The Court of Appeal will not review Wayne Dundon's prison sentence for making threats to kill and intimidating witnesses despite an appeal by prosecutors that his six year sentence was “unduly lenient”.
Dundon (37) of Lenihan Avenue, Ballinacurra Weston, was found guilty by the Special Criminal Court in 2012 of threatening Alice Collins that he would kill or cause serious harm to her sons Gareth Collins and Jimmy Collins at Hyde Avenue, Limerick on September 30 2010.
The non-jury court also found him guilty of the intimidation of potential prosecution witnesses Alice and April Collins with the intention of obstructing the course of justice on the same occasion.
The three judge Special Criminal Court sentenced him to six years imprisonment on April 18 2012.
Wayne's younger brother John (33), with an address at Hyde Road, Limerick had also been found guilty of threatening to kill April Collins at Hyde Road on the weekend of April 3rd and 4th 2011. He was jailed for five-and-a-half years.
The Director of Public Prosecutions unsuccessfully sought a review of Wayne Dundon's sentence today on grounds that it was “unduly lenient”.
Speaking on behalf of the Court of Appeal today, Mr Justice George Birmingham said the three-judge court had decided not to accede to the Director's application.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would not be reviewing Dundon's sentence and detailed reasons for its decision would be given at a later date.
Counsel for the DPP, Shane Costelloe SC, moved the appeal on grounds of how the non-jury court dealt with the question of the crimes' impact on the victims as well as Dundon's relevant previous conviction.
Mr Costelloe said the Special Criminal Court didn't even consider whether a written Victim Impact Statement could be allowed as a submission and had taken the view that it didn't have to consider the impact of the crimes on the victims at all.
Having declined to return to court to give an oral Victim Impact Statement, Mr Costelloe said the injured parties completed a written statement which was objected to by the defence.
The Special Criminal Court upheld the defence's objection.
There was a statutory provision for somebody to come to court and give oral evidence but if they declined to do so submissions could be made, Mr Costelloe said and he submitted that the Victim Impact Statement amounted to a submission.
When asked how matters of fact in such a statement could be decided, Mr Costelloe said by way of replying submissions from the defence.
Mr Justice John Edwards remarked that if the victims didn't want to return to court to give evidence that was the prosecution's problem.
When Mr Justice George Birmingham remarked to Mr Costelloe that if he wanted to hear from the victims he had to call them to the witness box, counsel replied that the legislation allowed for submissions.
He submitted that a document could be handed into court, replying submissions could be made and the court could decide what weight to give to factual matters.
Furthermore, the document could have assisted the court in fixing the offence on a scale.
Secondly, Mr Costelloe said there was no indication that the Special Criminal Court took into accont the fact that Wayne Dundon had a relevant previous conviction for making a threat to kill.
The court heard that the threat to kill or cause serious injury was made against a named barman and was “followed through”.
Mr Costelloe said the Special Criminal Court remembered that John Dundon had a relevant previous conviction but appears to have forgotten that Wayne Dundon had aswell and gave him one less year in prison than had been imposed for his previous conviction.
That should permit the court to revisit the sentence that was imposed, Mr Costelloe said.
Dundon's barrister, Michael Bowman SC, submitted that Alice Collins gave evidence during the trial that the threat had 'put the fear of God' into her and she had changed the way she answered the door to her home.
Mr Bowman cited a District Court Judge who described victim impact evidence as a class of hearsay.
In circumstances where the prosecution were unable to call the individuals and the defence had objected to the admission of their victim impact evidence, Mr Bowman said the court was perfectly entitled to take the view that it did when the objection was raised.
He said it was inconcievable that all three judges of the Special Criminal Court had forgotten all of the prosecution's evidence in relation to Wayne Dundon but not John Dundon and sat there mute while the presiding judge, Mr Justice Paul Butler, read his judgment.
Mr Bowman said Mr Justice Butler was the second most senior judge of the High Court. He had presided alongside the most senior Circuit Court judge and both had been sitting on the non-jury court since 2003.
He said the six year sentence could not be seen as a radical departure and could not be viewed as out of the ordinary or lenient.
There was a heightened security presence in court for the hearing including four armed gardaí.
The Dundon brothers had lodged appeals against their convictions and, although listed for hearing, they were adjourned today.
Mr Justice Birmingham said Wayne Dundon's appeal against conviction was not in a position to proceed. A motion was being drafted by his lawyers relating to the admission of additional evidence “so that has to go back,” he said.
As a result, John Dundon's appeal against conviction was also put back because “they should be dealt with at the same time,” he said.
The court made clear that John Dundon's appeal wasn't being delayed indefinitely. A time might come when that appeal has to proceed even if Wayne wasn't ready at that stage, the judge said.
Both appeals were put back to the next list to fix dates.