THE COURT OF APPEAL
Record No. 32/2016
Sheehan J.
Mahon J.
Edwards J.
Between/The Director of Public Prosecutions
Respondent
Appellant
Judgment (ex tempore) of the Court delivered on the 10th day of October 2016 by Mr. Justice Mahon
1. At Dundalk Circuit Criminal Court on 24th November 2015, the appellant pleaded guilty to one count of false imprisonment contrary to s. 15 of the Non Fatal Offences against the Person Act 1997. He was sentenced on 27th January 2016 to a term of imprisonment of eight years (to date from 24th November 2015), but with the final two years of the term to be suspended on conditions for a period of twelve years. The appellant had appealed against that sentence.
2. In the early hours of the morning of 5th July 2015 Mr. Joshua Morris was walking along Bachelors Walk in Dundalk where he lived. Close to his home he was tripped from behind and caused to stumble. He was then set upon by two men, including the appellant, who punched him in the head and demanded that he empty his pockets. He was forced to bring the two men back to his home, they having told him that they were Dublin gangsters and would stab him. In his home his bedroom was searched. An ATM bank card was found, and the victim was asked for his pin number and when he told his assailants that he had no money in his account he was again assaulted in the course of which he was punched and dragged into the kitchen. One of the men then took a kitchen knife and threatened to slit his throat. One of the men then left the victim’s home with the ATM card while the other remained in the house. When the man who had left returned with the news that there was indeed no money in the victim’s account, he was again punched. The victim at this point freed his hands and ran from the house out onto the street where he banged on doors and sought help. He was fearful that the two men would follow and kill him. A neighbour called the gardaí but when the victim’s house was checked it was found that the two men had left the premises.
3. With the assistance of CCTV the appellant was arrested. His home was searched under a search warrant and a watch was found matching the description of one stolen from the victim.
4. When arrested the appellant initially opted to remain silent when interviewed by the gardaí. When shown CCTV footage from the date in question, he acknowledged his guilt and indicated his desire to plead guilty. In the course of a second interview he maintained that he was under the influence of drugs on the date in question. He also admitted to striking the victim.
5. The appellant maintains that his sentence was excessive, in particular, he complains that the learned sentencing judge failed to attach sufficient weight or consideration to a number of mitigating factors including the appellant’s guilty plea, his co-operation and remorse, his previous good character, his age and his psychiatric history. As of the time of the offence, the appellant was aged eighteen years.
6. In the course of his sentencing judgment, the learned sentencing judge described the offence as opportunistic. He described the event as one in which the victim was subjected to a terrifying, horrific and shocking ordeal; the punching, the tying of his hands, punching him numerous times. He spoke about the victim being dragged into the kitchen, the threat to slit his throat with a knife and the further punching of the appellant when the men discovered that there was nothing in his bank account. The learned sentencing judge referred to the appellant’s young age and his lack of previous convictions. He referred to the appellant’s plea of guilty and his remorse and his co-operation with the investigating gardaí.
7. The learned sentencing judge also referred to substantial aggravating factors evident in the case. In passing the sentence of eight years, he suspended the final two years of that sentence in order to give him some light at the end of his sentence.
8. This offence was quite rightly described by the learned sentencing judge as being horrific. It can only have been a terrifying ordeal for the victim, Mr. Morris. He was deprived of his liberty over a prolonged period of time. He was subjected to repeated assaults and his life was threatened in a very brutal manner. It is, as was suggested by the learned sentencing judge, understandable that Mr. Morris did not wish to attend court as he did not want to re-live his ordeal or hear the evidence again.
9. The sentencing court heard psychiatric evidence in relation to the appellant which referred to the appellant’s personal circumstances and, in particular, his difficult family background, and the extent to which the appellant came under the influence of an older brother who has a history of offending.
10. Counsel for the appellant suggested that it was somewhat remarkable that, having regard to this difficult personal background, the appellant had not offended prior to his eighteenth birthday. While such an observation is not unreasonable, it is also remarkable that the appellant’s first offence at the age of eighteen is one involving a very serious level of personal violence perpetrated over a relatively prolonged period. It is the sort of offence that one might usually associate with an offender who has already a history of offending stretching back into his childhood.
11. In his sentencing judgment, the learned sentencing judge specifically refers to the relevant mitigating factors, including the plea of guilty, the appellant’s youth, his lack of any previous conviction and his troubled personal history.
12. The eight year sentence imposed in this case, while arguably on the high side, is not unduly severe having regard to the grave nature of the offence, including as it did, the considerable level of personal violence perpetrated on the victim. This court therefore finds no fault with the imposition of a headline eight year term.
13. The learned sentencing judge decided, quite correctly, to suspend a portion of the eight year term to, as he put it to give him some light. The suspension of the final two years did not however, in this Court’s view, adequately satisfy the requirement to incentivise rehabilitation in circumstances where an offence, albeit a very serious one, was in fact a first offence committed by an eighteen year old who pleaded guilty, and in this respect there was an error of principle. In these circumstances it is necessary for this court to re-sentence the appellant as of today. That sentence will be one of eight years imprisonment with the final four years suspended on the appellant entering into a bond in the sum of €100 to keep the peace and to be of good behaviour for a period of two years post release.
14. The suspension of half the sentence is primarily intended to incentivise rehabilitation, and, in this regard, it is refreshing to note that, based on the fact that the appellant is now regarded by the prison authorities as an enhanced prisoner, and has completed three courses to date, that rehabilitation is well underway.
