THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
45/15
The People at the Suit of the Director of Public Prosecutions
Respondent
- V -
Michael Byrne
Appellant
Judgment of the Court (ex tempore) delivered on the 22nd day of October 2015 by Mr. Justice Edwards
1. This is an appeal by the appellant against the severity of a sentence of two years imprisonment imposed upon him at the Dublin Circuit Criminal Court on the 17th of February 2015 on Bill No DUDP0523/2014 (hereinafter Bill No 523/2014), following his arraignment and plea of guilty to a count of robbery, contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
2. The appellant also appeals against the severity of a further sentence of three years imprisonment, also imposed upon him at the Dublin Circuit Criminal Court on the 17th of February 2015 on Bill No DUDP0661/2014 (hereinafter Bill No 661/2014), following his arraignment and plea of guilty to a further count of robbery, contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
3. The said sentence of three years imprisonment in respect of Bill No 661/2014 was made consecutive to the said sentence of two years imprisonment in respect of Bill No 523/2014.
4. The salient facts of the robbery the subject matter of Bill 523/2004 were as follows. The robbery was perpetrated on the DART on the 1st of March 2014 between Sutton Station and Bayside Station. A young man called Adam Smith, who was aged 13, was travelling by DART from Sutton Station to Grand Canal Dock. He was seated on the train and was texting on his new iPhone 5S. Two men entered his carriage, one of whom sat beside him while the other sat opposite him. The man who sat beside him was the appellant, who engaged the boy in conversation and commented on his phone. The appellant then produced his own phone which was also an iPhone with a distinctive Ferrari sticker on it. The appellant said to the boy “Can I see your phone?” but the reply was “No”. The appellant asked again, stating that he only wanted to see it for a minute and again was told “No”, and the boy further stated that he had to get off the train.
5. The appellant then responded by stating that he had to get off the train as well, and he then tried to grab the Adam Smith’s iPhone with his right hand. The second man then stood up and he also tried to grab the boy’s iPhone. However young Mr Smith managed to hold on to his phone. The boy then shouted for help and the second man told him that if he didn’t stop shouting he would punch him in the face. Despite this the boy continued to shout and the second man raised his fist up in front of him. Mr Smith was very afraid at this point and believed that he was going to be punched.
6. The appellant then went through the boy’s bag and took from it a number of items including a pair of Beats headphones by Dr Dre, and an iPad mini. As the appellant was doing this the second man searched the boy’s pockets and took his iPod Classic.
7. The thieves also took the boy’s iPhone 5S and a quantity of cash amounting to €6 approximately that he had had in his pockets. Then when the train stopped at Bayside both thieves got off the train taking the property they had stolen with them. The total value of the property stolen was €1,700.00.
8. Following the incident the injured party experienced a panic attack and was unable to get off the train until the Donaghmede stop, where he reported the incident. The matter was referred to the Gardaí who commenced an investigation. Using CCTV footage recovered from Bayside and other DART stations they identified the appellant, and another man whose face was covered, as suspects. The CCTV footage of the appellant at Bayside Station recorded him as being in possession of a pair of Beats headphones by Dr Dre .A search warrant was obtained to search an address at Kilbarrack connected to the appellant, where clothing similar to the clothing the appellant was seen to be wearing on the CCTV was found. The appellant subsequently presented himself at Raheny Garda Station on the 3rd of March 2014 and was arrested. He was detained for questioning where, following some initial dissembling, he made a number of admissions including that he was present during the robbery, and had received some of the proceeds of the robbery. However, he contended that the actual robbery was perpetrated by the second man and that he had not participated in it.
9. The appellant was duly charged with robbery, and pleaded guilty upon arraignment on the first date on which the matter was listed for mention having been returned for trial to the Circuit Criminal Court.
10. Turning then to Bill No 661/2014, there were two counts on that bill, comprising one count of robbery and one count of criminal damage to a cash box. The accused entered a plea of guilty to the robbery count and this was acceptable to the respondent providing that the full facts relating to both counts, which were interlinked in their facts, would be opened to the sentencing judge, which duly occurred. A nolle prosequi was subsequently entered in respect of the criminal damage count.
11. The facts underlying the charges the subject matter of Bill No 661/2014, were that on the 27th of April 2014 a Mr James Quinn, the owner of a Ford Focus estate motor car, registration no 03D 1322, had driven to his girlfriend’s house, and had there exited the car for the purpose of bringing in shopping while leaving it unlocked and the keys in the ignition. As he was speaking to his girlfriend at the doorway of her house he heard the door of his vehicle slamming. He ran towards it but it was driven away by a party whose identity was unknown at that point.
12. On the following day, the 28th of April 2014, a Ms Patricia Whelan was in her motor car which was parked outside a pharmacy on St Brigid’s Road in Artane. Ms Whelan was waiting for her sister who had gone into the pharmacy to transact some business. She became aware of another vehicle to her left, which was an estate car, and which contained a number of men. She observed these men to be wearing dark clothes and balaclavas. She noted that one of the men who was in the front passenger seat, and another man who was in the rear of the vehicle, had their faces fully covered by the balaclavas they were wearing. A third man, who was the driver, was also wearing a balaclava but in his case it was rolled up on his head.
13. At that point a security van, otherwise known as a cash in transit van, arrived and the men in the estate car were observed to be looking in the direction of the said security van. Ms Whelan’s sister then emerged from the pharmacy and got back into Ms Whelan’s car. Following a conversation between them, one of them called 999 and on being put through to the Gardai provided them with the registration no displayed on the estate car, namely 06D59738. It subsequently transpired that the estate car was fitted with false registration plates, and that in fact it was the vehicle that had been stolen from Mr Quinn vehicle on the previous day, the correct registration number of which was 03D 1322.
14. Ms Whelan observed the security van leave the area of St Brigid’s Road and she saw the estate car follow it. Subsequently, the security van arrived at the AIB branch at Raheny shopping centre and a Mr Dave Collins, who is employed by Group 4 Security, got out of it, went to the back of the van, opened a hatch and lifted out a cash box containing €50,000.00. As he turned away from the hatch and towards the bank where he was intending to deliver the cashbox he was struck by a man, later identified as being the appellant, in the upper chest area. He was physically lifted off the ground and knocked onto his back, striking his head as he fell. The cash box was knocked out of his hand.
15. The appellant grabbed the cash box and jumped into the estate car that had, at this point, pulled up beside him. The estate car then drove away at speed, initially exiting the shopping centre by turning left on to the Howth Road in Raheny and then turning on to Station Road in Raheny and continuing on to Donaghadee Road in Coolock. It then entered the Coolock Industrial Estate where it was observed by a security man, who noticed that it was being driven aggressively, and in particular had reversed twice against the wall of a business premises. The security man further observed that after the second reversal, one of the occupants of the vehicle, who was wearing a balaclava, got out and had with him what appeared to a cash box with a grey hoody thrown over it. It appeared to the security man that the vehicle had been used to try to open the cash box. When it was ascertained that that they had been unsuccessful in opening the cash box in that way the man with the cash box, who again was subsequently ascertained to have been the appellant, threw the cash box over a fence and then jumped over the fence after it. The other two men then exited the vehicle and followed him. Before doing so, one of the appellant’s said accomplices set alight the estate car belonging to Mr Quinn.
16. The security man dialled 999 and reported what he had seen to the Gardaí. As a result of that call Gardaí went to the Marigold estate in Darndale, where from the back of No 18 Marigold Crescent, they observed three men running alongside the back walls of the houses in that part of the estate, and they gave chase. The appellant was one of these three men, and he was observed to then jump up on to the back wall of No 18, adjacent to a shed, and to exhort his two companions to run. The appellant was observed to be sweating and out of breath and to have dye on his hands and clothing. On of the Gardaí then present then went to the shed and the cash box therein with a pickaxe sticking out of it. It still contained the €50,000 but the money was covered in green dye in circumstances where a dye cartridge had exploded within the cashbox when it had been forcibly opened with the pickaxe. The Gardai also found the key to the estate car, the aforementioned false number plates, some hats and a balaclava within the shed.
17. Gardaí successfully apprehended the appellant and he was conveyed to Clontarf Garda Station where he was detained. He was interviewed while in detention and made admissions concerning his involvement in the robbery from the security van. He contended that he became involved in the robbery because he owed money for drugs, and apologised for having done so. The appellant later sought to repudiate and retract some of his admissions.
18. In due course the appellant was charged with the two charges the subject matter of Bill No 661/2014, was in due course returned for trial to the Dublin Circuit Criminal Court. Following his arrest on the 28th of April 2014 the appellant was initially remanded in custody where he remained until the 15th of October 2014 when he was granted bail so as to enable him to attend Cuan Mhuire. He breached his bail terms in that he only attended Cuan Mhuire on two days, and as a result a bench warrant was issued for his arrest on the 22nd of October 2014. That warrant was executed on the 10th of February 2015 following which he was remanded in custody to appear before the Circuit Criminal Court on the 17th of February 2015, on which date he was arraigned and pleaded guilty to the robbery count..
19. The sentencing judge received evidence that the appellant was born on the 14th of September 1989, and was a middle child in a family of ten children. His parents separated when he was 10 years old. The court was told that he had a girlfriend with whom he had fathered a number of children. Both his girlfriend and mother had accompanied him to court. The appellant is dyslexic but successfully completed his Junior Certificate. He subsequently did a FÁS course in mechanics and had worked for a time as a gardener
20. The prosecuting Garda also told that the appellant had a drug problem, and had attended treatment clinics in the past. It was elicited in cross-examination of the said Garda that the appellant claimed to have taken 30 to 40 tablets on the day of the robbery, and also that he had been smoking heroin. The Court was told the appellant was willing to re-engage with treatment services while in custody. A letter written by the appellant was handed into the judge confirming that.
21. The court heard evidence that the appellant had 63 previous convictions, 45 of which had been recorded in the District Court and 18 of which had been recorded in the Circuit Court. It was clarified that a small number of the convictions in the Circuit Court comprised appeals from the District Court but the remainder had originated in the Circuit Court. Amongst the latter were two convictions for robbery and a conviction for burglary.
22. The Court also heard that the robbery of the cash in transit van was committed whilst the appellant was on bail having been charged with the robbery of Mr Adam Smith on the DART.
23. The appellant’s two accomplices were separately apprehended and were similarly charged. One pleaded guilty and received a sentence of four years imprisonment with the two years suspended. The other elected to plead not guilty and proceed to trial and his trial had not come on by the date on which the appellant pleaded guilty and was sentenced.
24. In the course of sentencing the appellant, the sentencing judge stated:
“In dealing with Mr Byrne I have to take into account the seriousness of the crimes. They're serious crimes. I also have to take into account his pleas of guilty which are early pleas and I also have to take into account a hopeful rehabilitation in relation to Mr Byrne. I think he has the best of intentions. I'm not sure has he the fortitude to carry it through but he has the best of intentions. I must also take into account his record of conviction which is serious. He has a serious number of convictions and some of them are serious crimes. So taking all the factors into account including the mitigating factors, I propose to impose a sentence of two years on the first count, that is 523/14 and in relation to the second count of robbery on 661/14, I impose -- I intend to -- I'm going to impose a three-year custodial sentence. They are to run consecutively to each other and I'll take -- and I'm taking into account that basically he's been six months in prison already. It would have been a longer sentence but for his already term in custody.”
25. Counsel for the appellant then enquired of the sentencing judge “Are you backdating that for six months?” to which the judge replied “No, I'm taking -- in my sentence I've taken that into account. So it's an effective five-year term of imprisonment for the two robberies.”
26. Counsel for the appellant then sought to prevail upon the sentencing judge to suspend a portion of the total sentence “to encourage him on the back of it”. The sentencing judge refused to do so stating:
“No, I think Mr Byrne is wise enough to know that if he gets in trouble again he's going to jail again and I don't think he needs a suspended sentence to inform him of that proposition.”
27. The appellant appeals against his sentences on the grounds that the sentences were excessive and unduly severe in that the sentencing judge:
(a) failed to give the appellant credit for time spent in custody on remand for the offences for which he was sentenced;
(b) imposed sentences that were unduly severe having regard to the lesser sentences imposed on the co-accused;
(c) failed to have any or any adequate regard to the family, social and other circumstances of the appellant.
28. Counsel for the appellant informed the Court at the hearing that ground “B” was not being proceeded with. In support of his submissions based on the two remaining grounds counsel for the appellant has referred this Court to a number of cases including The People (Director of Public Prosecutions) v O’Driscoll Vol 1 Frewen 351; The People (Director of Public Prosecutions) v McCormack [2004] I.R. 356; The People (Director of Public Prosecutions) v Jennings CCA 143/98 and The People (Director of Public Prosecutions) v G. McC [2003] I.R. 609. The Court has considered and had regard to this jurisprudence.
29. It was submitted that while it was accepted that the offences committed were serious, no weapons were used and no serious physical harm was caused to the victims. The sentences imposed built in no incentive for the appellant to reform in custody or on release. It was further submitted that the appellant and society would benefit from Probation Supervision of the appellant on his release and that a part-suspended sentence would assist and induce the appellant to resist the temptation to re-offend and also fend off offers of illicit substances which might be made to him by those who knew of his weakness in that regard.
30. Counsel for the appellant further submitted that in the present case the sentencing judge, although he referred to the appellant’s addiction issues, failed to sufficiently take them into account and that he should have attached more weight thereto.
31. It was further submitted that the appellant has reached a make or break time in his life and that he now has family and other responsibilities to address. In the circumstances it would have been appropriate for the Court to have sought to incentivize his rehabilitation by suspending a portion of the total sentence.
32. It was further submitted that in effect the appellant is serving three consecutive sentences for two offences. The first “sentence” is or was a period of six months spent on remand, the second a sentence of two years and the third a sentence of three years imprisonment. The sentences as imposed operate so as to deny the Appellant remission of one quarter provided for by the prison rules in respect of the period from 28th April 2014 to 22nd October 2014 when he was on remand. It was submitted that the failure to give credit for time served on remand constituted a clear error of principle. It was further argued that the two year sentence imposed on Bill 523\14 was in effect made consecutive to the six month remand period in circumstances where there was no evidence the offence committed on the DART on the 1st March 2014 was committed at a time when the appellant was on bail. Accordingly the provisions of Section 11 of the Criminal Justice Act 1984 do not apply to the offence committed on the DART.
33. In response counsel for the respondent has argued in lengthy and detailed submissions that the overall sentence was appropriate and proportionate, having regard to the seriousness of the offending in both instances. The recourse to consecutive sentencing was required in circumstances where the cash in transit van robbery was committed while the appellant was on bail for the robbery on the DART. In addition, the sentencing judge had expressly referenced the appellant’s pleas of guilty, and also his desire to be rehabilitated, and had taken these into account. It was submitted that the judge did not fail to take account of time served on remand. He had expressly stated that he had taken it into account in arriving at his final sentence figure.
34. The court has considered the submissions made by the appellant and indeed the replying submissions on behalf of the respondent, and is satisfied that there was no error of principle in this case. It agrees that the overall sentence was appropriate and proportionate having regard to the seriousness of the offending in both instances. There were significant aggravating circumstances including the fact that the cash in transit robbery was committed while the appellant was on bail. The Court is satisfied that due account was taken of mitigating factors and the failure of the trial judge to suspend a portion of the overall sentence in order to incentivize rehabilitation was not an error of principle, but rather the legitimate exercise of judicial discretion, in circumstances where the evidence disclosed that the appellant had a bad previous record, had been before the Courts many times and had not been sufficiently influenced by leniency afforded to him in the past to turn away from crime.
35. It is appropriate, having regard to the strong emphasis placed on it by the appellant, to address with some greater particularity the complaint that the trial judge failed to take into account the time spent on remand and structured the sentence so as to effectively deny the appellant the benefit of the remission that he would have had had the sentence being backdated in respect of the period spent on remand.
36. Counsel for the respondent has drawn the court’s attention in her written submissions to the case of The People (Director of Public Prosecutions) v. John Flaherty, [2015] IECA 161 (Court of Appeal, ex tempore, 21st July 2015) in which this Court stated:-
“While it is generally the practice, when arriving at the appropriate sentence for a particular offence and a particular offender, to allow full credit for time spent in custody prior to the sentencing date, it is not mandatory that this be done, and indeed in some instances which might be described as exceptional, it would not be appropriate to so do. Sentencing judges should have a discretion to decline to give any credit, or alternatively to give limited credit, for time spent in custody in appropriate cases, and with due regard to the totality principle.”
37. The court has given careful consideration to whether what occurred in this case was an appropriate exercise of the sentencing judge’s discretion, or an unjustified overlooking of, or failure to take account of, the fact that time was spent in custody awaiting trial. It is quite clear from the sentencing judge’s remarks that he did not overlook the fact that time had been spent in custody. Rather he was very alive to that fact and specifically took it into account in structuring the sentence in the way he did. He specifically said towards the end of his sentencing remarks “I am taking into account that basically he has been six months in prison already, it would have been a longer sentence but for his already term in custody. He was asked was he backdating that for six months and he replied in response to that “No, in my sentence I have taking that into account. So it is an effective five year term of imprisonment for the two robberies.”
38. The court finds no error of principle in circumstances where the trial judge specifically alluded to the fact that time had been spent in custody and stated that he had taking it into account in arriving at his final sentence figure. The trial judge expressly stated that had he chosen to structure the sentence otherwise the appellant might well have faced a longer sentence. This Court considers that if the trial judge taken a different approach and sentenced the appellant to a higher aggregate sentence, for example to a term of six years, with an appropriate discount for the time served in custody while on remand, such a sentence would in all likelihood not have been interfered with. It is clear therefore that the appellant was certainly not disadvantaged, and very possibly was in fact advantaged, by the approach adopted by the trial judge.
39. Accordingly in circumstances where the sentencing judge did not commit any error of principle in the manner in which he structured the sentences in these cases, or in any other respect, the Court must dismiss these appeals.
