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This is a short addendum ruling correcting an error in sentencing within the main judgment reported at [2024] NICC 30 . Determinate custodial sentences were replaced with extended custodial sentences where necessary
[2024] NICC 36 O'Hara J
GENERAL
1. Deterrence means discouraging the offender before the court, and others, from committing offences of the kind in question and/or more generally: paras [8] – [9]
2. Every sentence has an inbuilt element of deterrence (the concept of “general deterrence”): paras [8] – [9] & [11]
3. In some cases the sentencing court may decide that deterrence of the offender and/or the public, in the sense explained in [1] above, requires particular emphasis, the consequence being that a punishment more punitive than would otherwise be merited may follow (the concept of “particular deterrence” / an “expressly deterrent sentence”): paras [11] – [13]
4. In cases belonging to the latter category, adherence to the guidance in QWL paras [102] – [103] is essential: para [14]
5. Where sentencing guidelines decisions of the NICOA incorporate an element of specific (as distinct from general) deterrence, the sentencing court must avoid double counting.
6. “ … an offender’s personal circumstances will rarely qualify to be accorded much weight, particularly in a context where a deterrent sentence is required.” (para [18] quoting QWL para [98] )
THIS CASE
7. In the fact specific context of this case. First, per para [21]
“ … the judge’s approach to the issue of personal mitigation was in substance one of applying an absolute rule and, hence, not compatible with the principles expounded above, in a context of having erroneously declared this to be a case requiring deterrence, without more. The judge should have approached the issue of personal mitigation more flexibly and, having done so, explained the weight which he had determined to allocate to it. The impugned sentencing decision is not to this effect. Furthermore, the judge’s decision is not in accordance with the QWL guidance at paras [102]–[103].”
This passage identifies two material judicial errors. The first error entailed a judicial failure to recognise that the general rule in play viz the need for a deterrent sentence normally entails attributing little weight to personal mitigation factors is not absolute in nature.
8. Second, per para [22]: The COA was influenced by the newly admitted evidence.
Crown Court sentencing remarks – catfishing – sextortion - manslaughter - causing or inciting girls under 13 and between the age of 13 and 16 to engage in sexual activity – blackmail – making, distributing and possessing indecent images of children – causing a person to engage in sexual activity without consent - intimidation - sexual communication with a child - offending against 70 victims worldwide – harm inevitably and indisputably huge – assessed as presenting a significant risk of serious harm – victim did not prove on the balance of probabilities that he was the victim of catfishing as a child – no previous record – pleas of guilty – some limited evidence of remorse post 2019 – numerous aggravating factors outlined at para [77] - extensive and worsening offending after his first arrest in 2016 – life sentence imposed – 20 year minimum tariff imposed with concurrent sentences in respect of the remaining counts – 10 year SOPO – disqualified from working with children – disposal order in respect of 13 devices
[2024] NICC 30 O'Hara J
The Court of Appeal sets out best sentencing practice in terrorism cases with reference to the new statutory sentencing regime at paragraphs [33] – [36].
Appeal against a sentence of four years imprisonment and 12 month licence period – collecting or making a record of information likely to be useful to a terrorist – whether sentence manifestly excessive – whether the sentence was a product of an error of law relating to the new sentencing regime – article 7 ECHR – new approach applied by sentencing judge – one year licence period applied by operation of law rather than any judicial decision or act – no error of law – court reemphasised where a deterrent sentence is required personal mitigation carries little weight – appeal dismissed
Renewed application for leave to appeal a sentence of four years’ imprisonment – four counts of conspiracy to cheat the public revenue – sole issue of impact of imprisonment on applicant’s son – whether sentence should be suspended – Court of Appeal approved the application of the guidance in R v Petherick [2012] EWCA Crim 2214 in NI – circumstances not so exceptional to merit a suspension – public interest in deterrence – appeal dismissed
[2023] NICA 71 Keegan LCJ
Renewed application for leave to appeal sentence – money laundering operation – Proceeds of Crime Act 2022 – whether sentences manifestly excessive – applications to receive new material granted – principle of mercy applied to two mothers - Article 8 ECHR – the offender’s personal circumstances - judge erred in confining exceptional circumstances to the offending itself - disparity in sentencing – deterrent sentences – culpability – the aggravating factors contained highly prejudicial assertions not agreed or proven – prosecution portrayal of the roles and knowledge attributed to the appellants was inconsistent - roles/rankings which the judge attributed to certain appellants were neither agreed nor proven - leave granted – appeals allowed - sentences reduced.
Guidance in relation to the following sentencing principles can be found at paragraphs [86] – [110] - mercy in sentencing, Article 8 ECHR to include reference to R v Petherick [2013] 1 WLR 1102, exceptional circumstances, the offender’s personal circumstances, disparity in sentencing, deterrent sentences and culpability.
appeal against sentence - supply of a Class A and Class B drugs (cocaine) contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 - substantial criminal record of 61 previous convictions, three relate to possession of drugs (cannabis) - delay - approach adopted and weight accorded by the sentencing judge to the factor of the appellant’s rehabilitation were erroneous in law - appeal allowed
[2019] NICA 72 McCloskey LJ
Application to extend time for leave to appeal sentence – murder – 20 year tariff – Plus: 1. attempted murder; 2. possession of shotgun; and, 3. handgun both with intent to endanger life – discretionary life sentences with concurrent tariffs of 20 years’ imprisonment for each offence. Planned professional killing – McCandless reaffirmed – extension of time refused on murder count and tariff on mandatory life sentence left undisturbed – tariffs of 10, 8 & 8 years’ imprisonment respectively substituted in the remaining offences extension of time and leave having been granted on those counts.
[2017] NICA 4 Morgan LCJ
Appeal against sentence - historic sexual abuse - discretionary life sentence - whether necessary to make finding of unstable character - whether offences sufficiently grave - whether likely future offending must be sex offences - whether alternative protective sentence could be imposed - appeal dismissed.
[2016] NICA 21 Weatherup LJ
Manslaughter on ground of diminished responsibility and 2 X possession of a firearm with intent – planned killing of offender’s father – impaired judgement – assessed as presenting further risk of serious harm – whether life sentence necessary – whether ICS adequately considered – whether 10 yr. tariff appropriate – whether conclusion that responsibility was relatively high correct – fresh medical evidence received on appeal establishing lower culpability – ICS with specified period of 7 years substituted for manslaughter and two with specified period of 4 for firearms convictions.
2015 NICA 57 Morgan LCJ
Guidance on the correct approach to sentencing for manslaughter on the basis of diminished responsibility.
[2011] NICA 58 Higgins LJ
Guilty pleas - need to plead at earliest opportunity.
[2006] NICA 4 Kerr LCJ
Conditions justifying the imposition of discretionary life sentences.
[2004] NICA 11 Kerr LCJ
Thirty month imprisonment for offence of burglary - elderly victim - suspended sentence - exceptional mitigating circumstances - whether unduly lenient.
[1993] 5 NIJB 71 Hutton LCJ
Making property available for use in connection with terrorism - whether sentence of 10 years manifestly excessive - weight given to the physical condition and personal history of the appellant.
[1991] 9 NIJB 38 Hutton LCJ
Robbery of bank with imitation firearm - exceptional personal circumstance of appellant based on fact - ex police officer who had been subject to two terrorist attacks and had turned to alcohol.
R v Houston 041091 Hutton LCJ