The Court of Appeal has dismissed Damien O’Brien’s appeal against the severity of a five-year prison sentence for threatening to injure another person with a syringe. The sentence, imposed by Limerick Circuit Criminal Court after a jury conviction, was backdated to 21 October 2014. The appeal court did not alter it.
The charge arose from an incident outside Gleeson’s shop at 43 Catherine Street, Limerick, on 10 October 2013. The prosecution evidence was that O’Brien stole a Bounty bar and left the shop. Seaghan Gleeson, a nephew of the shop owners, and employee Karl Hanley followed him and asked him to return it. The evidence was that O’Brien produced and brandished a syringe, threatened to kill both men, and chased Gleeson along a nearby street. Gleeson escaped by placing a car between himself and O’Brien.
O’Brien told gardaí that he had not carried a syringe, but a bookmaker’s biro. He was convicted by a jury of making a threat to injure another with a syringe, contrary to section 6(1)(b) of the Non-Fatal Offences Against the Person Act 1997.
The appeal challenged the sentencing judge’s assessment of the offence against the available penalty range, the weight given to the fact that the syringe was produced after the shop workers confronted O’Brien, the treatment of rehabilitation, and the overall severity of the sentence. The prosecution argued that the sentence was reasonable given the circumstances and O’Brien’s previous convictions, including convictions for violence.
The Court of Appeal said syringe offences are treated as serious by the legislation, in part because a victim may fear being stabbed and the risk of infection. It considered the absence of an express threat to injure or infect relevant, but less important than the threat the victim perceived or was likely to perceive. The court also gave little weight to the argument that the syringe was brandished reactively: it said O’Brien had brought it with him while going to steal and produced it to intimidate and deter pursuit.
Although the sentencing judge had not formally placed the offence on the penalty scale before considering aggravating and mitigating circumstances, the appeal court found no error of principle. The five-year term sat at the midpoint of the ten-year maximum, and the court considered that this offence, taking account of culpability and harm, belonged in the higher end of the mid-range before those circumstances were weighed.
The court also rejected the rehabilitation ground. O’Brien had committed the offence during the suspended part of an earlier sentence that had provided an incentive to address his difficulties, and no concrete plan for continuing rehabilitation after release had been presented. The appeal against sentence was dismissed.