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Cite as: [2015] IECA 162

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Judgment

Title:	Director of Public Prosecutions -v- Kelly
Neutral Citation:	[2015] IECA 162
Court of Appeal Record Number:	126/12
Date of Delivery:	21/07/2015
Court:	Court of Appeal
Composition of Court:	Sheehan J., Mahon J., Edwards J.
Judgment by:	Court of Appeal
Status:	Approved

___________________________________________________________________________

THE COURT OF APPEAL

Appeal No. 126/12

Sheehan J.
Mahon J.
Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Christopher Kelly

Appellant

Judgment of the Court delivered by Mr. Justice Mahon on 21st day of July 2015

1. This is an appeal against the severity of a sentence of six years imposed by the Dublin Circuit Criminal Court on 29th March 2012 in respect of one count of aggravated burglary contrary to s.13 of the Criminal Justice (Theft and Fraud Offences) Act 2001. Three additional offences were taken into account, namely robbery contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, false imprisonment contrary to s.15 of the Non Fatal Offences Against the Person Act 1997 and false imprisonment contrary to s.15 of the Non Fatal Offences Against the Person Act 1997 The appellant had pleaded guilty to all four offences.

2. These offences were committed late on the night of 27th April 2011 at a house on Botanic Avenue, Glasnevin. On that evening the appellant and three accomplices forced their way into a house occupied by a young couple. At the time the appellant was just one month shy of his sixteenth birthday. What then occurred in the house was quite horrific. In order to fully appreciate the serious nature of the incident it is appropriate to state in some detail what occurred over the couple of hours following the forcible entry into this young couple’s home.

3. The intruders ordered the occupants, a young couple who were students, to stand against a wall in the kitchen. The appellant told him that he was going to “kick the fuck” out of them. He held a bread knife to the young man’s throat and commented “I will just give him a quick nick”. While saying this he moved the blade of the knife from the young man’s neck to his cheek and back again. He demanded money from the young man and when only €14 was handed over he became angry and while holding the knife to his face he threatened him “You better get more than that or, I swear, I will slice you”. The appellant also said to him, referring to his girlfriend “I will hurt her if you don’t tell me your pin number”. The young man then admitted that he had another bank account and handed over a card. He was ordered to accompany the appellant and a co-accused to an ATM with a knife held to his back. He was struck on two occasions on the back of his head by a co-accused. He was again threatened that he would be cut with a knife. While being taken by car to the ATM a co-accused held a knife close to his shoulder. When he had difficulty recalling his pin number, he was threatened with being stabbed. A co-accused remained in the house with the young woman while the young man was taken to the ATM. At the ATM machine the victim was forced to withdraw €600. This did not please the appellant who again threatened the victim. He threatened to stab him in the neck with a pin. A decision was made to wait until after midnight in the hope that the ATM would yield more funds. The victim was again threatened with being stabbed, and he was told that if he did not co-operate the appellant would order his accomplices to rape his girlfriend. Throughout the ordeal there were constant references to the victim being stabbed or his girlfriend being raped. At a later state the victim managed to escape from the car and alert the gardaí.

The appellant’s background
4. At the time of these offences, the appellant, although only fifteen years of age had twenty three previous convictions, including robbery, burglary and criminal damage. At the time of the commission of these offences he was on bail for the robbery of a number of young men committed on different dates, and on 25th May 2011 he was sentenced by the Dublin Circuit Criminal Court to two years detention in Trinity House in respect of those offences. A probation report before the court on 29th March 2010 indicated that the appellant had limited insight into his offending behaviour. He had been in Trinity House since 30th April 2011, and although he had not returned voluntarily after Christmas leave, he was making some progress and was attending school there.

5. The appellant had a dysfunctional family background. His father had addiction problems and died when the appellant was eleven years old. His mother is a chronic alcoholic.

The impact on the victims
6. Both young victims of these offences were deeply psychologically affected as a result of their experiences at the hands of the appellant and his accomplices. The young man blamed himself for not being able to spare his girlfriend the ordeal. He cut short his college course. The young woman lost her confidence and moved back to live with her parents and became wary and nervous of people as a result.

The sentencing judgment
7. Counsel for the appellant, Mr. Aylmer, S.C., made detailed submissions to the learned sentencing judge which focussed on the appellant’s youth, his grave criminal record during his childhood years and the need to structure a sentence in a manner which would facilitate the greatest possible rehabilitation. Counsel for the appellant acknowledged that the offences were “appalling”, and that his client had played a central role in them, and that they merited a lengthy custodial sentence. He sought, however, to persuade the learned sentencing judge that it was appropriate to adjourn sentence for at least a year to enable the appellant complete his then current detention in Trinity House, having regard to the fact that his sojourn in Trinity House up to then had been positive for the appellant. The appellant was in receipt of counselling and educational services in Trinity House and he had intended to sit his Junior Certificate examinations later that year.

8. In the course of his sentencing judgment the learned sentencing judge emphasised “the incredibly serious” nature of the crimes committed by the appellant and his accomplices. He expressed his belief that the appellant was the ring leader in the incident and had been “incredibly violent” towards the two young people. He referred to the decision of the appellant to “induce fear” and “to threaten seriously” and “terrify the occupants”. He expressed the view that the appellant’s escapade on the evening in question was “bordering on insidious and evil”. He also acknowledged the extent to which the appellant had benefited from his time in Trinity House. However, the learned sentencing judge rejected the submissions made by Mr. Alymer. He took the view that he must “impose a substantial term of detention for this man’s rehabilitation”. He proceeded to impose a six year period of detention.

9. The learned sentencing judge did not refer to the provisions of the Childrens Act 2001 which clearly support the rehabilitation of children who engage in criminal activity to be undertaken, if possible, other than in prison.

10. Section 96 of the Childrens Act 2001 states:-

(1) Any court when dealing with children charged with offences shall have regard to:-

a) the principal that children have rights and freedom before the law equal to those enjoyed by adults, and, in particular, a right to be heard and to participate in any proceedings of the court that can affect them, and

b) the principal that criminal proceedings shall not be used solely to provide any assistance or service needed to care for or protect a child.

(2) Because it is desirable wherever possible:

a) to allow the education, training or employment of children to proceed without interruption,

b) to preserve and strengthen the relationship between children and their parents and other family members,

c) to foster the ability of families to develop their own means of dealing with offending by their children, and

d) to allow children to reside in their own homes,

e) any penalty imposed on a child for an offence should cause as little interference as possible with the child’s legitimate activities and pursuits, should take the form most likely to maintain and promote the development of the child and should take the least restrictive form that is appropriate in the circumstances; in particular a period of detention should be imposed only as a measure of last resort.

The appellant’s grounds of appeal
11. The appellant’s grounds of appeal can be summarised in the following terms:-

(i) The learned sentencing judge erred in principle in failing to determine where on the scale on sentence available for the offences, the offences of the applicant lay before determining what reduction of that sentence was merited by the mitigating features in the case.

(ii) The learned sentencing judge erred in principle in failing to attach sufficient weight to the appellant’s plea of guilty.

(iii) The learned sentence judge’s sentence of six years was excessive having regard to, in particular, the appellant’s age at the time he committed the offence (under sixteen years) and as of the date of sentence (just over sixteen years of age), having regard to the objectives of the Childrens Act 2001 (as amended) in relation to rehabilitation.

(iv) The learned sentencing judge erred in principle in failing to attach sufficient weight to the prospects for rehabilitation of the appellant.

(v) The learned sentencing judge erred in principle in failing to acceed to the application by Mr. Alymer, counsel for the appellant, to defer sentence for a period of twelve months in order to facilitate the appellant’s continuing detention in Trinity House.

Error of principle
12. The details of these offences are quite spine chilling. The learned sentencing judge placed the level of offending to be at the upper end of the scale of gravity, and this view cannot be faulted. The impact on the two young victims was, and undoubtedly remains, severe. Both have suffered significant psychological consequences. There is also, in the appellant’s case, the added disturbing fact that although only fifteen years old at the time, he had accumulated twenty three previous convictions, including offences of robbery, burglary and criminal damage. He was serving a period of detention in Trinity House for the robbery of young men on two separate occasions, at the time these offences were committed. Quite clearly, he was, although very young, already a hardened criminal and, more worryingly, an individual, albeit a child, who was prepared to be gratuitously violent and to use violence and the threat of violence (including rape) to induce terror into his victims to ensure that they did as he demanded. This was in circumstances where the victims were completely at his and his accomplices’ mercy, had not resisted in any way and were unlikely to resist.

13. The sentence of six years was not unreasonable. Having regard to the graphic details of the offences a prison term of six years would probably have been viewed as being unduly lenient if the offender was an adult; in that event the appropriate sentence might have been eight years, having regard to, in particular, the number of previous convictions.

14. What marks this case out as being different to many similar types of offences that come before the courts involving significant violence, or the threat of violence, is the very young age of the appellant at the time the offences were committed. Quite obviously he was a child who was out of control and very much in need of rehabilitation if there was to be any hope of him avoiding a life of serious crime as an adult. The provisions of the Childrens Act 2001, while they do not impose an obligation on a sentencing judge to avoid detention in the case of child offenders, clearly direct that such cases require particular attention on the issue of rehabilitation, and the avoidance of sentences where possible which adversely affect the child’s normal development. Section 96(2) provides that it is appropriate for a period of detention be imposed “only as a measure of last resort”.

15. Over the decades, courts have struggled to deal with serious child offending in a manner which, on the one hand, acknowledges the seriousness of crimes which children do on occasion commit, and the need to protect society, and on the other hand provide for the rehabilitation of the child in circumstances where the child’s normal development is interfered with as little as possible.

16. In DPP v. GD, (unreported 27th May 2005), the Court of Criminal Appeal considered the sentence imposed by the Central Criminal Court when a fifteen year old boy who murdered a fourteen year old boy. In the course of the court’s judgment, Murray C.J. observed as follows:-

“On the other hand the trial judge had to take into account, as he clearly did, that the appellant himself was fifteen years of age when he committed the offence. Whatever about his psychiatric health he clearly has dysfunctional traits to his personality. A person of that age is by definition immature, being a significant number of years from adulthood. It may be the case, and certainly one would hope it would be the case, that with further education, counselling and specialist assistance that he will mature or evolve over time into a man who will have a full understanding of, and insight, into the gravity of the offence he committed. And in particular, one who will have a full understanding and respect for moral and legal norms which law abiding citizens observe in their relationships with others. In principal a sentence is not imposed with regard only to the nature of the offence but is imposed on the particular person who committed such an offence, having regard to its gravity (which of course includes the consequences for the victim or victims) and the particular circumstances of the individual who committed the offence. In the case of a particularly young offender, in this case one of fifteen years of age at the time, who has committed a very serious crime which would normally warrant a severe and long sentence, perhaps as in this case life imprisonment, the court must have particular regard to the prospect of rehabilitation. Very young offenders who commit grave offences of this nature may, in the circumstances indicated above, mature or develop into very different personalities as they reach adulthood and grow older, than that which they had at the time when the offence was committed.

And children or very young offenders convicted of serious offences which would normally involve lengthy custodial sentences must be considered as falling into a special category insofar as there is a special onus on the court to have regard to their rehabilitation and welfare for the future because of their young age at the time and the reasons outlined above. In one sense, counsel for the appellant is correct that there should be a light at the end of the tunnel for the appellant.”

17. In the present case, the learned sentencing judge quite rightly took the view that the offences committed by the appellant were extremely grave, as were the consequences for the unfortunate young victims. While the learned sentencing judge was quite entitled to take the view, which clearly he did, that the gravity of the crimes required an immediate sentence, he ought to, in the court’s view have provided to a greater extent for the rehabilitation of the appellant having regard to the fact that there were already positive signs that his detention in Trinity House was working to his benefit. Had the learned sentencing judge taken the decision to proceed along the lines as suggested in the submissions made by the appellant’s counsel, it is unlikely that this court could have taken issue with such a decision. If however the decision was to impose an immediate period of detention, as in fact it was, there should have been greater provision for rehabilitation than in fact was indicated. To this extent, there was an error of principle on the part of the learned sentencing judge in this very difficult case. There ought to have been a portion of the six year detention suspended to facilitate rehabilitation outside of prison, and subject to conditions and under supervision.

18. The court proceeded to sentence the appellant as of this date. It considered a number of certificates awarded to the appellant during his period in custody and a supporting letter from Fr. Peter McVerry S.J.. It also considered a prison report which indicated that the appellant had breached prison rules on a number of occasions during his time in custody to date.

19. In substitution for the sentence imposed in the Circuit Criminal Court, this court shall impose a sentence of six years with the last twelve months thereof suspended for the remaining period of the appellant’s time in custody plus two years post release. It is a condition of the suspended element of his sentence that the appellant co-operate with the Probation Service and comply with conditions imposed by them.

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