Man who set Capel Street head shop ablaze has jail term cut
Reduced sentence for Davinn Flynn as judge failed to note potential for rehabilitation
Fire officers tackle the fire at the Nirvana head shop and Utopia adult shops in Capel Street. Photograph: The Irish Times
A man who set fire to a shop, which sold legal highs, and caused €1 million worth of damage has had his six-year jail term cut on appeal.
Davinn Flynn (42), of York Street, had pleaded guilty at Dublin Circuit Criminal Court to arson at the Nirvana head shop, Capel Street, in the capital on February 12, 2010. His actions also closed a busy city-centre street for three days,
Flynn was sentenced to six years imprisonment by Judge Martin Nolan on February 16th, 2015.
He successfully appealed his sentence on Friday on grounds that the judge did not directly address his potential for rehabilitation and, accordingly, the Court of Appeal resentenced him to seven years imprisonment with the final two suspended.
Giving judgment, Mr Justice John Edwards said Flynn and another man set fire to the shop which specialised in the sale of psychotropic substances. While those substances are now illegal, they were legal at the time, said the judge.
The fire spread to two other premises, a sex shop and another shop which sold similar substances and only one of those premises was insured, said the judge.
Mr Justice Edwards said the fire caused €1 million worth of damage. It took five units and 26 firemen to bring the blaze under control and Capel Street was closed for three days.
A number of nearby apartments had to be evacuated and the site has since been demolished, said the judge.
Mr Justice Edwards said the fire was believed to have been deliberately started using an accelerant.
CCTV footage showed Flynn getting over a side gate to access the rear of the premises where he was for a number of minutes. As he returned, a rucksack was thrown over the gate and a flash of light was seen on the footage, said the judge.
The court heard that Flynn seemed to have a grudge against the head shop because his brother, who died in 2010, may have bought drugs there.
Flynn had 65 previous convictions including seven for robbery, four for criminal damage, three for theft, one for burglary and 10 for public order offences.
His barrister, Patrick McGrath SC, submitted that the judge failed to identify an appropriate starting point for his sentence before mitigation could be applied.
Mr Justice Edwards said it was a “legitimate criticism” that the judge had failed to identify his starting point and merely indicated “where he ended up” with the sentence.
It was a “departure from best practice” and it made the Court of Appeal’s task “somewhat harder”.
However, what concerned the court, said Mr Justice Edwards, was that the judge did not appear to have directly addressed Flynn’s potential for rehabilitation even though he had demonstrated a track record of progress in that regard at the time of sentencing.
Mr Justice Edwards said the court was not satisfied that that had been taken into account and it amounted to an error in principle.
Having considered the seriousness of the case, Flynn’s culpability and the harm caused, Mr Justice Edwards said the offence merited a sentence of seven years.
With a view to acknowledging the progress Flynn had made towards rehabilitation and to further incentivise his continued rehabilitation, Mr Justice Edwards, who sat with Mr Justice Goerge Birmingham and Mr Justice Alan Mahon, suspended the final two years.