THE COURT OF APPEAL
CJA 65/17
Edwards J.
Hedigan J.
Whelan J.IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
RESPONDENT
Judgment of the Court delivered on 16th January 2018 by Mr. Justice Edwards.
Introduction
1. In this case the applicant seeks a review of a sentence of three years’ imprisonment, with the final two years thereof suspended upon conditions, imposed upon the respondent on the 20th of February 2017 by the Dublin Circuit Criminal Court in respect of a single count of burglary contrary to s.12 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, on the grounds that the said sentence was unduly lenient.
The evidence at the sentencing hearing
2. The Circuit Court heard from Garda William Brosnan that the burglary occurred on the 31st of August 2016 and was in respect of a private dwelling house on Marlborough Road in Glenageary, South County Dublin owned and occupied by a lady called Marian Shanley, who had lived there for the past 36 years.
3. Mrs Shanley had left her home at 10.15 that morning, setting the burglar alarm as she left. At about 2.30pm she received an alert by telephone from her alarm monitoring company notifying her that her alarm had been triggered by a sensor in her house. She decided not to return immediately and to monitor the situation, but at 7.15pm she was contacted again by the monitoring company who informed her that there had been a lot of activity detected by sensors in the house and that they were calling the Gardai. Mrs Shanley decided to return home at that point, and telephoned her sister Bernice on her way there asking her to meet her there.
4. Mrs Shanley’s sister in fact reached the house first, who observed evidence of an apparent break-in. Suspecting that the intruder might still be in the house, she opened a door and shouted that she was there and that the Gardaí were on their way. Mrs Marian Shanley then arrived and she observed that there was broken glass, and there were doors open that should be shut. At this point the intruder appeared and ran through the kitchen door. He was not recognised at that point but both ladies were subsequently able to describe him as having red shaggy hair and as wearing predominantly blue checked shorts, which were falling down and which the intruder was holding up as he ran.
5. The intruder was observed running through the kitchen into the conservatory and then exiting the house and running across the garden. He was pursued by Mrs Shanley and her sister. When it seemed to the intruder that he had no apparent means of escaping from what was an enclosed garden other than by route through which he had entered it, he ran back past the two ladies, re-entered the conservatory and locked the door behind him leaving the two ladies in the garden and locked out of the house. At this point Mrs Shanley’s sister recognised the intruder. She had lived in Dún Laoghaire for a long time and realised that the intruder was a man that she knew to have been living at Crosthwaite Park in Dún Laoghaire.
6. There was in fact a side entrance to the garden which the intruder had failed to notice in his haste and Mrs Shanley went out through this side entrance and observed the intruder exiting the front door of the house and running down the road away from the house.
7. The intruder was observed to be carrying a pink shopping bag containing certain goods when he first exited the house and ran in to the garden, but he dropped this bag and left it behind him in the garden. The bag was subsequently examined and all of the goods within it were found to be the property of Mrs Shanley. A later check of the house revealed that a sum of US$500 had been also been taken, as well as a gold coin of sentimental value. Neither the cash nor the gold coin were in the bag that was dropped in the garden, and they were never recovered.
8. The Gardaí arrived shortly after the intruder had run away, and commenced an investigation. The received, inter alia, a description of the intruder from Mrs Shanley and her sister, and Mrs Shanley’s sister also informed them of her belief that the intruder was known to her, although not by name, and that he lived at Crosthwaite Park in Dún Laoghaire. In the course of the Garda investigation CCTV footage recorded on the 31st of August 2016 was recovered from Glenageary Dart station and was viewed by Garda Brosnan. This CCTV footage had captured the arrival there of an individual with red hair and distinctive shorts matching the description furnished by the two ladies. This individual was personally known to Garda Brosnan, and was identified by him as the respondent.
9. Further CCTV footage recorded on the day following the burglary was recovered from the Bank of Ireland in Dún Laoghaire. This captured the respondent exchanging a quantity of US dollars for Euro.
10. The respondent was arrested on the 21st of September 2016, and was detained at Dún Laoghaire Garda Station where he was interviewed. Nothing of evidential value emerged from the interview, other than an admission that he lived at Crosthwaite Park in Dún Laoghaire.
The impact on the victim
11. The transcript reveals that the court below received a victim impact statement on behalf of Mrs Shanley, and it was considered by the sentencing judge. Although this was not read into the record, and we have not been provided with a copy of what was handed in, the sentencing judge summarised the contents of the victim impact statement in her sentencing remarks, stating that:
“The Court has heard evidence of the impact on the victim, and Mrs Shanley found the events extremely distressing, and she did not want her family to have a particular view of her as a vulnerable person, and that impacted on her that she may be — they may consider her vulnerable and it's not an appellation that she wanted to have, or for her family to view her in that way, and they are of course of significance. Mrs Shanley lives in the house on her own.
The respondent’s personal circumstances.
12. The court below heard that the respondent was born on the 11th of May 1986, making him 30 years of age at the time of the burglary.
13. The respondent had 103 previous convictions, including the following:
• Three convictions for possession of drugs with intent to supply contrary to s.15 of the Misuse of Drugs Act 1977;
• Four convictions for possession of drugs contrary to s.3 of the Misuse of Drugs Act 1977;
• Two convictions for causing criminal damage;
• Three convictions for the unlawful taking of a motor vehicle;
• One conviction for driving under the influence of an intoxicant;
• Six convictions for burglary, the most recent of which was dated the 23rd of January 2015, and in respect of which the respondent had received a four-year suspended sentence that was imposed by Dublin Circuit Court. The offence giving rise to the sentence the subject matter of this review was committed during the currency of that suspended sentence;
• Eleven convictions for theft;
• One conviction for being in possession of an article with the intention that it be used in the course of, or in connection with, a theft or burglary, contrary to section 11 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.
• Four convictions for assault contrary to s.2 of the Non Fatal Offences Against the Person Act 1997;
• Two convictions for assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act 1997;
• Numerous road traffic offences and public order type offences; and
• Six convictions for failing to appear in court, contrary to s.13 of the Criminal Justice Act 1984.
14. Following his arrest the respondent did not succeed in securing station bail, and was brought before the District Court on the following day (22nd September 2016) where he was refused bail by the presiding judge and was remanded in custody. He was sent forward for trial on indictment to the Dublin Circuit Criminal Court in November 2016. The matter was then first listed before the Dublin Circuit Criminal Court on the 2nd of December 2016, on which occasion he was arraigned and pleaded guilty. Counsel for the applicant accepts that, for the purposes of s. 29(1)(a) of the Criminal Justice Act 1999 this was to be regarded as being a plea at the earliest opportunity. However, with regard to s.29(1)(b) the plea was offered in circumstances where he had in effect been caught red-handed and there was a strong case against him.
15. The respondent had not served a custodial sentence in five years. He ordinarily lived with his parents. He has a child with his estranged partner. He was employed in the past as a groundsperson at Leopardstown Racecourse but was let go six or seven years ago, although not for any reason that would reflect adversely on him. After he was let go he developed a drug addiction and ultimately he became a heroin addict. He also developed mental health problems in this period, and has been diagnosed as being depressed and was prescribed Desipramine (an anti-depressant). He developed suicidal ideation and on a date in May 2016, and again on the 27th of July 2016, just weeks before his commission of the offence with which we are presently concerned he made two serious attempts at self harm by overdosing on heroin, which resulted in his hospitalisation and urgent referral to psychiatric services. He briefly attended the Centre for Living in Cuain Mhuire, in the aftermath of his release from hospital following the May 2016 incident but did not keep appointments and was discharged from their services in August 2016. In regard to the respondent’s mental health problems and co-morbid addiction problems, the court below, and also this court, was furnished with relevant medical records confirming the history provided.
16. The evidence was that following his remand in respect of the present offence, he formed a determination to address his addiction and mental health issues. He successfully detoxified from drugs while in prison and at the first sentencing hearing on the 11th of January 2017 evidence was adduced on his behalf of a variety of steps taken by him towards addressing his addiction and mental health problems. These included confirmation of a clear urine analysis which had screened for drugs, a positive testimonial from the prison chaplain and a letter from Fr Peter McVerry offering to link the respondent again with Cuain Mhuire on the basis that he would undergo a 20 week residential drug treatment course, if and when he was in a position to do so. The Circuit Court judge was sufficiently impressed with the evidence presented to her that she decided to adjourn the matter for four weeks and to direct a probation report and continuing urine analysis.
The Probation Report
17. It is fair to say that overall the Probation Report, which was dated the 20th of February, 2017, was favourable to the respondent. Although it assessed him as being of high risk of re-offending in the next twelve months, the probation officer qualified his assessment by saying that that would be the case “unless he addresses the identified risk factors”. These were substance misuse, his extensive criminal history, lack of training and employment, and a breakdown in social supports following his split up with his, now, ex-partner and lack of access to his child. On the positive side it was noted that he had detoxified and was clean at the time of assessment, he appeared to have some insight into the harm he may have caused to his victim and was remorseful, he had previously begun a Probation Service Choice and Challenge Program that sought to address his attitude to crime and promote positive change in his behaviour, but his participation had been interrupted by his being placed in custody. In addition he had attended Dún Laoghaire Rathdown Outreach Project (DROP) and had completed the Morning Programme in their Rehabilitation Day Service for which he has received a certificate of achievement. This rehabilitation programme aimed to assist recovering drug users and to prepare them for moving into further training, education or employment. The report further noted his engagement with Fr Peter McVerry, and his willingness to avail of a residential substance abuse treatment at Cuain Mhuire if and when permitted to do so.
18. The probation officer stated by way of conclusion:
“At interview I discussed the possible outcomes in today's matter before the Court, and Mr O'Brien is favourable to being placed on supervision should the Court be considering a community sanction. Mr O'Brien has advised that he is no longer taking any drugs and that he has been offered a residential placement commencing from today in Athy. I would contend that this would be the more favourable option and to release him under the condition that he go to this placement and complete the programme fully. The Probation Service is available to supervise Mr O'Brien in addition to this recommendation.”
19. When the sentencing hearing resumed before the Circuit Court on the 20th of February 2017, the court was informed that the respondent’s urine analysis remained clear. A letter was handed in from the respondent himself expressing his remorse and shame and his determination to turn his life around. The Court was also told that in addition to the steps towards rehabilitation referred to in the Probation Report, the respondent had also participated in a program run by Southside Travellers Action Group that targeted specific interventions to support him in areas of his drug and alcohol misuse, and a letter confirming his said participation and positive person progress was handed in.
20. In addition the Circuit Court Judge was furnished with a letter from Dún Laoghaire Rathdown Outreach Project (DROP) confirming his achievements there; as well as Certificate of Accomplishment from the Cloverhill Computer Workshop showing that the respondent had successfully completed a Mavis Beacon Typing course.
The Section 99 issue
21. It emerged in the course of the evidence on the first day that this matter was before the sentencing judge (11th January 2017) that on 15th of August, 2013, over three years prior to the incident the subject matter of this application, the respondent committed a separate burglary in the Glenageary area when an 80 year old man was disturbed whilst asleep when his house was broken into by the respondent.
22. With regard to that prior offence on the 23rd of January, 2015 a four year sentence was imposed by Dublin Circuit Criminal Court which was the subject of bill no. DUDP 073/2014. The sentence was suspended for three years.
23. Between the 11th of January 2017 and the 20th of February 2017 (the second date on which the matter was before the sentencing judge) an application was brought pursuant to s. 99 of the Criminal Justice Act 2006, returnable for the 20th of February 2017, seeking revocation by the sentencing judge of the suspended portion of the sentence that had been breached.
24. The sentencing judge declined to revoke the suspended sentence upon being advised that it was not possible to part-revoke and re-suspend the balance of the sentence arising from the decision of Peart J. in DPP v. Vajeuskis [2014] IEHC 265.
25. There is no appeal against the refusal to revoke the suspended sentence.
The Sentencing Judge’s Remarks
26. In sentencing the respondent the sentencing judge referred to the circumstances of the crime and stated that it was aggravated by the respondent’s actions in locking the ladies out of the conservatory, and entering the house (a dwelling) when there were people there. It was further aggravated by his previous convictions, 103 in total, six of which were for burglary, and the fact that the offence was committed during the currency of the suspension of an earlier sentence. As already mentioned, the sentencing judge also referenced the impact on Mrs Shanley.
27. The sentencing judge then continued:
“By way of mitigation, I take into account the guilty plea of the accused, which significantly mitigates the offence. Garda Brosnan fairly accepted that the accused did not believe that there was another person in the house at the time, and I accept that. It seems to have an opportunistic offence. The offending, while it is does not mitigate as such, but it does come within the context of a significant heroin addiction, and that has been documented as well in the probation reports. I take into account the personal circumstances and mental health of the accused. He had within the month previously, previous to this offence attempted suicide, so that was shortly before this offence, and he seemed to be involved in a mental health deterioration at that time. I take into account the various testimonials and in particular the accused's letter of apology where he does express for his offending, and he does appear to be able to have some insight and to put some context on that vis-à-vis his personal circumstances at the time. I note that he was attending Outreach and receiving rehabilitation and treatment in respect of his addiction.
There are also a number of other testimonials that have been furnished to the Court. Mr Gillen, from the Southside Travellers Action Group, has confirmed that Mr O'Brien's participation in targeted programs, and has indicated that Mr O'Brien has made positive progress with the group and is continuing to do so through engagement with those services. I also have a letter from a Father O'Sullivan, who is the chaplain to Cloverhill Prison. He's indicated that Mr O'Brien's behaviour and demeanour while in custody has been exemplary and he has been respectful towards everybody, and Father O'Sullivan indicates as well that his previous offences stem from his drug addiction. So, the Court has to consider whether Mr O'Brien is amenable to rehabilitation, and must took to rehabilitation in terms of addressing the accused's future, and in terms of deciding on the appropriate sentence in this case. There's also a letter from Father Peter McVerry and he has indicated that there's residential treatment available for him with the trust. I also have had regard to the probation report in the case, from the probation officer, Anthony Kelly, and Mr Kelly, again, has set out the accused's background, and Mr O'Brien indicates that, regarding victim consideration, Mr O'Brien has been able to identify the potential fear that the house owner may have had, knowing that someone had broken into the property, and he has shown some insight into that. The probation officer also sets out again the family circumstances of Mr O'Brien, and Mr O'Brien is lucky to come from a supportive family, and who do not condone criminal behaviour, and his father is present here today in court, and the Court notes that, that his family are supportive of him in terms of motivating him to address his substance misuse. He's the father of a young child and that seems to be, as well, providing some motivation for him in that regard.
One of the difficulties in terms of assessing Mr O'Brien's capacity, or tendency to reoffend, has been his lack of education and poor employment record. And I note that he left school at a young age, a very young age, at the age of 12, with poor literacy skills. Nonetheless, he has worked at various times and indeed worked as a maintenance person for a period of time and enjoyed that work, but the lack of employment has negatively affected him. I note that he has attended Dún Laoghaire/Rathdown Outreach programme, and that rehabilitation aims to assist recovering drug users to prepare them for moving into further training. I note as well that the probation officer has discussed the various outcomes with Mr O'Brien and favourable recommends him to be placed on probation supervision on very strict terms regarding taking up a residential placement in respect of his drug addiction. Had the case gone to full trial, I would have considered a three-year custodial sentence to have been the appropriate sentence in the circumstances. What I intend to do is to give Mr O'Brien an opportunity to address his addiction and I will suspend backdate that sentence to the date he went into custody in September --
COUNSEL: The 21st of September.
JUDGE: The 21st of September 2016. And I'll suspend the final two years, taking into account all of the mitigation, but I do believe that a deterrent has to be kept over his head, on condition that he undergo that he remain under the supervision of the probation services. I'm going to suspend that two-year period for a period of three years, on condition that he remain under the supervision of the probation services, that he remain drug free, that he take up a residential drug treatment programme as directed by the probation services, that he undergo urinalysis as directed by the probation services and follow all other directions of probation services.”
Submissions and Discussion
28. The grounds of application filed on behalf of the application list five complaints, the first four of which relate to the sentencing judge’s assessment of the gravity of the offence, and the last of which relates to the extent of her discounting to reflect the mitigating circumstances in the case. The grounds as filed were:
i. The sentencing court gave insufficient weight to the aggravating factors in the case;
ii. Without prejudice to the generality of the foregoing, the sentencing court had inadequate regard to the fact that the offence committed by the respondent was committed during the currency of a suspended sentence imposed by Dublin Circuit Criminal Court on bill DUDP073/2014 in relation to a similar offence;
iii. The sentencing court had inadequate regard to the previous convictions of the respondent for similar offences;
iv. The sentencing court had inadequate regard to the impact of the offence on the victim;
v. The sentencing court gave excessive weight to the mitigating factors in the case;
29. At the commencement of the oral hearing before this Court, enquiry was made of counsel for the applicant as whether his client was truly concerned both about how the sentencing judge had assessed the gravity of case, as well as the quantum of discount afforded for mitigation, and counsel conceded that the concern was really with the latter. He stated that the applicant was not now contesting the appropriateness of the three year headline sentence identified by the sentencing judge as being appropriate to the gravity of the case. The focus of the application for a review would therefore be on the appropriateness of the suspension of the final two years of the sentence. It was the applicant’s case that the two year suspension meant that the ultimate sentence represented a substantial departure from the norm and was unduly lenient.
30. 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”.
31. 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.”
32. 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.”
33. 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.”
34. The sentencing judge in this case identified a large number of mitigating factors to which she had regard. These included:
a. The respondent's guilty plea which was of assistance to the injured party and meant that she did not have to come to court and give evidence;
b. That Garda Brosnan accepted that the respondent did not believe that there was a person in the house at the time;
c. That the offence seemed to be opportunistic;
d. That, while not a mitigating factor as such, the respondent was a person with longstanding heroin addiction;
e. That the respondent had attempted suicide within the month prior to the offence and his mental health seemed to have deteriorated at that time;
f. That the respondent appeared to have insight into his offending which was borne out in his letter of apology;
g. That the respondent was attending Outreach and receiving rehabilitation and treatment in respect of his addiction;
h. That the respondent was participating in targeted programmes with Southside Travellers Action Group and had made positive progress with the group and was continuing to do so through engagement with those services;
i. That a letter was provided from a Father O'Sullivan, who is the chaplain to Cloverhill Prison who indicated that the respondent's behaviour and demeanour while in custody had been exemplary and he had been respectful towards everybody, and that his previous offences stem from his drug addiction;
j. That the respondent had engaged with Father Peter McVerry and he had indicated that there was a residential treatment available for the respondent with Cuain Mhuire;
k. That the respondent was a father of a young child; and
l. That the respondent took full responsibility for the offence and the effects on the injured party in his letter to the Court.
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.
36. We acknowledge that notwithstanding what we have said concerning the inappropriateness of a rigid algorithmic or mathematical approach, this Court has, on occasion, such as in The People (Director of Public Prosecutions v Molloy [2016] IECA 239, found it helpful in reverse engineering an inadequately reasoned sentence to indicate typical ranges of discounts for matters such as a plea, previous good character etc, and to apply a crude arithmetic solely for the narrow purpose of forming an overall impression, in the absence of any information concerning the actual extent of discount afforded, as to whether or not the impugned sentence “looks correct”. However, in having occasionally done so, we are not to be taken as in any way commending the adoption of an algorithmic or mathematical approach in sentencing practice at first instance.
37. Having acknowledged that judges enjoy a significant margin of discretion in sentencing, it requires to be stated that no sentencing judge operates completely in a vacuum, and so he or she must, in exercising their discretion, also have regard to statutory sentencing guidelines where they exist, e.g. s.29 of the Criminal Justice Act 1999; must adhere to principles of sentencing law expounded in binding precedent e.g., that a sentence must be proportionate both to the gravity of the offence and the circumstances of the offender; must adhere to guideline judgments where they exist (or justify departure from them); and finally should have regard to appropriate comparators opened to the court (although it is acknowledged that comparators may be of very limited value in determining appropriate discount for mitigation).
38. The high water mark of the applicant’s case is than an effective 66% discount on the headline sentence was excessive in the circumstances of this case. Counsel for the applicant has speculated that perhaps too much importance was attached to the plea of guilty in circumstances where the respondent was caught red handed, and too much weight attached to his mental health and addiction issues. In addition, counsel questions whether it was appropriate to incentivise rehabilitation to the very great extent that the sentencing judge did in this case, against the background that the respondent had previously been given a chance but had spurned it by committing the present offence during the currency of his previously suspended sentence.
39. Predictably counsel for the respondent contends that the sentencing judge acted within the range of her legitimate discretion and that even if the sentence was a lenient one it was not unduly lenient.
Decision
40. Having carefully considered all of the circumstances of this case we are not satisfied that the applicant has discharged the required burden of proof.
41. No issue is now taken with the headline sentence of three years, and we consider the applicant’s approach in that regard to be sensible and supported by comparators – see for example the ex tempore judgment of Sheehan J on behalf of this Court in The People (Director of Public Prosecutions) v Christopher McCarthy [2016] IECA 254.
42. It is clear from the transcript that the sentencing judge approached this case with great care and conscientiousness. She heard the evidence first hand and was particularly impressed with the respondent’s expression of a purpose of amendment and concerning the steps that he had taken along that road. Given that the respondent had 103 previous convictions, 6 of which were for burglary, and the fact that this offence had been committed while the respondent was already subject to a suspended sentence, the sentencing judge would not have faced ready criticism if she had approached the respondent’s expressed resolve, and plea to be allowed to continue along the path he had lately taken, with considerable scepticism. However, having heard the evidence, having observed the respondent first hand, having considered the medical records, the Probation Report, the testimonials and the other supporting documents, the sentencing judge, although of the view that there would have to be some actual custodial element to the sentence, took the view, notwithstanding the respondent’s bad record, and the fact that a previous chance had not been grasped, that the respondent appeared to be genuine in his resolve and that it was in the long term interests both of himself, and of society, that his sentence should be structured in the way that it was, both to reflect the substantial mitigating circumstances in the case but also, and perhaps more importantly, to ensure that his continued progress towards rehabilitation would be incentivised.
43. The sentence was undoubtedly lenient, very lenient indeed. But could it be said to be so outside the norm as to represent a manifest error of principle? We think not. We are obliged to attach significant weight to the judge’s reasoning. In addition, there is precedent for an approach such as that adopted by the sentencing judge in an appropriate case.
44. In People (Director of Public Prosecutions) v Jennings (Court of Criminal Appeal, ex tempore, 15 February 1999) expression was given to what is sometimes referred to as “the last chance principle”. Thomas O’Malley in his work on Sentencing Law and Practice (3rd ed) describes this (at 8-18) as arising where a court faced with sentencing a recidivist offender may have reason to believe that the offender has reached a point where, for one reason or another, he or she seems intent on desisting from further crime. He suggests that any measure that will encourage the offender along the path of desistence should be considered seriously, even if it means imposing a more lenient sentence than the offence would otherwise deserve. Applying this approach in Jennings the Court of Criminal Appeal said:
“But there comes a time in everyone’s life, and it is a principle of sentencing as well, where the court detects that it may be make or break time. If he is given this, his last chance perhaps, he will hopefully take it and rehabilitate himself, get employment and become a useful member of the community”
45. We find further support for the sentencing judge’s approach in the circumstances of this particular case on the basis that the process of sentencing that enjoys the widest currency is that it represents an appropriate balancing of the concurrent, but sometimes conflicting, penal objectives of retribution and incapacitation, deterrence (general and/or specific) and rehabilitation. Moreover, at the heart of this balancing exercise, is the constitutionally mandated requirement that every sentence should be proportionate, both to the circumstances of the crime and to those of the perpetrator.
46. In the past it has been suggested by the former Court of Criminal Appeal in People (DPP) v GK [2008] IECCA 110 that a court in sentencing, or an appellate court in reviewing a sentence, “must examine the matter from three aspects in the following order of priority, rehabilitation of the offender, punishment and incapacitation from offending and, individual and general deterrence” (this Court’s emphasis), thereby suggesting that the penal objective of rehabilitation is always to be afforded the highest priority. While we do not now think that this is necessarily a correct statement of principle, and prefer an approach in which the correct prioritisation of penal objectives is to be determined by the circumstances of the particular case based on the evidence, we readily accept that in many cases it may indeed be appropriate to prioritise the penal objective of rehabilitation. There will, however, be other cases where it may be appropriate to prioritise deterrence, or retribution and incapacitation.
47. The sentencing judge in this case had abundant evidence to justify her decision to afford a high priority to the penal objective of rehabilitation. In our view she ought not to be criticised for doing so. She took the view that there required to be some custodial element to the sentence, but suspended the greater part of it both to reflect the mitigating circumstances in the case, which were substantial, and to incentivise rehabilitation on a last chance basis in circumstances where she was persuaded of the genuineness of the respondent’s commitment to changing his life. She had solid evidence to justify giving him that chance, and we are therefore satisfied that what she did was within the legitimate margin of appreciation available to her. In the particular circumstances of this case, the suspension of the final two years of the three year headline sentence was not so far outside the norm as to be regarded as unduly lenient.
48. We therefore dismiss the application.
