Property Offences Sentencing
Criminal Justice (Burglary of Dwellings) Act 2015
Consecutive sentencing for burglary of dwelling
54A. (1) Subject to this section, where a person—
(a) is convicted of a relevant offence and is being sentenced to a term of imprisonment in respect of that offence where that offence was committed—
(i) in a dwelling, and
(ii) after he or she has attained the age of 18 years,
(b) has a conviction for a relevant offence (other than the relevant offence referred to in paragraph (a)) whether or not any sentence (whether of imprisonment or otherwise) was imposed in respect of that conviction and where that offence was committed—
(i) in a dwelling,
(ii) in the period of 5 years immediately prior to the commission of the relevant offence referred to in paragraph (a), and
(iii) after he or she attained the age of 18 years,
and
(c) has a conviction for a relevant offence and was sentenced to a term of imprisonment in respect of that conviction, where that relevant offence was committed by the person—
(i) in a dwelling,
(ii) within a period commencing 6 months before and ending 6 months after the commission of the relevant offence referred to in paragraph (a), and
(iii) after he or she attained the age of 18 years,
any sentence of imprisonment imposed on the person for the relevant offence referred to in paragraph (a) shall be consecutive on the sentence referred to in paragraph (c) or, if a sentence of imprisonment has been imposed in respect of a relevant offence referred to in paragraphs (b) and (c), the last of those sentences due to expire.
(2) Where, in relation to a person referred to in subsection (1), a relevant offence committed by the person would come within paragraphs (b) and (c) of that subsection, then, that relevant offence may be considered for the purpose of satisfying either paragraph (b) or (c) of that subsection but not both.
(3) Subsection (1) applies to a person in respect of a relevant offence referred to in paragraph (a) of that subsection only if that relevant offence is committed after the coming into operation of section 2 of the Criminal Justice (Burglary of Dwellings) Act 2015 and that subsection shall apply to the person whether the other relevant offences referred to in paragraphs (b) and (c) of that subsection were committed before or after such coming into operation.
(4) Where two or more consecutive sentences required by subsection (1) are imposed by the District Court, the aggregate term of imprisonment in respect of those consecutive sentences shall not exceed 2 years.
(5) A reference in paragraphs (b) and (c) of subsection (1) to a conviction includes a reference to a conviction for a relevant offence which is the subject of an appeal (which has neither been determined nor withdrawn).
(6) In this section—
‘dwelling’ includes—
(a) a building or structure (whether temporary or not) which is constructed or adapted for use as a dwelling and is being so used,
(b) a vehicle or vessel (whether mobile or not) which is constructed or adapted for use as a dwelling and is being so used, or
(c) a part of a dwelling;
‘relevant offence’ means an offence under section 12 or 13.”.
Cases
D.P.P. (People) v. Doran
[2008] IECCA 78 (26 May 2008)
Judgment of the Court (ex tempore) delivered on the 26th day of May 2008
This is an application by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice 1993. The respondent Christopher Doran was sentenced on the 16th May 2007 on foot of offences set out in four separate Bills. The offences on the first Bill 58 of 2006 are two counts of burglary contrary to section 12 subsection l(b) and subsection 3 of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the second Bill 307 of 2006 again two counts of burglary. On the third Bill a single count of burglary, that is on Bill 1308 of 2006. On the fourth Bill, 268 of 2007, one count of burglary.
Perhaps I should first say that the four offences which are contained in the last three mentioned Bills were committed while on bail. The sentences imposed by the learned trial judge in respect of Bill 58 of 2006 were terms of two years imprisonment on each count to be concurrent. In relation to Bill 307 of 2006 three years imprisonment on each count concurrent among themselves but consecutive to the terms imposed on Bill 58 of 2006 and with the last year on each count suspended for
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nine years on terms. On Bill 1308 of 2006 he was sentenced to a term of four years imprisonment which term was to be consecutive to those imposed on Bill 307 of 2006 and the entire of the term was suspended for nine years unconditionally. On Bill 268 of 2007 a sentence of four years imprisonment was imposed consecutive to the term imposed on Bill 138 of 2006 but again the entire of the term was suspended unconditionally for nine years. The effective sentence therefore in relation to all four Bills were terms of two years and three years with one year suspended.
Against those sentences the Director of Public Prosecutions applies to court on the grounds that the sentences which were imposed were unduly lenient. There are other legal matters that arise on this application. The first matter to be borne in mind is the Criminal Justice Act 1984 which requires sentences in respect of offences committed while on bail to be consecutive to the longer of any other terms of imprisonment being served.and the learned trial judge was advised of this and clearly had it in mind. There was, however, no specific reference to the Bail Act 1997 section 10 which provides that where an offence is committed while on bail that is an aggravating circumstance. In the ordinary course of events where, as here, the offences are very similar in their nature one would expect an increasing scale of imprisonment on each of the four Bills which I have mentioned. That in fact is not what occurred and it does seem to this court that the structure of the sentence was inappropriate. The Bail Act 1997 section 10 was not in fact reflected in the manner in which the sentence was structured. However the principle which should guide this court is that it should look at the overall time which the respondent will spend in prison having regard to the offences which are involved.
There is remarkable consistency in the circumstances of the offences. The respondent’s modus operandi was to source out a house occupied by a very elderly
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person. Under the guise of being a workman or a window cleaner he would call to the house, ask for water and when the householder went to assist him would make his way into the house and see what could be stolen. In the first Bill, the victim in the first count was an 85 year old woman and using the modus operandi which I have described, he entered a premises and stole €150.00. In the second count in that Bill the householder was an 80 year old woman. He entered the premises and stole €800.00 and $1,000. €200 was recovered. On the second Bill the two offences again involved much the same modus operandi. In the first count the house was occupied by a 95 year old woman and in the second case an elderly man whose age was not specified. In the first count nothing was taken: he was unsuccessful. In the second count he stole €500.00. On the third Bill the victim was an 84 year old woman and in that count he stole $400.00. On the fourth Bill the occupier of the house was a 92 year old woman with her elderly companion. He stole €1,500 of which €450 was recovered.
There were prompt admissions and a plea of guilty in each case and that was quite properly taken into account by the learned trial judge. Other circumstances were also taken into account and considered by the learned trial judge and in particular the circumstance that the respondent was 57 years of age. He is a married man with a family of four. He had managed to amass seventy seven previous convictions between January 1964 and June 2005. He had a large number of convictions for burglary, breaking and entering and larceny. The longest term of imprisonment which he had served was three years in 1986. One thing that can be said with certainty is that the respondent has not learnt from his time in prison.
In the circumstances there is very little reason to believe that the terms of imprisonment suspended in his case would lead to any amendment in the way he goes
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about his life. It is suggested to us that having discovered and attended Alcoholics Anonymous before being sent to prison for these offences that this is chink in an otherwise very grey and cloudy sky. It might well be appropriate that some measure of hope should be left to him and that some suspension of sentences is appropriate.
In this case the court is satisfied that there was an error in principle in the way in which the sentences were constructed in that they failed to have regard to the requirements of the Bail Act 1997 section 10 which adds as an aggravating factor to the offence the circumstance that it was committed while on bail and secondly there was an error that sentences imposed for offences committed while on bail are required to be consecutive and to impose a sentence and suspend the entirety thereof unconditionally does not seem to this court to meet the requirements of section 11 of the Criminal Justice Act 1984 in this case.
Having regard to the nature of the offences, the vulnerable nature of those upon whom he has made it his career it would seem to prey, this court is satisfied that the sentences imposed are unduly lenient having regard to the totality principle. They do not reflect the seriousness of the offences. This is the case having regard to everything which was said in the Circuit Court and which Ms Baxter has very eloquently said in this court on behalf of Mr Doran. In any event the court thinks the appropriate sentences and the way in which they should be structured in the present case are as follows:
On Bill 58 of 2006 on each of counts 1 and 2 the court will impose sentences
of two years imprisonment concurrent.
On Bill 307 of 2006 on counts 1 and 2 the court will impose sentences of three years, those sentences to be concurrent between themselves but with the last
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two years of each sentence to be suspended and consecutive to the sentences imposed on Bill 58 of 2006.
On Bill 138 of 2006 on the single count the court imposes a sentence of four years, that sentence to be consecutive to the sentence on Bill 307 of 2006 with the last three years thereof to be suspended.
On Bill 268 of 2007 on the single count the court imposes a sentence of five years imprisonment that sentence to be consecutive to the sentence on Bill 138 of 2006 the last three years thereof to be suspended.
People (DPP) v Morey [2018] IECA 367
JUDGMENT of the Court ( ex tempore ) delivered on the 26th day of November 2018 by Ms. Justice Kennedy
1. This is an appeal against severity of sentence. The sentences under appeal concern, in the instance of Gerard Morey, a sentence of eight years’ imprisonment for the offence of burglary, three years’ imprisonment for the offence of assault causing harm and four months’ imprisonment for the offence of assault contrary to s. 2 of the Non Fatal Offences Against the Person Act. 1997. The sentences were ordered to run concurrently and with the final three years of the sentence suspended.
2. Declan Price received a sentence of ten years’ imprisonment on the burglary count, three years in respect of assault causing harm and three years in respect of the offence of production of an article contrary to s. 11 of the Firearms and Offensive Weapons Act 1990, the sentences to run concurrently and again with the final three years of his sentence suspended. The sentences in both instances of each appellant were imposed after conviction by a jury and were backdated to the 8th December 2016.
3. The facts in relation to these offences are that the first appellant; Declan Price, on the 23rd May 2015, at around 1pm, entered a dwelling house in Tipperary town. The occupants of the house were present. The development in question is a small one, made up of four houses, one of which was occupied by the second appellant; Gerard Morey. On the evening in question one of the occupants was upstairs with her small child when Declan Price entered the house through an open window, and while in the utility room was seen by this woman who alerted her housemates who came to her assistance. The gardaí were contacted. The woman’s partner, a Mr Wang, arrived back to the house and attempted to restrain Mr Price. Another friend arrived and tried to assist Mr Wang. Mr Wang was then assaulted by Mr Price who punched and kicked him and also picked up a hammer. At this point the second appellant arrived and climbed in the window to assist his friend, Mr Price. A struggle ensued with Mr Price and Mr Morey kicking and punching Mr. Wang before walking out of the house. The gardaí arrived and whilst Mr Morey was being conveyed to the Garda station he spat at one of the gardaí, which is the subject of the offence of assault contrary to s. 2 of the 1997 Act.
4. Mr Wang, who was assaulted by both men, was taken to hospital for his injuries. He suffered a fracture to his upper jaw, swelling to the head and a bleeding nose. No Victim Impact Reports were before the court. Both men were convicted after a trial. However, on the date of sentence probation reports were available for the judge’s consideration and both men accepted responsibility for their actions. It was submitted on Mr Morey’s behalf that he had not previously grasped the elements of burglary but had come to understand the nature of the offence and at the time of sentencing accepted his guilt. Mr Price also, in the period between conviction and sentence, accepted his guilt.
5. Mr Price is a man with forty nine previous convictions; three for the offence of burglary, four for possession of knives and one conviction for the offence of production of an article contrary to s.11 of the Firearms and Offensive Weapons Act. Mr Morey is a man with twenty three previous convictions; including two for assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997.
6. Letters of apology were furnished to the injured party who found such difficult to accept and a letter was sent by Mr Morey to Garda Bohan which Garda Bohan said he fully accepted and believed such apology to be genuine.
7. In cross examination, Garda Bohan accepted that the offences were not premeditated and that as such were opportunistic. It was accepted that Mr Price, who was twenty nine years of age at the time of sentence, had a long history of substance abuse, was intoxicated at the time of the offences and was attending Merchants Quay personnel whilst on remand pending sentence.
8. As regards Mr Morey, Garda Bohan accepted that his involvement was of a lesser nature than his co-accused, that he was involved in his community, that he is a member of a football club and had been in employment.
9. As far as Mr Morey’s personal circumstances are concerned, it was submitted that he had a difficult upbringing and a letter was furnished to the Circuit Court in this respect. However, he also, it was said, had the support of his grandmother. He trained as a barber and worked in that capacity prior to his incarceration. He also trained as a plasterer and worked in Australia for a while and has a young child. When this relationship came to an end, the appellant turned to alcohol and drugs. He and his new partner of 5 years by the date of sentence had moved residence and so no longer reside beside the injured party. References were furnished to the court attesting to his character and offering employment to him. He also attended Merchants Quay whilst incarcerated and a care plan was in train for him. He attended to his education whilst in custody and finally, Mr Morey offered the sum of €1,000 by way of compensation to the victim.
10. As regards Mr Price’s personal circumstances at the time of sentence, it was submitted that he had a long standing history of substance abuse and that he was under the influence at the time of the offences. He also engaged with Merchants Quay whilst in prison and attended counselling. Documentation was furnished regarding his progress whilst in prison and also from his partner. The appellant’s family circumstances were outlined to the Circuit Court and a sum of €1,000 was also offered on his behalf. Probation and welfare service reports were furnished regarding both men.
Grounds of appeal
11. So far as the Grounds of Appeal are concerned, a number of criticisms are advanced of the sentencing process. As regards Mr Price, the grounds include that the sentence is excessive and the judge failed to have regard to the principle of proportionality. In the instance of both appellants, the grounds include that the judge erred in determining that the gravity of the offences was within the highest range and that the judge failed to attach sufficient weight to the mitigating factors and efforts of rehabilitation. As regards Mr Morey, the grounds of appeal include that the judge erred in assessing gravity by reference to his size and that he erred in considering the facts of the assault on the Guard in his assessment of the gravity of the assault on Mr Wang and the incident in question.
12. Often said by this Court is that before the Court will intervene, an error in principle must be identified. So far as the offences that the Circuit Court was dealing with and which are now the subject of this appeal, by any standards these were serious offences. In particular, the burglary of a dwelling house is a most serious offence. It is a violation of the personal and psychological integrity of a victim and a violation of an individual’s home which is a place where a person is entitled to feel safe and secure. That sense of a home being a sanctuary is lost once a person is a victim of a burglary. Therefore, such crimes are considered to be very grave indeed by the courts. A weapon was produced in the course of this incident, albeit one found at the scene. One of the residents of the house was injured and required to be taken by ambulance to hospital. The offences were committed, in the instance of Mr Price, by a person with previous convictions for the offence of burglary and the production of a weapon. The issue for this court is fundamentally in the first instance, as to whether the judge fell into error in assessing that the gravity of the offences placed the offences in the upper range of permissible sentences.
13. We consider, firstly, Mr Price. In the view of this court, the judge correctly identified the aggravating factors, to include the fact of Mr Prices’ previous convictions, specifically those which we have referred to above in accordance with the jurisprudence of this court. The gravity of the offence was correctly assessed by the judge as within the upper range. Whilst he did not specifically identify a headline figure, he found that on the scale of gravity, the gravity of the offence was such that it was within the higher range of permissible sentences for this category of offence and he considered the appropriate sentence to be one of ten years’ imprisonment. In light of the circumstances of the burglary, the invasion of the victim’s home, the use of a weapon and the injury caused, the penalty was within the range the judge identified. The same can be said for sentences imposed for the assault offence and for the offence of the production of an article under s. 11 of the Firearms and Offences Weapons Act 1990. The assault on Mr Wang was a serious one requiring he be taken to hospital by ambulance for treatment. In considering, what this court views to be the limited mitigation urged on his behalf, the judge gave Mr Price credit for his expression of remorse, albeit at the stage after conviction and, in suspending the final three years of the sentence, also factored the efforts made by the appellant to rehabilitate himself and to address his substance abuse. Indeed, in the instance of both appellants, the judge acknowledged that each had developed insight into their conduct and he accepted the apologies offered by both were genuine. It cannot be said that the learned judge gave insufficient weight to the matters offered in mitigation and we are satisfied that no error in principle can be identified.
14. In the instance of Mr Morey, much of the same analysis equally applies to him. It is submitted on his behalf that the judge fell into error in considering that his culpability was of a high order given his build and further failed to take into account that his culpability was of a lesser calibre than that of his co-accused.
15. In the first instance, we are satisfied that the judge was entitled to take into account Mr Morey’s physical size in assessing his moral culpability, bearing in mind that he entered the house whilst Mr Price, his friend, was there, not with the intention of assisting the residents but with the intention of assisting his friend. He then does precisely that, and assaulted Mr Wang by punching and kicking him. The judge was careful to distinguish between Mr Price and Mr Morey and in consequence assessed the appropriate sentence in Mr Morey’s case, as being one of eight years’ imprisonment. We are satisfied this is within the range of permissible sentences and find no error in principle. Again we find no error in the assessment of the sentence of three years on the assault count, there being no basis to distinguish between the two men in the assessment of gravity on this offence bearing in mind both men punched and kicked Mr Wang and that Mr Morey has convictions for assault, albeit assault contrary to s. 2 of the Act. We find no error in the sentence imposed either for the s. 2 assault count and are satisfied that the court was entitled to take into account that Mr Morey’s response to the gardaí was not to his credit
16. The judge considered all matters in mitigation in respect of this man and we can find no error in this respect.
17. Overall, this court is in no doubt that the sentences decided upon by the sentencing judge were ones which were available to him and ones which fell very firmly within the available range of sentences.
18. In those circumstances, this Court will dismiss the appeal in both instances.
People (DPP) v Barnaville
[2018] IECA 351
JUDGMENT of the Court delivered on the 1st day of November 2018 by Mr. Justice Edwards.
Introduction
1. On the 28th of April 2017, the appellant appeared before Nenagh Circuit Criminal Court and pleaded guilty to two counts (counts nos. 2 & 3) of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001. A nolle-prosequi was entered in respect of count no. 1 on the indictment, namely a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.
2. On the same date, a “full-facts” sentencing hearing took place. The appellant was subsequently sentenced to five years’ imprisonment in respect of both counts of robbery, both sentences to run consecutively, with the final four years of this cumulative sentence of ten years to be suspended on the following conditions: that the appellant enters into a bond of €100; that he keep the peace and be of good behaviour, and; that he engage with the Probation Services for a period of two years and comply with any relevant request of the Probation Services.
3. The appellant now appeals against the severity of this sentence.
Background facts
4. Garda Rob Sheehy gave evidence that, on the 24th of January 2016, at approximately 10.30pm, a Mr Kevin Barry was standing outside a pub on Kickham Street, Thurles. Mr. Barry had been socialising in this pub and was outside smoking a cigarette. In an unprovoked attack, as captured on the CCTV footage outside of the pub, Mr Barry received a punch to the side of the face from a male who came up from behind him. It was accepted in evidence that this punch was perpetrated by a third party who, at the time of sentencing, was before the District Court, having been charged with assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. While Mr. Barry was lying on the ground in a state of semi-consciousness, the appellant was seen on CCTV walking over to where Mr. Barry was lying, standing over him, looking up at the CCTV camera directly and pulling his hood over his head. The evidence was that the appellant then proceeded to get on his knees and take a mobile phone from Mr Barry’s pocket. Subsequently, the appellant stood up and began to kick Mr. Barry into the chest and stomach seven to eight times while lying on the ground. Garda Sheehy testified that the “CCTV shows that Kevin Barry’s body can be seen to be physically lifting off the ground with each kick.” A quantity of change, which had fallen from Mr Barry’s pocket, was then picked up by the appellant. The appellant went through all of Mr. Barry’s pockets and took the money that he had in his possession, which amounted to approximately €35. This incident was the subject matter of count no. 2.
5. In respect of count no. 3, in the early hours of the morning of the 25th of January 2016, sometime after 3am, the appellant was involved in an altercation with a male outside Supermac’s Restaurant in Thurles. The evidence was that a Mr Aldis Groakes, who could be seen on CCTV subsequently recovered by Gardaí, was talking to a female who was in the appellant’s company. The appellant confronted Mr. Groakes, then began to grapple with him, then tripped him to the ground, and then proceeded to kick him in the stomach a number of times. Subsequently, and with his victim seemingly unconscious on the ground, the appellant leant over Mr Groakes and took certain of his belongings from his pocket, before again kicking the victim several further times, into the face, head and body, while he lay unconscious.
6. The evidence was then that, soon after the second incident, the appellant was arrested on Liberty Square, Thurles, on foot of certain public order offences. Whilst in custody, he was searched and was found to be in possession of a number of items, including a social services card in the name of Mr. Groakes, a black Nokia mobile phone, a silver bracelet owned by Mr. Groakes, and approximately €65 in cash. The appellant, who was detained pursuant to s. 4 of the Criminal Justice Act 1984 for the proper investigation of the offences for which he had been arrested, was later released and was then re-arrested on suspicion of having committed the present offences and detained for the proper investigation of those offences.
7. The appellant was interviewed three times whilst in custody by investigating Gardaí from Thurles Garda Station. CCTV obtained by Gardaí was shown to the appellant, and, upon viewing this footage, he made full admissions regarding the offences, describing in detail what he did at both scenes. Segments of these admissions were adduced in evidence. In respect of the robbery of Mr. Barry, the appellant, on being shown the footage by Garda Sheehy said : “It looks like I’m looking up at the camera, pulling up my hood. It looks bad, Rob, I know.” He also admitted to kicking Mr. Barry on the ground when the footage was shown to him. In respect of the robbery of Mr. Groakes, the appellant admitted in interview that “I beat the guy up, took his belongings and that’s when you arrested me 20 minutes later.”
8. The appellant was ultimately charged, arraigned, pleaded guilty and was sentenced in the terms outlined at the outset of this judgment. He now appeals against the severity of his sentences.
Impact on the Victims
9. Both victims opted not to furnish the sentencing court with victim impact statements. However, certain evidence was adduced at the sentencing hearing which gives some indication as to the suffering inflicted upon the victims by the offending conduct. Garda Sheehy testified that both victims suffered “severe bruising and lacerations” as a result of the incident. Photographs of both victims in the aftermath of the incidents were also handed into the sentencing court. The statement of Mr. Groakes given to Gardaí stated that he had “severe pain on my face after it. I definitely don’t remember the point I was hit or punched.” Mr. Barry’s statement stated that “I can’t remember what happened to me, but what I can say is that I have a mark on my forehead, the right hand side. I have a cut on the top of my head. My jaw is sore to the left hand side. My teeth and gums to the front of my mouth is sore and I can’t chew food without pain. Half my fingernail is missing from the ring finger on my right hand. I did not have these injuries before I got up to go outside to have a cigarette.”
10. Most of the coins taken from Mr. Barry were retrieved but his mobile phone was never returned to him.
Appellant’s personal circumstances
11. The appellant was born on the 7th of November 1994, making him twenty-two-years-old at the time of sentencing. The Probation Report (“The Report”) before the sentencing court indicates that, prior to going into custody as a result of breaching his bail conditions in respect of the present offences, the appellant was living with his mother and brother in Littleton, Co. Tipperary. His father, who has issues with alcohol and who has a violent disposition when intoxicated, still lives in the family home in Thurles.
12. The appellant is a poly substance abuser, and has a very significant substance misuse problem, something which the appellant contends “his offending behaviour is directly linked to” . He claims to have been highly inebriated and under the influence of benzodiazepines at the time of committing both offences. Indeed, Garda Sheehy testified under cross-examination that when the appellant is “drug free, he’s he has extremely likable qualities……. I couldn’t say enough about the guy when he’s sober, extremely talented sportsman and easy to talk to, but there’s just been so many so many falls on his behalf over the years.” He is reported to have begun taking drugs from the age of 15, “using almost the full range of illegal substances”. In 2016, the appellant reported to have been hospitalised last year on foot of what he characterised as “drug-induced psychosis” .
13. It is confirmed by his probation officer that subsequent to the commission of these offences the appellant made a serious effort to address his substance abuse issues. On the 3rd of August 2016, he completed a six-week drug rehabilitation programme in Aiséirí Rehabilitation Centre in Co. Wexford. The Report states that the appellant “settled into residential treatment very well and was at all times very involved in all aspects of the programme. He worked very well and was at all times compliant and willing to take direction from staff. Report from Aiséirí indicate that he has a very good understanding of the disease concept of addiction” . It seems an aftercare program was drawn up to assist him thereafter but his aftercare support group ceased operations in September 2016, following which he unfortunately relapsed.
14. The Report also indicates that the appellant was subsequently referred to the North Tipperary Drug and Alcohol Service, and that he attended there for assessment on the 9th of February 2017. This assessment indicated that the appellant would “benefit from attendance with a counsellor in respect of Drug and Alcohol issues and in relation to an underlying childhood trauma”. Subsequently, he attended an addiction counsellor on one occasion, before being taken into custody following the revocation of his bail for breaching the conditions thereof, and in particular breaching his curfew and breaching an undertaking given by him to stay out of Thurles.
15. The probation officer states that she contacted the prison on the 3rd of March 2017 to advise them of the appellant’s needs in respect of appropriate counselling services; and it appears that another probation officer in Limerick prison spoke with the prison psychologist who agreed to meet with the appellant.
16. The appellant gave evidence himself at the sentencing hearing and expressed self-disgust at what he had done. He expressed his apologies to both victims and told the sentencing judge that he wanted to start a new life after leaving prison away from Thurles “where nobody knows me” and to “keep my head down”. It was submitted to the sentencing judge that the appellant was committed to trying again to address his substance abuse issues.
17. The appellant has a four-year-old daughter with a previous girlfriend and The Report indicates that he has begun “to develop this paternal relationship since beginning his addiction recovery” . His current girlfriend is said to be a positive influence on him and has never used drugs or come to the attention of Gardaí.
18. The appellant has participated in combat sports to a high level throughout his life, and the evidence was that he has won “national and international awards for kickboxing” .
19. Garda Sheehy testified that in the months prior to the sentencing hearing, Gardaí had begun investigating allegations of abuse perpetrated against the appellant when he was a child. The appellant stated in the course of his evidence that this abuse had stayed with him for 18 years. It was put to him that he needed help to deal with it so as to ensure that it “does not amount to a catalyst for ever going back to the life that you were leading with drugs and alcohol” , and he accepted that.
20. In her plea in mitigation, defence counsel submitted to the sentencing court that the appellant is subjected to random urine testing and has passed each of these tests, indicating that, at the time of sentencing at any rate, the appellant had managed to remain drug-free in prison.
21. The appellant has twenty-three previous convictions, as follows:
• nine for offences contrary to s. 4 of the Criminal Justice (Public Order) Act 1994;
• two for offences contrary to s. 6 of the Criminal Justice (Public Order) Act 1994;
• four for possession of a controlled substance contrary to s. 3 of the Misuse of Drugs Act 1977, as amended;
• two for criminal damage;
• one for entering a building with the intention of committing an arrestable offence;
• with the remainder involving road-traffic offences.
22. The offences the subject matter of both counts were committed while the appellant was on bail in respect of public order offences. Moreover, earlier on the day of the first of the incidents in question i.e., the 24th of January 2016, the appellant had been before a special sitting of Ennis District Court, having been arrested on foot of a bench warrant.
23. The Report considers the appellant to be of a high risk of re-offending. The Report concludes that “a significant risk factor identified was substance misuse. He has made positive efforts to address his difficulties but has experienced relapses and periods of re-offending. Another risk factor identified was his emotional/personal issues.”
Sentencing Judge’s Remarks
24. In passing sentence upon the appellant, the sentencing judge made the following sentencing remarks:
“Well, this is a case with a number of serious aggravating factors. First of all, it would be difficult so[to]sic overstate how appalling these attacks were on two men who became defenceless once they were knocked to the ground. They were kicked repeatedly before and after being robbed. Robbery is one of the most serious crimes in the entire criminal calendar. It carries a maximum sentence of life imprisonment, and it’s probably not appreciated by persons who do not come across this crime, either as victims or through observing what happens in court, when on indictment people come to be dealt with for the offence of robbery. But there are there is a very large number of victims in our society of robbery, a great many of them are scarred for life, some of them physically, almost all of them psychologically, because it is a much more serious crime than theft, it is a much more serious crime than burglary, and they are serious crimes. The level of violence inflicted on these men was quite shocking, and both crimes were committed in public places, and it is by no means inconceivable that these incidents were viewed and were viewed by, perhaps, persons with delicate sensibilities, but even persons of robust sensibility must have been themselves damaged, I’m not talking about the victims, I’m talking about people who might have witnessed what happened, and even persons, as I say, of robust sensibility must have been deeply shocked by this level of sickening violence.
Now, it is true that Mr Barnaville has no memory of this. He made frank admissions to the gardaí when shown the fairly conclusive CCTV evidence, and it is very much to his credit that he did that, but it is the case that he committed these after ingesting a mixture of alcohol and Valium in this instance. His state was self induced, and indeed I note that he had been in court earlier on the 24th of January in Ennis District Court. After that, he got himself into this state and he inflicted these horrendous crimes on two entirely innocent individuals, whom it seems he didn’t even know beforehand. So, for somebody with previous convictions, and of course the previous convictions are themselves an aggravating factor, to ingest such a cocktail that he was capable of going out and carrying out these acts, that is an aggravating factor in the case, and on top of all of that then, he has been assessed by the probation service as being at high risk of reoffending, and it’s salutary to bear in mind that reoffending could involve crimes as horrendous as these again. Now, I take fully in to consideration that a huge element of that assessment is Mr Barnaville’s dependence for many years on illicit substances in particular. And I’m not losing sight of the efforts at rehabilitation that he has been making, so I take a measured view of what the probation service are saying in relation to his being at high risk of reoffending. Nonetheless it is a factor in the case.
These offences carry, as I say, a maximum sentence of life imprisonment. It is impossible to categorise either as being in anything other than the top range of such offences, and I’m talking, as I say, about the top range of very serious offences.
In Mr Barnaville’s favour is, first of all, the fact that he pleaded guilty. This plea was an early plea and it came after full admissions were made very shortly after the incidents and full cooperation having been given to the gardaí who were investigating. These are extremely important matters. If Mr Barnaville had been convicted by a jury of these offences, he would be serving he would be going away to serve very lengthy sentences indeed. He has had a troubled childhood. There was parental breakup, and for most children where there is parental breakup there is a great deal of trauma, it seems that was present for Mr Barnaville and he certainly has my sympathy for that, and that is something of an explanation for his life subsequently becoming chaotic. It is an explanation; it is by no means an excuse for the commission of crime. In addition to that, it seems that something happened to him when he was a child, which was quite appalling incident or incidents. I note that that is being investigated by the gardaí at the moment. If it is true, and I don’t I’ve no reason to doubt for a moment that it is true, I very much hope that the perpetrator or perpetrators are brought to justice and dealt with accordingly, because abuse of children, of whatever sort, is something that will certainly receive no sanction in this Court, or indeed in any Court. But, again, I say while this might be something of an explanation for Mr Barnaville allowing his life to go off the rails, it is not an excuse for the commission of crime.
He is somebody who clearly has good family support, and I note that he has a young daughter to whom he is obviously devoted and wants to spends time with; no doubt that will be a focal point in the future when he might be faced with decisions as to whether to go back to the life he was leading or not. I accept Garda Sheehy’s very fair evidence that, when sober, he could scarcely say enough about Eddie Barnaville. He is not alone in this. A great many people who are of otherwise excellent character, when they allow themselves to come under the influence of drink or drugs or both, change character entirely, and that unfortunately is what has happened here, but as I say I’m dealing in relation to these two incidents with somebody who put himself who put himself by his own volition into this state.
He has now in recent times, in fairly recent times, taken very important steps towards rehabilitation. I am impressed by the evidence I’ve heard in that regard and I’m quite sure that, having been sober now for some time, he has had an opportunity to reflect on where he has gone wrong in the past. I’m also mindful of his age; he’s 22. I would be much more mindful of that were it the case that he had no previous convictions, but even at that very young age he has more convictions than years.
He has been doing well in prison and I am very impressed with that, it does indicate to me that he is somebody who is determined – and his evidence here bore that out – he is determined to turn his life around from the chaotic state in which it was previously, during which these offences were committed. He has apologised to his victims, and I’m grateful to Garda Sheehy and his colleagues who passed on that very early apology, and it may even be that the reason why these two unfortunate victims, who undoubtedly have been very severely damaged by this, while they were ultimately did not wish to have a victim impact report prepared, but I accept fully that his heart his apology was heartfelt and that he has genuine remorse for these inexcusable actions.
So, I have to weigh the aggravating factors with the mitigating factors, and it is unfortunately the case that Mr Barnaville cannot escape a lengthy custodial sentence. The Court has to have account take account of the punishment when it comes to sentencing, to rehabilitation, but also to the issue of deterrence. It would send altogether the wrong message if somebody who committed offences such as these escaped a prison sentence altogether. But I have to regard to the question of totality in sentencing, and the sentences I’m going to impose on each of the counts which will be consecutive, because they were entirely separate incidents, are considerably less than they would have been had there been, in each case, had there been one offence only.
So the sentence of the Court in relation to count 2 will be a sentence of five years’ imprisonment; in relation to count 3, a sentence of five years’ imprisonment, giving a total of 10 years. In view of the impressive evidence I’ve heard in mitigation, and in particular the plea of guilty and all that went with that, and the efforts at rehabilitation, I will suspend the last four years of that sentence on Mr Barnaville entering into a bond to keep the peace and of good behaviour during that time, to refrain sorry, for a period of four years from his release, and during that time to refrain entirely from ingesting either alcohol or illicit drugs. It will be a further term that he should engage for a period of two years from his release with the probation service and that he should comply with any and every request which the probation service makes of him. He should be bound over in this bond of €100.”
Grounds of Appeal
25. In seeking to impugn the severity of the above sentence, the appellant proffers the following three grounds of appeal:
(i). The sentencing judge erred in assessing the seriousness of the offence as within the top range in determination of sentence.
(ii). The sentencing judge erred in giving insufficient allowance in regard to the mitigating factors of the Appellant and early plea of guilt.
(iii). The sentencing judge failed to have regard or any adequate regard to the Appellant’s real and substantial efforts at rehabilitation since the date of his conviction
Appellant’s submissions
26. In respect of ground no. (i), counsel for the appellant argues that the sentencing judge erred in over-assessing the gravity of the present offences. In furthering this proposition, the appellant has referred us to a recent decision of this Court in People (Director of Public Prosecutions) v Sweeney [2017] IECA 49. In this case, the appellant received a sentence of eight years’ imprisonment with the final two-and-a-half-years suspended for the offence of robbery, in circumstances where he had approached a 90 year old man and demanded a sum of cash. The appellant then grabbed an umbrella from the victim and pushed him to the ground, striking him several times in the upper body with it, before taking a sum of €450 from the victim. The appellant – who was a paranoid schizophrenic and a drug user – was later identified by CCTV footage and immediately admitted his wrongdoing when confronted by Gardaí. The victim in that matter sustained significant, injuries including a fracture to his second lumbar vertebrae and went from having no history of back pain to continual lower back pain. The Court upheld the sentence and rejected the appellant’s core complaint that the sentencing judge had not given enough credit for mitigation. Counsel for the appellant argues that the present case can be distinguished from the facts pertaining in Sweeney , including the absence of evidence that the appellant used any weapons in the present case and the fact that the injuries sustained by Mr. Groakes and Mr. Barry were not of the same gravity as those suffered by the victim in Sweeney . Thus, it is argued that the sentencing judge placed the gravity of both offences at too high a point on the range, and in making the sentences consecutive erred in failing to give adequate consideration to the totality principle.
27. In respect of ground no. (ii), the appellant submits that the sentencing judge failed to take sufficient account of the various mitigating factors in the case, namely his; genuine remorse for what occurred; his apology to the victims; his subsequent good character; his efforts at rehabilitation, and; his young age.
28. Ground of appeal no. (iii) centres around the complaint that the sentencing judge failed to have adequate regard to the appellant’s real and substantial efforts at rehabilitation since conviction Whilst conceding that the appellant is not entitled to mitigation simply due to the fact that he or she was intoxicated at the time of the offence, the appellant cites the comments of the former Court of Criminal Appeal in People (Director of Public Prosecutions) v Fitzgibbon [2014] IECCA 12 (per Clarke J [as he then was] at para 9.7), and approved by this Court in People (Director of Public Prosecutions) v Hall [2016] IECA 11, that “a sentencing court is required to consider, as part of the overall circumstances, whether a persistent problem with substance abuse, most particularly if it could be said to stem from a particularly difficult upbringing, can amount to a factor which can weigh significantly in an appropriate sentence process on the facts of a particular case.” The respondent submits that the appellant falls “squarely” within the principle outlined in Fitzgibbon in that many of his problems in terms of upbringing relate to a parental breakup and alleged abuse when he was a child. Further, it is argued, given the appellant’s efforts at rehabilitation as adduced in evidence, insufficient weight was afforded to the penal objective of rehabilitation by the sentencing judge.
Respondent’s submissions
29. The respondent contends that gravity was properly assessed, that there was an appropriate discounting for mitigation, and that the sentencing judge did not err in principle in any respect.
Discussion and Decision
30. We cannot agree with the submission that the sentencing judge over assessed the gravity of the case. These two cases, which occurred on consecutive dates but within the same 24 hour period, both targeted victims in situations of vulnerability. In the case of the robbery of Mr Barry, he had already been felled to the ground by a blow from the third party referred to earlier and was in a state of semi-consciousness. In the case of the robbery of Mr Groakes, it was the appellant who felled the victim, but again the victim was robbed while he lay unconscious on the ground. In both instances, although the victims were not in a position to offer resistance, or further resistance, because of their respective semi-conscious or unconscious states, they were viciously kicked and kicked repeatedly into their chest and stomach areas before property was stolen from their persons. In the case of the robbery on Mr Barry, the viciousness of the assault on him is conveyed by the Garda evidence that CCTV of the incident shows his body being physically lifted from the ground with each kick. In the case of the robbery of Mr Groakes, who was fully unconscious, it is particularly egregious that, having stolen property from his person, the appellant assaulted him a second time and while he was in that helpless and unconscious state by further kicking him several times into the face, head and body.
31. Counsel for the appellant points to the fact that no medical evidence was adduced suggesting serious injuries, and points to the fact that neither victim made a victim impact statement, although both did give statements to the Gardaí in the context of the criminal investigation of these incidents in which they provide some description of how they were injured and affected. She also points to the low monetary value of the property taken. Her case is that although the circumstances of these cases were bad, the sentencing judge was wrong to describe them as being “in the top range of very serious offences.”
32. While the evidence as to the consequences was limited, there was a clear basis for inferring significant distress and trauma on the part of the victims in consequence of the nature and circumstances of the attacks on them. The appellant is extremely fortunate that the physical consequences of the violence he used were not more serious, and that he did not have to face a homicide charge or charges. However, that is no thanks to him.
33. The appellant’s culpability was significant. The attacks were intentional. In the first instance, the appellant seemingly adverted to the fact that he was in the viewing range of a CCTV camera and pulled his hood over his head before proceeding to rob and assault the victim regardless. Both attacks involved extreme violence gratuitously administered to vulnerable victims. The appellant was on bail at the time. There were two victims involved in two separate incidents. The attacks were also committed in the throes of self-induced intoxication. While the appellant has serious substance abuse issues, this was not a factor which would tend to mitigate culpability in the circumstances of this case. He was not robbing out of chemical compulsion to feed an addiction. The circumstance of self-induced intoxication in fact aggravated his culpability for the offences in this instance.
34. It is correct to say that these robberies were not at the top end of the range, however it is clear that in so characterising them, the sentencing judge was engaging in hyperbole most likely with a view to impressing on the appellant that he was facing a likely significant custodial sentence and that it was deserved. What is far more important than how the sentencing judge might have labelled the offending conduct is where he in fact located the offences on the scale of available penalties.
35. The maximum potential penalty is life imprisonment, although we have said previously that the effective range in most cases tends in practice to cap out at fifteen years, with sentences in excess of fifteen years or a life sentence being reserved only for robbery offences of an especially egregious type. An effective fifteen-year range for all other cases allows for a low range between zero (i.e. non-custodial options) and five years’ imprisonment, a mid-range between five and ten years’ imprisonment and a high range between ten and fifteen years’ imprisonment. We consider that while these were not cases the gravity of which fell to be assessed in the high range, they were certainly well into the mid-range.
36. The sentencing judge decided that the circumstances of these cases were such that they merited consecutive sentences. No specific complaint is made about that and in any event we agree that that was a matter legitimately within the trial judge’s discretion. Despite saying in hyperbole that the offences were in the top range, the sentencing judge in fact fixed on headline sentences that were on the borderline between the low and the mid ranges (in terms of the effective fifteen-year range we have identified). In doing so, however, he emphasised that he was conscious of the totality principle and that in circumstances where he felt obliged to impose consecutive sentences these headline sentences “are considerably less than they would have been had there been, in each case, had there been one offence only.” We take from this that if there had been one offence only the sentencing judge would have fixed a higher headline sentence, and think it likely that his headline sentence would in that event have been towards the middle or upper half of the effective mid-range, and that would certainly have been appropriate in our view.
37. Notwithstanding the trial judge’s possible recourse to hyperbole in his characterisation of the offending conduct, we consider his actual approach to the assessment of gravity in this case to have been impeccable and find no error of principle.
38. Turning then to the mitigation side of the sentencing exercise, the sentencing judge carefully and comprehensively considered each of the relevant mitigating factors. While we do not know the weight that he afforded to each one, or the basis on which he synthesised them, nor are we entitled to know that, it is clear that he approached the assessment of mitigation conscientiously.
39. Counsel for the appellant has been unable to identify any significant mitigating factor of which account was not taken. Her case is that the overall discount is too low and therefore the sentencing judge must have failed to give adequate weight to one or more of the major mitigating factors, namely the plea of guilty, the appellant’s co-operation, his relative youth, his remorse, his apologies, his substance abuse problems, the adversities in his life and particularly his childhood, his relationship with his child and his efforts to date at rehabilitation. In our assessment the sentencing judgement is detailed and nuanced and conveys to us that the sentence imposed was a reflective one. It indicates an appropriate consideration of the various penal objectives and correctly identifies the need for appropriate punishment, for deterrence and for the incentivisation of rehabilitation. Balancing these considerations, the sentencing judge considered that a 40% discount for mitigation was appropriate, to be given effect to through the mechanism of the suspension of four years of the aggregate headline sentence of ten years’ imprisonment. In our judgment that was an adequate, and even generous, level of discount in circumstances where the appellant had been effectively caught “red-handed” on CCTV, and it was comfortably within the sentencing judge’s margin of appreciation.
40. It is suggested that the sentencing judge should have done more to incentivise the appellant’s continued efforts at rehabilitation. In that regard, we commend the appellant for his efforts to date and encourage him to continue along the path he is now on. However, these were crimes for which a substantial custodial sentence was simply unavoidable. The mechanism of reflecting mitigation by means of a partly suspended sentence also serves to incentivise continuation with rehabilitation. While it might have been open to the sentencing judge in the exercise of his discretion to have gone further than he did in terms of incentivising rehabilitation, the failure to go that extra mile was not an error of principle. Rather, it was the legitimate exercise of judicial discretion in sentencing. There is no basis on foot of which this Court would be justified in interfering with it.
41. In conclusion, we are satisfied that gravity was correctly assessed in this case and that mitigation was adequately reflected. In the circumstances the appeal is dismissed.
DPP v Brian Thompson
, Court of Criminal Appeal (ex tempore), May 30, 2008
JUDGMENT of the Court (ex tempore) delivered the 30th day of May, 2008 by Kearns J.
The Director has brought this application pursuant to Section 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed in this case on the grounds it was unduly lenient. The facts are fairly
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straightforward. Mr. Thompson is a native of, or lived in, Liverpool and, having been approached to carry out a particular drug related transaction, came to this country for that purpose. However, due to good intelligence work on the part of the Garda Siochana, he was observed to get out of a motor vehicle at a venue near Dublin on 14th September, 2006, walk towards a lorry and hand a white bag to an individual on the passenger side of the lorry.
The Gardai intervened. Mr. Thompson tried to run away but was quickly apprehended and five people present were arrested by the Gardai and it was then discovered on examination of the lorry that there was a very large amount of cocaine in the lorry. The street value of the cocaine was estimated at €585,000, a very substantial haul indeed. The bag which Mr. Thompson had in his possession since he arrived in Dublin was found to contain €85,000 in cash.
Quite clearly the cash was to facilitate the handover of a very serious quantity of drugs. Let’s put it this way, if the money had switched hands and he had been in possession of the package, quite clearly the charge would have been framed in different terms: it wouldn’t be conspiracy to possess drugs for supply but it would have been a Section 15A charge in respect of which the sentence, except in exceptional circumstances, has been clearly prescribed now by the Oireachtas as being ten years.
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There are merits in some aspects of the respondent’s situation in that, although he did have sixteen prior convictions going back over the years, a lot of those were a long time ago and only two of them related to drugs. That is a factor in his favour to some extent. However, he was forty-seven years of age at the time of this offence so he was not a person who can invoke youth or immaturity as the reason for what he did. During a period he avoided the attention of the law. He cleared up a personal drug problem but shortly before this offence apparently relapsed into addiction because a long term relationship had broken up.
He was caught red-handed but nonetheless the Court, even in those circumstances, grant a credit for the fact that a person has entered a plea and facilitated the disposal of the business of the Court by so doing.
The Court has reached a very clear view that the sentence which was imposed in this case was grossly inadequate for the particular offence. In effect, it only came to a one year sentence for this conspiracy which was on the brink of execution when it was thwarted. In suspending four years of the sentence the learned circuit court judge was attaching a condition which could never be enforced in this jurisdiction in that the suspended balance of the sentence could only ever take effect in the unlikely event that Mr. Thompson came back to this jurisdiction and re-offended. That fact has not been disputed by counsel on his behalf and is
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sufficient to grant this court jurisdiction to look afresh at this case and substitute what it considers an appropriate sentence in the circumstances.
Firstly, this is not a section 15A offence. It is a different statutory offence and it is not hedged about with the same mandatory type requirements of a Section 15A sentencing situation.
Nonetheless the Court would be of the view that having regard to the amount of the cash and drugs involved here the sentence in the order of ten years would be appropriate. The Court will bear in mind that if such a sentence were to be imposed it would impose additional hardships on Mr. Thompson given that he is a native of Liverpool and for family and other contacts to visit him might create certain difficulties. He is also entitled to some credit for his plea of guilty.
In all the circumstances the Court is satisfied that the Director is entitled to succeed in this application and will impose a five year sentence without any suspensions and will vary the order already made to that extent.
People (DPP) v Murray
[2012] IECCA 60
JUDGMENT of Mr. Justice Finnegan delivered on 27th February, 2012
This appeal against the severity of a sentence imposed in respect of social welfare fraud raises an issue of fundamental importance at a time of crisis for the public finances. How should a sentencing court treat offenders who have defrauded the public revenue by either engaging in unlawful tax evasion on the one hand or (as in this case) by making false social welfare claims on the other? Given the intrinsic importance of such questions for the public weal – not least at a time of financial emergency – it seems appropriate that this Court should now give some general guidance for future cases of this kind given that prosecutions for tax evasion and welfare fraud are likely to be a more common feature of the criminal justice landscape in the years ahead than may have been the case heretofore.
Before embarking on this exercise, it is necessary first to narrate the background facts to this application. The appellant, Mr. Murray, was charged with one count of having a false passport, contrary to s. 20(1)(b) of the Passports Act 2008, and seventy four counts of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2011. In respect of the theft offences Mr. Murray stood charged that on various individual dates between 2006 and 2010 he dishonestly appropriated sums of money ranging from €165.80 to €408.60 from the Department of Social Protection.
At a hearing before the Circuit Court on 21st July 2011 (His Honour Judge Anthony Kennedy), the appellant pleaded guilty to the false passport charge (count 1), and to twenty five sample counts of social welfare fraud. The appellant received a prison sentence of three years on the false passport charge and at the hearing before this Court counsel for the appellant, Mr. Byrne, fairly conceded that that sentence was unobjectionable in principle. However, the appellant strongly objects to the severity of the sentence imposed in respect of the twenty five sample fraud charges, since Judge Kennedy here imposed a sentence of 6 months in respect of count 2 on the indictment concurrent with the sentence imposed on count 1, followed by twenty four sentences of 6 months’ imprisonment, all of them running consecutively to each other and concurrent to the sentence imposed on count 1. In sum, therefore, the appellant received a sentence of 12 and one half years. The sentences were expressed to commence on the date he went into custody, namely, 19th October 2010.
The appellant is now 63 years old. He is a former carpenter, but since 1995 he has treated Thailand as his adopted home. He lived there with his partner in an apartment to which he contributed 40% of the purchase moneys. Over the last number of years the appellant conceived an elaborate and sophisticated social welfare fraud, which was said by a very experienced investigating officer, Ms. Patricia Mulloy, to be the largest fraud of its kind uncovered to date. During this period the appellant misappropriated sums of an aggregate marginally less than €249,000 by making diverse claims for jobseeker’s allowance, disability allowance and supplementary welfare allowance, in the name of nine different identities, including members of his own family.
The fraud originally came to light when staff at the Passport Office in Dublin received an application for a passport which had been transmitted from the Embassy in Canberra. That application was in the name of a younger brother of the applicant. It was noticed that a passport bearing these details had already been issued in that name in 2005. The file for that passport was checked and it emerged that the picture on that passport was that of the appellant. The appellant held another (perfectly legitimate) Irish passport.
Further investigations revealed that the appellant had been receiving disability allowance in the name of that younger brother. The records of the Department of Social Protection were then examined, and these showed that payments were made into several different banks accounts in the name of either the appellant or one of his siblings, which the appellant had opened using false identity documents such as driving licences. It is important to stress here that the appellant simply stole the identities of his brothers and that they are completely innocent parties so far as this fraud is concerned. Insofar as remorse was expressed by the appellant in the course of investigations, it appeared limited to the distress occasioned to those family members.
The appellant was arrested by Garda Peter Kelly when he presented and signed a claim form for jobseekers’ allowance in the name of one of his brothers at a social welfare office in October 2010. Following a search of his van, a large variety of false identity documents were uncovered. These included social services cards issued by the Health Service Executive, welfare cards for both jobseekers and disability payments, bus passes, medical cards and false British driving licences issued in various different names. A false British passport, bearing the appellant’s photograph, but which had been issued in the name of one of the appellant’s brothers, was also found. These identity documents had been deployed by the appellant, so to speak, in prêt-à-porter style to suit the occasion or, perhaps it would be more correct to say, the social welfare office he was attending at any given time.
The appellant resorted to a variety of different plans and schemes to achieve his ends. He admitted to Gardai that many of the false documents – specifically false British driving licences and a false British passport – had been purchased in Thailand on the black market. The false British licences all bore the correct dates of birth for the correct individuals whose identity had been misappropriated by the appellant. To this end the appellant identified persons who he knew had emigrated permanently from Ireland. He then obtained their birth details and other details, such as their mother’s maiden name. Armed with this information, he then went to the office of the Registrar of Births, Marriages and Deaths and, following the payment of a small fee, obtained the relevant birth certificate of that individual. These birth certificates were then presented to the Department of Social Protection and, of course, immediately lent an air of verisimilitude to the applications in question.
The appellant’s fraudulent scheming did not stop at this. While he himself had a genuine disability in his right arm, he exploited this by going to three different medical practitioners, using three different aliases, to procure three different medical certificates which were then used to procure three different disability claims.
While the disability payments were paid directly into bank accounts, it was necessary for the appellant to return to Ireland from Thailand every three months to keep alive his various claims for jobseekers allowance and social welfare supplementary benefit in the various different aliases. It was on one such return to Ireland in October 2010 that the applicant was arrested.
To the applicant’s credit, he immediately made admissions to the Gardai and co-operated with them in every way possible. He also pleaded guilty at a relatively early stage, saving the prosecution the considerable time and expense involved in what would otherwise is likely to have been a lengthy and complex fraud trial. On the debit side, however, quite apart from the sustained and egregious nature of the fraudulent conduct (a topic to which we will shortly return), it appears that only some €11,151 of the misappropriated moneys have been repaid. Further reparation seems unlikely, it being indicated that no recompense from his interest in the Thailand property was envisaged. It should also be noted that the appellant has a previous conviction for social welfare fraud in the United Kingdom, and he served a sentence remitted to almost 12 months’ imprisonment, in that jurisdiction between 1993 to 1994.
The principle of proportionality and the totality principle
Counsel for the appellant, Mr. Byrne, strongly urges that the overall effect of the consecutive nature of the latter twenty-four individual sentences of six months is so severe as to be excessive, and that it breaches the totality principle. The totality principle is really but a sub-set of the wider proportionality principle. It ensures that sentencing is somewhat more than an abstract arithmetical exercise by providing that, in the case of multiple offending, the overall sentence imposed is proportionate to the moral delinquency of the offender. It is true that a sentence of six months’ imprisonment might well have been justified in the case of each count of fraud when that single count is looked at in isolation. It does not at all follow, however, that, just because the appellant has been convicted on twenty four other rather similar counts, the sentence imposed should then come to twelve years and six months.
In our view, such a sentence for these offences would infringe the totality principle. Leaving aside the case of persons convicted of serious drugs offences – offences which are, in some respects, at least, sui generis – a sentence of this gravity is generally reserved for serious offences against the person, such as manslaughter, rape, serious assault and false imprisonment or aggravated burglary offences. While the latter offence overlaps with the offences of theft and robbery, the reason it is treated so severely by the law is because of the fact that the victims have generally been terrified in the process and by reason of the long term impact which such offences have on the peace of mind of the persons affected. In that respect, burglary is in truth regarded as an offence which is more akin to an offence against the person than a pure theft offence simpliciter.
We do not, of course, underestimate for a moment the impact which theft and fraud can have on the victim. Quite independently of the financial impact (which may be considerable and life altering), the victim’s sense of betrayal and breach of trust may have far-reaching psychological consequences which, when not permanent, may well be long-lasting.
But serious offences against the person – involving as they do the unlawful use of violence – are nearly always in a separate category of offending, involving as they do moral delinquency of a high order. In recent weeks this Court, for example, has had to deal with offences ranging from the penetration of a seven year old girl by her father, the false imprisonment of an elderly couple in the course of an aggravated burglary which involved elements of unusually cruel and sadistic violence, the slashing and permanent disfigurement of an innocent young man who was callously left to fight for his life by his assailant to the repeated kicking of a victim lying prostrate on the ground by multiple assailants over several hours until he lapsed into a coma and died.
Offences against the person of this kind accordingly involve an affront to human dignity, a key constitutional objective protected by the Preamble to the Constitution, a violation of the integrity of the person (Article 40.3.2 of the Constitution) and, as often as not, a violation of the dwelling (Article 40.5 of the Constitution): see generally the discussion of this topic for this Court by Hardiman J. in The People (Director of Public Prosecutions) v. Barnes [2006] IECCA 165, [2007] 3 IR 130 at 144-149. These considerations must weigh heavily with any sentencing judge. In the case of offences involving public revenue – such as taxation offences and social welfare fraud – the level of moral delinquency will not often approach that particularly elevated level, although, of course, it can do so.
This is not at all to suggest that crimes involving the loss of public revenue are somehow victimless crimes. Quite the contrary: offences of this kind strike at the heart of the principles of equity, equality of treatment and social solidarity on which the entire edifice of the taxation and social security systems lean. This is especially so at a time of emergency so far as the public finances are concerned.
The collapse of US investment firm Lehman Brothers in September 2008 triggered the onset of a global financial crisis which, in turn, has ushered in a contraction in our economy which is unparalleled in living memory. Faced with enormous demands on the public purse from the associated banking collapse and a continuing structural public deficit, the State has struggled during this period with a series of fiscal emergencies. To their great credit, the Irish people have as a consequence stoically endured significant taxation increases, reductions in social security payments and retrenchment at all levels in the provision of social services, as the State endeavours to restore an equilibrium in the public finances.
All of this calls for a high level of social solidarity. We have seen from elsewhere how widespread tax evasion by the wealthy and well-to-do can gravely threaten social solidarity and, as a consequence, the very stability of a state itself. That solidarity would also be gravely endangered if taxpayers were led to believe that social security fraud was rampant or that, when detected, it would not be dealt with severely. By the same token, social security fraud impacts heavily on those who are most in need, since, by definition, it saps public confidence in the system and, of necessity, erodes the total sums available for the needy and those genuinely reliant on such payments.
As an Irish passport holder, the appellant owed a “fidelity to the nation and loyalty to the State”: see Article 9(2) of the Constitution. Especially in a time of fiscal emergency, that fidelity and loyalty demanded that this social solidarity be respected. The appellant’s widespread, persistent and systematic fraud of the social security system set that fidelity and loyalty at naught. As such, his conduct was gravely wrong and the sentences to be imposed must reflect this consideration.
In the case of offences involving the public purse, deterrence plays an important value in the sentencing process. In the context of frauds upon the public revenue, deterrence is an important consideration, in that it is a necessary quid pro quo of social solidarity. It gives an assurance to the hard-pressed bona fide taxpayer that the State will both collect and distribute its revenue fairly and that those who defraud will be sternly dealt with. Some element of severity is necessary to ensure that taxpayers will pay the State what has been deemed by law to be properly due and to assure those who rely on social security payments that public support for the needy will not be undermined by an official culture which either turns a blind eye to those who commit illegal tax evasion on the one hand, or social security fraud on the other,or which is indifferent to these consequences.
We therefore suggest for the future guidance of sentencing courts that significant and systematic frauds directed upon the public revenue – whether illegal tax evasion on the one hand or social security fraud on the other – should generally meet with an immediate and appreciable custodial sentence, although naturally the sentence to be imposed in any given case must have appropriate regard to the individual circumstances of each accused.
In the case of the present offender, we repeat that we consider an overall effective sentence of over twelve years to infringe the totality principle. Given, however, the egregious and systematic defrauding of the public revenue which took place over a long period, his culpability is nonetheless considerable. The fact that he stole the identities of his siblings (and those of other persons) and has caused them not inconsiderable embarrassment and inconvenience must also be regarded as an aggravating feature, as must the fact that he has a similar conviction for an identical offence, albeit that this conviction was imposed by the British courts and not by the courts of this jurisdiction. The fact that important public documents – such as passports and driving licences – were falsified in aid of this fraud is also a further aggravating factor. We are nonetheless mindful of Mr. Byrne’s argument on behalf of the appellant that, while a sentence of some magnitude is acknowledged as inevitable, such a sentence should not, particularly in light of what even anecdotally appears to be a measure of the latitude accorded historically as a matter of sentencing policy relating to fraud and embezzlement offences, be of so condign and exemplary nature and duration as to work injustice in this individual case.
We therefore consider that, as a starting point, the overall effective sentence should be one of nine years. We propose to measure this by imposing a sentence of three years in respect of three sample counts, namely count 2 (an offence dating from 2006), count 4 (an offence dating from 2008) and count 21 (an offence dating from 2010). These offences will be consecutive to each other. We affirm the three year sentence in respect of the passport offence (count 1), but direct that this will run concurrently with count 2. All the other offences will be taken into account.
Credit must, however, be given to the accused for his plea of guilty and for his full co-operation with the Gardai. Thus, for example, he disclosed the existence of his various identity cards which were hidden in his van. Furthermore, by his plea of guilty, the State was spared the expense of what would otherwise have been a lengthy and complex fraud trial. We propose to mark this mitigating factor by suspending the final year of the three year sentence imposed in respect of count 21.
It follows, therefore, that this Court allows the appeal in respect of the sentence imposed by Judge Kennedy. We propose instead to impose an overall sentence of nine years, while suspending the final year of that sentence on condition that the appellant keeps the peace and remains of good behaviour in his own bond in the sum of €200.
DPP -v- John Hughes
[2012] IECCA 85 (29 November 2012)
JUDGMENT of the Court of Criminal Appeal delivered by Mr. Justice Fennelly on the 29th day of November 2012.
1. This is an appeal against the severity of sentences of four years imprisonment imposed on the appellant by his Honour Judge Nolan in Dublin Circuit Court on 22nd March 2012.
2. The appellant had pleaded guilty to six counts on an indictment. The pleas were accepted by the Director on the basis that they were entered in respect of sample counts on that indictment. The offences all related to the failure to make returns in respect of or to pay value added tax (hereinafter “VAT”) contrary to Section 1078 of the Taxes Consolidation Act 1997, as amended.
3. Four counts alleged that the appellant had failed to pay VAT contrary to contrary to s. 1078(2)(i) and (3)(b) of the Taxes Consolidation Act 1997 as amended by s. 211 of the Finance Act 1999. Two counts alleged that the appellant had failed to furnish a true and correct return of VAT contrary to s. 1078(2)(ii)(g) and (3) of the Taxes Consolidation Act 1997 as amended by s. 211 of the Finance Act 1999 and s. 133(a) of the Finance Act, 2002.
4. The relevant facts of the case are as follows. The offences to which the appellant pleaded guilty were committed between July 2003 and February 2006. The offences involved the importation of 119 used motor vehicles on which VAT was not paid. The total value of the vehicles sold was €1.27 million. The VAT due on the sale of those vehicles amounted to € 226,718. In order to have purchased the vehicles at a zero VAT rate the appellant needed to be able to use an Irish VAT number. The appellant fraudulently used the VAT number of the company “Rendon & Associates”, a trading company by which he had been previously employed in 2001. It should be noted that “Rendon & Associates” had no knowledge of the activity of the appellant or of his fraudulent use of their VAT number. The company had been wound down in 2002.
5. A Revenue investigation was commenced in November 2005. The appellant’s residence was searched, in his presence, pursuant to a search warrant on 14th November 2005 and documentation was found, including a number of invoices from a UK company. These purported to show sales in the UK to a John O’Sullivan of Rendon & Associates at a zero VAT rate. Extensive documentation relating to the purchase of sterling drafts for payment to the UK company was also found. All this pointed to the appellant’s involvement in the trading of second hand vehicles imported from the UK. Revenue subsequently, following a mutual assistance request, discovered that the appellant had sold a large number of these imported cars to licensed dealers at a VAT inclusive price.
6. Rendon & Associates was a legitimate trading company to which a VAT number had been properly issued, but the company had ceased to trade in or around 2002. It was not involved in the motor trade. The appellant had worked for the company between April and December 2001. Rendon & Associates at no stage authorised the use of its VAT number in connection with car-importation transactions at issue. The appellant had applied for a VAT registration number in 2002, but, at least he so maintains, none was issued because the Revenue did not think his projected level of trading would require registration. The Revenue investigation also extended to the companies which had purchased the vehicles imported by the appellant. It was established that they had been sold on the basis that the price included VAT, i.e., that VAT was being paid.
7. Following the Revenue search in November 2005, the appellant sold his house, where he lived with his partner and children in France, in May 2006 and downgraded to an apartment. He made full disclosure of his assets. He sold a site in France. The proceeds of sale, €220,000, were paid over to the Revenue. He had earlier paid a sum of €32,000. At the date of the Circuit Court hearing, it remained unclear what his total liabilities for tax, interest and penalties would be. The matter was still pending before the Appeal Commissioners.
8. In addition to these VAT defaults, the appellant had to reach a very substantial settlement with the Revenue in respect of unpaid income tax and capital gains tax for periods prior to that covered by the indictment. The settlement was in the sum of €795,000 composed of €278,000 for tax and approximately €516,000 for interest and penalties. A letter was produced from the Revenue, confirming that the appellant had paid €685,000 of that amount. He had made a plea to the Revenue that he was unable to pay the balance.
9. There was an element of complaint on behalf of the appellant that he had returned to live in France at a time when he had been dealing with the Revenue and, to their knowledge, had a solicitor acting for him, but that, nonetheless, the Revenue caused a European Arrest Warrant to be issued, without notice to him that there were any criminal charges and thus, without giving him an opportunity to return voluntarily to the jurisdiction. In the event, he spent some twenty nights in prison in France, pending his surrender under the warrant. Upon his return, he was released on bail by the Circuit Court and has, at all times, observed the terms of his bail. He has lodged the sum of €50,000 by way of bail and has told the Revenue that that sum is also available to discharge his liabilities.
10. In short, the unpaid VAT amounted to €226,718. The appellant has made payments amounting to €252,000 to the Revenue covering tax, interest and penalties. Bail money, in the amount of €50,000 had been lodged by the appellant and that sum had been also offered as a payment towards his Revenue liability.
Plea in mitigation
11. Counsel for the appellant made a comprehensive plea in mitigation.
12. Firstly, he dealt with the personal circumstances of the appellant. He had very little recollection of doing exams at school and left with very limited literacy skills. He has been diagnosed as dyslexic. He has been employed variously as a barman, shop assistant and builder in Ireland and in Germany. With the benefit of a bequest, he purchased a property and went into the business of buying, doing up and selling properties. He commenced to trade in bicycles, motor bicycles and ultimately motor vehicles, the latter in the early to mid 2000’s.
13. The appellant is 56 years of age. He is the father of two children with whom he lives in France in company with his French partner. Separation from his children has been a severe issue for him. Ultimately, his bail conditions were altered to allow him to return to France on conditions.
14. The appellant’s good character was the subject of a number of impressive testimonials.
15. Counsel referred to his financial settlements with the revenue. He had made very substantial payments covering the full tax liability but with additional payments covering interest and penalties of over €400,000.
16. Counsel referred to authorities. He urged the court not to feel bound by the decision of this court in People(Director of Public Prosecutions) v Murray [2012] IECCA 60 (per Finnegan J.). That case concerned an elaborate and sophisticated fraud on the social welfare system and involved the use of multiple fraudulent fake identities including a substantial number of close family members. In that case, very little reparation had been made. Counsel submitted that the court should ignore aspects of the judgment making reference to the global financial crisis and the consequent enormous burden on the public purse, because the offences in the present case were committed at a different time.
17. Counsel cited People (Director of Public Prosecutions) v J(T) [unreported, Court of Criminal Appeal, 6th November 1996]. The Court recognised, in that case, that the lapse of time had the consequence that the appellant had been sentenced at a time when a very different climate of opinion prevailed from that which existed when his offences were committed. If the appellant had been prosecuted earlier, he claimed that he would have been likely to have received a significantly less severe sentence. He referred to the Revenue Commissioners Report for the year 2008 in support of the proposition that sentences for revenue offences were less severe a number of years ago. Counsel submitted that the court was bound to adopt the sentencing approach that would have applied if the appellant had been prosecuted expeditiously.
18. Counsel referred to People(Director of Public Prosecutions) v Perry [unreported, Court of Criminal Appeal, 29th of July 2009]. In that case a sentence of 20 months, imposed by the same trial judge as in the present case, had been the subject of an appeal to this Court, which effectively suspended the balance of the sentence. Counsel referred to the judgment delivered on the part of the Court by Hardiman J in that case.
19. Counsel also cited the judgment of Finlay C.J. in McLoughlin v Tuite [1989] I.R. 82 and the judgment of this Court in People(Director of Public Prosecutions) v Redmond [2001] 3 I.R. 390. He referred to the principle of proportionality in sentencing by reference to Professor O’Malley’s work, Sentencing Law and Practice 2nd Ed., (Thompson Round Hall Press, 2006)
20. Counsel referred to the evidence of the appellant’s good character, his genuine expressions of remorse, his plea of guilty, the absence of any relevant previous convictions and the very large payments the appellant had made in respect of interest and penalties. As he expressed it, the appellant had “emptied the cupboard” to meet his obligations to the Revenue.
The sentence imposed
21. The learned trial judge, accepted counsel’s submission that the appellant had paid a substantial amount to the Revenue, but thought that he was still a little bit behind in paying the penalties and interest. He agreed that he must take into account the payments of substantial sums to the Revenue and that this must be interpreted as a type of punishment and penalty on the appellant.
22. He emphasised the seriousness of the offence of tax evasion.
23. The sentencing judge described what he believed to be the thinking of tax evaders in relation to their crime. “[I]t seems to me that all tax evaders attempt to evade tax and move on and if they move on without being caught they pocket the tax. It seems they take a chance and it seems to me the thought being if I am caught and brought before the courts, the only punishment that a person will suffer is a financial penalty. It seems this was the thinking and probably with justification in the past.”
24. He mentioned his own previous decision in People (Director of Public Prosecutions) v Perry but added that he had always felt he had been too lenient in that case, that his first instinct had been to impose a much more severe sentence.
25. He continues later to say: “I take the view that parties who do it [evade tax] take a chance and hope if the worst happens they can, as it were, buy themselves away or out of a custodial sentence.”
26. He noted that tax evasion was one crime that a custodial sentence might act as a great deterrent. He added:
“I don’t think it’s appropriate, it’s fair, to the people of this country who mostly pay their tax and it seems to me it’s of very little deterrent quality to other taxpayers if that is the situation that essentially you buy your way out of a custodial sentence by saying to the Court, I’ve suffered enough, I’ve paid my penalties, I paid my interest and I’ve made a huge effort to do that. It seems to me that parties who engage in tax evasion, the last thing in the world they want to do is undergo a criminal sentence. It seems in other aspects of crime parties that appear before this Court all of the time seems to have no difficulty in undergoing criminal sentences but in this aspect it seems that custodial sentence has arrived rather late.”
27. The sentencing judge also considered the mitigating factors when sentencing. He noted that the appellant was unlikely to re-offend and was essentially fully rehabilitated. He considered that the appellant had made great attempts to pay, to deal with the Revenue and that he must be given credit for that. He spoke of the appellant’s good character and the fact that he had no previous convictions. He took the view that the appellant was unlikely to bother any Court in relation to future criminal offences. However he considered the offences to be of such a serious nature as to warrant a custodial sentence despite the many mitigating factors:
“But I am left with the facts of the crime. He evaded to a large extent and he must pay for that as a matter of punishment and deterrence to other parties who might think of going down this road.”
28. He appreciated that “that there [had been] some delay,” but said: “it seems to me that probably the earliest this could be arrived even without delay in this Court was by 2009/2010.” He said that he had considered suspending part of the sentence but that he had disregarded it.
29. He imposed four year sentences of imprisonment in respect of all counts to which the appellant had pleaded guilty, all to run concurrently. He took the remaining counts into consideration.
30. The judge made no order regarding the bail monies, amounting to €50,000. The appellant had stated that this sum of money was available to the Revenue Commissioners.
Submissions of the Appellant
31. The appellant sets out eight ground of appeal against the severity of the sentence of four years’ imprisonment with admirable clarity. These grounds can usefully be grouped as follows:
1. Failure, in the structure of the sentence, to balance appropriately the objectives of deterrence and punishment in sentencing with the objective of rehabilitation in accordance with the principle of proportionality;
2. Failure to accord any weight to the very substantial payments already made to the Revenue, in disregard of decisions of this Court, e.g. in People(Director of Public Prosecutions) v Perry and People(Director of Public Prosecutions) v Redmond;
3. Failure to take account of the element of lapse of time and the fact that the appellant was sentenced by reference to a different climate regarding sentencing, in particular by reference to the decision of this Court in People(Director of Public Prosecutions) v Murray.
4. Failure to take adequate account of mitigating factors, including co-operation with the Revenue and the plea of guilty and absence of previous convictions;
Ground I: Structure of the sentence
32. The principles governing sentencing in our courts have been well established by a number of key decisions. Any sentence imposed must be proportionate in the sense that it is appropriate, having regard to the seriousness of the offence and to the personal circumstances of the offender. Punishment of the offender and deterrence of others might be described as the prime objective of sentencing, but that is in the sense that they form the justification for imposing a sentence in the first place. The severity of the sentence will be tempered in each case, insofar as they are present, by one or more of the wide range of mitigating factors which have been recognised. Thus, the appellant is correct to submit that the deterrent, punitive and rehabilitative elements must be balanced in the sentence which the court decides to impose.
33. The founding statement may be found in the judgment of Walsh J. in The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 at p. 359:
“The objects of passing sentence are not merely to deter the particular criminal from committing a crime again but to induce him in so far as possible to turn from a criminal to an honest life and indeed the public interest would be best served if the criminal could be induced to take the latter course. It is therefore the duty of the courts to pass what are the appropriate sentences in each case having regard to the particular circumstances of that case – not only in regard to the particular crime but in regard to the particular criminal.”
Walsh J. remarked in the case then before this Court that the sentences which had been imposed might “have a very deterring effect on other people but are not such as to induce these young men to turn froma criminal to an honest life.”
34. That statement was expressly approved both by Egan J. and by Denham J. (as she then was) in their judgments in the Supreme Court in People (Director of Public Prosecutions) v. M [1994] 3 I.R. 306. In that case, Finlay C.J., O’Flaherty J. and Blayney J. agreed with the judgments of both Egan and Denham JJ. Egan J. emphasised that “an essential ingredient for consideration in the sentencing of a person upon conviction, in any case in which it is reasonably possible, is the chance of rehabilitating such person so as to re-enter into society after a period of imprisonment.”
35. The judgment of Denham J. is notable for its statement that: “Sentences should be proportionate. Firstly, they should be proportionate to the crime.” Secondly, however, she added that they “must also be proportionate to the personal circumstances of the appellant.”
36. Each judge must, when imposing a sentencing take account, not only of punishment and deterrence, having regard to the gravity of the offence, but also of the personal circumstances of the accused, including any mitigating factors, and, especially, of any reasonable prospect of rehabilitation. It is, of course, fundamentally a matter for the trial judge to consider these matters and assess their weight. As is clear from the judgments of Egan and Denham JJ., it is only in cases of an error of principle that this Court can intervene.
Ground II: Account taken of payments to the Revenue
37. This is the most difficult part of the case and the principal focus of the appellant’s case. Echoing the submision made in the trial court that he had “emptied the cupboard,” counsel for the appellant said that the payment of the tax, interest and penalties had left him at zero and that this had occurred at a stage in his life where he would probably not be able to recover. He referred to McLoughlin v Tuite [1989] IR 82, to People (Director of Public Prosecutions) v Redmond [2001] 3 I.R. 390 and to People (Director of Public Prosecutions) v Perry, all cited earlier in this judgment.
38. Counsel submitted that, in the light of the very significant payments made by the appellant combined with their extremely serious effects on his career, his resources and his family, the decision of the learned sentencing judge could not be seen as a proportionate exercise of the judge’s discretion.
39. The context for the passage from McLoughlin v Tuite, upon which the appellant relies, was a challenge to the constitutionality of s. 500 of the Income Tax Act 1967, which provided for a fixed monetary penalty for failure to comply with a notice served on a taxpayer, as imposing a criminal penalty. Finlay C.J., delivering the judgment of the Court, said at page 88:
“Throughout the many statutory provisions concerning the payment of income tax and other like taxes is to be found a consistent series of different statutory provisions clearly designed not only to ensure that each taxpayer should pay his fair proportion of the taxes levied, having regard to the extent of his income or wealth, but also that he should do so with a promptitude which will permit the central fund to be so established at any time as to avoid unnecessary short-term borrowing.”
40. He went on to observe that the rates of interest charged on late payments of tax “constitute[d] a very marked deterrent towards withholding tax on the basis that the taxpayer might be able to make more profitable use of the money and which would appear to exceed the cost of short-term borrowing to the Exchequer, arising from the delay in the payment of tax.” He followed with the passage which is relied upon as follows:
“The provision of a penalty for the failure to make a return upon being requested so to do falls into the same category of deterrent and incentive as does this larger penal rate of interest on delayed payment. The payment of tax by the individual citizen is an involuntary payment and does not arise from any contract which he makes or is implied to have made with the State or with the Exchequer, and it is consistent with the nature of those payments that the particular sanction chosen to try and enforce compliance with the statutory requirements necessary for the ascertainment and payment of the liability for tax should be money payments.”
41. The Court rejected the claim of unconstitutionality. At page 90, Finlay C.J. said that “the only feature which could be said to be common between the provisions of s. 500 and s. 508 and the ordinary constituents of a criminal offence is that the payment of a sum of money is provided for which is an involuntary payment and which is not related to any form of compensation or reparation necessary to the state but is rather a deterrent or sanction.”
42. In People(Director of Public Prosecutions) v Redmond, the Director had applied to the Court of Criminal Appeal pursuant to the provisions of s. 2 of the Criminal Justice Act, 1993 for a review, in the ground of undue leniency, of a sentence imposed by the Circuit Court for a number of revenue offence to which the appellant had pleaded guilty. The judgment of this Court was delivered by Hardiman J. As that learned judge emphasised, an error of principle in the sentence was required to be demonstrated by the applicant. As he said at page 395, this “precisely reflects the principle on which the Court of Criminal Appeal deals with a defendant’s appeal against severity of sentence.” This well-established principle was also applied by the Supreme Court in People (Director of Public Prosecutions) v. M, cited above.
43. The appellant had pleaded guilty in the District Court to ten virtually identical charges the first nine under s.10 of the Finance Act 1983, as amended and the tenth under s.1078(2)(g)(i) of the Taxes Consolidation Act 1997. All related to the appellant’s failure to make returns of income over a ten-year period. As the judgment emphasised at page 393, he was not being being “penalised for failure to pay income tax,” but “solely for his failure to make returns.” The Circuit Court judge had imposed fines totalling £7,500 in respect of all the offences. The Court considered it significant that counsel for the “the prosecutor was concerned about the adequacy of the fines imposed and was not submitting that there should be a custodial sentence.” Thus, the case does not consider any question as to the appropriateness of prison sentences in tax cases. Counsel for the prosecution had “specifically confined his application for review to the proposition that the fines were too small in amount and did not submit that a sentence of imprisonment was appropriate…” (see page 403)
44. Counsel for the appellant on the present appeal relies on the Redmond case solely as authority for the proposition that, when sentencing for tax offences, a court should have regard to and take into account any interest and penalties paid by the offender. In fact, the prosection had “fairly and properly conceded that the court may have regard in considering sentence, to sums paid in the nature of civil penalties.” (see page 403). Thus, at several points, Hardiman J emphasised this point, adding:
“We would only add that this is consistent with the attitude of the court in other cases. It would be unreal and unjust to exclude from consideration in a larceny case the fact that restitution had been made or damages paid, for example.”
45. Counsel for the appellant relied, for a reason peculiar to this case and to this judge on the decision of this Court in People(Director of Public Prosecutions) v Perry. Hardiman J. delivered an ex tempore judgment in behalf of this Court. The Court substituted a sentence, which had the effect of suspending the balance of the sentence which had been imposed in the Circuit Court, as it happens, by his Honour Judge Nolan. It is not possible to discern from the text of the judgment either what the original sentence was or what the suspended balance was. Counsel, however, helpfully informs us that the original sentence was one of twenty months and that only four months had been served. Nor is it possible to discern what the offences were, other than by reference to “long term evasion of revenue responsibilities.” The proposition for which that case stands is that the sentence had been “imposed purely for demonstration purposes.” As Hardiman J. correctly observed, “it is almost trite to say that the sentence in every case, no matter what the nature of the case, must take into account both the offence and the circumstances of the offender.” The Court found that the learned judge had infringed this principle. It found that he had “excluded from his consideration any grounds for a custodial sentence other than the purely punitive.” The Court concluded:
“In all the circumstances we are of the view that the learned trial judge erred in principle by wholly excluding the personal factors from what he seemed to think necessary…………”
46. Counsel for the appellant relies on People (Director of Public Prosecutions) v Perry, however, because, it is claimed, of the broad similarities between the facts of the two cases and that any differences tended to favour the appellant. It is submitted that the learned sentencing judge ought to have imposed a similar sentence to that imposed by this Court. Counsel then complains that the judge implicitly criticised the decision of this Court by observing that he considered his original sentence, which he had imposed in that case had been too lenient and that this amounted to failure to be bound by the authority of this Court.
47. The Court does not consider that this decision is relevant to its consideration. These submissions are not well founded. As already observed, the constant case-law of this Court is that it proceeds by way of examination of principle. An appellant does not establish an error of principle by comparison of the facts of one earlier case (which are not, in any event, available to this Court) and claiming that a similar sentence should have been imposed. The learned judge’s remarks concerning his earlier sentence in the Perry case were unfortunate and unnecessary, but they did not amount to a refusal to follow the authority of this Court. In the present case, unlike in the Perry case, the learned judge did not entirely exclude from his consideration the personal factors relating to the appellant.
Ground III: Lapse of time: changed climate of opinion
48. The appellant relies on the decision of this Court delivered by Keane J (as he then was) in People (Director of Public Prosecutions) v J(T). That was a case where the appellant had committed a large number of serious sexual offences against his niece, when they were both very young. They only came to light after an interval of more than ten years. The Court considered that the lapse of time could be significant as affecting the likely sentence that would be imposed after that interval compared with what would have occurred if they had been prosecuted closer to the time of the offences. Keane J. (for the Court ) said:
“The lapse of time is significant…… because of the very different climate of opinion which prevails today in respect of offences of this nature [sexual abuse of children in that case]. . . . The court is satisfied that the criminal justice system cannot be indifferent to the fact that an accused person would probably have received a significantly more lenient sentence, had he not been deprived in the particular circumstances of the case of what would otherwise have been his constitutional right to an expeditious trial. What weight must be given to that factor will obviously depend on the facts of the individual case.”
49. The appellant submits that the time interval is significant in his case because his offences were committed in an entirely different climate with regard to sentencing for tax offences. He complains of lack of reasonable expedition in the criminal justice process. However, it worth noting the view of the learned trial judge that “probably the earliest this could be arrived [sic, probably meaning the earliest date for the trial] even without delay in this Court was by 2009/2010. The appellant says that he was not a person who was defrauding the State in times of financial difficulty. On the contrary his offences were committed in times of plenty, but his payments of tax, penal interest and penalties were made in times of real financial difficulty.
50. It is, however, submitted, on behalf of the Director, that there has been no appreciable delay on the part of the prosecution in the present case. The Appellant’s premises were searched in November 2005 and thereafter a very extensive investigation took place and voluminous records were obtained in this jurisdiction and abroad. The Appellant was invited to interview and declined in September 2008. He then moved abroad. Although the prosecution accepts that his solicitors on record in the criminal aspects of the matter were not informed of the intention to charge him, contact was made with his civil tax advisers, although they were no longer retained by him and he had not left contact details with the Revenue Commissioners. A European Arrest Warrant was issued and the appellant’s surrender was ultimately secured. The matter was brought before the Circuit Court in late 2010 and a guilty plea entered in January 2012. The Director submits that there was no breach of the appellant’s constitutional right to an expeditious trial and does not accept that the he would have received a much less severe sentence had he been sentenced sooner, for example in 2008. The significance which the appellant attaches to this issue is that, by reason of what he says is delay, he came to be sentenced in a different atmosphere concerning sentencing from what would have prevailed if he had been prosecuted earlier. This, it is said, is particularly exemplified by the decision of this Court in People (Director of Public Prosecutions) v Murray, in which judgment was delivered on 27th February 2012.
51. The decision of this Court in People (Director of Public Prosecutions) v Murray concerned an appeal against severity of sentence in a case of social welfare fraud. The appellant had pleaded guilty to twenty five sample counts of fraud and had been sentenced to a total of twelve and a half years imprisonment composed of twenty four consecutive sentences of six months.
52. The appellant had conceived an elaborate and sophisticated social welfare fraud, involving the misappropriation of some €249,000 and said to be the largest fraud of its kind uncovered to date.
53. The case is of interest because of the important and novel departure involved in the decision to offer general guidance to courts responsible for sentencing in the future. The opening remarks of Finnegan J. in giving the judgment of the Court were to the following effect:
“How should a sentencing court treat offenders who have defrauded the public revenue by either engaging in unlawful tax evasion on the one hand or (as in this case) by making false social welfare claims on the other? Given the intrinsic importance of such questions for the public weal – not least at a time of financial emergency – it seems appropriate that this Court should now give some general guidance for future cases of this kind given that prosecutions for tax evasion and welfare fraud are likely to be a more common feature of the criminal justice landscape in the years ahead than may have been the case heretofore.”
54. The judgment contains a wide-ranging review of sentencing policy, reflecting on the different considerations affecting sentencing for different crimes. The following passages are worth quoting:
“But serious offences against the person – involving as they do the unlawful use of violence – are nearly always in a separate category of offending, involving as they do moral delinquency of a high order……………”
“Offences against the person…… involve an affront to human dignity, a key constitutional objective protected by the Preamble to the Constitution, a violation of the integrity of the person (Article 40.3.2 of the Constitution) and, as often as not, a violation of the dwelling (Article 40.5 of the Constitution):
55. The Court proceeded to consider crimes not involving personal violence:
“This is not at all to suggest that crimes involving the loss of public revenue are somehow victimless crimes. Quite the contrary: offences of this kind strike at the heart of the principles of equity, equality of treatment and social solidarity on which the entire edifice of the taxation and social security systems lean. This is especially so at a time of emergency so far as the public finances are concerned.
The collapse of US investment firm Lehman Brothers in September 2008 triggered the onset of a global financial crisis which, in turn, has ushered in a contraction in our economy which is unparalleled in living memory. Faced with enormous demands on the public purse from the associated banking collapse and a continuing structural public deficit, the State has struggled during this period with a series of fiscal emergencies. To their great credit, the Irish people have as a consequence stoically endured significant taxation increases, reductions in social security payments and retrenchment at all levels in the provision of social services, as the State endeavours to restore equilibrium in the public finances.
All of this calls for a high level of social solidarity. We have seen from elsewhere how widespread tax evasion by the wealthy and well-to-do can gravely threaten social solidarity and, as a consequence, the very stability of a state itself. That solidarity would also be gravely endangered if taxpayers were led to believe that social security fraud was rampant or that, when detected, it would not be dealt with severely. By the same token, social security fraud impacts heavily on those who are most in need, since, by definition, it saps public confidence in the system and, of necessity, erodes the total sums available for the needy and those genuinely reliant on such payments.
56. The Court then turned to consider how these matters should affect sentencing:
“In the case of offences involving the public purse, deterrence plays an important value in the sentencing process. In the context of frauds upon the public revenue, deterrence is an important consideration, in that it is a necessary quid pro quo of social solidarity. It gives an assurance to the hard-pressed bona fide taxpayer that the State will both collect and distribute its revenue fairly and that those who defraud will be sternly dealt with. Some element of severity is necessary to ensure that taxpayers will pay the State what has been deemed by law to be properly due and to assure those who rely on social security payments that public support for the needy will not be undermined by an official culture which either turns a blind eye to those who commit illegal tax evasion on the one hand, or social security fraud on the other, or which is indifferent to these consequences.
We therefore suggest for the future guidance of sentencing courts that significant and systematic frauds directed upon the public revenue – whether illegal tax evasion on the one hand or social security fraud on the other – should generally meet with an immediate and appreciable custodial sentence, although naturally the sentence to be imposed in any given case must have appropriate regard to the individual circumstances of each accused.”
57. The relevance of the decision in People (Director of Public Prosecutions) v Murray needs to be considered in the light of the submission relating to the claimed failure of the learned trial judge to take account of the element of lapse of time and the fact that the appellant was sentenced by reference to a different climate regarding sentencing.
Ground IV: Other mitigating factors
58. The appellant complains that the learned judge failed to take adequate account of mitigating factors, including co-operation with the Revenue and the plea of guilty and absence of previous convictions.
Conclusions
59. The court may not alter the sentence imposed by the Circuit Court unless it finds that the learned judge committed an error in principle. The first question is whether he had proper regard to each of the elements which he was bound to consider in making his decision. Quite obviously, he had regard to the objectives of punishment and deterrence, and the appellant claims that he did so excessively, if not exclusively. In the view of the court, it is quite clear that the judge did not commit the error described in People (Director of Public Prosecutions) v Perry as excluding “from his consideration any ground for a custodial sentence other than the purely punitive.” the learned judge did take express note of the fact that the appellant was remorseful, had no previous convictions, had completely rehabilitated himself, indeed, that he had “many, many good points.” He accepted that he had to be given great credit for his attempts to pay and to deal with the revenue and that it was very unlikely that he would commit offences in the future.
60. He also expressly accepted that the appellant had made large payments by way of penalties and interest though, he observed, he was “probably a little bit behind in paying the penalties and interest.” At that point in his sentencing remarks, therefore, he would appear to have had proper regard to the very substantial payments of penalties and interest made by the appellant as is obviously required. This was discussed in the judgment of this court in People(Director of Public Prosecutions) v Redmond. Just as in any case of crime involving property or financial crime, it is material to consider the extent to which the injured party has been compensated. There is clearly a distinction between a payment of the previously unpaid tax and payment of interest and penalties. The last two are civil penalties for failure in observance of the tax code. In respect of the first, the taxpayer is entitled to less credit for belatedly meeting his obligations. A sentencing judge will, however, have regard to the matter.
61. The learned judge rightly took an extremely serious view of tax evasion. He correctly referred to the principle of fairness “ to the people of this country who mostly pay their tax,” in which echoes the principle of solidarity found in the judgment of this court in People (Director of Public Prosecutions) v Murray.
62. The learned judge, however, in the view of the court, fell into error in saying twice that defaulting taxpayers “ buy themselves away or out of a custodial sentence.” It was an error to suggest that offenders, in that situation, come to the court and say: “well, I paid the penalties, I paid the interest and let’s move on.” The passage in which these remarks occur repeatedly suggest or strongly imply that reliance by an offender before the criminal courts on the fact that he or she has made substantial payments by way of tax, interest and penalties should be wholly or largely discounted. It is, of course, absolutely correct to say that no person charged with a criminal offence is entitled to be absolved from having a sentence of imprisonment imposed upon him merely because he has compensated the victim. It is equally correct to say that the payment of compensation to a victim may well, depending on the facts of the case, be regarded as a mitigating factor when it comes to sentence. The difficulty with these particular passages in the sentencing remarks of the learned judge is that they appear to impute to the appellant an attempt to buy off his liability to face, where appropriate, a sentence of imprisonment.
63. That is not the correct position in law. A taxpayer is liable both civilly and criminally in respect of his failure to observe his legal obligations to make returns of and to pay his taxes. His payment of the civil penalties and interest does not dispense him from responsibility for criminal behaviour. He may be punished by fines or imprisonment as appropriate. When considering sentence, however, it would be an obvious injustice if a person were not entitled to invite a court to take into account the extent of financial reparations he has been compelled to make on the civil side.
64. Next, it is necessary to consider the argument based on lapse of time and reliance on the decision of this Court in People(Director of Public Prosecutions) v J(T). The lapse in the present case bears no resemblance to that in J(T). The learned judge was probably correct to say that the present case could have been heard, at the earliest, in 2009 or 2010. Counsel for the appellant made no particular effort to establish in the Circuit Court as a matter of fact that there had been any delay in the conduct of the revenue investigation and subsequent prosecution of the appellant. It is clear that, following the search under warrant in November 2005, matters were pursued by way of mutual assistance in order to obtain evidence from the UK company involved. All this seems to have proceeded through 2007 and into 2008, when the appellant was invited for interview but declined. The argument before the learned trial judge was to the effect that, if the hearing had taken place “at any time up until relatively recently, the court might have taken a different view” on the matter of sentence. Counsel open People (Director of Public Prosecutions) v Murray to the court.
65. While the decision in People (Director of Public Prosecutions) v Murray is of great importance and will be relevant to sentencing in such cases as the present from now on, it is only fair to say that there can be no comparison between the type, scale and deviousness of the extraordinarily elaborate and calculated fraud which that case disclosed. On that basis, that case is readily distinguishable from the present. The court would add that People (Director of Public Prosecutions) v Murray does not and could not represent any departure from or qualification of the generally applicable principles of sentencing, discussed earlier in this judgment. However, to the extent that it represents a different climate regarding sentencing for social welfare and tax fraud, it is difficult to see how it assists the appellant that it was not delivered until February of this year. The time lapse in People (Director of Public Prosecutions) v J(T) was very much longer. Furthermore, Keane J was of the view that a very different climate came to prevail over that period to such an extent that it would be unjust to sentence the appellant by reference to the views of a later time. No such dramatic change can be shown in the present case over the comparatively much shorter interval. The Court can find no error in principle in the sentence imposed by the learned judge, by reason of the lapse of time.
66. Insofar as the fourth ground is concerned, the court does not accept that the learned judge failed to take into account the wide range of mitigating elements in the case. He referred to them extensively, was emphatic about the appellant’s general good character, his cooperation with the revenue and was obviously conscious of his plea of guilty. It has to be noted, however, that, in the specific area of due payment of taxes, the appellant cannot claim to have an unblemished character in view of his admitted significant failures in respect of income tax and capital gains tax.
67. In summary, the court finds that the learned judge committed an error in one respect. He discounted very largely or entirely the large settlements made by the appellant with the Revenue and their destructive effects on his finances, his life, his capacity to earn and his family. The Court has summarised these extensively in the earlier part of this judgment.
68. The court considers that the sentences of four years were excessive. However, having regard to the seriousness and extent of the evasion of VAT and the dishonest way in which it was organised, it believes, however, that a sentence of imprisonment was warranted. Taking account of his very extensive settlements and cooperation with the Revenue, the destructive effects on his life, his plea of guilty, his rehabilitation and the other mitigating factors, it will reduce the sentences two years on each count to run concurrently.
People (DPP) v Connors
[2018] IECA 144
EX TEMPORE JUDGMENT of the Court delivered on the 28th day of June 2018 by Birmingham P.
1. This is an application brought by the Director of Public Prosecutions seeking to review, on grounds of undue leniency, a sentence. The sentence sought to be reviewed was one that was imposed on 7th April 2017 at the Circuit Court in Wicklow and was one of 5 years imprisonment, with the final two and a half years suspended, that was imposed in respect of three counts of sexual assault. Provision was made at the time of sentencing for a two-year post-release supervision.
2. The background to the Garda investigation and to the Circuit Court proceedings is a rather unusual one.
3. On 29th July 2014, the victim, and for reasons which will become apparent, I will refer to her as the victim rather than the more usual term of complainant, one Ms. LG, whose date of birth was in 1993, was out socialising with two friends in Dublin city centre. Ms. G and her friends met up with Mr. Kelly and a friend of his, Mr. M. All decided to go back to Bray to the home of Mr. M. They travelled out to Bray in two taxis, LG and the two males in one taxi – that was the taxi that arrived first – and the other two females in the other car. All stayed over and there is no suggestion of anything untoward happening at the time when all were present in the house.
4. The next morning, Mr. M drove the three females to Dublin. On the way back to Bray, he was involved in a fatal car crash. His mobile phone was accessed by Gardaà as part of their investigation into the fatal collision. On the phone were three clips covering some eight minutes. In these clips, Mr. Kelly, the respondent, and Ms. LG are clearly visible. On the first clip, Mr. Kelly is seen licking the vagina of Ms. LG and pulling at her clothes. On the second clip, there is an act of digital penetration. On this clip, Mr. Kelly is heard to remark that he is going in for the kill and that he was “going to ruin her”. At one stage on this clip, she appeared to stir from her slumbers and the clip shows Mr. Kelly telling her to go back to sleep. The third clip shows an act of anal digital penetration. Ms. G was not aware of the fact that she had been assaulted until the matter was brought to her attention by GardaÃ. It is clear from the victim impact statement that she found the experience of being asked to view the clips by Gardaà as very distressing indeed.
5. In terms of Mr. Kelly’s personal circumstances, he was born on 26th February 1994 and so was 20 years old at the time of the offence. He had no previous convictions and at the time was studying and working part-time. The Court heard that in advance of the sentence hearing, that Mr. Kelly had contacted a psychologist and had attended 20 counselling sessions with her. That psychologist was a witness on behalf of the defence during the course of the sentence hearing. By the time that that sentence hearing took place, he was halfway through a degree course leading towards a business degree in applied entrepreneurship.
6. In written submissions, the DPP made clear that she takes no issue with the sentence of 5 years imprisonment, but rather, her concern is with the portion of that sentence that was suspended. She says that the period suspended was excessive.
7. In oral submissions, Mr. Lorcan Staines, Barrister-at-Law, who did not appear in the Court below and who was not the author of the written submissions, has refined that situation somewhat. He points out that the judge described the offences being at the higher end and he is quick to add that apart from what the judge had to say in that regard, that it is clear that the offences are indeed at the higher end of the scale. On that basis, he says that the sentence of 5 years imposed before consideration of any question of suspension was obviously not the starting point because regard was had to factors such as the complete absence of previous convictions and the early plea of guilty. He says that in a situation where there was a very significant element the sentence suspended, the question of whether there was any element of double-counting arises for consideration. Nonetheless, he accepts that 5 years, after mitigation was applied, was not an in appropriate sentence and indeed he is prepared to go further and accepts that it was not inappropriate that some element of the sentence be suspended, but the quarrel is with the extent of the suspended sentence.
8. There has been reference to the clips on the phone taken possession of by Gardaà during the course of their investigation. The sentencing Court viewed that video at the request of the DPP and the question of this Court viewing the video was raised with us. Having considered the matter, we decided that it was inappropriate that we should do so. We took that view for a number of reasons. Firstly, because the contents of the three clips are described in very considerable detail in the transcript of the Court below and also in the submissions of the parties and it is not clear to us what viewing the video would add to that account. In deciding that it is not appropriate, we have regard to what we believe to be the privacy rights of the injured party which we see as engaged. We have already referred to the fact that the injured party, in her victim impact report, referred to the fact that she found being required to view the clips as very distressing and any further viewing would be unnecessary. In a situation where the focus of the appeal is really on the question of whether the sentence should have been suspended, whether in full or partially or to what extent, that also means that the question of viewing the video is less significant than it might be in other cases. It is for that reason that we decided not to accede to the suggestion.
9. We begin our consideration of this case by stating the obvious: that these are very serious offences. The fact that each of the three assaults charged took a different form adds an additional dimension of seriousness, as does the fact that the activity was all targeted at a young woman at a moment of particular vulnerability. Again, the fact that the activity was recorded, and it appears while the first clip may not have been recorded by Mr. Kelly himself, that the second and third would seem to have been, adds a further dimension of seriousness. That seriousness is highlighted and emerges powerfully from the very eloquent victim impact report that was prepared by the injured party.
10. So serious were these offences that it is absolutely clear to us that they had to be met with a custodial sentence and indeed with a significant custodial sentence. The Court does not disagree with the starting sentence, after application of mitigation of 5 years, and the Court agrees that there was scope thereafter for an element of suspension and that that was an appropriate course of action to follow.
11. As indicated earlier, the net question for this Court is whether the period suspended was excessive so that the period that was required to be served was unduly lenient.
12. The jurisprudence that is applicable to cases such as this involving requests to review sentences on grounds of undue leniency is at this stage well-know and has not really been seriously in dispute ever since the first such case, the case of DPP v. Byrne in 1994 when the decision of the Court of Criminal Appeal was given by O’Flaherty J. It worth calling to mind what he had to say. O’ Flaherty J. said as follows:
“In the first place, since the Director of Public Prosecutions brings the appeal, the onus of proof clearly rests on him to show that the sentence called into question was unduly lenient. Secondly, the Court should always afford great weight to the trial judge’s reason for imposing a sentence that is called in question. He is the one who receives the evidence at first hand, even where the victims chose not to come to Court, as in this case, both women were very adamant that they not want to come to Court. He may detect nuances in the evidence that may not be as readily discernible to an appellate Court. In particular, the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced, what Mr. Justice Flood has termed ‘the constitutional principle of proportionality’. His decision should not be disturbed. Thirdly, it is, in the view of the Court, unlikely to of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr. Grogan SC, the test to be applied under the section is not the converse of the enquiry the Court makes where there is an appeal by an appellant. The enquiry the Court makes in this form of appeal is to determine whether the sentence was unduly lenient. Finally, it is clear from the wording of the section that since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”
13. The suspension of two and half years of the sentence, as occurred in this case, was generous. It might indeed be said that it was very generous. The result of that part-suspension is that the net sentence required to be served has to be seen as lenient.
14. Whether dealing with appeals against severity or with undue leniency reviews, the Court has always made clear that it is not sufficient to justify intervention, that the Court, if it had been sentencing at first instance, would have been minded to impose a somewhat different sentence. Still less, would the fact that an individual member or members of the Court would have been so minded justify an intervention. In this case, the fact that the Court might have been minded to structure the sentence differently or to have struck a different balance between the period to be suspended and the period to be actually served would not justify an intervention.
15. In this case, there can be no doubt that it would have been open to the sentencing Court to have struck a different balance. Had the judge in the Circuit Court decided to suspend 12, 15 or indeed 18 months, as he might well have done, it is unlikely that the Court would have intervened. But, as was pointed out by O’Flaherty J. all those years ago in Byrne, that is not really what this exercise is about. The question is whether the sentence represents such a substantial departure that the sentence has to be seen, as not just lenient, but unduly lenient.
16. We have referred already to the serious nature of the offenses and really the serious nature must be obvious. But it is the case that there were significant features present by way of mitigation: the fact that there was a plea of guilty; the fact that the intention to plead and not to contest the case was communicated at an early stage; the remorse expressed by the respondent, remorse that was conveyed on his behalf through his counsel; the absence of previous convictions; his youth – 20 years at the time that these offences were committed; his efforts to address his offending behaviour though contact with the psychologist who gave evidence at trial; the support that was available to him from his father, his girlfriend and his employer which meant that the prospects for rehabilitation were encouraging and offered every reason to believe that there would not be reoffending.
17. Having regard to the factors that were present that makes these offences so serious, but also having regard to the factors present by way of mitigation, we have concluded that the sentence required to be served, while undoubtedly lenient, was not so lenient as to require an intervention from this Court. We have decided that the sentence required to be served, while perhaps on the outer end of the lenient range, does not fall outside the range of sentences available. In coming to that view, we have had regard to the fact that had we decided to intervene, it is likely that we would have followed our usual, though not absolutely invariable practice, of imposing a sentence somewhat less than we would have regarded as having been appropriate in order to take account of the fact that someone is being sentenced a second time, and, as in this case, sentenced at a time when they are well into the sentence that was imposed at first instance.
18. In the circumstances of this case, we are not prepared to accede to the Director’s application.
19. The application is refused.
People (DPP) v Wall
[2018] IECA 366
JUDGMENT of the Court delivered ex tempore by Mr. Justice Tony Hunt on the 22nd of October 2018.
(1) Introduction
1. On 5th October, 2016, on a plea of guilty to a count of burglary contrary to s. 12(1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, the Dublin Circuit Criminal Court imposed a sentence of two years imprisonment suspended entirely pursuant to s. 99(1) of the Criminal Justice Act 2006, as amended, on the appellant acknowledging in open court to bound by the following conditions:-
(i) that he would keep the peace and be of good behaviour to all the People of Ireland for a period of two years and six months from that date;
(ii) that he would place himself under the supervision of the Probation Service for a period of two years from that date, attend all appointments, continue to address his offending behaviour, remain drug free, continue to address his training and employment needs with IASIO Officer;
(iii) notify the Probation Service of any change in his contact details; and
(iv) come up if called on to do so at any time within the said period of two years and six months to serve the sentence imposed, but suspended on him entering into that recognisance.
2. On the 24th of October, 2017, the matter was re-entered before the learned sentencing judge by the Probation Service pursuant to the provisions of s.99(14) of the 2006 Act, on the basis that the appellant had failed to comply with certain of the conditions of suspension acknowledged by him on 5th October, 2016.
3. The revocation application was heard on 20th November, 2017. The evidence of the probation officer, Ms. Clarke, was to the effect that shortly after the date of sentence in 2016, the appellant informed the Probation Service that he was moving to Cork, and Ms. Clarke transferred his case to the Cork Supervision Team in November of that year. By January 2017, he had not attended appointments, and the Cork office issued him with some warning letters. The appellant then informed the supervision team in Cork in March 2017 that he was moving to Dublin, so the case came back to Ms. Clarke. She sent him appointment letters throughout May, June, July and August, giving him some leeway to make contact.
4. As there was no contact by September 2017, Ms. Clarke re-entered the case. She indicated that since the case was transferred back to her in March 2017, she had no contact with Mr. Wall whatsoever, whether of a formal or informal nature. The appellant was not available on a mobile number that Ms. Clarke had from phone conversations that the appellant had with a probation officer in Cork. The appellant had a number of periods of probation supervision prior to the order in this case.
5. Having heard the evidence, the learned sentencing judge expressed the view that she was not in the business of supervising probation orders, and the appellant had shown no genuine commitment to engaging with the Probation Service since she suspended the sentence. Although the appellant had offered to engage with the Probation Services whilst serving a short sentence at that time of the revocation application, the learned sentencing judge did not feel that this offered any comfort in terms of his likely compliance once he was at liberty again. Therefore, she decided to revoke the suspension and impose the sentence in full.
6. Counsel on behalf of the appellant then requested the learned sentencing judge not to activate the sentence in full, given the elapse of time between the imposition of the sentence in October 2016 and the hearing of the re-entry application in November 2017. The learned sentencing judge stated that as a rule of thumb, where she imposed a suspended sentence for a particular period of time, and if the person went off the rails or did not comply at some point, she would generally give them some credit for period where they had, in fact, complied. However she noted that in this particular case, there had been no compliance from the outset. Therefore, she was not inclined to reduce the period of activation, and she proceeded as previously indicated, giving the appellant credit for any time that he had already spent in custody in respect of the matter.
(2) Grounds of Appeal
7. In essence, the appellant complains that the decision of the learned sentencing judge to reactivate the entirety of the two years and six months’ imprisonment originally imposed was disproportionate.
(3) Appellant’s Submissions
8. It is submitted that the appellant had abided by the fundamental requirement of the suspension of the sentence, which was to keep the peace and be of good behaviour. The terms actually breached by the appellant were characterised by the appellant as imposed by the learned sentencing judge with a view to ensuring that he maintained a particular minimum level of non-offending behaviour. Where the appellant had, in fact, been of good behaviour, it was submitted that the learned sentencing judge could have, on that basis, considered re-imposing only part of the suspended sentence, rather than the entirety of it.
9. It was suggested that the learned sentencing judge did not properly consider such a course of action. The appellant relied on the following extract from the decision of the learned sentencing judge:-
“I am of the view that a suspended sentence is just that. It is suspended subject to conditions, and if the conditions are not observed, and if there is not some reasonable and compelling justification for non-compliance as far as this Court is concerned, the basis for the suspension is gone and the sentence should be served.”
The learned sentencing judge went on to observe that she did not see any evidence from the probation report to support the idea that the appellant had ever intended to keep the conditions of suspension as undertaken by him on 5th October, 2016.
10. It was submitted that because the learned sentencing judge had not given express or cogent reasons why she considered the mitigating factors to be insufficient in the instant case to support only partial reactivation of the suspended sentence, the conclusion should be drawn that she did not consider those factors either properly or at all. It was argued that the learned sentencing judge focused on the aggravating factors, and that her decision was affected by her apparent failure to equally consider the mitigating factors. It was claimed that the learned sentencing judge had failed to consider the totality of the factors, and operated a de facto policy excluding proper consideration of the alternatives of allowing the suspension to continue, or of partial reactivation of the suspended sentence.
(4) Respondent’s Submissions
11. The respondent referred back to concerns expressed by the learned sentencing judge when the matter first came before the court for sentence. She expressed the view that having heard the evidence and the extent of the appellant’s previous convictions, the appellant was coming to the end of the line in terms of lenient treatment, as such treatment in the past had little or no apparent effect on his behaviour. Counsel for the appellant indicated in response that the appellant was very much aware that he was “looking down the barrel in this matter” . The respondent pointed out that by April 2016, the learned sentencing judge received a report that was, in the words of the learned sentencing judge, “not what would have been hoped for in the context of the previous convictions and the remarks I made on the last occasion” . However, she adjourned the matter to allow a final opportunity for Mr. Wall to engage with the Probation Services. In putting the matter back to October 2016, the learned sentencing judge observed that “the situation is very tenuous for Mr. Wall’s point of view and if the matter is re-entered it’s simply a case of imposing a prison sentence” .
12. The respondent also relied on the expressions and reasoning set out by the learned sentencing judge in imposing the suspended sentence on 5th October, 2016. Her remarks made it clear to the appellant that he was expected by her to demonstrate real motivation and commitment in addressing all of the difficulties which caused him to offend in the past. The respondent submitted that the failure to submit contact details was not a simple breach of a minor condition, but had the result that the other conditions were set at naught, because the appellant could not and did not engage with Probation Services in circumstances where they had no possibility of maintaining contact with him. It was submitted that there was no error on the part of the learned sentencing judge, where the appellant was given clear conditions to follow, and the breaches of the order had the effect that the majority of the terms and conditions of suspension could not be addressed by either the Probation Services or the appellant.
(5) Conclusion
13. We have carefully considered the transcript of the sentence hearing and the written and oral submissions in this Court. In the first instance, any s. 99 revocation hearing must be considered in the context of the record of the sentencing process as a whole. In this case, the applicant had a bad previous record, in that he had previously been the subject of a number of suspended sentences. Although none of these sentences had been activated for breach of a bond condition, they did not have the desired effect of inducing the appellant to desist from further offending.
14. In the original sentencing hearing in relation to this matter, the learned sentencing judge was understandably reluctant to travel the suspended sentence route again, having regard to the appellant’s previous record and his less than full previous cooperation with the Probation Services. Notwithstanding her justifiable reservations, she very fairly gave the appellant a last chance, and in doing so, warned him in clear terms of the necessity of demonstrating concrete motivation and commitment to addressing his personal difficulties.
15. On the disposal of the reactivation application, the learned sentencing judge did, in fact, consider whether some less stringent approach than full activation was appropriate and, in all of the circumstances, declined so to do. She particularly referred to the fact that there was no compliance at all with the conditions of the bond that she had previously set in relation to probation supervision.
16. In all of the circumstances of this case, the learned sentencing judge had ample evidence before her to justify taking the view that she did, when regard is had to the sentencing process taken as a whole. Section 99(17) requires that in considering an application under s.99(14), where it is satisfied that there has been breach of a probation condition, a court shall revoke the probation order and activate the entire of the sentence imposed, or such part thereof as it considers just in all of the circumstances of the case, less any time spent in custody.
17. The learned sentencing judge considered all of the relevant circumstances of the particular case under the applicable statutory provision. She specifically considered the alternative to full revocation and decided against that course of action. In the circumstances, the appellant has not identified any error of principle in the approach adopted by the learned sentencing judge, and his appeal is accordingly dismissed.
D.P.P. (People) v. Foster
[2008] IECCA 79
Judgment of the Court (ex tempore) delivered on the 26th day of May 2008 by Finnegan J.
The respondent on this application pursuant to section 2 of the Criminal Justice Act 1993 for a review of sentence was sentenced on the 4th October 2007 having pleaded guilty to Count 2 on an indictment to a charge of arson contrary to
section 2 subsection (2) of the Criminal Damage Act 1991, an offence for which the maximum sentence is one of life imprisonment. The circumstances of the offence are as follows.
The offence was committed on the 1st July 2005 at 1 Mornington Grove, Artane, between 4.30 and 5.30 a.m. in the morning. On the previous day the respondent and some companions had been in a SPAR store and the respondent’s companion was caught stealing beer. They made a get away from the store but on a complaint being made to the Gardai they were arrested not long afterwards on a bus. Then at between 4.30 and 5.30 a.m. the following morning, under the influence of drink or drugs or both, the respondent knowing that the staff from the SPAR supermarket lived in 1 Mornington Grove determined to set fire to a moped outside that house presumably in the knowledge or at least the belief that it belonged to one member of the staff His account is that he put a lighter to the rear mudguard of the moped having first moved the same slightly away from the house and that he then made his way along Mornington Road and climbed a wall to make his way home. There are a number of factors in this. The moped is undoubtedly a valuable item to the person who owned it and he was deprived of that. That is the first matter. The second matter which troubles this court very greatly is the relationship between what occurred at the SPAR supermarket the previous day and the conduct of the respondent. Whatever way one looks at it, it is an attack on the system of justice that
we administer in this country. Whether intended to or not it is calculated to have the effect of discouraging persons from reporting matters to the Gardai or co-operating in the prosecutions which should ensue where crimes are committed.
Some difficulty is presented to the court by the way in which a plea was accepted following an alteration to the indictment. Count 1 on the indictment which did not proceed related to the damage to the house at 1 Mornington Grove because as
a result of the respondent’s conduct that house caught fire and €150,000 damage was caused to the same. It is also clear that the personal possessions of the six persons within the house were lost. Those persons suffered smoke inhalation but fortunately
did not sustain any further injury. A plea was entered to Count 2 but all the circumstances surrounding both offences were opened to the court and one must assume that was by agreement. Count 2 however is very limited. It charges that on
the 1 July 2005 at 1 Mornington Grove, Malahide Road, Artane, in the County and City of Dublin without lawful excuse the respondent damaged by fire a moped registration unknown the property of Joe Keane intending to damage such property.
So it is not the house with which the court is concerned: the offence related to the moped. The charge was amended by direction of the court and it reads following on from what I have just quoted “being reckless as to whether the life of another would be thereby endangered”. Setting light to a moped in any circumstances represents a danger, it is likely to explode and no matter what one’s state of intoxication one would appreciate that danger and certainly the respondent here did not stand around in the vicinity of the moped. So there was a risk to the lives of others. That is a serious matter. It could be a passer-by. It could be the owner of the moped who seeing the fire tries to put it out. It could be, as happened here, that adjoining properties could be set alight putting the occupants at risk. So this is a very serious offence indeed for those reasons.
The learned trial judge, it must be said, did indeed look at all the relevant circumstances surrounding the offence. He did indeed look at the circumstances affecting the respondent here and have regard to his very special circumstances but having made the correct analysis and having taken into account the facts this court is satisfied that he was in error and seriously in error in imposing as a sentence a term of two years imprisonment. Such a sentence was unduly lenient. An appropriate sentence for the offence to which the respondent pleaded guilty this court is satisfied is a term of five years imprisonment. However the court has regard to the personal circumstances of the respondent as detailed by the learned trial judge at the sentence hearing. It has regard to the remorse which he expressed to the Gardai. It has regard to his plea of guilty. Taking these matters into account the court suspends of that sentence the last three years thereof on condition that the respondent enter into a bond to keep the peace and be of good behaviour for a period of three years following his release from prison having served the sentence hereby imposed.
DPP v Martin Stafford
Court of Criminal Appeal, February 14, 2008 [2008] IECCA 15
Judgment of the Court delivered by Mr. Justice Geoghegan on the 14th day of February 2008
This is an application brought by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice Act, 1993 for a review of a sentence imposed on the above-named respondent by the Central Criminal Court (Carney J.) on the grounds that the sentence was unduly lenient.
In the indictment, as preferred, count No. 1 was a count of false imprisonment based on an allegation that the respondent had falsely imprisoned a woman in a disused railway carriage, parked at Heuston Station and in which the respondent had been residing. Counts 2 to 7 had alleged rapes of the same woman by the respondent on the same night and in the same railway carriage. Count 8 alleged an offence under section 112 of the Road Traffic Act, 1961, as amended, that is to say, the unauthorised taking possession of a motor car in the context that this was the car in which the same woman had been picked up by the respondent and finally, count No. 9 was an allegation of burglary at St. Peter’s Church, Phibsboro, for the purposes of procuring the same car. In the event and in consequence of agreement with the Director of Public Prosecutions, the respondent pleaded guilty to count No. 3 which was a count for common law rape and to count No. 8 being the section 112 offence. It was to be understood, however, that all the alleged facts would be put before the judge and there was a nolle prosequi entered in respect of the other counts. A sentence of nine years imprisonment was imposed on the rape count and a sentence of four years imprisonment to run concurrently was imposed in respect of the section 112 offence. The learned sentencing judge imposed a further nine years post-release supervision.
The salient facts as put before the judge by Inspector Joseph Crowe were as follows: A car was stolen by the respondent from St. Peter’s Church, Phibsboro of which the registered owner was a Fr. Brian Moore. This happened between the 3rd and 6th March, 2005. On the evening of the 10th March, 2005, a woman who will be referred to as C.B. to protect her identity was working as a prostitute in the Baggot Street area of Dublin. She was approached by the respondent in the stolen car and a fee was agreed for consensual sex. The respondent then drove the car to Heuston Station and he and C.B. entered the disused carriage which, without permission, the respondent was using as a home. To avoid being noticed, he wore at times a luminous jacket similar to what would be worn by an Iarnród Éireann worker. On two occasions earlier in the week, C.B. had had consensual sex for a fee with the respondent in the carriage. On the night in question, however, a quantity of alcohol was purchased before going to the station. When they arrived at the railway cabin, the respondent took C.B’s bag from her and switched off her mobile phone, at which point he said to her “tonight you are going to get fuck all money. You stay until I tell you to go and you are going to have sex with me the way I like it and you are to strip off everything.” He kept shouting at her and asking her did she hear him. He grabbed her and pushed her down on the bed. He picked up a hammer and threatened her with the hammer to smash her face. C.B. became terrified and as a consequence complied with the respondent’s request. He removed his clothes and invited her to have oral sex with him. Despite her request, he refused to use a condom. He then had vaginal sex with her from behind, subsequently moving to a front position. He withdrew before ejaculating. He told her that they were going to have intercourse all night and that he would not let her go until he was finished. C.B. then pretended to be asleep and she realised at that stage that the main door had been locked by the respondent. After about an hour the respondent forced her again to have oral sex with him, followed by penetrative vaginal sex though he ejaculated on her back. C.B. was crying and shouting at him to shut up. She herself then attempted to use the hammer by way of self-defence. She tried to knock him unconscious so that she could get out of the carriage but he grabbed her and pushed her on the head. He, again, reiterated that he would not let her go and that she would have to stay until his needs were satisfied at which point he gave her a choice of oral or anal sex. She opted for the oral sex. In fact ordinary vaginal sex followed but she later performed oral sex on him. She was allowed go to the toilet on one or two occasions which, in effect, was a cardboard box. Eventually, the respondent fell asleep and while he was asleep C.B. successfully by mobile contacted the Garda Síochána and drew them to the correct carriage by turning up a radio which was in the carriage. As a final part of the assaults, she was at one point threatened by a scissors. While she was having sex with the respondent, the scissors was put to her throat. It is clear from the evidence and the victim impact report that C.B. has been adversely affected by the whole episode and at times finds it hard to get out of bed. By any standard, the crime was horrific and would attract a substantial sentence.
The question is was the sentence imposed by the learned judge unduly lenient. Having regard to other matters and circumstances which are about to be referred to in this judgment, the court is of opinion that it was not and that there would be no basis for setting aside the sentence.
Before giving specific reasons why the court is of the view that the sentence was not unduly lenient, it is thought appropriate to make some general comments on sentencing principles in general. One of the reasons why the court thought fit to reserve judgment in this case is because shortly before the hearing of the appeal, Charleton J., in the Central Criminal Court in the case of DPP v. Drought had delivered a lengthy and learned judgment on sentencing in rape cases. As it so happens, a new judgment of this court has since been delivered on the same theme by Murray C.J. sitting with Charleton J. and Irvine J. in DPP v. Keane on 19th December 2007.
The Central Criminal Court judgment of Charleton J. contains at its outset the following statement of principle with which this court is in agreement. It reads as follows:
“My function today is to decide what sentence is appropriate to the perpetrator in the circumstances of this case. Courts are guided by precedent. It can be argued that the circumstances of the perpetration of the same offence by different offenders on different occasions can be so varied that previous decided cases are of little assistance. It can also be asserted that cases can, notwithstanding variation, have similarities which become apparent once particular factors are identified as being of importance in sentencing. These factors, and the range of variability that they bring about, can be ascertained in previous rulings of this court, the Court of Criminal Appeal and the Supreme Court. It is not my intention to establish guidelines for the sentencing of offenders who have been found guilty of rape. It is my function however, to place the sentencing of this offender within the parameters of the existing law and practice so that the disposal of this case can be regarded as being consistent with the penal policy of the superior courts in dealing with rape cases.”
The learned judge goes on to make it clear that he had attempted to examine all the previous reported and unreported decisions of the superior courts which are relevant and he had also gained assistance from the Judicial Research section of the High Court and from the parties themselves. The case review set out by Charleton J. will obviously prove useful in the future for sentencing judges but, as he is the first to recognise, no two cases are exactly the same. That principle has particular relevance to this case because the learned sentencing judge, Carney J., attached significant importance to one particular precedent referred to indeed in the judgment of Charleton J. namely, The People (DPP) v. Melia (unreported judgment of this court, delivered by Keane C.J. on the 29th November, 1999). Interestingly, Charleton J. clearly considered that the main aggravating factor in that case which led the court to increase a sentence of nine years imprisonment imposed by Carney J. in the Central Criminal Court to one of twelve years imprisonment was the element of a previous conviction for rape rather than the number of victims (in that case there were four victims three of whom were prostitutes) which is the point to which, on the face of his judgment, Carney J. appears to have attached particular importance. However, the court notes that Keane C.J. also placed special emphasis on the fact that these were four separate incidents.
The apparent emphasis on Melia placed by the learned sentencing judge in this case must be put in context. First of all, it was he himself who raised concern about that case. From the judge’s interjections in the transcript and from his sentencing ruling, it would appear that his primary concern was to ensure that in imposing a sentence less than twelve years he would not be departing from sentencing principles laid down by the Court of Criminal Appeal. It would be too literal a reading of the judgment to assume that in arriving at his sentence, the learned trial judge did not take account of any of the mitigating arguments (admittedly some of them unsound) put forward on behalf of the respondent but solely determined his sentence on a perceived relevant differentiation of the case from Melia on the basis that there was only one victim instead of four involved. Even if that was the view which the judge took, this court in considering whether the sentence was unduly lenient or not is obliged to take into account all factors in the case and not merely those which influenced the learned sentencing judge.
In DPP v. Keane cited above, the Chief Justice reiterated what has been stated in many judgments that the starting point of the case law relating to the sentencing of rape offences is the well-known judgment of Finlay C.J. in The People (DPP) v. Tiernan [1988] I.R. 250. The former Chief Justice in that case made it clear that the seriousness of rape will, except in wholly exceptional circumstances, warrant an immediate custodial sentence. But at the same time the judgment which was a judgment of the Supreme Court rejected the idea of a tariff. Murray C.J. in the Keane case quotes in this connection Finlay C.J. as saying the following:
“… having regard to the fundamental necessity for judges in sentencing in any form of criminal case to impose a sentence which in their discretion appropriately meets all the particular circumstances of the case (and very few criminal cases are particularly similar), and the particular circumstances of the accused, I would doubt that it is appropriate for an appellate court to appear to be laying down any standardisation or tariff of penalty for cases.”
It is common knowledge that this particular viewpoint does not find favour in a number of other common law jurisdictions but it has always been adhered to in this jurisdiction and in the view of the court has served us well. In Keane the judgment of Murray C.J. contains the following passage which supports the same proposition.
“So far as sentencing generally for the offence of rape is concerned a sentencing court must have regard not to one individual case but to the range of cases, some of which have been cited here, governing sentences in such cases and then exercise its own discretion having regard to all the circumstances of the case actually before it.”
In the context of an application by the Director of Public Prosecutions based on the contention that the sentence was unduly lenient, Murray C.J. in Keane had this to say:
“The task of a sentencing judge is often a difficult and complex one. The law obliges him or her to have regard to all the salient features of the circumstances in which the offence was committed, the nature of the offence and its impact on the victim and society so as to evaluate its gravity. The sentencing judge is also obliged to have regard to the particular individual who must be sentenced, his or her personal history and circumstances so that a punishment which is proportionate and just may be imposed. There may be matters which the prosecutor has considered to be of prime importance and other matters which the defence considers to be of prime importance but it is for the judge to adopt an independent evaluation of all factors. Apart from the case of murder it will not be possible to refer to a predetermined term of imprisonment which ought to be imposed. Neither has it ever been the function of the DPP to propose that a specific sentence should be imposed. That is a judicial function and an issue which can only be determined when all the relevant factors have been taken into account and evaluated by the sentencing judge in the exercise of his or her independent judicial functions. Counsel for the DPP is of course under a duty to bring to the court’s attention all law and factors relevant to the sentence which may be imposed. The DPP may also assist the court, which is a practice with a provenance of long-standing, by submitting with reference to specific circumstances that those circumstances are such as to warrant a custodial or substantial custodial sentence or otherwise for the offence committed.
The sentencing judge has to decide in each case the appropriate sentence within the general parameters of sentencing depending on the nature and degree of aggravating or mitigating circumstances.”
None of this means that there should not be reasonable consistency in sentencing. That consistency will be achieved by the proper application of the above principles. It is clear beyond doubt that a substantial custodial sentence was warranted on the facts of this case. Apart from anything else there were aggravating circumstances surrounding the case. There were some mitigating circumstances which will be referred to but none which could warrant anything less than a substantial custodial sentence. A nine year imprisonment sentence is such a sentence. The only question that arises is whether in all the circumstances it was sufficiently substantial.
The aggravating factors urged on this court on behalf of the Director of Public Prosecutions were as follows:
1. The length of time of the false imprisonment. It is suggested that the learned trial judge failed to give sufficient weight to the nine or ten hour period within which the victim was effectively imprisoned. Attention is also drawn of course to the wording that was used accompanying such imprisonment and which is referred to above.
2. The number of oral and vaginal rapes engaged in.
3. The premeditated nature of the offences.
4. The use of a weapon in the form of a hammer at the beginning and later the incident involving the scissors put to the applicant’s throat.
5. The previous convictions with special reference to two previous convictions for false imprisonment and one for indecent assault.
6. That overall the facts and circumstances were more serious than in the Melia case.
The alleged mitigating factors relied on by the respondent were the following.
1. The relief given to the complainant by reason of the plea of guilty.
2. That one week’s advance notice of the plea of guilty was given.
3. That the claimant did not suffer any non-sexual injuries.
4. The undoubted dysfunctional and tragic background of the respondent.
5. That he was a chronic abuser of drugs.
6. That he was involved in the use of drugs at the time of the offence.
7. That he had sought to address his drug use.
8. There was a degree of cooperation with the prosecuting gardaí and various other overlapping grounds which were either related to the sad life which he had had or his allegedly genuine attempts to rehabilitate himself.
The prosecuting garda officer did accept a number of these points in his favour under cross-examination from counsel. In relation to the aggravating factors, it is argued on behalf of the respondent that there was no premeditation having regard to the two prior occasions on which there was consensual intercourse. That assumption cannot reasonably be made in the view of the court. It is then submitted that the previous convictions were of a different nature. It is admitted that some relevance can be attached to the convictions of false imprisonment and indecent assault. The indecent assault combined with the false imprisonment had occurred as far back as 1991 and the respondent had served a seven year sentence. The later conviction of false imprisonment was in connection with a burglary in 1997, some considerable time before these incidents. Quite apart from the number of victims and incidents involved, as already referred to, the defendant in Melia had had a previous conviction of rape and that appeared to be an important factor relied on by the court in increasing the sentence.
The learned trial judge correctly points out that in the case of numerous offenders appearing before him there is a dysfunctional history. That of itself and by itself cannot really differentiate the case from many others. There are sound public policy reasons why minimal importance can be attached to mitigating arguments based on drink or drugs. Furthermore, many law abiding families suffer a series of unfortunate bereavements and that cannot be an excuse for crime. What the court thinks is important in this case, however, and given the nine year supervision order which the learned trial judge imposed, the court believes the trial judge was of the same view is the concrete evidence of genuine attempts at self-rehabilitation with particular reference to drugs. This seems clear from the reports which were before the judge. In considering whether the sentence is unduly lenient or not, the nine year supervision order should not be ignored. Clearly, it was thought out carefully by the learned judge and in a context that rehabilitation appeared viable. The length of the particular supervision order if adopted too frequently might create practical resource problems for the probation service but that is quite another matter. As far as this case is concerned and the particular facts of it the structure of the sentence combined with the supervision order would seem to this court to have been wholly appropriate and could not be considered as wrong in principle and still less could be considered as unduly lenient for the purposes of the Director of Public Prosecutions’ application. Accordingly, the court refuses the application.