THE COURT OF APPEAL

Birmingham J.

Mahon J.

Hedigan J.

Mr. Justice Birmingham

1. This is application brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 seeking to review a sentence as unduly lenient. The sentence sought to be reviewed is one of nine years imprisonment to date from 13th November, 2013 that was imposed on 19th May, 2017 in the Dublin Circuit Criminal Court. The background to the application is to be found in a so-called “tiger kidnapping” type incident that occurred on 1st August, 2011 at Forest Park in Drogheda. The case was transferred from Louth to Dublin, a trial date was fixed for 28th February, 2017 but in the weeks preceding the trial an offer of a plea was forthcoming and that offer was accepted.

2. The background to the case relates to events that occurred on 1st August, 2013, in Drogheda, Co. Louth. On that occasion, Mr Warren Nawn, his wife Ms Jean Marie Nawn, and their ten-week old baby Ella were at their home at Forest Park, Drogheda, Co. Louth. The doorbell rang and when Mr Nawn went to answer the door he was met by a man with a scarf covering his face, carrying a pizza box in one hand and a short-barrelled gun in the other. The person at the door threw the pizza box at Mr Nawn and shouted at him to “get on the fucking floor or I will kill you.” Mr Nawn informed the man that there was a baby in the house and then lay down in the hallway. A second man entered the house and put a gun to Mr Nawn’s head. The first man tied Mr Nawn’s hands behind his back with cable ties and covered his eyes and mouth with duct tape. Mr Nawn was dragged into the sitting room where Ms Nawn had her baby in her arms when she saw a raider enter the sitting room. He was wearing gloves and was carrying a firearm. The raiders tied her hands and legs with duct tape and used duct tape to position the baby onto her chest. A raider questioned her and threatened on a number of occasions to shoot her if she lied to them. The raiders made it clear that they knew that Mr Nawn was employed at Drogheda Post Office, that they had significant information about the workings of the post office, including the names of staff and the methods of operation within the post office. They also made clear that they knew where Mrs Nawn’s family lived, had details in relation to them, including the make and model of the vehicle that they drove. Ms Nawn was threatened and warned to do as she was told. She was told that there was another raider making his way to the house who would have no problem in raping her.

3. Mr Nawn was then handed his work clothing by the raiders and told to get dressed. He was then put in the boot of his own car where he was bound with cable ties and gagged with duct tape. Ms Nawn and her baby were placed in the same car. They were then brought to a farmyard located at Saucerstown, Co. Dublin. Mr Nawn was placed on a duvet on the ground beside a bail of hay. He could hear his baby cry and could hear his partner trying to calm the baby. When the baby began to cry, Ms Nawn was told to quieten the child. Mr Nawn was threatened that if he didn’t cooperate that those involved would blow his wife’s head and the baby’s head off. The couple were told that they would have to try for a new baby. Mr Nawn was told that he would be dropped to a location in Drogheda the following day in his work uniform and that he would then drive his own car to the back of the post office and park in a particular location. The raiders threatened to shoot Ms Nawn in the knee if Mr Nawn did not comply. At one stage Mr Nawn wanted to urinate, his shorts were opened but his hands were not untied from behind his back and as a result he urinated on his shoes, this is indicative of the indignities to which he was subjected. Throughout the night he could hear the raiders clicking their guns. No food or water was provided.

4. The following morning Mr Nawn was given some of his post office clothes to put on. Once placed in his vehicle he received various instructions telling him which way to drive and what to do. It was apparent from those instructions that he was under surveillance by members of the gang. On arrival at the post office, Mr Nawn informed the acting post office manager, Mr Everett, what was occurring. He asked the manager to refrain from setting off alarms lest Ms Nawn and the baby would be harmed if he did. The manager also spoke to the raiders by telephone. The raiders were in a position to inform him that the cash-in-transit van which was bringing money to the post office was on its way. Ms Nawn was ordered to speak on the phone to the acting post office manager to ask him to comply with all of Mr Nawn’s requests. She told the manager that she had a gun to her head and that her baby had not eaten since the previous evening. She was struck over the head three times with a gun by one of the raiders. The cash-in-transit delivery took place without the alarm being raised and the cash was then taken by Mr Nawn. A very large delivery of cash was made to the post office on that day as it was the particular day of the month when Child Benefit is paid out.

5. Once he had left the post office, Mr Nawn received further phone calls informing him precisely where the money should be dropped off. He was ordered to break up the phone he had been using and to throw the pieces into the river. That was done at the Boyne cable suspension bridge just outside Drogheda. Ms Nawn was driven from Saucerstown to a derelict cottage at Powerstown Road, Damastown, Co. Meath, where she was loosely tied to a rusty bed with cable ties. She was left there by the raiders and after some time was able to escape from her bindings and raise the alarm. Ella was at the time a bottle-fed baby, taking 6/7 ounces of baby formula every four hours. Her last feed was at 9.30 pm on 1st August, 2011. She was not fed at all during the approximately 16 hours that she was held in captivity and her nappy and clothing were not changed during that period. Following her release from captivity she was taken to James Connolly Hospital, Blanchardstown, where she was found to be highly dehydrated and she immediately consumed some five or six 4-ounce bottles of baby formula.

6. In this incident €661,125 was taken from the post office. The amount of cash available was unusually large as the incident occurred on what was Children’s Allowance day. That did not happen by chance. This was a crime that was meticulously planned, as evidenced by the fact that the criminals had installed a camera in the post office some time in advance of the incident to help them monitor what was going on in the post office. None of this money has ever been recovered.

7. The respondent was nominated as a suspect as his fingerprints were found on a piece of torn pizza box which was located in a plastic Dunnes Stores bag that contained a till receipt with Ms Nawn’s Tesco Club card number appearing on it and also in the bag were a number of cigarette butts containing DNA which matched that of Mr McCarthy. That bag was found in a suspect vehicle which had been dowsed with petrol and set on fire but where the fire had been extinguished by a quick-thinking passer-by. The respondent was arrested, detained and interviewed on 15 occasions. He denied any involvement in the offence.

8. In terms of the respondent’s background and personal circumstances he had 125 previous convictions recorded which included convictions for threats to kill, burglary, possession of knives, assaults (s. 2 and s. 3), possession of drugs for sale or supply, theft and fraud offences, endangerment, public order and road traffic offences. This was the third occasion on which the respondent had been sentenced by the Circuit Criminal Court. On 30th May, 2005 he had received a four-year sentence, with one year of the sentence suspended in respect of threats to kill, a s. 3 assault and a s. 112 Road Traffic Act matter. On 8th October, 2012, the respondent received a three year sentence for endangerment. At the sentence hearing, the prosecuting Garda accepted in evidence:

(i) that at the time of the commission of the offence the respondent’s life was under threat as a result of an outstanding drug debt;

(ii) that the respondent was under duress to participate in the commission of the offence; and

(iii) that the respondent did not receive any financial reward for his participation of the crime.

(i) The very serious nature of the offence

(ii) The fact that this was a violent crime

(iii) It was an offence that occurred over a period of time

(iv) It was planned and pre-meditated

(v) Weapons were used

(vi) The fact that there was a ten-week old baby involved

(vii) The victims suffered a horrific ordeal

(viii) The fact that the stolen money was never recovered

(i) The respondent’s plea of guilty and remorse

(ii) The duress the respondent was subjected to from others that he was involved with

(iii) The respondent’s drug addiction at the time of the commission of the offence and his efforts at rehabilitation while in prison

(iv) The fact that he made no financial gain from the crime as he was taking part in it in order to discharge a drug debt

12. The DPP says that a sentence of 15 years for an individual who was involved in a crime as heinous as this without mitigating factors available to him would unequivocally amount to a disproportionate and unduly lenient sentence. The judge is also criticised by the Director for taking an unduly benign view of the previous convictions. The judge had commented:

“The Court has been advised that he has had 125 previous convictions, many of them are road traffic matters: the vast majority of them are road traffic matters.”

13. The Director of Public Prosecutions draws attention to the fact that the sentence was backdated to 13th November 2013 rather than 30th April 2015, from which date the appellant was in custody in relation to this matter only as meaning that this sentence was even more lenient than might at first sight appear.

14. In the Court’s view the criticism of the headline or starting sentence of 15 years, absent any mitigation, is well made. The Court is in absolutely no doubt that absent any mitigation a sentence very substantially in excess of 15 years would be warranted. Absent any mitigation a sentence in the range of 22 years imprisonment to life imprisonment would have to be considered. In a situation where thankfully there have been few similar incidents and consequently few earlier sentences available as comparators, counsel understandably have looked to the area of aggravated burglary where very substantial sentences have been imposed and upheld on appeal. As serious as offences of aggravated burglary undoubtedly are, there are dimensions to this type of case which makes such cases even graver still. As serious as invading a dwelling when armed is, an additional dimension is added when family members are taken from their homes and when they are then split up as a means of applying extra pressure to the family member that it is sought to coerce. In the present case, there is the additional factor that one of those kidnapped was a ten-week old baby. It is all too easy to imagine what the impact on the parents must have been to know that their child had been kidnapped.

15. However, in the Court’s view this was not a case without mitigation. In that regard the Court agrees with the approach and analysis of the judge in the Circuit Court. There was mitigation here in the fact that the person before the Court was a heroin addict, that his life was under threat because of a drug debt, there was a degree of duress present and he was not benefitting financially from his involvement. There was too, the fact that a plea was entered and that there was indications before the sentencing court that his time in custody was being spent constructively. Similar indications were given to this Court and we are prepared to accept that that is indeed the situation.

16. When resentencing, the Court is obliged to impose the sentence that is appropriate as of the date of resentencing. Giving full credit for the mitigating factors that are present, and we accept that those factors are significant, we are nonetheless of the view that the sentence imposed of nine years imprisonment was clearly inadequate, and was clearly so unduly lenient as to constitute an error in principle. In the Court’s view, giving full allowance for mitigation, the appropriate sentence would have been one of 15 years imprisonment.

17. When resentencing, the Court is obliged to sentence as of today’s date in addition, the general practice of the Court when required to increase sentences is to impose a sentence, somewhat less than it would have regarded as the appropriate first instance sentence to take account of the fact that being sentenced a second time, perhaps when a significant portion of the sentence has been served, must be particularly difficult. The Court will address these aspects in the present case by directing that the sentence will commence on the same date as was stipulated in the Circuit Court. Absent these considerations the Court would have had to consider dating the sentence from the date on which the appellant was in custody by reference to these matters only. In summary then the Court concludes that the sentence imposed in the Circuit Court was unduly lenient and so accedes to the application by the Director. The Court quashes the sentence imposed in the Circuit Court and substitutes a sentence of 15 years imprisonment, that sentence to date from 30th November 2013.