THE COURT OF APPEAL
Birmingham P.Edwards J.Hedigan J.66/2018
BetweenThe People (at the suit of the Director of Public Prosecutions)
Appellant
JUDGMENT of the Court delivered on the 28th day of June, 2018 by
Mr. Justice Hedigan
1. The appellant appeared for sentence in Dublin Circuit Criminal Court on the 11th January 2018 with his co-accused Eddie Stokes, Joseph Stokes and Tom McDonagh. The appellant and his co-accused were each charged with two counts on the indictment which were charges of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and also possession of articles contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant and his co-accused pleaded guilty to an offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and an offence of possession of articles contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001 was taken into consideration. All four received a sentence of 21 months. The others had the entirety of their sentences suspended, the appellant had no part of his sentence suspended.
The background
2. The theft offence occurred on the 7th October 2016 at Phoenix Park, Racecourse Apartments, on the Navan Road, Dublin 7. There was construction ongoing in that complex at the time. A local resident was in her apartment and went out onto her balcony to use her phone. Her apartment overlooks the building site and she saw a vehicle drive into the site. It was described as a Hyundai people-carrier which was blue in colour. The occupants of the car had bolt cutters and the lock of the gate was cut off with them. The car was then driven into the complex and she saw three males get out of the car. There were approximately 15-20 containers within the complex and some of these are used by the owners of the site and others are used by subcontractors to store tools and equipment. The residents saw the containers being opened and the men load up their car with general building tools. When they were finished taking the tools, they drove out of the site and she noticed the driver of the vehicle was wearing a high visibility jacket. She then contacted the gardaí and at that stage the vehicle returned again and drove back into the enclosure and one of the men got out and opened the second container. They then left and went towards Castleknock village. The resident rang the gardaí a second time and she stayed on the phone giving instructions as to where the car was going. Garda Tara Burn was on duty with her colleague Garda Damien Greene and they responded to the call. While driving along Castleknock Road they saw a Hyundai Trajet motor vehicle which matched the description given to the gardaí. The vehicle was being driven by a man wearing a high visibility jacket. Garda Burn observed that the driver of the vehicle was the appellant Martin Stokes. The vehicle was stopped and a large amount of power tools was found in the back of the car. The occupants of the car were arrested and taken to Blancardstown and Finglas Garda Stations. All the power tools and building tools were recovered by Gardaí.
The personal circumstances of the appellant
3. The appellant had 15 previous convictions. 14 in the District Court and one in the Circuit Court. In the District Court there were 10 convictions for road traffic offences, two convictions under the Firearms and Offensive Weapons Act and two convictions under the Criminal Justice (Theft and Fraud Offences) Act. The Circuit Court conviction was on the 16th May 2013 at Dublin Circuit Criminal Court. It was a conviction for violent disorder whereby the appellant received a sentence of two and a half years imprisonment which was suspended in its entirety.
The appeal
4. The appellant appeals the severity of the sentence imposed. The grounds of appeal are as follows:
The submissions of the appellantFailure to depart from the headline sentence to account for mitigating factors.
5. The learned sentencing judge took insufficient or no account of the appellant’s personal mitigation. The court did not identify with any precision or indeed at all the extent to which the mitigating factors were taken into account. The learned sentencing judge did not follow the “best practice” as enunciated by the Supreme Court but rather indicated what he perceived to be the appropriate sentence in the overall circumstances of the case. It is submitted that it is not appropriate to simply identify a figure and impose that as the sentence. It is submitted that the present case is not one in which the Court of Appeal can infer by a process of “reverse engineering” that all of the important factors were adequately or correctly considered and weighed.
Parity in sentencing of co-accused
6. On the evidence before the Court there was no differentiation between the appellant and his co-accused in their relative culpability, involvement or responsibility in the commission of the offence. All of the co-accused and the appellant seem to have been over the age of majority and under the age of 23 when the theft was committed. The stark differentiation between the sentence imposed on the co-accused and the appellant was not justified on the basis of the entirety of the evidence before the sentencing court. There is a significant disparity in comparison with the suspended sentences of the appellant’s co-accused. Nothing in the evidence justified such a differentiation.
No consideration of mitigating personal circumstances
7. The sentence was not proportionate to the circumstances of the appellant. The structure of the appellant’s sentence fails to echo the fundamental basis of sentencing principles as set out inPeople (DPP) v. McCormack[2000] IR 356.
The submissions of the respondent
8. The learned sentencing judge did not err in either principle or in law in his sentencing of the appellant. He delivered a carefully measured judgment setting out the aggravating factors and the pertinent mitigating circumstances. The sentence imposed reflected the seriousness and nature of the offence and took into account all of the relevant mitigating factors particular to the case and the appellant’s personal circumstances. The learned sentencing judge was not bound to follow a mechanical formula in constructing a sentence. Regard has to be had to the substance of the sentencing judge’s ruling. He clearly set out his reasons for the sentence which he imposed. He identified 21 months as the appropriate headline sentence for the offence of theft committed by the appellant and his co-accused. He directed his mind to the relevant mitigating factors. These were reflected in the sentence imposed. He was entitled to operate within a certain margin of discretion in deciding the precise weight to be given to the relevant mitigating factors. The appellant’s three co-accused had the sentences suspended in their entirety by reason of their good records. The appellant however had a reasonably serious record of conviction including a two and a half year sentence for violent disorder where he received a considerable chance from the court.
Inappropriatedifferentiation between sentences
9. The respondent submits that the learned sentencing judge properly differentiated between the appellant and his co-accused when sentencing the appellant. It is accepted that co-offenders should receive the same or very similar offences unless there is some appreciable difference in their level of culpability or personal circumstances. The court was referred toR. v. Lowe[1980] 4154 CLR 606 at p. 609 Gibbs C.J. of the High Court of Australia:
“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence have to be taken into account.”
In the present case not all things were equal. The appellant had a considerably worse record than the co-accused. The learned sentencing judge was entitled to take this into consideration when imposing sentence. In practice, two or more participants in the same offence will seldom be so similarly situated as to merit identical sentences. The question for an appeal court will typically be whether the degree of difference between the sentences imposed at first instance was objectively justified. A defendant can seldom claim to have a justifiable sense of grievance if he or she received a proportionate sentence irrespective of the penalties imposed on co-defendants. It is submitted on behalf of the respondent that it is clear from the sentencing judge’s comments that he considered all options and requests made on behalf of the appellant. Given the serious nature of the offence, the maximum sentence the offence carries and the previous convictions of the appellant, the respondent submits that the sentence imposed on the appellant is appropriate and proportionate to the gravity of the offence and reflects all of the mitigating factors outlined at the sentence hearing.
The decision of the court.
10. It was submitted that the learned sentencing judge having fixed a headline sentence of 21 months did not subsequently make any allowance for the only real mitigating factor present in the appellant’s case which was his guilty plea. However, it may be inferred that the learned sentencing judge who is a highly experienced one included in what he described as the headline sentence an allowance for the plea of guilty. The Judge suspended in full the sentences of the co-accused. He did this, he said, on the basis of their good records. The appellant did not have such a record and the learned sentencing judge expressed that as the only ground for suspending no part of his sentence. Whilst there was good reason to differentiate between the appellant and his co-accused in sentencing, there appears to be some disproportionality involved in their comparative sentences. The divergence between a sentence suspended in its entirety and one to be served in its entirety seems too great.
11. For this reason we will quash the sentence of 21 months imposed. We will therefore proceed to resentence. We agree that a 21 month sentence was merited in this case after allowance was made for the mitigation pleaded. We have considered the medical report of Our Lady’s Children’s Hospital and the Jobpath Report together with the job offer of Serve Electric. It is clear therefrom that there is some light at the end of the tunnel for the appellant in terms of turning his life around. It is greatly to be hoped that he will continue to pursue his personal progression plan and to that end, in order to encourage the appellant to move forward from the criminal way of life that he has been pursuing to date, we will suspend seven months of the 21 months for a period of one year on condition of his being on good behaviour during the rest of his time in prison and for one year thereafter. He must enter a bond of €100.
