf of the Appellant and as a result failed to apply sufficient credit to the Appellant in the overall structure of the sentence;
b. In addressing the pillars of sentencing by which he was to be governed (protection of the public, restitution, rehabilitation, deterrence and punishment) the Sentencing Judge placed undue emphasis upon the punishment element thereof. As a corollary, notwithstanding the fact that some several headings of mitigation applicable to the accused were noted by the Sentencing Judge, the calculation of the sentence failed to reflect same or reflect same adequately or proportionally;
c. The Sentencing Judge erred in determining that there were not sufficient circumstances to warrant a departure from the presumptive minimum sentence for a section 27B offence;
d. The Sentencing Judge erred in determining that the Section 27B offence was the most serious offence.
e. The Appellant submits that the sentence imposed was excessive in its totality;
f. The Sentencing judge erred in failing to have proper regard for the rehabilitation of the Appellant"
g. The Sentencing Judge erred in determining that the level of the Garda investigation was deemed an aggravating factor in the case;
16. In his written submissions, counsel for the appellant submitted that the above-mentioned grounds of appeal may be distilled into one of four categories, which are as follows:
"i. The Sentencing Judge erred in identifying a headline sentence which was in all of the circumstances disproportionate to the offence;
ii. The Sentencing Judge failed to afford the Appellant the appropriate discount for an early signed plea of guilty in conjunction with the various other mitigating factors in the case;
iii. The Sentencing Judge failed to attach sufficient weight to the public interest in rehabilitating the Appellant in failing to suspend any portion of the sentence imposed;
iv. The Sentencing Judge erred in determining that the level of the Garda investigation was deemed an aggravating factor in the case."
17. During his oral submissions at the hearing of this appeal, counsel for the appellant conceded that the judge acted within the margin of discretion afforded to him by placing the offence on the mid-range of gravity and identifying a headline sentence of seven years and six months' imprisonment. This amounted to a recognition by counsel that the grounds of appeal distilled into categories i and iv above had no prospect of being upheld since these matters pertained to the identified headline sentence. He was right to make this concession as, having regard to the totality of the evidence, there is no doubt that the offence belonged to in the mid-range and that the indicative sentence of seven and a half years was appropriate.
18. Having regard to the fact that the appellant previously had the benefit of multiple suspended sentences—and especially the fact the offences in this case were committed during the currency of a suspended sentence—we are satisfied that there was no basis for suspending a portion of the sentence imposed in this case, and that a submission that the judge fell into error by declining to do so is not statable. This was undoubtedly, in any event, on the evidence, within the discretion of the judge.
19. Accordingly, the substance of the appeal is now found in the submission that the judge erred by failing to afford the appellant an appropriate discount from the headline sentence for his entry of a signed plea of guilty in conjunction with the other mitigating factors. We deal with the matter on this basis below.
Discussion
20. Counsel for the appellant opened a number of cases which, he contended, may be read as supporting the proposition that the judge failed to afford an adequate discount from the headline sentence for the appellant's signed plea of guilty including: The People (DPP) v. Roy O'Callaghan [2020] IECA 172; and The People (DPP) v. Cambridge [2019] IECA 133. Counsel submitted, on the basis of those authorities, that the discount from the headline sentence was insufficient having regard to the other mitigating factors present—in other words, the fact that there was a signed plea meant that such discount should be greater than one-third in the present case.
21. Although counsel for the respondent accepted that Cambridge is authority for the proposition that a reduction of "in or about a third" from the headline sentence may be appropriate in some cases where an accused comes forward on a signed plea of guilty, he submitted that sentencing judges retain a discretion to depart from this approximate valuation and afford a total discount of one-third for a signed plea of guilty in combination with any other mitigating factors available. Counsel cited the authority of The People (DPP) v. John Faulkner [2024] IESC 16 in support of that submission. The respondent cited The People (DPP) v. Stubbins [2021] IECA 229 as an example of a case where this Court did not interfere with a sentence where the sentencing judge declined to grant an accused a full one-third reduction from the headline sentence for a signed plea of guilty.
22. We think that Faulkner now supersedes the earlier authorities of this Court as to the discount from a headline sentence which is appropriate in the case of signed pleas. As stated by Charleton J. at paras. 44–45:
"44. It is good sense that both timing and circumstance inform the degree of discount to a sentence which a plea of guilty, or firm indication, deserves. Hence, there are authorities that signing a plea of guilty while an indictable offence is being processed in the District Court may deserve up to a one-third reduction in the headline sentence; The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v O'Callaghan [2020] IECA 172. Nonetheless, every sentence should meet the gravity of the offending and the principle of proportionality prevails; The People (DPP) v Stubbins [2021] IECA 229. The England & Wales guidelines rule out any analysis by the sentencing judge of the strength of the evidence against an accused. It surely makes sense, however, since s 29 of the 1999 Act in this jurisdiction references circumstances that, as in the case of the offenders in this case, being caught red-handed in the action of burglarising the home of elderly people, somewhat diminishes the mitigation effect of an early indication of a plea of guilty; The People (DPP) v Kenny [2011] IECCA 16.
45. Circumstances will vary. Definitive indications within an area where the law is being applied sensibly is based on two simple premises, those of timing and circumstance. To those fundamentals will often be added complication. Experience demonstrates that perhaps one-third discount may apply where there is an early indication and the circumstances are such as to enable a real choice on the part of the offender. Later pleas of guilty, perhaps when the foreign witness is demonstrated to have travelled from abroad to take part in the trial, or perhaps after a victim has given evidence, will be deserving of a lesser mitigation; The People (DPP) v McDonnell [2022] IECA 200. No clear or hard rules are either discernible or necessary. The pattern seems to indicate a variable, based on timing and circumstance, from a potential 33% to perhaps as low as 10%; The People (DPP) v Molloy [2016] IECA 239, The People (DPP) v Whelan [2018] IECA 142, The People (DPP) v Cambridge [2019] IECA 133, The People (DPP) v TD [2021] IECA 289. While pursuant to the 1999 Act, a plea of guilty does not nullify the authority of the sentencing judge to impose a maximum sentence, ordinarily a plea of guilty will have some value, in the context of the 17 heavy burden of proof born by the prosecution and the need to marshal perhaps reluctant or worried witness and to establish accurate testimony; The People (DPP) v Howlin [2022] IECA 150."
23. It is accordingly now clear that there is no hard-and-fast rule as to the discount which should be applied in the case of signed pleas. It is merely one of a number of factors in the context of the facts of any case. A signed plea is no more than that. Depending on the facts, it can have very considerable weight, but we stress: this is something which must be considered on a case-by-case basis. Applying that to this case, we do not think that the evidence would have warranted a discount of one-third on the basis of the signed plea of guilty alone. We therefore think that the judge did not fall into error when, in adjusting for mitigation, he imposed a sentence of five years on the basis of all mitigating factors.
24. We therefore dismiss this appeal.