MACF2324
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
THE QUEEN
V
STEPHEN CROOKSHANKS DEAN
MacDERMOTT LJ
CAMPBELL J
The petrol bomb is a potentially lethal weapon. It can cause frightful and disabling burns: these may lead to death. For many years judges have been making it clear that to throw a petrol bomb exposes the thrower to an almost certain custodial sentence and one to be measured in years. This court made that clear in relation to throwing such bombs into houses: R v Shaw and Houston [1989] 8 NIJB 60 and in relation to vehicles R v Blaney and Others [1989] NI 286. At 290 of the latter case Hutton LCJ said:
“This court has said that those who make or throw petrol bombs must expect a custodial sentence. So also must those who hi-jack and burn vehicles. Sometimes it may be possible because of some exceptional circumstances to suspend a sentence but that will be a rare possibility when the offences arise out of widespread and organised lawlessness.”
When the target is human that approach is even more inevitable.
We would also repeat what this court said in Attorney-General’s Reference (Nos. 3 and 4 of 1992) [1993] 3 NIJB 1 at 10:
‘A petrol bomb is a frightful weapon which can cause appalling injuries, as this case shows, whether it is used on behalf of a terrorist organisation or not. The wickedness which must be severely punished and the act which must be deterred is the use of the petrol bomb itself.”
In this case Judge Brady QC imposed a sentence of 3 years imprisonment in respect of the throwing of a single petrol bomb in the course of a riotous situation on the Ormeau Road on 8 August 1996 which lasted most of that day. We also note that this offence occurred during the so-called ceasefires period. As this court has previously said those who choose to return to the use of bomb, bullet or petrol bomb must expect courts to reflect public revulsion at a renewal of such forms of violence by imposing significantly longer sentences than those previously considered normal. In principle the sentence of 3 years imprisonment case appears to reflect an entirely appropriate approach having regard to the applicant’s early plea of guilty.
On behalf of the applicant Miss Philpott QC (who appeared with Mr Gibson) argued that the sentence was not only excessive but manifestly excessive. We do not agree. As we have already pointed out this sentence was in itself entirely appropriate for an offence of this nature. In this type of serious offence where a deterrent sentence is required the courts can attach little weight to the age, record or background of the offender. Everyone knows or ought to know that possession and throwing of petrol bombs is unlawful, dangerous and likely to lead to a lengthy custodial sentence. In Blaney at 289 it is stated:
‘The main thrust of the submissions made on behalf of the appellants was that, notwithstanding the gravity and number of the offences which they committed and the gravity of the background against which they took place, sentencing policy required that young men with previous clear or virtually clear records coming from good homes and backgrounds, some of whom were in employment, should not go into custody but should receive suspended sentences.
We do not accept those submissions. Because of the grave nature of the appellants’ conduct, because of its consequences to innocent citizens in the ways which we have described, because of the gravity of the background against which their criminal actions were conducted and to which they contributed, and because of the need to deter the commission of similar criminal acts in the future, previous clear records, good family backgrounds, and opportunities for employment cannot prevent the appellants going into detention for periods, including periods of 3 or 3½ or 4 years where they have been involved in a considerable number of cases of making petrol bombs, hi-jackings and arsons.”
The main thrust of Miss Philpott’s forceful submission was that Dean’s sentence was excessive when compared to the sentence of 3 years imposed on another rioter, Samuel Doak. As we have already mentioned past records are usually of little relevance. It is often difficult to analyse the degree of involvement of co-accused with any certainty and in this type of case the significant feature - the throwing of a petrol bomb - is common to both Dean and Doak.
The relevant principle is to be found in R v O’Neill [1984] 13 NUB 6:
“… the fact that an appellant feels aggrieved that a co-defendant has received a substantially smaller sentence is not a proper ground for interfering with his sentence if that is the only ground. We consider, as did the English Court of Appeal in R v Weekes 74 CAR 161, that it is only if the grievance is justified that this Court should interfere.”
Though Dean and Doak each threw a single petrol bomb the camera coverage of the rioting which occurred throughout 8 August shows Doak throwing missiles on three other occasions during that day. Further it is accepted that Dean arrived late on the scene and was there for a relatively short time and was the worse for drink. Dean admitted his involvement at his first interview and pleaded guilty on arraignment.
Doak denied that he had been present and went to some lengths to alter his appearance and to offer an alibi in an attempt to demonstrate that he was not the person seen on the video recording. It was only at a late stage and on re-arraignment that he pleaded guilty. Miss Philpott also drew our attention to the previous records of the two men - Dean’s record shows a variety of appearances at the Magistrates’ Court. Doak however was sentenced to 14 years imprisonment on 23 January 1989 at Belfast Crown Court for attempted murder following an incident of rape. It is clear that this was a grave offence with sectarian overtones. Also, and significantly, Doak could have been ordered to return to prison under Article 3 of the Treatment of Offenders (Northern Ireland) Order 1976. However for some reason that remains unclear to us the Article was not activated.
Against this background Miss Philpott argued that the general public would feel that Dean had been unfairly dealt with when regard is had to the manner in which Doak was treated in respect of more serious involvement in the events of this day. She referred us to R v Goodacre (1996) 1 CAR(S) 424 where Mitchell J said at 426:
“A common-sense test for determining whether there is disparity of an order which should attract the intervention of this Court was defined by Lawton LJ in the case of Fawcett (1983) 5 Cr App R(S) 158:
‘Would right-thinking members of the public, with full knowledge of all the relevant facts and circumstances, learning of this sentence consider that something had gone wrong with the administration of justice?’”
Answering that question is especially difficult in this type of case where the imposed sentence is itself correct but the co-offender has been, as we believe, leniently treated. In many cases the observation of Griffiths LJ (as he then was) in R v Large (1981) 3 CAR(S) 80 at 83 bears repetition. He said:
“If there be honour among thieves let him who has been properly and severely sentenced rejoice in the good fortune of his companion who has received a lenient sentence.”
In this case and after considerable reflection we consider that fairness requires us to reduce Dean’s sentence somewhat and we propose to accede to the application for leave to appeal, treat the hearing as the substantive appeal, allow the appeal and substitute a sentence of 2 years imprisonment on each Count. In taking this course we indicate that Dean has been very fortunate and if Miss Philpott had not been able to invoke the disparity principle the original sentence would have had to stand.
