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Cite as: [2020] IECA 15

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Edwards J.

McCarthy J.

Donnelly J.

THE COURT OF APPEAL

Record No: 40/19

THE PEOPLE (AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

DANIEL DELANEY

APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 30th day of January, 2020 by

Mr Justice Edwards

Introduction

1. On the 22nd of February 2019, the appellant appeared before the Dublin Circuit Criminal

court for sentencing, having pleaded guilty to counts of burglary (with some other

offences to be taken into consideration) on three separate bills of indictment. The

appellant was also before the court for sentencing on the same occasion in respect of a

s.15 drugs offence. After hearing the relevant evidence and submissions from both sides,

the sentencing judge remanded the appellant on bail to the 1st of March 2019, on which

date she imposed upon him the following sentences:

I. On Bill No: 557/17, in respect of count no 2, charging burglary (with a theft count

taken into consideration) - 3 ½ years’ imprisonment;

II. On Bill No: 1165/17, in respect of count no 1, charging burglary (with a count of

possession of a controlled drug contrary to s.3 of the Misuse of Drugs Act 1977

taken into consideration) - 1 ½ years imprisonment consecutive to the sentence on

Bill No: 557/17;

III. On Bill No: 500/18: in respect of count no 1, charging burglary - 3 years

imprisonment consecutive to the sentence imposed on Bill No: 1165/17;

IV. On Bill No: 1123/18: charging possession of drugs with intent to supply contrary to

section 15 of the Misuse of Drugs Act 1977 - 1 ½ years’ imprisonment to be served

concurrently with the sentence on Bill No: 557/17.

2. The resulting overall sentence was one of 8 years imprisonment, of which the final year

was suspended for a period of two years. The appeal relates to the sentences imposed on

Bills Nos: 557/17, 1165/17 and 500/18 only, in respect of which recourse was had to

consecutive sentencing. There is no appeal in respect of the sentence on Bill No: 1123/18,

but it has been necessary to refer to it as it is a relevant contextual detail.

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3. The appellant now appeals against the severity of the sentences imposed on Bills 557/17,

1165/17, and 500/18.

Background Facts

4. The sentencing judge heard the following evidence in respect of each count respectively:

Bill No: 557/17:

5. Garda Megan Fury gave evidence that on the 8th of January 2017, gardaí received an

account of a break in by two men into the Clonsilla Inn, a public house in Blanchardstown.

The manager of the premises reported that at approximately 9.30 – 10 pm, he went to

the rear of the establishment, which was not accessible by the general public. He heard a

noise which sounded like something falling and considering this to be strange coming

from an area which nobody should be, continued outside and around the side of the pub

as far as the back yard. Once there, he noticed that a side gate – normally locked – was

in an open position, and this was disconcerting. Re-entering the premises and making his

way to the kitchen, he encountered two men, one of whom was later identified from CCTV

as the appellant. The manager recounted that the men ran towards him, and in doing so,

the appellant appeared to reach for his pocket. In a state of panic, the manger pushed a

microwave oven towards the men in an attempt to secure his own safety. The two men

ran out of the premises.

6. Garda Fury confirmed that the men had in fact rammed the side gate leading in to the

back yard with a yellow Renault Megane, which they left behind. This car had also been

used during the theft of petrol amounting to approximately €20 in value by the appellant

at an Applegreen Service Station on the 12th of January, and of which there was CCTV

footage that was later provided to the gardaí. This was the basis of the theft offence

taken in to consideration.

7. In the CCTV footage from the Clonsilla Inn the appellant can be seen entering the office at

the back of the premises and attempting to open to a cash safe. Upon realising the futility

of his efforts, the appellant hastily grabbed several envelopes which contained nothing

but wage slips. After the burglars had left, the employees were instructed to check their

personal belongings. One employee, upon doing so, claimed that €290 in cash had been

stolen from her purse. It could not be confirmed which of the men had taken it, but this

was considered immaterial in circumstances where they were acting in concert.

8. The gardaí, having identified the appellant from CCTV footage, obtained a search warrant

for his home address. The appellant was subsequently arrested at his home and several

items were seized. He was detained under section 4 of the Criminal Justice Act 1984;

during which he was interviewed but nothing of evidential value emerged. The appellant

was charged on the 9th of February 2017 and released on bail.

9. Garda Fury agreed under cross-examination, that neither of the burglars made a serious

attempt to disguise their identities. It was agreed that the manager was frightened by the

encounter, and had been afraid of the possibility that the men may have been armed. It

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was agreed that no weapons were produced, and that while they did run towards the

manager, no physical contact was made, and that this was the only direction in which

they could leave. Garda Fury agreed speculated: “I’d say they got as much of a fright as

he did, yes”. It was agreed that no effort had been made to force the manager to open

the safe.

10. The accomplice, a Mr. Howard, was also prosecuted and received a sentence of 5 years

imprisonment with the last 18 months suspended in respect of this bill within a larger

structured sentence. It was agreed that while the appellant had nothing in his background

approaching the seriousness of the s.15A matter for which Mr. Howard had also been

sentenced at the same time as being sentenced for this burglary, the two men presented

broadly similar circumstances, being of the same age and having similar numbers of

previous convictions.

11. The appellant pleaded guilty on the trial date, but it was agreed that he had indicated an

intention to do so well in advance.

12. Certain cash seized from the appellant’s house in relation to Bill 1123/18 was never

claimed. While a forfeiture order was applied for in respect of it, a portion of the monies

forfeited was by agreement applied by the court below to compensate the victim who lost

€290 in the burglary charged on Bill No: 557/17.

Bill No: 1165/18:

13. The court heard evidence from Garda Brian Morrissey that on the 21st of May 2017, the

gardaí were alerted to a burglary at the Siam Thai Restaurant in Malahide. Upon arriving

at the scene at approximately 11.40 pm, the gardaí were informed by the restaurant

owner that the storeroom had its door forced open and €3,000 worth of alcohol had been

taken from within. The appellant was identified from CCTV footage, accompanied by

another man and leaving in a black BMW car. A search warrant was obtained in respect of

the appellant’s family home, and on the 26th of July, the appellant was arrested there. He

was then charged with the burglary offence in Swords garda station and was released on

bail.

14. Under cross-examination, Garda Morrissey agreed that the appellant had made no real

effort to disguise himself beyond donning a baseball cap, and the gardaí were able to

identify him without difficulty. The storeroom was quite separate from the restaurant

itself, being closer to the underground carpark; and it was agreed that the chance of

someone encountering the burglars was minimal – an encounter would only have

occurred if a staff member was collecting stock for the restaurant. In total, the men took

six kegs and numerous bottles of alcohol. None of the property was recovered.

15. While being interviewed the appellant agreed he was not alone when he carried out the

theft, but he would not say anything about the other person. The appellant also agreed

that a distinctive cap recovered at the scene was his, and that he was wearing it when he

entered the premises. The appellant was willing to make admissions concerning his own

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role in the matter once he realised he could do so in a manner which would not implicate

anyone else.

16. The state was informed well in advance that the appellant would be entering a plea.

Bill 500/18:

17. Detective Garda James McNeill gave evidence that on the 29th of January 2019, gardaí

were alerted to occurrence of a burglary of the Monkstown Rugby Club in Sandymount.

Garda attended at the scene at approximately 7.15 am and were informed by the bar

manager that €1,600 in cash had been taken from the strong room. The bar manager

also told gardaí that several doors had been broken, and that there was also damage to

multiple locks, security camera wiring, the bar shutter, and part of the roof. Computer

equipment, bar stock (kegs of Guinness) and some builders hand tools were stolen. The

total cost of damage caused to the premises was said to amount to approximately

€2,000. The manager of the club prepared a victim impact statement which provided

valuations for some of the property stolen, including personal computers (valued at

€500), further computer equipment and peripherals (valued at €3200), and three barrels

of Guinness (valued at €560).

18. A black Saab car had been used to facilitate the burglary, the registration number of

which was recorded on CCTV. Both this, and CCTV footage of the appellant himself,

enabled his identification.

19. A search of the appellant’s home carried out by gardai on the 23rd of September 2017

was fruitful in that the car in question was found parked adjacent to it and was seized.

The stolen builder’s hand tools were found in the car, as well as €50 in coins. The

fingerprints of the appellant were recovered from the steering wheel of the car. The

appellant was arrested and conveyed to Irishtown garda station, where he was charged

with burglary.

20. Under cross-examination, Detective Garda McNeill agreed that the appellant had

purchased the vehicle the previous day, readily offering up his own name. It was agreed

that the appellant had been readily identifiable on CCTV footage, and that he left his

fingerprints and items from the burglary in the vehicle, which was found ‘a 30 second

walk’ from his house.

Appellant’s Personal Circumstances

21. The appellant did not complete his Leaving Cert, and after leaving school, he attended

FAS for a year, and has FETAC certificates in first aid. The appellant is said to have used

his time in custody during earlier sentences productively in acquiring new skills, but that

he had spent his weekend release time with older peers who, it was submitted, had had a

negative influence on him, a factor which contributed to his reoffending.

22. It was said that upon leaving prison, following an earlier sentence, the appellant had

secured a job, initially as a mechanic, and that he had then worked in a pallet warehouse.

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He later lost that job due to issues with drug use. This was approximately seven months

prior to his sentencing in the present case.

23. Garda Fury stated she was aware that the appellant has a 2 ½ years old autistic son, in

respect of whom he pays maintenance. She accepted that the appellant had a close

relationship with his son, seeing him every day and taking custody of him on weekends.

24. The appellant admitted to usage of cocaine and cannabis, and further admitted to having

a problem with regard to tablets. There was evidence that the appellant had self-referred

to the Ana Liffey Drug Project in early December 2018, and a letter was provided to the

court below confirming this. This letter asserted that the appellant had been making

significant progress and that the Ana Liffey Drug Project was willing to continue working

with him in custody.

25. Garda McNeill confirmed that the appellant has 128 previous convictions. Of these, eleven

were listed as being prosecuted in the Circuit Court. Four of these are for burglary, seven

for theft, eleven for criminal damage, one for the offence of robbery, four for possession

of drugs for personal use, two for possession of drugs for sale or supply, six for trespass,

five for assault, seventeen for offences under s. 112 and s. 113 of the Road Traffic Act,

six for public order offences, two for obstruction of a peace officer, one for possession of a

knife or other article, one for demanding money with menaces, three for offences

committed in prison, three for nuisance offences under the Dublin Police Act 1842

involving the throwing of missiles, and fifty four for Road Traffic offences (other than

offences under s.112 and s.113).

26. In terms of his previous prison sentences, in October 2010 he received four years with

one year suspended for s.112 offences. In July 2012 he received four years from the

circuit court for offences involving criminal damage, theft, s. 113, assault, s. 112, theft,

and robbery.

27. Detective Garda McNeill agreed that many of his convictions were accrued in the

Children’s Court. The appellant was 26 years old at the date of sentencing. It was further

agreed that from February 2014 up to 2017, the time of the present offences, there was a

break in offending.

Sentencing Judge’s Remarks

28. In sentencing the appellant, the sentencing judge made the following remarks (inter alia):

JUDGE: “Okay. All right, so the facts have been rehearsed previously in detail and

there's no need to repeat them in such detail but I'll deal with the main matters as

I go through. So, in relation to bill number 557/2017, the offence date was the

8/1/2017 and the accused was charged on the 9/2/2017. This relates to burglary

to which there is a penalty of a maximum of … 14 years.”

“Okay. So, bill number 557/2017 deals, relates to theft in a commercial premises.

The accused came into the contact with staff member. There was no overt specific

threat made by the staff -- to the staff member. Staff member was unaware of

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what was going to happen as the accused and his co-accused ran towards him and

passed him out the door. There's reference to the back gate having been rammed

and there was an attempt to gain access to the safe in the cash office but they

were disturbed. The accused was identified from CCTV by gardaí and I'm told that

the co-accused, whose circumstances were very similar to that of this accused,

received a sentence of five years with 18 months suspended. And I'm told that the

plea was indicated well in advance of the trial date.”

“In relation to bill number 1165/2017, the offence date was the 21st of May 2017

and the accused was charged on the 26th of July 2017. This related to a charge of

burglary, again a maximum of 14 years and section 3 drugs, simpliciter, possession

and this is to be taken into consideration. This related to the burglary of a Chinese

restaurant. Alcohol in the sum of €3000 was taken and again, CCTV was used to

identify the accused. At the time of this offence the accused was on bail for bill

number 557/2017 which was also for burglary.

In relation to the fourth matter, bill No. 500/2018 related to burglary of a rugby

club in Monkstown. This occurred on the 20th of September 2017. He was charged

on the 28th of September 2017. Damage to the value of €7690 was caused to the

premises. Again, the accused was identified by virtue of CCTV footage and there

was also fingerprints taken from a car which the accused had used. A plea was

entered on the 29/01/2019 and at the time of the commission of this offence, the

accused was on bail for each of the earlier burglaries.

The accused has 128 previous convictions, 11 of which are Circuit Court matters

and included in that 128, there were four for burglary, one for robbery, seven for

theft, and counsel will be aware that the DPP v. Casey says that such previous

convictions should be seen as an aggravating factor where they are present, as on

this occasion.

In October 2010 or since October 2010 the accused has served two four-year

serving, two four-year sentences. The accused is now 26 years old and I'm told

that since these matters, he has come to the attention of the gardaí, however he is

clearly entitled to the presumption of innocence in relation to those matters.

The aggravating factors in this matter are the seriousness of the offences in and of

themselves, the fact that two bills the offences in two bills occurred while on bail

for one and two other bills, and the fact that the accused had previous convictions

for burglary.

The mitigating factors are the pleas of guilty in the circumstances which have been

outlined, where CCTV was used to identify the accused and there was fingerprint

evidence in relation to one of the offences. The fact that he is the father to a very

young child and that he is engaged with the upbringing of this child, who I believe

has special needs. In relation to number 3, a positive he has been a positive

contributor to society between the years 2014 and 17 and has garnered skills that

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can again be put to good use in the future. In relation, I note the submissions of

counsel that no violence to persons was used in the course of these burglaries,

notwithstanding significant property damage occurred in two of the bills. The

acceptance of a drug addiction by the accused and his stated wish to rehabilitate is

noted. The express wish to gain education while in custody is also noted. And the

engagement of the accused with drug addiction services, if only belatedly in

December 2018 is also noted.

The Court cannot avoid being of the view that the accused in this case had

absolutely no regard for the rule of law given that the offences carried out by him in

bill number 1165/17 on the 21st of May 17 and bill number 500/18 on the

20/09/17 were done while on bail for offences already charged. The suggestion

that he had not taken steps to avoid recognition on CCTV is clearly not a mitigating

factor, but in the Court's view rather speaks to the brazen nature of his criminality.

The Court is also to note that at 26 years of age, the accused has 128 previous

convictions; a significant number of those relate to road traffic matters and of

which 11 of them are Circuit Court convictions. Four of the total previous relate to

burglary. The fact that these took place in commercial premises as opposed to

residential premises is noted, but this does not lessen the fear in the mind of the

innocent party confronted by the accused and his accomplice in bill 557/17.

I have had regard to the documentation handed in and the victim impact report

which details the damage done to the rugby club in Monkstown and the effect that

it had had on staff. The Court considers the offending to be of mid-range. In the

absence of mitigation, the appropriate sentence in relation to bill 557/17 is five

years. The count of theft to be taken into account.

In relation to bill 1123/2018 in relation to section 15 is three years, and that is to

be concurrent to bill number 557/17. With regard to bill 1165/17 relating to

burglary, while he was on bail for 557/17 the appropriate penalty is three years.

This is to run consecutive to bill 557/17. And in relation to bill number 500/18

relating to burglary, the appropriate sentence is four years and this is to run

consecutive to 557/17 and 1165/17. The Court wants to mark the seriousness of

not alone the individual offences, but the wanton disregard shown by this defendant

for the property, which included business premises and community focused

facilities, made all the more aggravating that he committed not one but two

offences on bail, which in and of itself is an aggravating factor. Bail is a right

afforded to those presumed innocent while they await trial. It ought not to be

viewed as a window of opportunity to engage, as in this case, engage in further

burglaries while awaiting trial. One might have thought that this time could be

used to demonstrate the capacity to rehabilitate and therefore afford a mitigatory

platform before the Court on this occasion. This defendant has taken the

opportunity to communicate a wilful blatant disregard for not alone the Court, but

more disturbingly, for the community at large and its social facilities. Taking

mitigation into account, the appropriate sentence in relation to the bills are; bill

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557/17, three and a half years; bill 1123/18, one and a half years concurrent the

second bill concurrent to the first. Bill 1165/17, one and a half years consecutive to

bill 557/17; and bill 500/18 three years, consecutive to bill 557/17 and bill

1165/17.

But for the arguments advanced by Mr Le Vert on the accused's behalf I would be

slow to suspend any part of these sentences. However, I am bound by the

appellate jurisdiction which mandates, and correctly so, that I temper the sentence

that I impose today. Having regard to the totality and proportionality principles

and the age of the accused, to incentive rehabilitation given his recent engagement

in drug rehabilitation services, I will suspend the final 12 months of the sentence

for a period of two years on the basis that the accused keeps the peace and be of

good behaviour and follows all directions under the supervision of the probation

services. In coming to its conclusions, the Court has had regard to the DPP v.

Casey 26/04/2018; the DPP v. Culhane 27/02/17; and the DPP v. Daly 24/06/06.”

Grounds of Appeal

29. The appellant puts forward the following grounds for appeal:

I. The sentencing judge erred in law in failing to exercise her discretion to apply the

principles of sentencing set out in DPP v Yusuf [2008] IECCA 37

II. The sentencing judge erred in law in failing to fully and adequately apply the

principles of proportionality and totality

III. The sentencing judge erred in law in failing to take full and proper account of the

personal circumstances of the appellant

IV. The sentencing judge erred in characterizing the appellant’s failure to disguise

himself as a reflection of his brazen disregard for the law, rather than being a

manifestation of his drug abuse

V. The sentencing judge erred in law in placing too much emphasis on the fact that

these matters were committed whilst on bail to each other without recognizing that

the offences were committed by a person struggling with a drug habit

VI. The sentencing judge erred in law in failing to fully recognize the appellant’s past

success at rehabilitation

VII. The sentencing judge erred in law in failing to fully recognize the progress which

the appellant had made in recent times in addressing his drug difficulties

VIII. The sentencing judge erred in law in failing to fully give credit for other mitigating

factors

IX. The sentencing judge erred in law in placing too much emphasis on aggravating

factors

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X. The sentencing judge erred in law in imposing a sentence which was unduly severe

given the circumstances of the offence

30. However, in oral argument before us, counsel for the appellant agreed that his complaints

could be conveniently summarised as being: first, that the sentencing judge had,

notwithstanding being referred to People (DPP) v Yusef decided to impose a consecutive

sentence upon a consecutive sentence, and secondly that the sentencing judge had not

made a sufficient downwards adjustment to the aggregate of the post mitigation

sentences on each individual bill of indictment, to reflect totality leading to a situation

where the ultimate overall figure was disproportionate both the gravity of the offending

conduct viewed as a whole, and having regard to the appellant’s personal circumstances.

It was suggested in regard to proportionality that when recourse was had to The People

(DPP) v Casey [2018] IECA 121 as a comparator, his client had fared worse than the

respondents in the Casey case, notwithstanding that their offending had been more

serious in his contention. The sentence was also said to be out of kilter with those

imposed in the other two cases to which the sentencing judge had referred, namely The

People (DPP) v Culhane [201 IECA 59 and The People (DPP) v Daly [2016] IECA 257. That

said, counsel for the appellant accepted that he could not, and indeed was not, making

any complaint with respect to the individual sentences imposed on each of the three bills

with which we are concerned. His case was confined to the sentencing judge’s decision to

have recourse to a consecutive sentence upon a consecutive sentence, and to his claim of

inadequate adjustment for totality.

Discussion and Decision

31. Having given the matter careful consideration, we are not disposed to uphold either of the

complaints relied upon.

32. As counsel for the appellant accepted, it was a matter within the discretion of the trial

judge as to whether, in giving effect to the mandatory consecutive sentencing

requirement arising under s. 11 of the Criminal Justice Act 1984 (in circumstances where

there had been offending whilst on bail, and more than one instance of such offending) to

make the sentences for the second and third offences concurrent inter se but consecutive

to the first offence in time; or alternatively to make the sentence for the second offence

in time consecutive to that for the first offence in time, and then to make the sentence for

the third offence in time consecutive to that imposed for the second offence in time,

effectively imposing a consecutive sentence upon a consecutive sentence.

33. In our assessment the sentencing judge’s recourse to the latter expedient was justified in

the circumstances of this case. She was entirely justified in characterising the appellant’s

behaviour as communicating “a wilful blatant disregard for not alone the court, but more

disturbingly the community at large”. The gravity of the offending conduct was significant

both in its individual components and when viewed overall. Tellingly, there is no quarrel

with the individual sentences imposed.

34. As to the overall gravity, there were numerous aggravating factors including confrontation

in one instance with an occupier with resulting trauma to him; burglary committed at

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night; the trashing and/or concurrent damaging of premises while committing burglary;

commission of the offences on two of the three bills of indictment whilst on bail; having

relevant previous convictions; the significant value of the property stolen in the two later

incidents, none of which was recovered (save for the hand tools); clear pre-meditation

and planning; the wide geographical range within which premises were targeted; the fact

that in the case of the Monkstown burglary a community facility was targeted; and the

fact of acting in concert with another, to name but some.

35. Cumulatively the circumstances were in our estimation sufficiently egregious as to justify

the trial judge’s decision to resort to imposing a consecutive sentence upon a consecutive

sentence. We find no error of principle in her decision to do so. Indeed, failure to do so

would have meant that the appellant could be perceived as having received something of

a “free ride” in respect of one of the offences, because he would not serve a day extra on

account of it. This was not a case of all of the offending being committed on the same

day, or as part of a single episode or incident, or of being otherwise connected. These

were discrete and separate instances of serious offending that merited being individually

and separately punished.

36. It seems to us that the more significant issue raised by the appellant relates to

proportionality and whether there was sufficient downwards adjustment of the aggregate

post mitigation figure in application of the totality principle.

37. There is no reason to doubt that the sentencing judge was alive to the requirement to

stand back and reconsider the aggregate post-mitigation figure in the light of the twin

components of the proportionality consideration. She expressly refers to her obligation in

that regard. Counsel for the appellant’s complaint comes down to this: that she simply

didn’t discount by enough. We do not agree with him. The sentencing judge did discount

by an effective 12.5% in suspending the final twelve months of her eight-year aggregate

post mitigation sentence. While a 12.5% discount might not have been generous, and

while some judges might have made a somewhat greater adjustment, it was in our view

within the judge’s legitimate margin of appreciation. This was after all a bad case and the

sentencing judge was entitled to impose a severe sentence providing it was not

disproportionately severe. We do not consider her ultimate sentence to have been

disproportionately severe. We find no error of principle.

38. In conclusion we just wish to say that we were not impressed by the appellant’s recourse

to The People (DPP) v Casey and the two other cases mentioned as direct comparators.

While there are some superficial similarities, the cases are clearly distinguishable on their

facts. We have said many times that such direct comparisons are really not appropriate

and are of little or no assistance. The correct use of comparators involves the

presentation of a survey of a suitably representative sample of cases in which the courts

have imposed sentences for a particular type of offence, as evidence in support of a

suggested trend in sentencing. The value of The People (DPP) v Casey is not as a direct

comparator but rather with respect to the guidance that it gives concerning the ranges

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within which cases should fall in terms of headline sentences and how cases may be

categorised having regard to their features with reference to those ranges.

39. We therefore dismiss this appeal.

Result: Dismiss