THE COURT OF APPEAL
Birmingham P.Edwards J.Hedigan J.Record No: 192/2016
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
Appellant
JUDGMENT of the Court (ex tempore) delivered on the 3rd of July 2018 by Mr. Justice Edwards.
Introduction
1. On the 22nd and 23rd of June 2016 the appellant was convicted by the unanimous verdict of a jury at Clonmel Circuit Criminal Court of four offences committed on the 2nd of July 2015. These related to: (1) criminal damage contrary to s. 2(1) of the Criminal Damage Act, 1991; (2) possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offence) Act 2001; and (3) and (4), respectively, two counts of dangerous driving contrary to s. 53(1) of the Road Traffic Act, 1961, as amended.
2. A sentence of six years was imposed in respect of the criminal damage count while a sentence of two and a half years was imposed for the count in relation to possession of stolen property, to run concurrent to the sentence in respect of criminal damage. The learned judge imposed sentences of six months in respect of each of the dangerous driving counts, to run consecutive to one another and to the other sentences. This resulted in a cumulative sentence of seven years. The final year of the cumulative sentence was suspended upon conditions.
3. The appellant appealed against both his conviction and the severity of his sentences. On the 15th of May 2018, this Court (Birmingham P., Mahon J., Edwards J) upheld the appellant’s conviction and dismissed his appeal against conviction on all grounds. Submissions concerning the severity of the sentences that were imposed have been heard by this Court and this judgment deals with the appellant’s appeal against the severity of his sentences.
The Relevant Facts
4. The stolen property in question belonged to Mr Pádraig Ryan of Monksgrange, Co. Tipperary. The property in question was a “Nugent” twin-axle trailer with an estimated value of €3,000. On the trailer was a 2013 red “Craftsman” ride-on lawnmower, with an estimated value of €2,500. There was also a “Marijoama” strimmer with an estimated value of €500. The trailer had been left beside Mr Ryan’s garage, which, although located at the end of a long driveway into the property, was visible from the road outside. Mr Ryan left his home at about 2.15 p.m. on the 2nd of July 2015 and the trailer was there. When he returned home at around 7 p.m. the trailer and its contents were gone. When the property was later recovered the electrical cable on the trailer was broken.
5. On the same evening Detective Garda Patrick O’Gorman and Detective Garda Adrian Cooke were on duty and were patrolling in an unmarked Ford Mondeo. Conditions were described as dry and sunny with good visibility. At approximately 7.00 p.m. they were leaving Moyglass village in the direction of Fethard when they observed a black jeep driving towards them in an erratic manner. The jeep had a trailer attached which was swerving. As the vehicle approached the car it braked hard and took evasive action.
6. It was decided to pursue the driver to caution him regarding the manner of his driving. It later transpired that the driver in question was the appellant. The Gardaí pursued the jeep and trailer through the various townlands of Laffansbridge, Killaheen and Ballintogher. At the beginning of the pursuit there was a silver car in front of the jeep and trailer which the appellant overtook on a bend. The silver car pulled in when he heard the Garda sirens and the Gardaí were able to catch up with the appellant. Detective Garda O’Gorman estimated that he was driving at a speed in excess of 120 kilometres per hour on a country road where the speed limit was 80 kilometres per hour. At a junction near Laffansbridge the Gardaí observed a cyclist coming around a bend, travelling towards the jeep. The appellant took the bend at speed on the wrong side of the road forcing the cyclist to take evasive action and mount the grass at the side of the road. Detective Garda O’Gorman stated that it was“lucky [the cyclist] had somewhere to go”.
7. The appellant continued on towards the townland of Killaheen. After a time he came to a sudden stop. At that stage, Detective Garda O’Gorman attempted to exit his unmarked car to approach the jeep. There was approximately a car length between the jeep and the patrol car. Detective Garda O’Gorman was stepping out when the appellant reversed at speed into them in an attempt to disable the patrol car. Garda O’Gorman was“propelled”back into the passenger seat. Detective Garda O’Gorman was uninjured but the unmarked car suffered damage, amounting to a total of 2,500. However, the car was not disabled and the pursuit continued. Detective Garda O’Gorman described the road as a “country road, very narrow, but the surface was it was newly tarred at that stage and it was a good enough surface on that road but again very narrow and given the time of year the hedges were very overgrown as well.”A short time later, the appellant once again came to a sudden stop and tried to reverse on top of the patrol car. This time Detective Garda Cooke avoided impact by reversing. The appellant then took off towards Ballintogher, proceeding down“a country boreen”which had“grass growing in the middle of the road”.The appellant drove at speed down this road, putting dust and debris into the air and making visibility very poor, such that the unmarked car had difficulty in maintaining the pursuit. Then, all of a sudden, the trailer became visible to the pursuing Gardaí through a cloud of dust, having been abandoned in the middle of the road, and the black jeep was observed driving away. Detective Garda O’Gorman estimated the pursuit had lasted approximately 10 minutes.
8. The appellant was subsequently arrested on the 8th of July 2015 and was interviewed at Clonmel Garda Station. The interview yielded nothing of evidential value. The appellant was subsequently charged with, tried, and was convicted by a jury of the offences giving rise to the sentences the subject matter of the present appeal.
Victim Impact Statement
9. The sentencing court did not receive any victim impact statement from Mr Padraig Ryan.
The Appellant’s Personal Circumstances
10. The appellant was born on the 12th of June 1995, making him 21 years of age at the time of sentencing. He is married with two young daughters. His youngest child was born three days before the present offences were committed on the 2nd of July 2015. His wife takes care of the children.
11. The appellant is of traveller ethnicity and is originally from Killenarden Estate in Tallaght, Co Dublin. However he now lives in a caravan in the grounds of his grandfather’s house at Lurgoe, Laffansbridge, Killenaule, Co Tipperary with his wife, his children, and his mother and father.
12. The sentencing court heard that the appellant had some substance abuse issues with cannabis, and occasionally with cocaine and alcohol. A letter before the sentencing court indicated that he was availing of addiction services which might help him in this regard. Another letter before the sentencing judge indicated that there was a course due to start in Fast Track to Information Technology (FIT) in September 2016, which the appellant had expressed interest in enrolling for. The sentencing court also heard that the appellant was due to attend an information evening in Templemore in order to further his educational qualifications but was unable to do so as this was the same day as the sentence hearing.
13. The appellant has 34 previous convictions, all of which were accumulated over the three years immediately prior to his sentencing, with his first conviction being recorded on the 19th of June 2013. All of his convictions arose from prosecutions in the District Court. The majority of these convictions were for road traffic offences, numerous of them being for driving while unaccompanied as a learner driver, but two of them involving incidents of dangerous driving and a hit-and-run, respectively. He received a community service order in respect of both of those matters. On the 27th of January 2014 he was convicted of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001, in respect of which he received a nine month suspended sentence of imprisonment. On the 28th of July 2014 he was convicted of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and was sentenced to 200 hours of community service or imprisonment for four months in default. On the 16th of December 2014 the appellant was convicted of perverting the course of public justice, contrary to common law, for which he received a twelve month suspended sentence of imprisonment. Finally, on the 30th of September 2015 he was again convicted of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and was fined €1,000 or imprisonment for 180 days in default. The evidence was that the appellant was on station bail in respect of this theft at the time of committing the offences the subject matter of this appeal.
The sentencing judge’s remarks
14. In sentencing the appellant, the sentencing judge made the following remarks:
“Well, this is a crime which something which arises out of the sort of rural theft which has caused so many people in our society to be justifiably angry. The theft itself was not carried out by Mr Connors. That is clear from the verdict of the jury. And so that must be recorded. But within a very short time of the taking of the goods from Mr Ryan's property, Mr Connors was in possession of them and was in possession of them, it's clear from his actions, to such an extent that he did not wish to come in contact with the gardaí who pursued him once they encountered him outside the village of Moyglass. As the main sentencing judge for this area, I have to be mindful of that justifiable anger and I have to be mindful that in addition to punishment and to the issue of rehabilitation in sentencing, I have to be mindful of the importance of deterrence towards others who might be tempted to get involved in the sort of crime which led to Mr Ryan temporarily losing his property and having some damage done to part of it.
But of course, we're dealing with here in addition to the question of possessing stolen property within a short time of that crime, we're dealing here with highly dangerous behaviour of an intentional and reckless nature on the part of Mr Connors and the egregious nature of the driving, the fact that Mr Connors increased speed in driving what was a somewhat unstable assembly after the lights and sirens of the garda car were activated, indicates that indicates, as I say, highly irresponsible behaviour. Highly criminal behaviour of an intentional and a reckless nature. Then there is the fact that Mr Connors committed these crimes whilst on bail and that has to be seen as an aggravating factor in the case.
There is also the fact that at the age of 21, Mr Connors has already accumulated no fewer than 34 previous convictions. Many of those, I have little regard to. Many of them are for relatively minor road traffic offences. Some are for more serious road traffic offences, such as driving without insurance, but in addition to those, there is one very serious matter, it seems to me, although it was dealt with before the district court and in the scale of things would not compare with certain other crimes and that is perverting the course of justice or attempting to pervert the course of justice. And in addition to that, there is a conviction for theft and in addition to that, there a conviction for burglary. I understand the burglary conviction is under appeal but he has been convicted by a Court of that offence. So the previous convictions have to be regarded as significant having regard to their number and having regard to the nature of some of them because even with regard to the more minor road traffic matters, these indicate to the Court that there is a considerable disregard for the law and there has been over the last three years on the part of Mr Connors. All of these are significant aggravating factors.
The first count in the indictment, the charge of committing criminal damage, that was something which was an intentional act. It was intended by this act of reversing the jeep and trailer to disable a garda car. There had to be allied to that a possible consequence of significant injury to one or both of the gardaí in the car and I do note that Garda O'Gorman was half-out of the car when the collision occurred. It is very fortunate indeed, not least for Mr Connors, that Garda O'Gorman did not suffer an injury from that and it's to his credit that he played down that matter, as did his colleague. But this was an intentional act which could have had very serious consequences indeed for the two gardaí and with very little prospect that Mr Connors himself would suffer injury in view of the fact that what was going to collide with the car, what did collide with the car, was the trailer behind the jeep that he was driving. Then the well, that is the offence of criminal damage. I have to come to a conclusion as to where this should be placed in the scale of gravity. It comes in the top range, in my view, not in the very top of the top range but certainly in the top range.
With regard to count two on the indictment, possessing stolen property, I have to have regard to the value of the property that was taken, to the fact that thieves and burglars could not survive if they did not have other persons involved in the chain who would be prepared to be in possession of that stolen property following the commission of the initial crime and in this regard, I'm perhaps being unduly merciful to Mr Connors when I say that this crime was in the middle range of such offences.
With regard to counts three and four, this was dangerous driving. This was driving of as dangerous a nature as could be imagined, almost. What was being driven was a jeep pulling a wide trailer. When any sort of speed was attained by the jeep, the trailer became extremely unstable. This was being driven on narrow roads, some of which had a poor surface and it is very fortunate indeed that no motorist, pedestrian or cyclist was badly injured or worse. I would have to put both of these offences at the top of the range of such offences.
Now, with regard to mitigation, many of the factors which are frequently present when sentence is being passed are not present here. I want to make clear that Mr Connors will not be punished for the fact that they're not present but he's unable to draw on the considerable advantage that might accrue to him had they been present. There is no plea of guilty. There having been a conviction by the jury, there is no acknowledgement of the correctness of the decision of the jury because when that does happen, this Court will always find it possible to have regard to that in mitigation of sentence. That is not present here.
There is the fact that Mr Connors is a fairly young man. He's 21 years of age. Traditionally, the Courts have extended more clemency towards younger offenders than towards more mature offenders, that is so, but that is very much more so when a person, a young person, comes before the Court for the first time. Mr Connors is no longer a teenager. He is a married man, it seems, with two young children. I do take account of his family circumstances but he is not somebody he is not, for instance, an 18-year-old coming before the Court with no previous convictions and there is a very distinct difference between the two. But I do give some credit for the fact that he is so young.
I am told, but without any detailed documentary proof, that Mr Connors has some addiction problems with cocaine, cannabis and alcohol and the documents I've been shown indicate that he is doing something about this but his efforts in that regard appear to be in a fairly preliminary stage. Nevertheless, I do take account of the fact that he is anxious to address these addictions and I do note also that he had through the jobseeker system, he had intended to turn up today in Templemore in relation to furthering his educational achievements and I'll give him some credit for that. He is, as I say, somebody with two young children and a wife and I am mindful of that and I have little doubt that as he reflects in prison on what he has done, he will want to avoid putting himself in the situation in future where he is taken away from his wife and young children.
So I take account of those factors. But looking at the case in the round and having regard to the principle of totality in sentencing, I feel the appropriate manner of dealing with sentence is this.”
15. The sentencing judge then proceeded to sentence the appellant in the terms outlined in the introduction to this judgment.
The Grounds of Appeal
16. The appeal against sentence is framed in terms that:
“The trial judge failed to adhere to proper sentencing principles and/or the sentence he imposed on the appellant was unfairly influenced by extraneous considerations and, without prejudice to the generality of the foregoing, the sentence was unduly focussed on or unfairly influenced by considerations of general deterrence, it suffered from objective bias and was excessive in all the circumstances.”
Submissions17. In counsel for the appellant’s submissions we are reminded of the importance of proportionality in sentencing, and various well known cases are cited in support of this includingThe People (Attorney General) v O’Driscoll1 Frewen 351 andThe People (Director of Public Prosecutions v M.[1994 3 IR 306. It was submitted that the sentences in this case were not proportionate to the gravity of the offending and the circumstances of the offender. Specifically, in that regard it was submitted that the trial judge’s remarks were more reflective of his concern about crimes of theft occurring within his bailiwick, his awareness of the public anger engendered thereby and his perception of a consequent need for deterrence, rather than a focus on the appellant’s circumstances or the proportionality of the sentence. It was submitted that in that respect the judge appeared to have been distracted and thereafter had insufficient regard to proper sentencing principles.
18. It was complained that the sentencing judge failed to indicate a headline sentence and failed to explain or quantify the extent of any mitigation afforded. It was also complained that, in assessing gravity, and in particular the intrinsic moral culpability of the offending conduct, the sentencing judge determined the criminal damage offence to have involved an intentional act creating a possibility of significant injury to the Gardaí who were in pursuit, rather than having been committed recklessly, and also notwithstanding that the charge preferred was under s.2(1) of the Criminal Damage Act 1991, rather than under s.2(2) of that Act which embraces a risk to life.
19. There is a further complaint that the trial judge, despite saying that he would do so, actually afforded little or no discount to reflect mitigation. The appellant points to the fact that the maximum available penalties were imposed on both of the dangerous driving counts. In addition, in respect of the possession offence and the criminal damage offences the appellant says there is no evidence of any discount being afforded beyond the suspension of the final year of the cumulative term of seven years’ imprisonment that was imposed.
20. In response, counsel for the respondent has submitted that the sentencing judge was entitled to consider that the criminal damage offence fell into the top or highest range on the scale of gravity. It was submitted that although defence counsel has suggested that the appellant was sentenced for the offence that includes risk to life, to suggest that is to miss the point. It is not suggested and never was suggested by the prosecution, or by Garda O’Gorman, that the life of Garda O'Gorman was in fact at risk. Nevertheless, the offending conduct resulting in the criminal damage was very serious because it clearly represented an attempt to ram the vehicle containing the pursuing Gardaí. Garda O'Gorman was making an attempt to get out of the car when the impact occurred. The sentencing judge was entitled to consider, as he did, that this was highly criminal behaviour of an intentional nature.
21. It was further submitted that although the previous convictions of the appellant related mainly to road traffic matters that could not be regarded as a mitigating feature of this case because of the appalling driving and the use of vehicle with the criminal intent to damage another vehicle on the road. The serious offence of criminal damage further was aggravated by the fact that the appellant was in possession of stolen property; and by the circumstances that this was an attempt to evade detection/arrest by the Gardaí. It was also committed while the appellant was on bail and statute requires that that should also be considered an aggravating circumstance.
22. It was submitted that in the circumstances the sentence of six years after a fully contested trial was an appropriate sentence. Moreover, the sentencing judge was entitled to impose consecutive sentences in respect of the summary matters of dangerous driving. The respondent further maintains that the cumulative sentences imposed were proportionate and reasonable.
Discussion and Decision
23. We consider that the sentence of six years’ imprisonment imposed for the criminal damage offence is proportionate in the circumstances of this case, and that it is not unduly severe. The sentencing judge was obliged in assessing the gravity of the offence to consider, inter alia, the intrinsic culpability of the offender in committing the offending conduct, which involved looking at whether what was done, was done intentionally, recklessly or negligently. The act of reversing into a pursuing car, which was the direct and proximate cause of the criminal damage in question, was done intentionally, and with deliberation. The fact that those in the pursuing car were Gardaí further aggravates the matter. This is so because it is important that the Courts should be seen to support the important role played by first responders who daily in their public service are called upon to face danger, such as in this instance that faced by the pursuing Gardaí who were shown callous disregard and were needlessly endangered by the appellant’s conduct. The objective of that conduct was to at least deter the Gardaí from persisting in their pursuit and possibly, although it was unsuccessful, to make continued pursuit impossible by disabling the unmarked car. He was further entitled to take into account the concurrent recklessness involved in the ramming action in terms of the possibility of injuring one of the occupants of the car, and in particular Garda O’Gorman who was attempting to alight from it at the time of the impact. The sentencing judge was right to consider that all of this placed the offence in the high range in terms of its gravity. We find no error of principle.
24. In terms of the other offences, namely the possession offence and the dangerous driving offences, we are not prepared to criticise the sentencing judge for being of the view that this was a case that required emphasis on the penal objectives of retribution and deterrence, both general and specific. The sentencing judge, as the assigned circuit judge for the area, was well placed to appreciate the prevalence of crimes involving theft in his jurisdiction and public concerns in that regard. He was not entitled to impose disproportionate sentences in furtherance of those or any other penal objectives, but we are satisfied that his sentences were in fact proportionate and fully merited in the circumstances of the case, save in one minor respect.
25. The minor respect to which allusion has been made concerns one of the dangerous driving offences. While there was clarity in the evidence before the sentencing court that one of these offences related to the near miss between the jeep and the pedal cyclist referred to earlier in our summary of the facts, there was a degree of confusion as to precisely what portion of the prolonged incident the second dangerous driving incident related to. We believe it to have related either to the actual ramming of the unmarked car, or to the attempt to ram the unmarked car on a second occasion, but it was not entirely clear which it was. Counsel for the respondent has conceded that the position on the evidence is unclear and that in the circumstances the appellant should receive the benefit of the doubt and that it should be treated as relating to the actual ramming incident.
26. Counsel for the appellant contends that if the second dangerous driving charge is attributable to the actual ramming incident, the sentence for that should have been made concurrent rather than consecutive to avoid effective double counting. We can see the force of this and are prepared to make that adjustment.
27. In all other respects however we would uphold the sentences imposed by the sentencing judge as being just and proportionate, and not unduly severe. His resort to maximum sentences for the dangerous driving offences is not to be criticised in our view. Moreover, electing to make the sentence for the dangerous driving offence involving the pedal cyclist consecutive was within his legitimate discretion and was justified particularly having regard to the appellant’s previous bad driving record which included a previous conviction for dangerous driving.
28. In the circumstances we will quash the second of the sentences for dangerous driving, i.e., the sentence on count no 4, and will proceed to re-impose the same duration of sentence but will make it concurrent with the sentences on counts nos 1 and 2 rather than consecutive. The sentences on counts no’s 1, 2 and 3 will remain unaltered. The disqualifications from driving imposed in the case of counts 3 and 4 are also to remain unaltered. The sentences on counts no’s 1, 2 and 4 are to date from 23/06/2016, and the sentence on count no 3 is to commence on the lawful expiry of the latest of those sentences to expire. The net effect of what we are doing is to reduce the aggregate sentences from seven years to six and a half years’ imprisonment, with the last twelve months to be suspended as previously, and upon the same conditions as heretofore.
