THE COURT OF APPEAL
Record No. 128/2017
Birmingham J.
Mahon J.
Hedigan J.
BETWEEN/THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
JUDGMENT (ex tempore) of the Court delivered on the 15th day of December 2017 by Mr. Justice Mahon
1. The appellant pleaded guilty and was convicted at Dundalk Circuit Criminal Court on the 7th February 2017 on one count of burglary contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. She was sentenced on the 12th May 2017 to a term of imprisonment of four years, but with the final two years suspended for a period of two years post release. The appellant has appealed against that sentence.
2. On the afternoon of the 3rd May 2016 an armed robbery took place at Clogherhead Post Office in County Louth, when three men entered the premises. One of the men carried a sledge hammer and used it to break down a door between the convenience store part of the premises and the Post Office part of the premises. A second man was armed with what the Post Office staff understood was a firearm and which he use to enforce his demand for cash, while a third man carried an iron bar and a taser disguised as a mobile phone. The raiders confronted three female staff members in the premises and a sum of €7,074 was handed over. The day of the raid was childrens allowance day when the post office carried substantial cash amounts.
3. The three man arrived and left in a motor vehicle which was subsequently found burned out in a field some distance away. The appellant’s involvement was that she waited for the men in the location where the raider’s car was driven to and burned out and then drove the men away to safety. The appellant was later identified as a result of telephone communication and CCTV footage. She was interviewed on six separate occasions by gardaí, and ultimately made full admissions in the course thereof.
4. The appellant had no previous convictions. She was, however, known to the gardaí as being associated with known drug users. She herself had a serious cannabis addiction. She received €1,000 from the proceeds of the robbery for her involvement.
5. The appellant has one child, now approximately four years old, and who is now being cared for by her grandmother. The appellant is estranged from the child’s father and was then in a new relationship with another individual. In addition to looking after her young child the appellant was a full time carer of her mother who had, and has, a serious medical condition and is an invalid. Her education was adversely affected because of dyslexia and because of the carer role she undertook in relation to her mother. By the time of sentencing in the Court below the appellant had entered into a drug treatment programme and was drug free.
6. The three victims of the robbery were very seriously affected and traumatised as a result of their experience. The longer term adverse affects of the incident are, in the cases of all three, very significant.
Grounds of appeal
7. It was submitted on behalf of the appellant that the following errors of principle are identifiable in the sentencing judgment of the learned sentencing judge. They are:-
(i) Failing to properly or adequately consider all the factors put forward in mitigation of sentence and failing properly or adequately to consider the appellant’s personal circumstances when imposing sentence.
(ii) Giving excessive weight to the aggravating factors. In particular failing to give any adequate weight to the previous good record of the appellant, her remorse, her undertakings as to future behaviour, her family circumstances, her contributions to society and the compensation offered.
8. In the course of his sentencing judgment, the learned sentencing judge stated:-
“…I’ll certainly give credit to Ms. Doyle, I am not saying that she was the over - the controller or the organiser, but as I have outlined, and it is not necessary for me to state it again, that she was simply the get away driver, that she was willingly involved in the robbery operation and it played a part or link and an important link in the overall context of the robbery.
In respect of count no. 5, the maximum custodial prison sentence is life imprisonment. Then I must decide where this count lies in respect of the maximum sentence and I am satisfied it would be in the - having regard to her involvement, in the middle range, and I will give the headline sentence when I am imposing sentence.”
9. The learned sentencing judge specifically referred to the various mitigating factors including the appellant’s personal circumstances. He referred in some detail to the extent to which the appellant had attempted to deal with her drug addiction problem. He also referred to her remorse. The aggravating factors were noted to include the manner of the robbery, its location and the selection of that location, and the appellant’s participation in the planning of the robbery. He also expressed his view that he was satisfied that she was aware of the fact that the robbery would involve weapons. He concluded his sentencing judgment in the following terms:-
“…I am satisfied that the headline sentence, custodial prison sentence, is four years and that the four years should run from today’s date. However, I am required and I will have regard, which I already stated that I would have regard to, the mitigating and the personal circumstances and I will allow two years. I will suspend the last two years of the four years…”
10. Incorrectly, the learned sentencing judge suggested that the appellant had driven the raiders to and from the post office premises. In fact, she used her car to pick up the raiders at a nearby location and after they had set about destroying the car they had used. However, in the Court’s view, the difference, in terms of involvement and culpability, is minimal as her appellant’s role was to aid the raiders to make good their escape in the minutes following the robbery.
11. While the appellant did not participate in the actual robbery of the premises or the threatening of the staff in the Post Office nor indeed did she handle the weapons involved, her role in the whole affair was very important. It could certainly not be described as being minor. At a minimum her involvement meant that the three men had available to them a safe means of escaping from the area. Her role could only therefore be said to be marginally less than the role played by the men themselves. It is also a very relevant factor to her overall culpability that she was a local person, knew the Post Office and had often been a customer there. Her personal knowledge of the Post Office and of the location generally must have been of significant assistance in the planning of this undertaking.
12. The appellant was also aware in advance of the robbery that at least one weapon was to be used, namely a taser gun. The taser was, she was aware, to be used as a weapon of offence and one designed to physically and violently prevent resistance or self defence and in those circumstances was a particularly potent weapon
13. While the appellant has argued that the sentence imposed was unduly harsh on a number of grounds, the submission on which the greatest emphasis was placed is that the appellant is the lone parent of a now four year old child and their separation is harmful to the mother/child relationship.
14. The fact that the imprisonment of a parent of young children may be damaging to their welfare will not, save in exceptional circumstances, be an excuse to avoid the imposition of a custodial term where serious criminality is concerned. It is however a factor which in many cases may act to reduce the time spent in custody in the interest of the children concerned.
15. In DPP v. Maguire [2015] IECA 350 the appellant was heavily involved in the care of her elderly mother. In this Court’s judgment, delivered by Birmingham J., the following was stated:-
“If the judge felt that custody was inevitable and could not in fact have been avoided, it was appropriate then that the judge would remind himself that he was being called on to sentence someone without previous convictions and not just someone without previous convictions, but someone of positively good character, who had made a real contribution to society by her role as a volunteer and as a carer, stepping away from her career to take on the role of caring for her mother. In those circumstances the focus should have been on identifying the minimum period that could be specified which would meet the situation.”
16. Similar sentiments were also expressed by this Court in its judgment in DPP v. Durcan [2017] IECA 3 when it was stated:-
“This was a case where there were factors present which meant that any sentence of imprisonment would be particularly burdensome. The person before the court was the mother of five young children. As a response to this offence, the family had left their home in Ireland and gone to Brussels. This meant that if the appellant was to be required to serve a prison sentence, she was going to have to serve it away from her husband and children. In fairness to the judge in the Circuit Court, this was not a point which was highlighted in the course of argument, but it was nonetheless a point of significance.”
17. In both these cases this Court reduced custodial sentences imposed in the Circuit Criminal Court. An important point of distinction between these two cases and the case under appeal is the fact that they involved fraud type offending without any question of violence or threats of violence. Similarly in both these cases and in the instant case first time offenders were involved.
18. In DPP v. Doherty [2003] CCA 3282, Hardiman J., in delivering the Court’s judgment stated:-
“We also bear in mind the factors which were recited on several occasions yesterday and acknowledged in the case of D.P.P. v. Egan, that is to say that in dealing with a person without previous convictions and indeed of positive previous good character, if the Court considers as we do, that a custodial sentence is required in the public interest, such a sentence need not be unduly prolonged because it is the fact of the sentence rather than its duration which is the principal effect.”
19. Returning to the case under appeal it is undoubtedly the case that the learned sentencing judge did take into account that the appellant was the lone parent of a young child having been strongly addressed on that point by her counsel, Ms. Lacey. He does not however appear to have specifically addressed the issue in his sentencing judgment although he certainly did so in relation to her carer role for her mother. The learned sentencing judge was provided with a report from the young child’s crèche in Grangebellow in which an opinion was expressed to the effect that a custodial sentence imposed on the appellant would negatively impact on her daughter.
20. The case with which the learned Circuit Court judge was dealing was very obviously a serious one. From a sentencing perspective it was a very difficult one. It has long being recognised that cases involving serious offences committed by first time offenders are particularly difficult. This Court is satisfied that the learned sentencing judge was correct when he expressed the view that the offence was of such seriousness that it had to be met with a custodial sentence, and indeed, a custodial sentence of some significance. It was not a case that could be dealt with by a token custodial sentence. On the other side of the equation, there were factors present, in favour of the appellant, such as the fact that she was essentially a first time offender, she made admissions, she pleaded guilty, and she had family and parental responsibilities in her role as carer for her mother and young daughter, all of which had to be reflected in the sentence. This meant that the range of available sentences was a fairly narrow one.
21. The Court has one concern. Insofar as the learned sentencing judge was sentencing a first time offender who was a young mother it was appropriate to establish what was the minimum period of custody to be served which would meet the sentencing objectives. The available range was three years, with perhaps eighteen or twenty one months to be served, up to four years with plus or minus two years to be served. Insofar as the sentence imposed falls within the available range that would ordinarily be the end of the matter. However, the Court, with some hesitation feels that the learned sentencing judge should, because of the family responsibilities of the appellant, have gone further.
22. A prison sentence was obviously going to impact on the relationship between mother and young child. One can imagine a case of such seriousness that it would inevitably result in a long sentence, involving a long term disruption of that relationship. Fortunately, such situations are rare but they occur. Here the situation was different in that a significant but not overly lengthy custodial sentence was going to be imposed. Every month during which mother and child was apart had the potential to impact on the mother / child relationship in a detrimental manner. The Court feels that this is an issue which the learned sentencing judge should have averted to to a greater extent than he did, and to modify the sentence accordingly if there was a sentence that was appropriate and which would see the normal mother / child relationship resume earlier, even by a relatively short period.
23. To this limited extent the Court has identified an error of principle requiring its intervention.
24. Useful and persuasive material and reports have been provided to the Court. Included is a lengthy report from the Grangebellow crèche which makes for compelling reading. The concern for the welfare of the appellant’s now four year old daughter expressed by the crèche manager, Ms. Curran, is well summarised in her letter’s penultimate paragraph:-
“For the foregoing reasons, I believe it is incredibly important that Ellie May and Sarah’s relationship be re-established. I am certain that Ellie May will regain her confidence and revert to her happy self once she has a more stable family situation i.e. with the presence of her mother.”
25. There is also the added factor of the further disimprovement in the health of the appellant’s mother which had taken place in more recent times, and its association with the absence of her daughter.
26. Additionally, there is the exceptionally positive report from the Prison Governor dated the 11th December 2017.
27. In all these circumstances, the Court will re-impose the sentence of four years imprisonment but will suspend the final two years and six months of that term, on similar conditions as were imposed in the Court below. The sentence is to date from the 12th May 2017.
