THE COURT OF APPEAL
Birmingham J.
Mahon J.
Edwards J.IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT, 1993,
AND IN THE MATTER OF:
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
Respondent
JUDGMENT of the Court delivered the 26th of April, 2018 by Mr. Justice Edwards.
Introduction
1. The respondent pleaded guilty in respect of three separate Bills of Indictment being:
• Bill No. 564/2015 (involving a single count of robbery, contrary to s.14 of the Criminal Law (Theft and Fraud Offences) Act 2001 (“the Act of 2001”);
• Bill No. 711/2015 (involving a count of aggravated burglary, contrary to s. 13(1) of the Act of 2001; a count of assault causing harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 (“the Act of 1997”) and a count of production of an article, to wit a broken tile, contrary to s.11 of the Firearms and Offensive Weapons Act 1990 (“the Act of 1990”), and
• Bill No. 373/2017 (involving a count of burglary, contrary to s. 12(1)(b) of the Act of 2001; a count of production of an article, to wit a knife, contrary to s.11 of the Act of 1990; and a count of unlawful taking of a vehicle, contrary to s.112 of the Road Traffic Act 1961).
2. On the 17th of July 2017 the respondent received a sentence of imprisonment for two years in respect of Bill No. 564/2015; a sentence of imprisonment for four years with the final three years suspended in respect of the aggravated burglary on Bill No. 711/2015, to run concurrently with a sentence of eighteen months imprisonment in respect of the assault causing harm, the remaining count on this indictment relating to production of an article being taken into consideration; and finally a sentence of imprisonment for four and a half years with the final three years suspended in respect of the burglary on Bill No 373/2017, with once again the other counts on this indictment being taken into consideration. The sentences in respect of the Bill No 711/2015 and 373/2017 were to be concurrent inter se but consecutive to the sentence on Bill No 564/2015.
3. The net effect of all of this was that the global or aggregate total of the custodial sentences to be actually served by the respondent was three and a half years.
4. The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.
The relevant facts
The Robbery Offence (Bill No. 564/2015)
5. Garda Ross Mannix, a community Garda in Rialto, told the sentencing court that on the 30th of April 2014 the injured party, Mr Xiang Tong, disembarked from the Luas at the Rialto stop near his home at Reuben Street, Rialto, Dublin 8. He was about 10 metres from his home at about 11.25 p.m. when the respondent approached him wearing a dark baseball cap with a light blue top and light coloured sports trousers. He asked him for the time and Mr Xiang gave it to him. The respondent then asked him to show him his phone, to which he replied “I told you the time, you don’t need to see my phone.” Mr Xiang then carried on to his front door, and he felt a push on his back just as he opened the door. He turned around and saw the respondent. He described him as “a young guy with a white face.” The respondent then grabbed Mr Xiang’s neck in the hallway and placed his other hand behind his back. Mr Xiang thought that he had a weapon and he was afraid. The respondent then said: “give me your phone.” Mr Xiang gave him his phone, a black Samsung S4 with a blue cover worth €650. The respondent then demanded Mr Xiang’s wallet. Mr Xiang gave him the wallet which had no cash in it, but did contain some bank cards, driver's licence and his GNIB card. Mr Xiang pleaded with the respondent to return bank cards, driver's licence and his GNIB card but the respondent refused to do so. The respondent then told him to go to the lift, still holding him by the neck. Mr Xiang described in his statement that he could feel pain in his neck from where he was being held and that he was still afraid that he would be hurt, so he tried not to say a lot in case he would anger the respondent. The respondent forced Mr Xiang to enter the lift while he continued to hold him by the neck. In being required to do so, Mr Xiang had to leave a Navy Nike sports bag behind him in the hallway. The lift doors then closed and a button was pressed causing the lift to ascend. When the lift doors opened on floor three the respondent told Mr Xiang not to move or he would be killed. The respondent then released his grip on the Mr Xiang’s neck and dashed out of the lift and down some adjacent stairs. Mr Xiang, who was still in fear on account of the threat that he would be killed if he moved, remained in the lift momentarily but then made his way back down to the hallway and out on to the street where he encountered a woman who rendered assistance to him. When he emerged on to the street he could see in the distance the respondent running away from the scene, and also saw that the respondent was carrying the Navy Nike sports bag that he had left behind him in the hallway. Mr Xiang suffered a deep graze on the lower left side of his neck in the course of his ordeal.
6. In the subsequent Garda investigation, and based on CCTV footage, the respondent was identified as a person of interest. On the 5th of May 2014 The respondent was arrested and detained by Garda Mannix and was interviewed in respect of his suspected involvement in the incident. He admitted to having been drinking and taking ecstasy on the day. The respondent admitted the offence and identified himself from CCTV footage. However, there were quite a number of aspects of the incident that he was unable to remember because of intoxication. The stolen property was not recovered. The respondent admitted having sold on the mobile phone.
Aggravated Burglary on the 22nd of April 2015 (Bill No. 711/2015) and related offence.
7. These offences were committed while on bail for the robbery of Mr Xiang. Sergeant Peter Clifford told the court that in the early hours of the morning of the 22nd of April 2015 Ms Merrion Bignell was in bed with her boyfriend, Mr Kyle Dixon, at her home on St Anthony’s Road, Rialto, Dublin 8. At approximately 3.30 a.m. she heard a noise coming from the sitting room. She initially thought it was something innocent but then heard footsteps coming from the living room. Mr Dixon also awoke. The couple shouted “who’s there?” and then the door opened into the bedroom and a man, now known to be the respondent, entered the room and asked who they were. They responded that they were the owners of the flat. The respondent became aggressive and began shouting “where is the money?”. He was holding a long, sharp piece of ceramic tile and pointing it like a weapon. He threatened to kill Mr Dixon and there were differing accounts as to whether or not he threatened to kill Ms Bignell – Ms Bignell remembered him saying he would not kill her as she was a woman, Mr Dixon recalled him saying he would kill her even though she was a woman. He told them both to sit on the bed and threatened them with the tile if they moved. He began searching the room and found a silver laptop. He aggressively demanded money, which they didn’t have. He began searching bags and found a hammer which he picked up and used as a weapon instead of the tile. As well as the hammer, he took the laptop and Mr Dixon’s Samsung Galaxy mobile phone.
8. Both Ms Bignell and Mr Dixon described the intruder as being under the influence of drugs. Ms Bignell said he was “off his face on something” because he was swaying from side to side, his eyes were strange and he kept repeating himself, while Mr Dixon said he was “on narcotics because he was off balance” and recalled that his speech was slurred and his eyes were dilated. The intruder’s behaviour also made Mr Dixon uneasy – he sprayed himself with deodorant, commented on Ms Bignell’s state of undress and pulled clothes out of the wardrobe. He repeatedly threatened Mr Dixon before eventually demanding that he let him out the front door.
9. Immediately after letting the respondent out, Mr Dixon observed him running towards the “Fatima” Luas stop. He called the Gardaí. On foot of that call Sergeant Clifford and his colleague Garda Pender called to Ms Bignell’s address and took particulars of the incident. Garda Pender called the number of Mr Dixon’s mobile phone (which was now in the respondent’s possession) and the phone was answered. The Garda asked him to bring it back. The respondent responded that he wanted €70 and shouted “fuck off” before hanging up.
10. Shortly after that, Garda Tighe and Garda Adams from the Divisional Crime Task Force, radioed to the effect that they had seen a male matching the description given by the injured parties at St Anthony’s Road. On foot of this Sergeant Clifford proceeded to that location and the Gardai commenced a search of the area. At the back of Rialto Church, they saw a hedge shaking and could hear rustling. Garda Tighe and Garda Adams stated that a male had jumped the wall where the hedge was. Garda Pender parked an unmarked car at Rialto Street, turned off the lights and then observed a male on the roof of a cottage at the end of a cul-de-sac. Garda Pender recognised the man as the respondent and shouted at him to come down off the roof. Garda Pender climbed up a set of spiked railings and onto the roof to try to apprehend the respondent. The house was an end cottage and the respondent made his way to the apex of the roof. He broke a number of tiles and at one point his foot went through the roof. Garda Pender pursued him. When Garda Pender was within touching distance of him, the respondent began to swing punches at Garda Pender, and succeeded in striking him in the left upper arm causing him to slide down the roof. Garda Pender landed on his feet but suffered a deep laceration to his right little finger. In the meantime, the respondent went over on to the other side of the roof, dropped to ground and madee his escape.
11. On the following day, the 23rd of April 2015, the respondent was arrested by Garda Nathan McKenna and was taken to Kilmainham Garda Station where he was detained under s. 4 of the Criminal Justice Act, 1984. He was interviewed while in detention and from an early stage he made certain admissions. Although his recollection of details was vague he admitted to having been highly intoxicated on the previous evening and he told Gardaí that he had consumed benzodiazepine tablets, alcohol and cocaine. He had a vague memory of being chased along a roof. When asked about the burglary he replied “there’s a possibility I could have done it, yeah, I could have done anything”. He identified himself and the stolen items from CCTV footage from the location of the burglary. He also expressed remorse at interview.
Aggravated Burglary of the 6th of April 2015 (Bill No. 373/2017), and related offences.
12. These offences were also committed whilst the respondent was on bail for the robbery of Mr Xiang. Garda Colm Reynolds told the court that on Easter Monday the 6th of April 2015 Mr Fran Moynihan, a taxi driver, who was born in 1945 and accordingly who was 69 or 70 at the time of the incident, arrived at his home on Reuben Street at 11.30 p.m. He parked his taxi, which had the usual roof sign and markings, outside the door of his home. Although he did not realise it until later, he left his taxi unlocked and indeed left his car keys in the vehicle. As he went to open him front door he noticed the Yale lock was on the floor and he could see splinters of wood scattered around. As he stepped inside and went to pick up the lock he was approached by two males who were inside the house, one of whom was the respondent, Mr. Byrne. The respondent had one of Mr Moynihan’s kitchen knives in his hand. His accomplice was carrying a steak knife and an old fashioned police baton, both of which belonged to Mr Moynihan. The respondent shouted “give me the money” repeatedly. In fear of his life, Mr Moynihan removed his wallet and handed the respondent the money contained within it. There was only about €50 or €55. The respondent was calling him by name and Mr Moynihan recognised the respondent’s face but did not know his name.
13. Mr Moynihan began to feel unwell, his legs began to shake and a pain developed in his chest. He told the intruders he had no more money and began shouting for his daughter, Rebecca, who lived next door. Mr Moynihan pushed past the two assailants towards the back door. As he did so they attempted to pull him back and raised their knives at him in a threatening manner. He heard his daughter Rebecca approaching accompanied by another daughter and, perhaps emboldened by the fact that help was on the way, struck at the intruders with his walking stick, breaking it over the shoulder of the second intruder who was not the respondent. The two intruders then left through the front door. As they were passing Mr Moynihan’s taxi they tried the doors of the vehicle and, discovering that it was open and that the keys were in it, got in to it and drove away. Mr Moynihan who was very distressed was taken to St James’s Hospital by his daughters and was diagnosed there as having suffered a myocardial infarction or heart attack in the course of the incident. Fortunately, it was not a severe heart attack, and Mr Moynihan survived it and was treated in hospital.
14. The car was later found on New Ireland Road, Rialto, approximately one or two kilometres from the scene. The respondent was subsequently arrested and detained but nothing probative emerged from interviews conducted during the detention. However, an informal identity parade was subsequently carried out in which Mr Moynihan identified the respondent. The respondent’s accomplice has not been identified.
The Impact on the Victims
15. Messrs Xiang and Dixon, and Garda Pender, respectively, all declined to make victim impact statements.
16. In relation to the burglary of the 22nd of April 2015 a victim impact statement was taken from Ms Bignell and it was handed in to court, and it may be inferred that it was read by the sentencing judge. However, it was not read in to the record and therefore does not appear in the transcript of proceedings. Moreover, and regrettably, no copy of the report has been provided to this Court. However, the sentencing judge did refer in her judgment to the fact that the incident was very distressing to Ms Bignell, especially the threats to kill her partner and the attention drawn by the intruder to her unclad upper body.
17. Mr Moynihan also made a victim impact statement. Again it was handed in and read by the court but not read into the record. Again we have not been provided with a copy. In summarising the statement, the sentencing judge stated that Mr Moynihan had described how since the incident he is nervous whenever he comes back to his house, and that he has a constant anxiety that someone would be inside again. He has trouble sleeping and is anxious when he hears a noise at night. He was worried for his family next door because they live very close to the respondent’s family. He attributes his cardiac incident to the stress he experienced during the burglary.
The Respondent’s personal circumstances
18. At the time of sentencing the respondent was 20 years of age. His date of birth is the 10th of October 1996. He had had dealings with the criminal law from a very young age, first coming before the Children’s Court in 2010. The offences in the present appeal represented his first time coming before the courts as an adult and also therefore his first time coming before the Circuit Court. The court heard that he had 64 previous convictions. His most recent was in 2014. These included convictions for: five instances of unauthorised taking; five instances of theft contrary to s. 4 of the Act of 2001; two possession offence contrary to ss. 3 and 15 of the Misuse of Drugs Act 1977 (i.e., one of each); three failures to surrender to bail, contrary to s. 13 of Criminal Justice Act 1984; eleven instances of breaches of the Criminal Justice (Public Order) Act 1994 (being three breaches of s. 4, five breaches of s. 6 and three breaches of s. 19, respectively); two instances of criminal damage contrary to s. 2 of the Criminal Damage Act 1991; two instances of assault contrary to s. 2 of the Non-Fatal Offences Against the Person Act 1997; a single instance of possession of a knife or blade contrary to s.9(1) of the Act of 1990; two instances of violent behaviour in a Garda Station; three instances of dangerous driving contrary to s.53 of the Road Traffic Act 1961, and various other road traffic offences.
19. There were few details provided to the court below concerning penalties imposed. However, the court was told that in respect of the drugs offences he had received sentences of three months and six months (detention presumably), respectively, which were made consecutive. The court was also told that he had received sentences of four months and seven months for failures to surrender to bail, and a four-month sentence for unauthorised taking. Again, it is presumed that these were sentences to detention.
20. The respondent has had a troubled family life and history; he experienced a difficult upbringing punctuated by addiction, neglect, homelessness, criminality and violence. His family had originally resided in Fatima Mansions but were forced to leave Dublin 8 and move to Tallaght due to his parents’ anti-social behaviour. Both of the respondent’s parents, but particularly his mother, had substance abuse issues and there were a number of attempted interventions by the HSE. When he was 10 his parents split up. His father has served a number of custodial sentences and now lives in Liverpool. When he was a juvenile offender his mother repeatedly failed to accompany him to appointments with the Probation Service as required. He recalled in interview with the Probation Service that as a child he frequently missed school as his mother couldn’t get out of bed. He also recalled that the school principal had paid for books, uniforms, lunches and taxis to get him to and from school for a period. As a child he often relied on a maternal uncle and grandmother for secure accommodation.
21. Garda Mannix acknowledged under cross-examination that he never had any difficulty dealing with the respondent when he is sober, but stated that when he is under the influence of intoxicants “he is a different individual entirely”.
22. At the time of sentencing he had a partner with whom he had been in a relationship since the age of thirteen. They had one child together and another was due to be born in November 2017. The respondent appeared to be quite reliant on his partner’s family for support. The respondent was previously granted a place on a 16-month residential treatment programme at the Tiglin Community Project in Co Wicklow with a view to addressing his substance abuse issues. His attendance on this treatment programme was a condition of bail in respect of a previous offence. However just under two months into this programme his uncle died and he chose to discharge himself in breach of his bail. Shortly afterwards he, his partner and child moved to Liverpool to be near his father and desist from drug use. During this period, he was completely sober. However, this move did amount to an absconding from the jurisdiction in further breach of his bail conditions. He subsequently returned to Ireland voluntarily.
23. The respondent left school at the age of 14. A Probation Report dated the 4th of July 2017 (“the report”) described that he had poor engagement with any educational programmes offered to him by the Probation Service since 2012. He has no employment history and was on social welfare prior to entering custody. The report found he had longstanding difficulties with substance misuse and he has developed addictions to Ecstacy, alcohol, and unprescribed tablets. He was abusing Benzodiazepines and cocaine at the time of committing these offences. Following his remand in custody he has linked in with a Ms O’Neill of the Rialto Community Drugs Team who is prepared to secure a place for him upon his release on a full time addiction and education programme in the Crumlin area, and to provide necessary follow up support for him.
24. The Probation Report concluded that:
“Mr Byrne is a young man of twenty years of age who appears before the Court having entered a guilty plea to the above offences. Although Mr Byrne accepts responsibility for his offending behaviour he demonstrated little insight into the impact these behaviours may have had on victims and the wider society. He would benefit from participating in further victim and offence-focused work with the Probation Service with the view to challenging the thought processes and attitudes underlying his offending behaviour.
The LSI-R risk assessment tool has placed Mr Byrne within the very high risk category of re-offending in the next twelve months, unless the identified areas are addressed. The risk factors include his offending history, his history of alcohol and drug addiction, limited education and employment background, poor consequential thinking skills, poor problem solving abilities and a lack of pro-social family and peer support.
Mr Byrne has had a very troubled and unsettling childhood. From a young age he witnessed addiction, neglect, homelessness, criminality and violence. It appears that his parents were unable to provide stability and protection due to their own difficulties. Despite a number of interventions by this Service, the HSE and other professionals Mr Byrne continued to live a chaotic and troubled lifestyle with his parents. Once their relationship broke down it appears that his young life became more unstructured. He is undoubtedly a man with multifaceted and complex needs. Mr Byrne lacks problem solving abilities and consequential thinking skills. I found him to be unrealistic regarding his future plans. He is the father of a seven-month old daughter and is due a second baby toward the end of the year. I am of the opinion that a number of therapeutic services will be required to engage with him in an effort to support and encourage him to lead a different life style than he previously has. It is positive that he sought the support of the Rialto Community Drugs Team while in custody in an effort to have a structured plan upon release.
Proposal:
Mr Byrne is aware of the very serious nature of these offences, should the Court be considering a period of supervision by this Service as part of the disposal in this matter I respectfully request that the following conditions be included in order to address the risks and needs highlighted by the risk assessment;
• He should engage in an addiction and education programme
• He should participate in offence focused work
• He should follow directions of the supervising probation officer to attend other support services as deemed appropriate
• He should complete victim awareness work
• He should not incur any new convictions”
The sentences imposed
25. In imposing sentence in respect of these matters the sentencing Judge rehearsed the evidence of the crimes, the mitigating and aggravating factors and the respondent’s personal circumstances. She then made the following remarks:
“Now, in relation to the first bill number, which is 564/15 - I should say, during his detention in respect of this matter, he clearly was unable to remember much of the events, but made admissions and attempted at cooperation with An Garda Síochána during the investigation. In respect of the first bill number, Mr Tong [this should in fact be Mr Xiang as in oriental cultures the family name appears before the given name] being the injured party, the aggravating circumstances; this was a violent and threatening attack on this man at his home and the impact on the victim is regarded also as an aggravating circumstance. In relation to 373/2017, the aggravating circumstances are that this was a man in his 70s on a walking stick. His home was violated. He was threatened. Both culprits had knifes, and therefore the possession of a weapon and the production of a weapon is regarded as an aggravating circumstance. I regard it as aggravating that this man was known to the respondent and in some respect, the respondent had knowledge in relation to this man's conducting work as a taxi driver and the fact that he might have had cash in his house as a result of that. I also regard it as an aggravating factor that they left the scene in this gentleman's vehicle, which is also his means of employment. And while it was recovered, it wasn't recovered because it was driven to a garda station so that it could be returned to him, it was recovered because of the circumstances of the arrest.
By way of the third bill number, 711/15, I regard the violation of this couple's home as an aggravating circumstance. The behaviour was threatening and frightening. This is also a situation in which the respondent had armed himself. There has been an impact on the victims and also an impact on Garda Pender. Garda Pender was carrying out his lawful duty and was injured as a result of carrying out his duty as a member of An Garda Síochána.
These are serious matters before this Court and I have to mark this seriousness. I accept that the respondent was a juvenile at the time, but he is now 20 years of age and the delay in matters proceedings has been because he left the jurisdiction. In respect of Bill No. 576/2014, this Court would have considered an appropriate sentence to be three years' imprisonment. In the circumstances, I will impose two years' imprisonment in respect of that bill number. In respect of 373/17, this is consecutive on the lawful termination of the sentence imposed on Bill No. 564/2015 and this Court would have considered a sentence of five and a half years as being the appropriate sentence in respect of count No. 1. In the circumstances, having considered the mitigation, the Court will impose a sentence of four years in respect of count No. 1 and I will take into consideration count No. 2, which is the production of a knife and I will take into consideration the section 112 offence, which is in relation to the unlawful taking of Mr Moynihan's vehicle. In respect of the third bill number, 711/15, this Court would have considered a headline figure of six years as being the appropriate sentence of imprisonment. With mitigation, this Court is going to impose a sentence of four and a half years' imprisonment and that is consecutive on sorry, that is concurrent on Bill No. 373/17 and consecutive on Bill No. 564/15. And with mitigation, I am imposing four and half years and I am imposing with regard to the assault count, which I think is count No. 3, a headline figure of 3 years, and I'm going to impose 18 months and that is concurrent on count No. 1 in respect of that matter.
Considering the respondent's mitigation in detail and considering the age he was at the time and the age he is now, I'm going to suspend the final three years of the sentence on his own bond of €100 to keep the peace and be of good behaviour for a three year period and to follow the following conditions; that he is to engage -- that he remains under the supervision of the probation service for 12 months post release, that he engage in addiction and education programme, that he participate in offence focused work, that he follow directions of the supervising probation officer to attend other support services as deemed appropriate, that he complete victim and awareness work and that he should not incur any new convictions. And there's liberty to enter this matter before this Court in the event of any breach of any of those conditions.”
[Commentary in square brackets by this Court]
The grounds on which review is sought
26. The grounds of application filed on behalf of the applicant complain:
“Bill No DU 564/2015:
1. The sentencing judge erred in principle in imposing an unduly lenient sentence in all of the circumstances, being a sentence of two years’ imprisonment on the single count of robbery to date from the 17th of July 2017.
2. The sentencing judge erred in principle in ascertaining the appropriate pre-mitigation sentence for the offence to be one of three years imprisonment and thereby failed to have any or any adequate regard to the aggravating factors in the case being the violence used towards the complainant in the case, the threat issued to kill the complainant if he didn't remain in the building where the robbery had taken place and the fact that the complainant was detained for a period in that he was forced into the building where he lived and upstairs in the elevator under threat from the respondent.
Bill No DU 373/2017:
3. The sentencing judge erred in principle in imposing an unduly lenient sentence in all of the circumstances, being a sentence of four years’ imprisonment in respect of count 1 (the other counts having been taken into consideration), the final three years of which was suspended and the said sentence to commence upon the lawful expiration of the sentence of two years’ imprisonment imposed in respect of bill 564/2015.
4. The sentencing judge erred in principle in failing to have adequate regard to the seriousness of the offence and in particular in ascertaining the appropriate pre-mitigation sentence for the offence to be a sentence of five and a half years imprisonment;
5. The sentencing judge erred in failing to attach any or any adequate weight to the aggravating factors in the case. In particular, the court failed to have any or any adequate regard to the following factors:
(a) The age and infirmity of the complainant, which features it is submitted were, or must have been, readily apparent to his assailants,
(b) The fact that the respondent and his confederate armed themselves with knives and confronted the complainant in his own home, repeatedly and loudly threatened him, physically restrained him and demanded money from him when it was open to them to depart upon his returning home;
(c) The fact that the offences were committed at night;
(d) The particular and foreseeable physical and psychological impact which these offences had upon the complainant;
(e) The fact that the respondent plainly knew the complainant and indicated this to him whilst committing the offence;
(f) The fact that the respondent committed these offences whilst on bail in respect of the robbery charge the subject matter of Bill No DU 564/2015.
6. The sentencing judge erred in attaching undue weight to the mitigating factors and in particular in allowing a repeated discount in sentence in first reducing the appropriate pre-mitigation sentence by a year and half and then in further suspending the final three years of the four-year sentence imposed.
Bill No DU 711/2015:
7. The sentencing judge erred in principle in imposing unduly lenient sentences in all of the circumstances, being sentences of four and a half years imprisonment in respect of count one and of eighteen months imprisonment on count three (the other count having been taken into consideration), the final three years of the sentence on count one being suspended and the said sentences to commence upon the lawful expiration of the sentence of two years imprisonment imposed in respect of Bill No DU 564/2015.
8. The sentencing judge erred in principle in failing to have adequate regard to the seriousness of the offence and in particular in ascertaining the appropriate pre-mitigation sentence for the offence on count one to be a sentence of six years’ imprisonment.
9. In respect of count one, the sentencing judge erred in failing to attach any or any adequate weight to the aggravating factors in the case. In particular, the court failed to have any or any adequate regard to the following factors:
(a) The extreme nature of the offence and in particular the singular, constant and terrifying threats to kill and harm both complainants issued by the respondent whilst a trespasser in their bedroom;
(b) The fact that the respondent armed himself with a further weapon (being a hammer) whilst in the bedroom and repeatedly threatened to kill both complainants with same.
(c) The fact that the offences were committed in the early hours of the morning whilst the complainants were in bed;
(d) The additionally humiliating and degrading behaviour of the respondent towards one of the complainants in commenting upon her state of undress;
(e) That the respondent committed these offences whilst on bail in respect of the charges the subject matter of Bill No DU 564/2015.
10. In respect of count three, the sentencing judge erred in failing to attach any or any adequate weight to the aggravating factors in the case. In particular, the court failed to have any or any adequate regard to the following factors:
(a) The fact that the offence of assault was committed upon a Garda acting in the lawful execution of his duties and in the course of attempting to escape the lawful attentions of An Garda Siochána;
(b) The particular physical circumstances of the assault upon Garda Pender and the gratuitous disregard for his fate had he fallen directly from the roof upon being struck by the respondent.
11. The sentencing judge erred in attaching undue weight to the mitigating factors in the case and in particular in allowing a repeated discount in sentence in first reducing the appropriate pre-mitigation sentence by a year and half and then in further suspending the final three years of the four and a half year sentence imposed.”
Submissions on behalf of the Applicant
27. It was submitted in relation to Bill No 564/2015 that in identifying a pre-mitigation sentence of three years’ imprisonment as being appropriate in this case, the court below failed to have adequate regard to the particular circumstances of the offence. In particular, that the respondent had marched Mr. Xiang through the building where he lived holding him tightly by the throat and continued to so restrain him until they had reached an upper floor in the building where he threatened to kill him. It was submitted that the combination of the threat and the prolonged and violent restraint of the complainant were insufficiently considered by the court below in arriving at its initial headline sentence. It is accepted however that a discount of one third of the appropriate headline sentence on the basis of the plea of guilty in the case and the respondent’s personal circumstances would be entirely appropriate and no issue is taken with the court’s approach in that respect.
28. In relation to the offences on Bill No 373/2017 it is the applicant’s contention that the commission of these offences by the respondent involved a number of significantly aggravating factors which were allowed insufficient weight by the Court in identifying a pre-mitigation headline sentence of five and a half years. The applicant seeks to emphasise that:
a) These offences were committed whilst the respondent was on bail for the robbery on bill 564/2015. In compliance with section 11(1) of the Criminal Justice Act 1984, the Court imposed a consecutive sentence in this matter. Section 11(4) further provides that this is an aggravating factor in sentence which in the absence of exceptional circumstances requires the imposition of a greater sentence than would have otherwise been imposed.
b) The impact of the offences upon the complainant as detailed in the victim impact statement was profound. As well as understandable nervousness, anxiety and difficulty sleeping, Mr Moynihan suffered a mild heart attack as a result of his ordeal. Whether or not his attackers were specifically aware of his health issues, it could not seriously be suggested that this is anything other than a perfectly foreseeable outcome of the kind of terrifying and violent ordeal to which this elderly man was subjected by two armed young men in the dead of night.
c) The applicant submits that the complainant in this case falls to be considered as being particularly vulnerable having regard to his age. Whilst this would have been apparent to the respondent and his confederate upon confrontation, it appears that the respondent personally knew the complainant and was aware that his daughter lived next door. This knowledge is disclosed when he refers to Mr Moynihan by name and threatens and physically restrains him from escaping to the safety of his daughter’s house.
d) Notwithstanding the age of the complainant and the fact that he was clearly alone upon returning to his home, the respondent who had already armed himself with a knife proceeded to wield and threaten with the weapon throughout.
29. The applicant complains that this headline sentence is then “in the circumstances, having considered the mitigation” reduced to one of four years. Thereafter the court goes on to reference its consideration of the respondent’s “mitigation in detail and considering the age he was at the time and the age he is now” to justify the suspension of the final three years of that sentence. It was submitted that the aggravating factors in this case are such that the pre-mitigation sentence of four years was excessively lenient and failed to have due regard to the nature of the offence.
30. The applicant readily accepts that the court was required to allow some discount in respect of the plea of guilty and the age of the complainant at the time of commission. However, having already discounted its initial sentence of five and a half years by more than a quarter, the court below then goes on to suspend three quarters of that already lenient sentence. It was submitted that, notwithstanding the need to have regard to the totality principle, the operative sentence of one year is spectacularly lenient for an offence of peculiar cruelty and profound impact upon its elderly victim.
31. In relation to Bill No 711/2015 the applicant submits that this was a peculiarly wild and terrifying crime, whose accompanying aggravating factors place it towards the higher end of such offences. The applicant seeks to emphasise:
a) This offence was committed whilst the Respondent was on bail for the robbery on Bill 564/2015. In compliance with section 11(1) of the Criminal Justice Act 1984, the Court imposed a consecutive sentence in this matter. Section 11(4) further provides that this is an aggravating factor in sentence which in the absence of exceptional circumstances requires the imposition of a greater sentence than would have otherwise been imposed.
b) The offence of aggravated burglary does not require confrontation, rather merely that the offender be armed at the point of its commission. In this case however the Respondent entered the bedroom of a sleeping couple armed with a makeshift weapon, rearmed himself with a hammer and threatened to kill and harm both of them in a singularly terrifying manner over a period of ten to fifteen minutes.
c) The additionally humiliating and degrading behaviour of the Respondent in commenting upon the state of undress of one of the complainants in the context of the broader threats.
d) The assault offence committed against Garda Pender is aggravated by the fact, firstly that he was a member of An Garda Síochána acting in the lawful execution of his duty, and secondly by the gratuitous disregard for his life or safety shown by the Respondent in assaulting him in the circumstances in which he did.
32. The sentencing judge initially identified a headline sentence for the offence of aggravated burglary which was one of six years’ imprisonment. It was submitted that as a starting point prior to the consideration of mitigation, totality or the particular circumstances of the offender, this was a headline sentence that was peculiarly and excessively lenient. We were referred by the applicant to the decision of this Court in The People (DPP) –v- Murphy (No.2) [2017] IECA 2. It was submitted that the offence of aggravated burglary committed in that case was strikingly similar to the present case albeit that the behaviour of the respondent herein is on any terms even more terrifying than that of Mr Murphy. The Court upheld a pre-mitigation sentence of ten years’ imprisonment as being “on the high side to a degree” but nonetheless “was a sentence within the discretion of the learned sentencing judge”. The Court further upheld the suspension of the final three years of the sentence to take account of the only significant mitigating factor in the case being the significant health issues faced by Mr Murphy’s partner and child for whom he cared, but observed that any further discount from the operative tariff of seven years’ imprisonment would arguably have rendered the sentence unduly lenient.
33. It was submitted that, having identified a starting point of six years in the present case, the court below reduced same to four and a half years by generalised reference to mitigation. Were the starting point correct it would be difficult to take issue with the proportion of the sentence set aside by reference to the mitigating factors in the case and no complaint is made in respect of same. However, the applicant submitted, the court below then in a reprise of the “mitigation in detail” suspended the final three years of the sentence leaving the respondent with an operative term of eighteen months’ imprisonment. In contrast, Mr Murphy’s operative sentence was almost five times that imposed herein which the Director submits represents a substantial and an excessive departure from the requirement spelled out in Murphy that such offending attract “a lengthy custodial sentence”.
34. It was submitted that whilst the headline sentence of three years for the assault upon Garda Pender is certainly extremely lenient it was to be conceded that it was probably within the discretion of the sentencing court, having regard to the maximum available sentence for the offence. However, it was submitted that a discount of fifty percent on the basis of what mitigation there was in the case was excessive and amounted to a further error in principle.
Submissions on behalf of the Respondent
35. In relation to Bill No 564/2015 it was submitted on behalf of the respondent that the sentencing judge was aware of and gave due consideration to the aggravating factors of the offence. Particular reference was made when sentence was being imposed to the "violent and threatening attack on this man at his home".
36. There was no victim impact report before the sentencing court. However, the sentencing judge mentioned the impact on the complainant as being an aggravating factor,
which she would take into consideration.
37. There was no suggestion that the respondent was in possession of a weapon at the time of the offence, a factor which would be usually seen as a substantial aggravating factor in an offence of this nature. Moreover, the respondent had no previous convictions for robbery.
38. It was submitted that the sentence imposed by the sentencing judge cannot be regarded as unduly lenient when one looks at the total sentence imposed by the court below on the 17th July 2017. It is submitted that the sentencing judge had decided to make this sentence part of a consecutive sentencing package to another Bill of Indictment and the sentence imposed on this particular Bill Number should be viewed in that context.
39. It was submitted that fixing the headline sentence at three years does not represent a substantial departure from what would be regarded as the appropriate sentence in the circumstances of this case. We were asked to note that the applicant takes no issue with the suspended portion of the sentence.
40. In relation to the sentences imposed on Bill No 373/2017 it was submitted that the nomination of a headline sentence of five and a half years for the burglary offence does not represent a substantial departure from what would be regarded as the appropriate sentence in the circumstances of this case.
41. It was submitted that the headline sentence of five and a half years is supported by comparators, insofar as a comparison is possible. The case of Director of Public Prosecutions v. O'Brien [2018] IECA 2 was commended to us as being instructive in this regard. It was pointed out that this Court approved of a headline sentence of three years as being sensible in the circumstances of that case. It was accepted that the facts of the present offence are undoubtedly more serious. However, it was submitted that an increase of two and a half years would appear to be within the acceptable range of discretion for the sentencing judge in this case.
42. The sentencing judge made specific reference to the aggravating factors of the offence when delivering sentence. It was noted by the Court that the victim was "...a man in his 70's on a walking stick. His home was violated. He was threatened. Both culprits had knives, and therefore the possession of a weapon and the production of a weapon is regarded as an aggravating circumstance. I regard it as aggravating that this man was known to Mr. Byrne and in some respect, Mr. Byrne had knowledge in relation to this man's conducting work as a taxi driver and the fact that he might have had cash in his house as the result of that. I also regard it as an aggravating factor that they left the scene in this gentleman's vehicle., which is also his means of employment. "
43. It was submitted, therefore, that the court below was well aware of the seriousness of the incident and stated that "it evokes a very sad picture for this court". The court went on to have regard to the Victim Impact Report of the victim in this case and took note of its contents. It was submitted that the sentencing judge clearly gave consideration to the seriousness of the offence and that, manifestly, she had due and careful regard to the aggravating factors. Due regard was also paid to the Victim Impact Report before the court.
44. It was submitted that the mitigating factors present in the case allowed the sentencing judge to thereafter decrease the sentence to one of four years’ imprisonment, and indeed she was obliged to give a discount for the plea of guilty.
45. It was submitted that the further suspension of the final three years of the overall sentence does not represent a substantial departure from the norm in terms of sentencing either. The sentencing judge had clear regard to the fact that the respondent was a juvenile at the time of the offence, and that he was aged 20 years at the time of sentence. The respondent came before the court with no previous convictions for burglary and so was not presenting as a recidivist offender in respect of these type of offences. It was within the discretion of the court to structure a sentence with such a suspension in order to prioritise the penal objective of rehabilitation. This is particularly so given the young age of the respondent.
46. It was submitted that the decision of this Court in The People (DPP) v. O'Brien [2018] IECA 2 is of yet further assistance concerning the weight to be afforded by a sentencing judge to mitigation. This Court said in that case (at para 35):
"As the sentencing judge did not indicate the weighting she had afforded to individual factors in deciding to reflect the cumulative available mitigation by suspending the final two years of the sentence, counsel for the applicant was unable to say with specificity that undue weight was afforded to any particular factor. The sentencing judge is not to be criticised for not indicating the weighting afforded to individual mitigating circumstances, as to date it has never been the practice in this jurisdiction to do so. This is because the Irish courts have never regarded the process of sentencing as amenable to a rigid algorithmic or mathematical approach, but rather have always recognised that each sentence must be individual, and that in determining the overall weight to be afforded to factors weighing in the balance at either stage of the sentencing process, i.e the assessment of gravity or the affording of discount for mitigation (in this instance we are concerned with the latter), the sentencing judge will bring to bear his or her professional experience, intuition and subjective judgment and arrive at a figure on the basis of, what is sometimes called in the academic literature on sentencing, ‘instinctive synthesis’. The sentencing judge must be afforded a significant margin of discretion in doing so."
47. Finally, it was submitted that these particular sentences should be viewed in terms of the cumulative or overall sentence imposed by the court on the day. These sentences were to be consecutive to the sentence for the robbery offence, and the court was required to have regard to, and did have appropriate regard to, the totality principle in imposing the sentences that it did.
48. In regard to the sentences imposed on Bill No 711/2015 it was submitted that while the offences were obviously extremely serious in nature and exhibited a number of clearly aggravating factors, a headline sentence of six years for the aggravated burglary was within the discretion of the sentencing judge. The court was entitled to reduce the headline sentence to four and a half years and indeed was obliged to reduce the headline sentence in light of the mitigation and in particular the guilty plea which was entered.
49. It was further submitted that the age of the respondent at the time of the offence was clearly something which influenced the court's approach to the structuring of this sentence. It is a well-established principle that rehabilitation as a sentencing objective is an imperative when dealing with a young offender. In support of this contention we were referred to The People (DPP) v. G [2005] IECCA 75, in which the Court of Criminal Appeal had had to consider whether the sentence imposed by the Central Criminal Court on a fifteen-year-old boy who had murdered a fourteen-year-old boy was unduly severe. In his judgment delivered on behalf of the Court of Criminal Appeal, Murray C.J. observed :-
"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."
50. We have also been referred to this Court’s judgment in The People (DPP) v. Kelly [2015] IECA 162. In that case the offence had involved an aggravated burglary in which there was a sustained and terrifying attack on a young couple using a bread knife as a weapon. Numerous threats of violence were made to both victims with one of the victims being subjected to actual violence. The defendant was 15 years old at the time of the offence. He had a number of previous convictions for burglary and robbery. The Court of Appeal substituted a period of detention for six years with 12 months suspended for the original sentence of detention for six years simpliciter. It was noted that the sentence would have been longer were it not for the young age of the offender. It is submitted then when the instant case is viewed in light of The People (DPP) v. Kelly, the sentence imposed does not represent an error in principle.
51. We have also been referred to O'Malley on "Sentencing Law and Practice" (Third edition) at page 440, where the author states,
"...only the most serious burglaries with several aggravating factors are likely to attract sentences in excess of 10 years. Below that, there are three possible bands. The least serious offences, if they merit immediate custody at all, will probably attract sentences of less than two years. Those of a moderate degree of seriousness, such as residential burglaries with some aggravating features would attract sentences in the range of two to five years while the more serious burglaries, aside from the few in the highest category, would fit into the third band and attract sentences of five to ten years. Those in the third category will probably be aggravated by one or more features such as intruding into the dwelling of an elderly or disabled person, deliberately targeting such persons, using or threatening violence, ransacking the premises and taking goods of significant monetary or sentimental value."
52. It was submitted that the sentences imposed in respect of the offences in this case represented appropriate sentences in the circumstances.
53. It was submitted that the suspension of the sentence in respect of the assault on Garda Pender by half does not represent a substantial departure from what would be considered the norm in the circumstances of the case, and does not represent an error in principle when viewed in the context of the totality of the sentences imposed on this and the other bills. The Court clearly had in mind in structuring its sentences in the way that it did to reflect the offending behaviour but also to allow for the prospect of rehabilitation.
54. Finally, and with respect to the global sentence structure adopted by the sentencing judge, it was submitted that she very carefully structured the sentences in a way which took adequate and appropriate account of the gravity of the offences, expressly acknowledging the aggravating factors in each case, while also taking account of the respondent’s personal circumstances and the mitigating factors in these cases. It was submitted that in doing so the sentencing judge had specific regard to the principle of proportionality and the sentencing objectives of retribution, deterrence and rehabilitation. It was urged upon us that while the individual sentences imposed may be considered lenient when viewed in isolation, they are not unduly lenient when considered in aggregation and that accordingly no error of principle has been established.
The law in relation to undue leniency reviews
55. The law in relation to undue leniency reviews pursuant to s. 2 of the Criminal Justice Act 1993 is well settled at this stage. The relevant jurisprudence (in particular The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R. 356; The People (Director of Public Prosecutions) v. Redmond [2001] 3 I.R. 390 and The People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279), indicates that before a reviewing court can find the sentence to have been unduly lenient, it must be satisfied that the sentence imposed involved “a clear divergence by the court at trial from the norm” that will have been caused by “an obvious error of principle”.
56. Moreover, the following particular points were emphasised by O’Flaherty J giving judgment for the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Byrne:
“In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to show that the sentence called in question was ‘unduly lenient’.
Secondly, the court should always afford great weight to the trial judge's reasons for imposing the sentence that is called in question. He is the one who receives the evidence at first hand; even where the victims chose not to come to court as in this case — both women were very adamant that they did not want to come to court — he may detect nuances in the evidence that may not be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular circumstances of the commission of the offence and the relevant personal circumstances of the person sentenced: what Flood J has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be disturbed.
Thirdly, it is in the view of the court unlikely to be of help to ask if there had been imposed a more severe sentence, would it be upheld on appeal by an appellant as being right in principle? And that is because, as submitted by Mr Grogan SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly lenient’.
Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this Court.”
57. In The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R. 36 Barron J. said (at page 359):-
“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error in principle.
Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of possible penalties is dependent upon those two factors. It is only when the penalty is below the range as determined on this basis that the question of undue leniency may be considered.”
58. More recently in The People (Director of Public Prosecutions) v Stronge, [2011] IECCA 79, McKechnie J. distilled the case law on s. 2 applications into the following propositions:
“(i) the onus of proving undue leniency is on the D.P.P.;
(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible difference between the latter and the former;
(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose: sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate;
(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The test under s. 2 is not the converse to the test on such appeal;
(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each court is quite different: on a s. 2 application it is truly one of review and not otherwise;
(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an error of principle, before intervention is justified; and finally
(vii) due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that judge who receives, evaluates and considers at first hand the evidence and submissions so made.”
Analysis and Decision
59. It is appropriate to start in this case with Bill No 564/2015 which involved the robbery in which Mr Xiang was the victim. The sentencing judge in the court below decided upon a headline sentence of three years as her starting point. The applicant says that this was simply too low having regard to the circumstances of this robbery.
60. In fixing a headline sentence a judge’s scope for action is determined in the first instance by the spectrum of penalties available to her. In this instance that spectrum ranged from non-custodial options up to imprisonment for life. On the basis that a life sentence is likely to be reserved for only the very worst and most egregious offences of this type, the practical reality is that the effective range of custodial penalties caps out at fifteen years, or thereabouts, for all but the most exceptional cases. An effective fifteen year range allows for a low range of zero to five years, a mid-range of six to ten years and a higher range of eleven to fifteen years.
61. A headline sentence is required to reflect the gravity of the offence having regard to the offender’s culpability and the harm done. Accordingly, having identified the spectrum of penalties available to her, the sentencing judge was required to locate this particular case on that spectrum having regard to its gravity, determined by reference to the culpability of the offender and the harm done by the offending conduct. We have previously recommended that a judge should perform an initial assessment of gravity based on intrinsic moral culpability, and then adjust the resultant provisional figure up or down, as appropriate, to reflect aggravating or mitigating factors bearing on culpability that are particular to the individual offender’s case.
62. In the present case the harm done by the offending conduct was moderate. Though the financial value of the goods stolen was modest (the mobile phone was worth €650 and the wallet and sports bag were, it may be inferred, of small value), the theft of Mr Xiang’s bank cards, driver's licence and his GNIB card would have represented a considerable inconvenience to him. In addition, actual violence was used on Mr Xiang who sustained a minor physical injury to his neck. He could only have been significantly traumatised by the incident.
63. In terms of intrinsic moral culpability, the offending conduct was intentional. It was not committed recklessly or negligently. In terms of aggravating circumstances, there was clearly a degree of pre-meditation. Moreover, the attack was at night. While the attack did not take place within Mr Xiang’s actual dwelling, it took place in the curtilage of his dwelling, i.e., in the lift lobby of his apartment building. Separate from the actual violence that accompanied the theft, which was sufficient to satisfy the ingredients of robbery (and which violence cannot therefore be regarded as an aggravating factor), there was also a separate threat to kill Mr Xiang as the respondent departed the scene. In terms of mitigating factors bearing on culpability, it does appear that the respondent was possibly acting under a degree of chemical compulsion in circumstances where he is chronically addicted to alcohol and drugs and had consumed alcohol and Methylenedioxymethamphetamine (otherwise MDMA or Ecstacy) prior to committing this offence. It is also the case that he was legally a minor at the time of the offence. He was 17 years and six and a half months at the time.
64. We are satisfied that the headline sentence set by the sentencing judge in this case was too low by far. It represented a considerable departure from the norm in our view. This was an error of principle and the sentence was accordingly unduly lenient. We consider that the circumstances of this crime required its placement at the upper end of the low range. If this crime had been committed by an offender who had attained his majority we consider that a headline sentence of five years would have been appropriate. In circumstances where it was committed by a minor, albeit one who was not far from attaining his majority, we would adjust that downwards to four and a half years. However, to have started at three years simply did not adequately reflect the gravity of the offending conduct, particularly in circumstances where actual violence was deployed, as opposed to the mere threat of violence.
65. In terms of mitigation, the trial judge discounted from the headline sentence that she had nominated by a third. We note that the applicant does not complain about this. There was considerable mitigation in the case, particularly in terms of the plea and the respondent’s difficult personal circumstances and the adversities that he has had to face in his life, as well as the other matters mentioned by the sentencing judge. We consider the discount applied by the sentencing judge was appropriate and in our re-sentencing we will apply a pro-rata percentage discount, or one approximating to a pro-rata percentage discount.
66. Moving then to Bill No 373/17, these offences were committed on the 6th of April 2015. By this stage the respondent had attained his majority and was a just a few days shy of eighteen and a half years. It is appropriate to deal with the burglary offence in the first instance. Although this offence had many of the hallmarks of an aggravated burglary it did not technically qualify as such because, although the respondent armed himself with a knife in the course of the burglary, he was not so armed at the time of entering Mr Moynihan’s house as a trespasser. Rather, he appropriated a kitchen knife, and an antique police baton, both belonging to Mr Moynihan, while on the premises.
67. The sentencing judge nominated a headline sentence of five and a half years from a range or spectrum running from non-custodial options to imprisonment for fourteen years. Again, the applicant maintains that this was far too low having regard to the offending conduct.
68. Before commenting on this contention, it is necessary to point out that earlier this morning we delivered judgment in The People (Director of Public Prosecutions) v Michael Casey & David Casey [As yet, there is no neutral citation and for the moment the case must be cited as “unreported, Court of Appeal, 26th April 2018”] . In our judgment in that case we identified a range of aggravating factors that may arise in burglary cases. We suggested that the spectrum of penalties available for ordinary burglaries prosecuted on indictment, running as it does from non-custodial options to imprisonment for up to fourteen years, may usefully be divided into three parts, namely a low range, a medium range and a high range. We went on to say:
“47. A confrontation with an occupant of a dwelling will be an aggravating factor. The more aggressive the confrontation, the greater the aggravation. Evidence that an intruder equipped himself with a weapon while in the dwelling will be a serious aggravating factor. This will be particularly so if the item availed of has the obvious potential to be a lethal weapon, such as a carving knife or a meat cleaver.
48. If a number of the factors to which reference is made are present, this will place the offence in the middle range at least, and usually above the mid-point in that range. The presence of a considerable number of these factors or, if individual factors are present in a particularly grave form, will raise the offences to the highest category. Cases in this category will attract sentences, pre-application of mitigation, above the midpoint of the available scale, i.e. above seven years imprisonment and often significantly above the midpoint. In considering the significance of a particular aggravating factor identified as present, it is necessary to view the significance of that matter in the context of the particular case. To take but one example, it has long been recognised that an offence is aggravated if property of significant monetary value or major sentimental value is taken. However, that is not to be seen in purely nominal or monetary terms. Taking what in absolute terms might be thought to be a fairly modest sum of cash becomes a matter of very great significance indeed, if the amount is taken from someone living alone who is entirely dependent on a State pension.
49. Against the background of those comments the Court would suggest that mid-range offences would merit pre-mitigation sentences in the range of four to nine years and cases in the highest range nine to 14 years. The Court recognises that the circumstances surrounding individual offences can vary greatly, and that that is so even before one comes to consider the circumstances of the individual offender. While a consistency of approach to sentencing is highly desirable, it is not to be expected that there will be a uniformity in terms of the actual sentences that are imposed. There are just too many variables in terms of the circumstances of individual offences, but even more so in terms of the circumstances of individual offenders, for that to happen. Again, the Court recognises that there is no clear blue water between the ranges. Often the most that can be said is that an offence falls in the upper mid-range / lower higher range. In many cases whether an offence is to be labelled as being at the high end of the mid-range or at the low end of the high range for an offence is often a fine call. The judge’s legitimate margin of appreciation may well straddle both. In that event, how it is labelled may in fact not impact greatly on the sentence that will ultimately be imposed.”
69. In this case the offence was committed intentionally and not recklessly or negligently. There was considerable harm done. The victim was severely traumatised and suffered a minor heart attack as a result of the stress of the incident. There was damage caused to the front door. A small quantity of cash was stolen. More significantly, the victim’s taxi cab, which represented his means of livelihood was stolen in the getaway. Fortunately it was recovered undamaged. There were numerous aggravating factors. These included the fact that the burglary was to a dwelling. There was a confrontation with the occupier. There was more than one raider. The burglary was clearly premeditated. The respondent knew his victim and clearly targeted him in the knowledge that he was a taxi driver and was likely to have cash earnings in the house from his taxying. The occupier being an elderly man with a heart condition was particularly vulnerable. Further the offence was committed while the respondent was on bail of the robbery offence. By statute this must be treated as an aggravating circumstance quite apart from any issue of consecutive sentencing, a matter to which we will return.
70. In these circumstances we consider that this is a case that would normally attract a headline sentence in the high range. But for the fact that the respondent had only just attained his majority and his immaturity (which we are prepared to infer based on the Probation Report) we consider that this offence should attract a headline sentence of ten years’ imprisonment. In doing so, we recognise and take account of the fact that the sentencing judge had in mind to take the related offences of production of an article, and the unlawful taking of a motor vehicle into consideration when sentencing for the burglary
71. However, having regard to the two factors we have mentioned, we will, exceptionally in the particular circumstances of this case, instead opt to locate the offending conduct at the upper end of the mid-range, and would nominate a headline sentence of eight years imprisonment. In the circumstances we regard the headline sentence of five and a half years nominated by the court below as significantly outside the norm. In fairness to the sentencing judge she did not have the benefit of the Casey judgment. Nevertheless, her nominated headline sentence was too low by a considerable margin.
72. The applicant also complains that there was an excessive discount for mitigation on the burglary offence. In discounting from five and a half years to four years with three suspended, the effective discount (in terms of actual custodial time) was 72%. We have already acknowledged in dealing with the robbery offence that the respondent is prima facie entitled to a not insignificant discount to reflect the mitigation in his case. As in the case of the robbery there was again a plea of guilty in respect of this burglary, and the same situation obtains with respect to the respondent’s difficult personal circumstances and the adversities that he has had to face in his life. It is true that his previous record is bad, and he is entitled to no extra mitigation on account of previous character. It addition, unlike in the case of the robbery he made no admissions, apart from ultimately pleading guilty. We consider that a discount of 72% was excessive in the circumstances of the case, again by a considerable margin. This was outside the norm, unjustified on the evidence, and an error of principle. Allowing for the fact that a sentencing judge must have a generous margin of appreciation, a more appropriate discount for mitigation would have been to discount in the range between 30% and 40%. When we come to re-sentence we will apply a discount from within that range.
73. Turning then to the offences on Bill No 711/15, and dealing solely with the aggravated burglary offence in the first instance, we would observe that this offence was committed on the 22nd of April 2015. Accordingly, the respondent who was aged eighteen and a half years was then legally an adult, although he had only recently attained his majority.
74. This offence was properly charged as an aggravated burglary because in this instance the respondent had entered the home of Ms Bignell armed with a broken roof tile. He subsequently further armed himself with a hammer which he picked up while on the property and that, of course, as we identified in the Casey judgment, must be regarded as a separate aggravating factor. While the range of penalties for aggravated burglary is greater than those for ordinary burglary, and it attracts up to life imprisonment, we consider that the comments which we made earlier in this judgment concerning the range of penalties available for a robbery offence equally apply to aggravated burglary.
75. In this instance the sentencing judge nominated a headline sentence of six years. Once again the Director says that that was too low and represented an error. Although we note the comparators advanced by counsel on both sides in arguendo, we see no reason why the Casey jurisprudence, being the most up to date guidance, should not be applied.
76. Once again, the offence here was committed intentionally and not recklessly or negligently. There was considerable harm done. There were two victims. Both were severely traumatised by the incident. Ms Bignell was humiliated and denigrated in the course of the incident by inappropriate commentary on her state of undress. A laptop, mobile phone and a hammer was stolen. These were not recovered. There were numerous aggravating factors. These included the fact that the burglary was to a dwelling. Not only was this a violation of a dwelling but Ms Bignell and Mr Dixon’s bedroom, where they had been sleeping and were entitled to feel secure in, was violated. There was a confrontation with the occupiers. There were threats to kill. The burglary was clearly premeditated. There was then a later attempt, when Garda Pender called the stolen phone, and respondent answered it, to extort €70 from Mr Dixon to secure return of the mobile phone. Further the burglary offence was committed while the respondent was on bail of the robbery offence. By statute this must be treated as an aggravating circumstance quite apart from any issue of consecutive sentencing.
77. In terms of mitigating circumstances bearing on culpability we take into account that, as in the case of the robbery, the respondent was intoxicated, indeed highly intoxicated in this instance, in circumstances where he is labouring under the chemical compulsion associated with chronic addiction to alcohol and certain drugs. In that regard, we wish to make two points. First, we consider that the actual mitigating effect of this factor is modest. Moreover, we would emphasise that it is that compulsion which gives this circumstance its mitigating quality. As we have said many times self-induced intoxication by itself can never be a mitigating factor. In this case, however, the Probation Report provides evidence of truly chronic addiction difficulties.
78. In the circumstances we have described we consider that this was a case that would normally attract a headline sentence towards at the upper end of the mid-range or lower end of high range on the scale appropriate to an aggravated burglary. Once again, but for the fact that the respondent had only just attained his majority and his immaturity (which we are prepared to infer based on the Probation Report) we consider that this offence should attract a headline sentence of ten years’ imprisonment. In doing so, we recognise and take account of the fact that the sentencing judge had in mind to take the related offence of production of an article into consideration when sentencing for the aggravated burglary
79. However, having regard to the factors of the respondent’s comparative youth and immaturity, we will, as we did in the case of the burglary on No. Bill 373/2017, opt instead in the particular circumstances of this case to locate the offending conduct more centrally in the mid-range, and would also nominate a headline sentence of eight years’ imprisonment for this offence. In the circumstances we regard the headline sentence of six years nominated by the court below as significantly outside the norm and as being too low by a considerable margin.
80. Turning once again to the mitigating factors, the circumstances here are very similar to those that obtained in respect of the burglary on Bill No 373/2017. In discounting from her headline sentence of six years’ imprisonment to a sentence of four and a half years’ imprisonment with the last three years thereof suspended, the effective discount (in terms of actual custodial time) was 75%. We again consider that this was excessive, outside of the norm and not justified on the evidence. It was an error of principle to discount by that much. Once again, allowing for the fact that a sentencing judge must have a generous margin of appreciation, a more appropriate discount for mitigation would have been to discount in the range between 30% and 40%. When we come to re-sentence we will apply a discount from within that range.
81. In respect of the sentence for the assault causing harm to Garda Pender, we note that the applicant is not contending that the headline sentence was outside the range of the sentencing judge’s legitimate margin of appreciation. However, it is contended that the discount for mitigation of 50% was excessive. We agree that technically that is so in circumstances where we have indicated that the appropriate discount for mitigation relevant to this group of offences would be in the range from 30% to 40%. However, in circumstances where on any re-sentencing any penalty for the assault offence is likely to be made concurrent with the penalty for the more serious offence of aggravated burglary which penalty will in turn be significantly higher and will effective subsume the lesser penalty we will not be disposed to make any adjustment to the penalty for the assault offence.
82. Two further aspects of the matter require brief mention. These relate to the structuring of the global sentencing package once the individual sentences for each offence had been determined. First, it was necessary, where offences had been committed while the respondent was on bail, for the sentencing judge to direct that the sentences on Bill Nos. 373/2017 and 711/2015, respectively, should be consecutive to the sentence imposed on Bill No 564/2015. The sentencing judge was correct in doing so, and we will again do so when we come to re-sentencing. Secondly, in circumstances where resort is being had to consecutive sentencing regard must be had to the totality principle. In circumstances where there is going to be a re-sentencing we will ensure that appropriate regard is had to the totality principle in determining the bottom line net aggregate sentence.
Re-sentencing
83. In all the circumstances outlined in this judgment we re-sentence the respondent as follows:
84. On Bill No 564/15 we nominate a headline sentence of five years, and will discount from that by two years to reflect mitigation leaving a net sentence of three years, before consideration of totality and any possible additional discount to incentivise rehabilitation.
85. On Bill No 373/2017 we nominate a headline sentence of eight years, and will discount from that by three years to reflect mitigation leaving a net sentence of five years, before consideration of totality and any possible additional discount to incentivise rehabilitation. In so sentencing we have taken into consideration the offences of production of an article and unlawful taking, also on this bill of indictment.
86. On Bill No 711/2015 we nominate a headline sentence of eight years, and will discount from that by three years to reflect mitigation leaving a net sentence of five years, before consideration of totality and any possible additional discount to incentivise rehabilitation. In so sentencing we have taken into consideration the offence of production of an article also on this bill of indictment. The separate sentence of eighteen months imprisonment in respect of the assault causing harm is to remain unaltered.
87. We will make the sentences on Bills Nos. 373/2017 and 711/2015 concurrent inter se but direct that they are to be consecutive to the sentence on Bill No 564/15, and commence on the lawful expiration of that sentence.
88. Before consideration of totality the aggregate sentences to be served amount at this stage to eight years’ imprisonment. To take account of the totality principle we will reduce the sentence on Bill No 564/15 by one year, giving a revised aggregate figure of seven years’ imprisonment.
89. Finally, we do note that the respondent appears to be doing well in prison, that he is using his time productively, and that he has taken the first tentative steps along what will be a long road to his eventual rehabilitation. We consider that such rehabilitation is not just in his own interest but manifestly also in the interests of society. As an incentive to him to continue along the road that he has started on this Court is disposed, in the particular circumstances of this case, to suspend the final two years of the global and aggregate term of seven years’ imprisonment that it is imposing upon him. To give effect to this the final two years of the sentences on Bills Nos. 373/2017 and 711/2015 will be suspended upon the same terms as applied in the case of the sentences part suspended in the court below.
90. The net effect of all of this is that the global or aggregate total of the custodial sentences to be actually served by the respondent following this review (assuming he keeps to the conditions upon which part of his sentences are suspended) is now five years.
