THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Edwards J.
167/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (ex tempore) delivered on the 12th day of April 2016, by Mr. Justice Sheehan
1. This is an appeal against sentence.
2. On the 17th June, 2015, the appellant pleaded guilty to burglary and to arson. Just over a year before that, on the 15th May, 2014, he had received a three year suspended sentence in respect of a robbery to which he had pleaded guilty. On the 17th June, 2015, the sentencing judge reactivated the three year sentence in view of the breach that occurred as a result of the burglary and arson offences and he then imposed a sentence of seven years imprisonment for the burglary and arson offences consecutive to the three year sentence for robbery. The final two years of the consecutive sentence of seven years imprisonment were suspended on terms which included a condition that the appellant would remain under the supervision of the Probation and Welfare Service for a period of two years following his release from prison.
3. The appellant now appeals against the overall sentence imposed on him and in written submissions maintains that the sentence imposed was excessive for the following three reasons:-
1. The learned sentencing judge erred in principle in that he failed to expressly consider the totality principle so as to ensure that the overall sentence was a just a sentence for the criminal conduct concerned.
2. The learned sentencing judge erred in principle by imposing the said sentence and in failing adequately at the time, to take into account the mitigating factors generally in relation to the appellant and in particular the remorse exhibited by him and expressed to the gardaí and the Probation Service.
3. The learned sentencing judge erred in principle by failing to give sufficient weight to the public interest in the rehabilitation of the appellant.
4. Counsel on behalf of the appellant submitted that the public interest was best met by a reduction in the sentence actually imposed but suspended on a term that would incentivise his engagement with a rehabilitative programme while in prison.
5. The circumstances of the robbery to which the appellant pleaded guilty in 2013 were outlined to the Circuit Court in Cork by Sergeant O'Sullivan who told the court that on the 10th November, 2012, at approximately 8.20 pm the injured party John Michael Owens was walking along Wellington Road in Cork on his way home from work. Two men came up behind him one of whom was the appellant. Mr. Owens was kicked and punched a number of times and during the course of this assault he had a black shoulder bag taken from him. The shoulder bag contained a black leather wallet and lunchbox, his work ID and his black Nokia mobile phone. He reported the matter to Watercourse Road garda station. During the course of inquires the appellant was identified from CCTV footage and on the 21st November, he was arrested on suspicion of the robbery. He was conveyed to Mayfield garda station and during the course of interview there, he admitted the offence. At the time of his arrest he was found to be in possession of the injured party’s mobile phone but no other property was recovered.
6. The injured party did not wish to give evidence and Sergeant O'Sullivan told the court that he had made a full recovery from the injuries he received at the time which comprised bruising to the face. He told the court that Martin Doyle had 25 previous convictions, including 2 for burglary, 2 for criminal damage, 10 for obstructing the gardaí and convictions for unauthorised taking and drink driving. He told the court that the appellant had been in prison on eight previous occasions.
7. Prior to the three year suspended sentence being imposed, the court had been told that the appellant was endeavouring to deal with his drug addiction and that there was some hope held out in the probation report which was presented at that time to the court. Accordingly a suspended sentence was imposed by the learned sentencing judge in the hope that the appellant would begin to deal with his heroin addiction.
8. Detective Garda Alan Johnson explained the background to the burglary and arson offences for which the appellant was sentenced on the 17th June, 2015. He told the court that on the 15th October, 2014, the injured party Mr. Michael Murphy an 81 year old widower who lived alone at 140 Blarney Street, Cork, had left his own home at 14.40 pm to walk to Dunnes Stores on North Main Street. He left by the back door and while passing through Upper Janemount, he met the appellant who at the time was looking through a skip. As a result of a brief conversation between the two the appellant became aware that Mr. Murphy was going to town shopping. CCTV footage shows this conversation taking place and a number of minutes later the appellant is seen heading in the direction of Mr. Murphy’s home. Mr. Murphy returned to his home at 4.10 pm. When he attempted to enter his premises by the front door, he noticed that the lock on the door was closed. He noticed smoke coming from the roof. He made attempts to enter his home with the aid of neighbours and managed to get the door open only to find that his home was on fire. He had to be physically restrained as he attempted to reclaim property and particularly memorabilia relating to his deceased wife. The result of the garda investigation showed that the back door of the premises had been forced open and a forensic examination at the scene noted three seats of fire in the upstairs part of the house.
9. On the 1st November, 2014, the appellant was arrested at his home and taken to Gurranabraher garda station where he made admissions to the burglary and to arson. At the time of sentencing, the injured party, Mr. Murphy was 84 years of age. His house had required to be totally rebuilt and the insurance company was at a loss of €153,727.
10. The injured party had been homeless for a period of seven months and been particularly concerned at the loss of mementos relating to his deceased wife. In the course of his sentencing remarks the learned trial judge stated that he would first of all remove the suspension in respect of the three year sentence and directed that the appellant would commence serving a three year sentence that day. Counsel properly concedes that he is unable to challenge this part of the sentence.
11. With regard to the arson and burglary count he said that the arson showed a mindless disrespect for his neighbours’ property and that drugs did not excuse this kind of behaviour. He described it as wilful, reckless, disrespect of others and their property noting that this man’s house was across the road from where the appellant lived with his own family.
12. He described the burglary as being at the higher end of the scale of burglaries, because not alone did the appellant go into the house but he also set fire to it. He noted that the forensic examination disclosed three different areas where a fire had been started. The sentencing judge also noted that the latest report from the Probation Service indicated that the appellant was still at a very high risk of re-offending and the trial judge therefore took the view that the appropriate sentence was a sentence of seven years imprisonment consecutive to the one of three years imprisonment that he had already imposed in respect of the robbery charge. The learned trial judge proceeded as already indicated to suspend the final two years of that sentence. The maximum sentence on conviction on indictment for burglary is imprisonment for a term not exceeding fourteen years and the maximum sentence on conviction for arson is imprisonment for life.
13. At the time of sentence the personal circumstances of the appellant were outlined to the sentencing judge by the prosecuting garda who told the court that the appellant was 24 years old and lived at home with his parents.
14. While the learned sentencing judge may not have expressly referred to the totality principle it is difficult to discern any error in principle in this regard. The robbery charge was a serious one and while the appellant was given an opportunity to deal with his drug addiction at the time of original sentence this Court can find no error of principle in the imposition of that sentence. When he originally imposed that sentence the learned sentencing judge gave great weight to the mitigating factors as they were then presented to him and focused at that time on the appellant’s rehabilitation.
15. The burglary and arson offences were extremely serious and while the burglary count on its own would not normally attract a sentence of seven years imprisonment there can be no doubt that a seven year sentence imposed in respect of the arson charge which resulted in the injured party’s home being destroyed can not be said to be excessive.
16. In approaching sentence this Court has said on many occasions that it is guided by the principle of proportionality and the need where possible to incorporate the penal aim of rehabilitation in a sentence.
17. The learned trial judge had sought to incorporate that penal aim by suspending the final two years of the seven year sentence on terms that would oblige the appellant to subject himself to the supervision of the Probation Service. In view of the appellant’s huge difficulties with heroin this seems to us to be a sensible way of attempting to incentivise his rehabilitation.
18. Counsel argued further that in view of the mitigating factors and especially the appellant’s remorse the need to incentivise his rehabilitation would have been better served had the sentencing judge incentivised this rehabilitation by suspending a greater period conditional on the appellant cooperating with rehabilitation programmes while in prison. Whatever about imposing a shorter sentence, the judge at the time was not specifically asked to structure the sentence in this way. Needless to say the appellant himself must now take personal responsibility for his addiction.
19. We find no error of principle in the judge’s approach to sentence and we are satisfied that he took into account the relevant aggravating and mitigating factors. We consider that the overall sentence although significant, cannot be described as excessive and accordingly we dismiss the appeal.
