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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Wall, Walsh, O'Connor, Tynan [2020] IECA 48 (02 March 2020)
URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA48.html
Cite as: [2020] IECA 48
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THE COURT OF APPEAL
Edwards J.
McGovern J.
Kennedy J.
Record No’s: 35, 36, 37 & 38 CJA/2019
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT, 1993
BETWEEN/
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
APPLICANT
-AND-
ALAN WALL, BARRY WALSH,
CONOR O’CONNOR & MICHAEL TYNAN
RESPONDENTS
JUDGMENT of the Court delivered on the 2nd day of March 2020 by Mr. Justice
Edwards.
Introduction
1. For the avoidance of confusion, this judgment will refer individually by name to Alan Wall,
Barry Walsh, Conor O’Connor & Michael Tynan, respectively, rather than using
designations such as first, second, third and fourth named respondents. However,
collectively the four individuals will be referred to as “the respondents”. The Director of
Public Prosecutions will be referred to throughout as “the applicant”.
2. On 30th of October, 2018 the respondents each entered guilty pleas before Waterford
Circuit Criminal Court to one count of robbery contrary to s. 14 of the Criminal Justice
(Theft and Fraud Offences) Act, 2001 and one count of possession of a firearm with intent
to commit an indictable offence, contrary to s. 27B of the Firearms Act, 1964 as
substituted by s. 60 of the Criminal Justice Act, 2006 as amended by s. 39 of the Criminal
Justice Act, 2007, respectively. They were then sentenced on the 8th of February 2019.
3. In the cases of Alan Wall and Michael Tynan, they each received a sentence of five years
imprisonment with the last eighteen months thereof suspended on conditions for three
years post release (the said conditions including being subject to Probation Service
supervision for two years post release) for the robbery offence; and a concurrent
sentence of three years imprisonment for the firearms offence.
4. In the cases of Barry Walsh and Conor O’Connor, they each received a sentence of six
years imprisonment with the last twelve months thereof suspended on conditions for
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three years post release (the said conditions including being subject to Probation Service
supervision for two years post release) for the robbery offence; and a concurrent
sentence of four years imprisonment for the firearms offence.
5. All sentences were to date from the 3rd of May 2018, being the date on which all of the
respondents went into custody.
6. The Director of Public Prosecutions now seeks a review of each of the sentences imposed
on grounds of undue leniency.
Background to the matter
7. The sentencing court heard evidence from Detective Garda Michelle Burns who outlined
the circumstances of the armed robbery of Cleaboy Post Office, Waterford, by the four
respondents on the 3rd of May 2018. The four respondents travelled to the Post Office in
a red Renault Laguna motor car, registration 06 MO 10313, driven by Mr Tynan. Mr Wall,
Mr Walsh and Mr O’Connor then entered the Post Office premises together, leaving Mr
Tynan outside in the Renault Laguna as the getaway driver. One of the three raiders who
entered the Post Office had a sawn-off shotgun and the other two had hammers. The
raiders were wearing balaclavas and latex gloves to conceal their identities. At the time of
the incident there were two female cashiers working inside the counter of the Post Office
and there were also two female customers present in the public area of the premises, one
of whom had her two children with her, one aged 3 and the other a baby in a pram. The
raider wielding the sawn-off shotgun banged the gun off the Perspex glass partition at the
counter. The Post Office workers behind the counter were threatened that they would be
shot if they did not hand over cash. In the circumstances outlined the staff members were
forced to hand over €42,755.00, US$950.00 and Stg£1,200.00 as well as a quantity of
stamps and Post Office stock. The whole incident lasted a minute and ten seconds and
was captured on CCTV. The CCTV recording shows, inter alia, the clothing worn by the
raiders and the fact that one of them had a red and black Liverpool rucksack. The raiders
then returned to the red Renault Laguna parked outside and, as they did so, the Post
Office staff immediately raised the alarm. The fleeing raiders were observed by witnesses
and on CCTV leaving the Cleaboy area in the Renault Laguna travelling towards the
Waterford Outer Ring Road. Witnesses described the vehicle driving in an erratic manner
en route.
8. Subsequently, and within minutes of first receiving a report of the raid, gardaí received a
second report concerning a vehicle on fire in a quiet cul de sac in the Knockhouse area of
Waterford City. A further report was received from a motorist concerning three males he
had seen running across the Waterford Outer Ring Road, from the direction of the burning
vehicle, who then entered and ran across some fields and into a wooded area near the
WIT Arena, which is near the Waterford Greenway. The motorist had turned around
having seen the three men in question, and having done so then observed a fourth man
following the initial three.
9. Local gardaí were quickly despatched to the scene. The burning vehicle was found to be
the red Renault Laguna used in the raid and gardaí succeeded in extinguishing the fire
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before it was fully burnt out, and managed to preserve it for forensic examination. Certain
items were later found in that vehicle including a sawn-off shotgun and a hammer as well
as two shotgun cartridges. Some gardaí who were first on the scene then attempted to
pursue the suspects on foot, given the inaccessibility of the location and terrain. A large
number of other garda units also responded, and within a short time a large-scale search
of the area was embarked upon.
10. While this was on-going a witness who was out walking the Greenway happened to
observe three males hiding in a wooded area, and he alerted gardaí. On searching the
location the witness had described, gardaí discovered three men cowering in a hole within
a fallen tree and on closer inspection a fourth man was found hiding on the far side of the
tree. These four men were the respondents.
11. The immediate area where the men had been hiding was then searched and a Renault car
key was found, as well as a red McKenzie hoodie, a navy Adidas tracksuit bottoms, a grey
McKenzie tracksuit bottoms, and a red and black Liverpool rucksack. All of those items,
apart from the key, were to be seen on the Post Office’s CCTV recording of the raid as
having being worn or carried by participants in the raid. Subsequently the key was found
to match the partially burnt out Renault Laguna. The red and black Liverpool rucksack
was found to contain the full proceeds of the robbery being the cash and foreign currency
consisting of €42,755.00, US$950.00 and Stg£1,200.00 as well as the stamps and other
items taken from the Post Office, including a TV Licence Book. The four respondents were
arrested and detained.
12. The Garda investigation and CCTV review established a significant degree of organisation
and pre-planning of the armed robbery. Gardaí established that the robbers had access to
a second vehicle, a black Audi, 02 C 40254, and one of the respondents was observed
moving between the Audi and the red Laguna on the morning of the robbery and to have
done two trial runs from where the vehicle was found parked up to the Post Office prior to
the actual robbery. Mr Tynan and Mr Wall had also entered the Post Office the previous
day and, Mr Wall had done so again just moments before the robbery. All four
respondents were interviewed in garda custody and they were uncooperative in terms of
accounting for their activities. They each answered “no comment” to the questions asked
of them at interviews, including when statutory inference provisions were invoked in
respect of them. It was confirmed at the sentencing hearing that, notwithstanding that all
of the respondents had been acting in concert, the gardaí were not able to establish,
beyond reasonable doubt, which of the three respondents that had entered the Post Office
premises was the one carrying the shotgun in circumstances where all three had taken
steps to conceal their respective identities.
The Impact on the Victims
13. Victim impact statements were received and read into the record from the two Post Office
staff who were present during the robbery, a Ms Caroline Walsh and a Ms Geraldine
Hayes. Neither of the two customers who were also present, including the lady with small
children, wished to make a victim impact statement.
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14. In her victim impact statement, Caroline Walsh said:
"There are very few occupations where you face a real threat of armed attack. You
would scarcely think that working in your local post office would pose such a threat.
However, on Thursday the 3rd of May 2018, this is exactly what happened to me.
I was initially reluctant to submit an impact statement as I try not to think about it
to a large extent. I have dealt relatively well with the aftermath of the robbery; I
have not allowed to significantly alter me or how I live my life.
However, it would be incorrect to say that this has not had a huge effect on both
myself and my family when you imagine the absolute terror I felt, or of that of my
husband and children when they were told that the post office where their wife and
mother worked had been held up at gunpoint. I don't think I was ever hugged as
tightly as when I finally got home to them later that day.
Some nights I lie awake, sleep is as likely as winning the lotto, and it replays again
and again in my head. I can see them entering the post office and then the gun
pointing directly at me. I'm happy to say that this has become less frequent as time
has passed, but I still cannot banish the memory of absolute shock and fear for
both myself and my colleagues and customers. I still scan the door constantly and
am immediately suspicious of anyone entering the post office who might have any
part of their face covered with a scarf or hat pulled down. I am grateful that no one
was physically harmed, but my main wish is that this never happened.
I hope they will reflect on the effect this has had on me, my colleagues, our
customers and the wider community, how totally senseless this robbery was. I hope
they will come to realise the impact it has on someone when you decide to arm
yourself with a gun and attack a defenceless target, as we were that day.
I wish the people who carried out this robbery no personal ill will, I only hope that
none of their mothers, fathers, families or friends experience what we did that day.
The Post Office is not only a place for people to go to pay their bills or send Euro to
family abroad, it is part of the glue in our community and it should be a safe place.
No one should be afraid to go to work for fear of being shot. The same for any
other member of the public who uses the post office. I sincerely hope I will never
experience anything like this again."
15. Ms Geraldine Hayes, in her victim impact statement said the following:
"While working on Thursday the 3rd of May 2018, I have to say the events of that
morning changed my life forever. I have never before experienced events that
happened that day before in my years of working. The fear and terrifying events
will stay with me forever. The worst part of it, despite being threatened with a gun,
was the sheer noise and aggressiveness of the people involved. I actually felt
fearful for my life. For weeks after the robbery, I used to lie awake and relive what
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happened, what could have happened and what I would have done differently. In
hindsight, there was nothing I could have done. I am grateful that no one was
physically harmed but it still leaves you wondering what could have happened. It
also upset me badly to see the effect it had on my husband and children. I'm a
mother and a grandmother and would hate to think any one of my family had to
experience what I went through. There are still days while at work that when the
door opens, or someone different comes in, or they are in loud groups, that my
heart actually skips a beat and I feel anxious. This will probably stay with me
forever. I hope that justice is served, and the people involved realise the severity of
what they did and the effect it had on me and my colleagues and the customers in
the Post Office at the time."
The Respondents’ Personal Circumstances
Alan Wall
16. The sentencing court heard that Mr Wall’s date of birth is the 2nd of June, 1980. He has
thirteen previous convictions which break down as follows: four for various offences under
the Criminal Justice (Public Order) Acts 1994-2011; three for unlawful possession of a
controlled drug under s. 3 of the Misuse of Drugs Act, 1977; one was for failure to
appear, contrary to s. 13 of the Criminal Justice Act, 1984; and one, dated the 18th of
June, 2015 and recorded at Waterford District Court, was for the unauthorised possession
of firearm ammunition, contrary to s. 2 of the Firearms Act, 1925 as amended.
17. The probation report on Alan Wall assesses him as being at moderate risk of reoffending
unless he addresses his criminal behaviour and unemployment. It records Mr Wall as
displaying some insight into the distress and trauma caused to the victims by his actions.
The report further indicates that Mr Wall has a reasonably significant past employment
history. He has variously worked as a Boner in a meat processing factory, and in the
storeroom of an adhesive company, as well as in construction. At the time of the offence
Mr Wall was in a long-term relationship, and had fathered two children aged sixteen years
and fourteen years respectively. His partner was pregnant at the time. There were some
tensions between him and his partner at the time of the offence, and he had no fixed
accommodation at that time. The probation report indicates that Mr Wall’s past offending
is related to his use of alcohol and cannabis. He claims to have become involved in the
robbery in order to gain money to pay off a drug debt. He denies any current dependency
issues but the probation officer believes he may be underestimating the extent of his drug
and alcohol dependency issues.
18. The court below received a number of positive testimonials in respect of Mr Wall from
previous employers. A Prison Governor’s report indicated that he is on enhanced privilege
level, that he is engaging with education services in the prison and that he is cooperative
and mannerly with staff.
Barry Walsh
19. The evidence was that Mr Walsh was born on the 6th of January 1989. He had been
educated to Junior Certificate level and was a qualified block layer until 2008 when the
recession hit. He had fifty-five previous convictions. Twenty-two of these were for
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offences under the Criminal Justice (Public Order) Acts, 1994-2011; fourteen were for
road traffic offences; three were for failing to appear, contrary to s. 13 of the Criminal
Justice Act, 1984; three were for theft offenses contrary s. 4 of the Criminal Justice (Theft
and Fraud Offences) Act, 2001, two were for burglary contrary to s. 12 of the Criminal
Justice (Theft and Fraud Offences) Act, 2001, one was for handling stolen property,
contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001; one was
for possession in a public place of an article with a blade or which is sharply pointed,
contrary to s. 9(1) of the Firearms and Offensive Weapons Act, 1990; two for obstruction
of a member of the Garda Síochána or a person duly authorised under the Misuse of
Drugs Act, 1977 in the lawful exercise of a power conferred by that Act, contrary to s.
21(4) of the Misuse of Drugs Act, 1977; one for unlawful possession of a controlled drug
for the purposes of sale or supply, contrary to s. 15 of the Misuse of Drugs Act, 1977; one
for violent behaviour in a Garda Station contrary to s. 15 of the Dublin Police Act, 1842;
and one for robbery, contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences)
Act, 2001.
20. The robbery conviction is a relevant offence in the present context, and the details are
that it was recorded at Cork City Circuit Court on the 8th of November, 2013. Mr Walsh
received a sentence of three years imprisonment for that offence with the final year
suspended. The conviction for possession in a public place of an article with a blade or
which is sharply pointed, related to a bill hook. It was recorded at Cork Circuit Criminal
Court on the 24th of February 2010, and Mr Walsh received a sentence of 150 hours of
community service for this offence. The burglary offence was recorded on the 27th of
May, 2008 at Cork City District Court and the Probation Act was applied. The s. 15 drugs
offence was recorded on the 11th of June, 2012, again at Cork City District Court, and the
sentence imposed was one of four months imprisonment plus 140 hours of community
service.
21. It was accepted by Detective Garda Burns that Mr Walsh had a drug problem and,
although originally from Cork, was living in Dublin at the time that he committed the
present offence. The sentencing court had before it a letter from Merchant’s Quay Ireland
confirming that Barry Walsh had successfully undergone a fourteen week residential
treatment program in late 2014 and early 2015. The court also had a number of
testimonials concerning Mr Walsh’s abilities as a son, partner and father. Mr Walsh
himself also wrote letters of apology to the injured parties and to the court, and these
were handed in.
Conor O’Connor
22. Conor O’Connor was born on the 2nd of June, 1980. He informed the Probation Service
that he has three children, including a nineteen-year-old son residing Cork city and
eleven-year-old daughter residing in County Cork and a two-year-old son residing in
Dublin. The evidence before the court below was that he has one hundred and fifty five
previous convictions. The breakdown of these includes one hundred and twenty three for
Road Traffic offences; eight for public order offences contrary to the Criminal Justice
(Public Order) Acts 1994 to 2011, eight for theft contrary to s. 4 of the Criminal Justice
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(Theft and Fraud Offences) Act, 2001; five for burglary, contrary to s. 12 of the Criminal
Justice (Theft and Fraud Offences) Act, 2001; two for handling stolen property contrary to
s. 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001; two for robbery
contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001; one for
unlawful possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act,
1977; one for making a threat to kill, contrary to. 5 of the Non-fatal Offences against the
Person Act, 1997, one for obstruction of a peace officer, contrary to s. 19(3) of the
Criminal Justice (Public Order) Act, 1994, and the remainder comprising sundry minor
offences.
23. In terms of Mr O’Connor’s previous convictions for robbery offences he was recently
convicted of this at Cork City Circuit Court on the 24th of November, 2014 and received a
four-year prison sentence with the final year suspended to take effect from the 16th of
July, 2014. The present offence was committed during the period of the suspension of
that final year. In respect of the other robbery conviction this was recorded on the 12th of
February 2009 at Cork City Circuit Court and Mr O’Connor received a sentence of three
years imprisonment to date from 25th of of November, 2008.
24. The investigating Garda accepted that Mr O’Connor, as indeed was the case with all of the
other respondents, had pleaded on the first occasion on which the matter was before the
court. He accepted that Mr O’Connor had a drug habit and a history of drug use. This was
further confirmed in the Probation Report on Mr O’Connor. He had previously attended
Coolmine Drug Free Residential Treatment Center in 2003 for cocaine abuse but
regrettably relapsed in 2006 when his mother was diagnosed with a terminal illness. Mr
O’Connor and started a car balancing business in 2003 in the Cork area but lost this
business in 2007 due to his substance misuse. Mr O’Connor told the probation officer that
he was smoking heroin and taking benzodiazepines on a regular basis prior to committing
this offence.
25. Mr O’Connor indicated through his counsel that he wished to convey an apology to the
staff and customers of the post office who were present during the robbery, and a letter
from Mr O’Connor to that effect was handed in.
26. A probation report on Mr O’Conner placed him at high risk of re-offending in the next 12
months if in the community. The main areas of risk in that regard were substance misuse,
negative associates, and lack of education, training or employment. The probation report
also records that Mr O’Connor has certain mental health issues consequent upon
experiencing significant trauma as a juvenile.
Michael Tynan
27. The court heard that Michael Tynan was born on the 24th of February, 1984, and that he
is the father of four children. He is estranged from his former partner. He had ADHD as a
child and left school after doing his junior certificate. He then undertook an apprenticeship
as a cabinetmaker. He worked with his father for some years before starting his own
business as a car valeter. His business failed ultimately due to his substance abuse. He
has attempted to address his addictions on a number of occasions but on each such
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occasion he has relapsed. He is involved with psychiatric services in Waterford as he has
suffered from drug-induced mental health difficulties. He has seventy two previous
convictions, broken down as follows: he has three convictions for unlawful possession of
controlled drugs for the purpose of sale or supply, contrary to s. 15 of the Misuse of
Drugs Act, 1977; fourteen convictions for unlawful possession of controlled drugs,
contrary to s. 3 of the Misuse of Drugs Act, 1977; two convictions for offences under the
Firearms and Offensive Weapons Act, 1990, being offences contrary to s. 9(4) (i.e.,
having in a public place a flick-knife or other article made or adapted for use for causing
injury to or incapacitating a person) and s. 9(5) (i.e., having in any public place any
article intended by him unlawfully to cause injury to, incapacitate or intimidate any
person either in a particular eventuality or otherwise), respectively; one conviction for
criminal damage contrary to s. 2 of the Criminal Damage Act, 1991; one for theft contrary
to s. 4 of the Criminal Justice (Theft and Fraud Offenders) Act, 2001; one for possession
of certain articles contrary to s. 15 of the Criminal Justice (Theft and Fraud Offences) Act,
2001 and fifty convictions for offences contrary to the Road Traffic Acts.
28. The sentencing court heard that all three s. 15 drugs convictions were recorded at
Waterford Circuit Court on the 14th of July, 2014. They related to three separate offences
arising in 2011. Mr Tynan received eight months in respect of each matter and the
sentences were made consecutive. However, the sentences were also suspended on
conditions.
29. The court heard that the conviction recorded under s. 9(4) of the Firearms and Offensive
Weapons Act, 1990 was recorded at Waterford District Court on 29/7/2005 when a fine of
€900 was imposed. The conviction recorded under s. 9(5) of the same Act was taken into
consideration with an offence of possession of certain articles recorded at Waterford
District Court on 07/1/2014, for which Mr Tynan received a suspended sentence of eight
months imprisonment.
30. A Probation Service report on Mr Tynan concluded that he was also at high risk of
reoffending, with pertinent risk factors being substance abuse, criminal associates,
antisocial attitudes and attitudes towards authority. The report records Mr Tynan’s
rationale for partaking in this robbery as being coercion from individuals to whom he
owed a large drug debt. Mr Tynan is said to have expressed remorse and discussed at
what happened to the victims of the robbery and to have acknowledged the aggressive
and frightening nature of the incident.
31. A number of testimonials were placed before the court below testifying to Mr Tynan’s
abilities as a son and nephew. The court is also provided with a certificate in respect of his
completion of a “Moving beyond Addiction” programme, and the course in personal
decision-making. A positive Governor’s report was also provided confirming that he is
currently on an enhanced regime in the prison and that he poses no problems for staff
and management in the prison.
The Sentencing Judge’s Remarks
32. In sentencing the respondents, the sentencing judge stated:
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“This is the sentencing of the offenders in the robbery of the post office at Cleaboy
in Waterford City on the 3rd of May 2018. This robbery was truly a terrific terrifying
traumatic event, it may only have lasted 70 seconds within the actual post office
but it is clear from the victim impact statements it has had a devastating effect, not
only the ladies, both staff and customers within the post office at the time of the
robbery, but also on the whole community around and about Cleaboy who, as one
of the victims stated in remember victim impact statement; "It is part of the glue of
our community."
There are a number of aggravating factors in this robbery. The degree of planning
and preparation which included the use of a second car which was used for
reconnoitring the routes and areas around the post office in the immediate days
beforehand. The inspection of the premises whereby two of the gang had entered
the post office prior to the raid, once on the previous day and once earlier on the
morning of the robbery. The organisation of the four participants where each
appeared to have a defined role; one the gun man, two with hammers and the
fourth as the driver waiting in the getaway car outside. They operated on this
occasion as an organised gang. Three; the attempts to avoid detection which
included the wearing of the most frightening of disguises, the balaclava which not
only prevents identification but can in still terror in circumstances such as this. The
wearing of latex gloves to avoid fingerprints. The attempted destruction by fire of
the motor car and the sawn off shotgun to avoid forensic harvesting of clues. Four;
the location of the premises in the centre of a community, a post office where it
must have been anticipated that there may be mean (sic) members of the public
potentially old age pensioners and young mothers collecting payments. Five; the
traumatic effects, not only on the staff but on the customers. The victim impact
statement of Caroline Walsh refers to the absolute terror of the event. Six; the
violence used. Ms Hayes refers to the sheer noise and aggressiveness of the raiders
when told, they were extremely aggressive, banging their hammers on the internal
partition and doors and waving the firearm, a sawn off shotgun, that most lethal of
weapons in a confined space. The threat to use the gun, shouting at the staff to
hand over the money or they would be shot, together with the fact that there was
ammunition found for the gun. Six; the total amount of the money stolen, albeit
recovered, but nonetheless over €46,000, or equivalent currency was stolen. I will
deal with the aggravation of prior relevant convictions on an individual basis.
I place this offence at the upper scale of gravity for a robbery, and the possession
of the firearm in the medium scale. I have not treated the actual possession of the
gun per se as an aggravating factor, just its use, being waved about and banged on
the Perspex glass, under the heading of the violence of the occasion.
For Michael Tynan and Alan Wall, I place the appropriate sentence at seven years'
imprisonment. For Barry Walsh and Conor O'Connor, each of whom have previous
convictions, convictions for robbery, I place the appropriate sentence at eight
years.
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I've been addressed on the mitigating factors by counsel and I will now go through
these individually. In relation to Michael Tynan, he has 72 previous convictions, but
they are none of which are of the magnitude of this. There are however three
section 15 Misuse of Drugs Act convictions and 14 convictions for personal use of
drugs. So, this is clearly an indication, this has been pointed out by Mr Sheahan of
a significant drug problem. There is rationale for the participation set out in the
probation report. Mr Sheahan tells me that his client has now obtained insight and
empathy for the victims and that he has feelings for shame, remorse and disgust. I
note however there is a significant risk of reoffending, particularly in view of
extensive history of drug use. He's a 34-year old father with four children with
certain learning difficulties and certain difficulties with his mental health, but
particularly his profound embedded drug use, and the most significant factor is his
early plea of guilty.
In relation to Alan Wall, Mr Cody points to his guilty plea and says that in light of
his previous relatively minor previous convictions, he has 13 in all, none of anything
of this significance. Although, the unauthorised possession of one round of
ammunition, he submits that this is considerably out of character. He has pleaded
guilty which is significant mitigating factor on the earlier occasion. He has
submitted two work references, one for a period working with a pig slaughtering
company in 1997 to 1998, and the other from a building staff solution company
who organise placement on building sites. And I note that Mr Wall may have
travelled to work on a number of project (sic) in Scotland. I'm told he has a
significant work history. That he has had some difficulties with alcohol but he has
no current dependency issues and he described Mr Cody describes Mr Wall's
involvement as a gross error of judgment. Again, I've had the benefit of Ms Burke's
very detailed probation report.
In relation to Mr Barry Walsh, Ms Leader has outlined the mitigating factors and
how he had a good work history until the recession in 2008 when he lost his work
as a block layer and began taking drugs and accumulated significant debt, which
debts caught up with him. She says that he is truly sorry for what he has done and
he has gone and written quite a number of apology letters to each of the individual
persons affected by this and I have considered them and have no difficulty in they
being passed on to the respective persons. I've also read his letter of apology to me
and the other letters that have been submitted on his behalf. I have indicated that I
regard the 55 previous convictions of Mr Walsh has placed him in the significantly
different category, thus I've reflected that in the headline sentence. There is a
previous conviction for robbery which was dealt with at Cork Circuit Court on the
8th of November, 2013.
And finally, in relation to Mr Conor O'Connor, who has 155 previous convictions;
eight for theft and five for burglary, two for handling stolen property, one for threat
to kill and two for robbery of establishments. Mr Whelan has set out the mitigating
factors, he points out his apology to his victims. He says that he has insight,
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remorse and the most significant is his guilty plea. He points to the traumas of his
life and the pattern of addiction and that he has since most recently gone into
prison on remand successfully completed the Methadone program. The probation
report of Ms O'Neill sets out his personal circumstances and I've taken those into
account and indicates that he is at high risk of reoffending within the next 12
months if in the community. And that he has a positive attitude towards engaging
with all available services while he is in custody. And I have considered the letter
that he has written to me and I have no doubt I have read all of these letters, I
have no doubt as to the sincerity of all of the sentiments expressed by each of the
individuals.
Taking into account the mitigating factors that have been outlined in each case, I
will reduce the sentence for Michael Tynan and Alan Wall by two years to five years'
imprisonment, and for Barry Walsh and Conor O'Connor, by two years, to six years'
imprisonment.
I have then been urged by each of the counsel to consider the benefits towards
rehabilitation of suspending a portion of the sentences, and for Mr Tynan and Mr
Wall, I'm prepared to suspend the last 18 months of the sentence in each case, for
a period of three years, as an encouragement towards rehabilitation. And for Mr
Walsh and Mr O'Connor, I'm prepared to suspend in their cases the final 12 months
of each sentence for a period of three years. In each case, it is a condition of
suspension that each be subject to post release supervision for a period of two
years. The bonds to be entered in the sum of €100.
For the firearms offences, I am setting a headline of five years for Mr Tynan and Mr
Wall, which for the reasons outlined for the mitigation that I have identified, I will
reduce in each case to three years. For Mr Walsh and Mr O'Connor, I find the
appropriate headline sentence to be six years, which I will reduce for mitigation to
four years. To give a greater sentence would be unjust in all of the circumstances
and so I am not imposing the presumptive minimum sentence of five years.
In each case, the sentence is to run concurrent so as to not offend against the
principle of totality and proportionality.”
The DPP’s complaints
33. In her Notice of Application in each case the applicant complains that the sentencing
judge failed to identify appropriate headline sentences. It is acknowledged that the
sentencing judge correctly identified a number of very significant aggravating factors and
that he stated that he was placing the offence “at the upper scale of gravity for a robbery”
and “in the medium scale” for the offensive possession of a firearm. However, the
applicant maintains that the headline sentences actually determined upon, namely seven
years imprisonment in the case of Alan Wall and eight years imprisonment in the case of
Barry Walsh and Conor O’Connor, were simply too light having regard to the gravity of
the offending conduct.
Page 12 ⇓
34. The applicant points to a significant number of aggravating factors that existed in all
cases. These included:
(a) The extremely serious and violent nature of the offence committed;
(b) The violence used and threatened against those present in the Post Office;
(c) The level of planning and pre-meditation involved in the offence committed;
(d) The respondents acted as a gang;
(e) The sum of €45,000 taken in the robbery;
(f) The traumatic effect this robbery had on the victims of the crime;
(g) The attempted destruction of the sawn off shot gun and the vehicle;
(h) The impact on the wider community, given the fact that the robbery was at a Post
Office at the centre of the local community;
(i) The fact that a firearm was used in the course of the robbery.
Moreover, in the case of Barry Walsh, and Conor O’Connor there were relevant previous
convictions for robbery for which prison sentences had been imposed; and in the case of
Alan Wall there was a relevant previous conviction for a firearms offence, albeit that it
was dealt with summarily and non-custodially. In addition, in the case of Mr O’Connor this
offence was committed during the suspended final year of a four year sentence imposed
for another robbery.
35. This court was referred to an extensive quotation from Sentencing Law and Practice (3rd
Ed) by Thomas O’Malley commencing at paragraph 15-36 and running to 15-38 inclusive.
In these passages Mr O’Malley addresses the types of factors that may influence the
assessment of gravity in robbery cases. We have no hesitation in accepting the
correctness and reliability of this material from such a renowned sentencing scholar. The
court was also referred to its own decision in The People (Director of Public Prosecutions)
v O’Sullivan and O’Rourke [2019] IECA 289, a severity appeal in a robbery,
endangerment and possession of drugs case in which aggregate sentences of 12 years
imprisonment with two suspended were upheld, and where the sentence structure had
included a term of nine years for the robbery component, which had involved a Post Office
and which, although by no means are identical, bore many similarities to the present
case.
36. We were also referred in the applicant’s written submissions to the case of The People
(Director of Public Prosecutions) v Noonan, Murphy and Saunders [2019] IECA 112, in
which this court refused to interfere with sentences of ten years with the final two years
suspended for a conspiracy to commit a robbery offence involving a cash in transit van. In
that case the court had remarked that “the sentences imposed were at the outer limits in
Page 13 ⇓
terms of leniency. Had more severe sentences been imposed, in the range of nine to ten
years, the court would very likely have upheld such sentences.” The President’s reference
to more severe sentences in the range of nine to ten years was a reference to post
mitigation or ultimate sentences to be actually served.
37. At the oral hearing the court’s attention was drawn by counsel for the applicant to its
a decision handed down on the same day as this court’s guideline decision in The
People (Director of Public Prosecutions) v Casey and Casey relating to cases of burglary
and aggravated burglary. In that case we had noted that the spectrum of penalties in the
case of robbery ranges from noncustodial options up to imprisonment for life. We stated
(at paragraph 60):
“On the basis that a life sentence is likely to be reserved for only the very worst
and most egregious offences of this type, the practical reality is that the effective
range of custodial penalties caps out at fifteen years, or thereabouts, for all but the
most exceptional cases. An effective fifteen year range allows for a low range of
zero to five years, a midrange of six to ten years and a higher range of eleven to
fifteen years.”
38. Moreover, we held that essentially the same approach as now applies to the assessment
of gravity in burglary and aggravated burglary cases should also apply to robbery cases.
In that regard we had said that in Casey and Casey, at paragraph 48 of the judgment:
“If a number of the factors to which reference is made [i.e., aggravating factors]
are present, this will place the offence in the middle range at least, and usually
above the mid-point in that range. The presence of a considerable number of these
factors, or, if individual factors are present in a particularly grave form, will raise
the offence to the highest category.”
39. In regard to the headline sentences selected for the firearms offence the applicant
complains that these were too low given the aggravating factors that applied in the case
of the firearms offence and the presumptive sentencing regime that applies thereto.
40. Quite apart from complaints about the adequacy of the sentencing judge’s headline
sentences, and his assessments of gravity, it was further contended on behalf of the
applicant that the sentencing judge had had undue regard for mitigating factors in each
case.
The respondent’s submission
41. It was submitted in each case on behalf of the respondents that the sentencing judge had
approached his task carefully and conscientiously and that great weight should be
afforded to the reasons stated by the sentencing judge for his decision. It was suggested
that even if this court was to regard the sentences, both in terms of the headline or
starting point, and the ultimate post mitigation sentences, as being lenient it could not be
said that they were unduly lenient.
Page 14 ⇓
The applicable legal principles governing s. 2 reviews.
42. The law with respect to the conduct of undue leniency appeals is well-settled at this
stage. The jurisdiction to review a sentence on the grounds that it was unduly lenient
derives from s. 2 of the Criminal Justice Act of 1993, as amended, which (to the extent
relevant) provides:
“2.— (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a
court (in this Act referred to as the “sentencing court”) on conviction of a person on
indictment was unduly lenient, he may apply to the Court of Appeal to review the
sentence.
(2) An application under this section shall be made, on notice given to the convicted
person, within 28 days, or such longer period not exceeding 56 days as the Court
may, on application to it in that behalf, determine, from the day on which the
sentence was imposed.
(3) On such an application, the Court may either—
(a) quash the sentence and in place of it impose on the convicted person such
sentence as it considers appropriate, being a sentence which could have been
imposed on him by the sentencing court concerned, or
(b) refuse the application.”
43. In terms of the general principles governing such reviews, the leading authority is The
People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279. This was a
judgment of the former Court of Criminal Appeal in the first case referred to it under s. 2
of the Act of 1993, and in it, O’Flaherty J. giving judgment for the court, sets out a
number of principles and considerations relevant to the conduct of such reviews. He said:
“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.
Page 15 ⇓
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.”
44. Since then, the relevant statutory provision has also been considered by the Supreme
Court in The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R.356. In
that case Barron J. stated:
“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 of 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 potential 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.”
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;
Page 16 ⇓
(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.”
Discussion and Decision
46. It is appropriate to record that while the applicant does not agree with the headline
sentences or starting points in the case of any of the respondents, she does not quarrel
with the entitlement of the sentencing judge to have differentiated somewhat between
the respondents in circumstances where some of them had worse records than others,
and the offending conduct of some of them was more aggravated than in the case of
others. No issue is taken with either the fact or extent of the differentiation actually
made. However, her case with respect to the assessment of gravity is simply that the
sentencing judge started at too low a point on the spectrum of available sentences in all
cases.
47. We agree with the submissions made on behalf of the applicant in that regard. All of the
respondents were parties to a common design and shared in the intrinsic moral culpability
of the basic offending conduct. In addition there were multiple aggravating circumstances
in all cases. However, in some cases there were more aggravating circumstances than in
the case of some of the other participants, justifying a differentiation between participants
at the level determined upon by the sentencing judge. Be that as it may, in our judgment
the starting points or headline sentences were too low in every case. Applying the Leon
Byrne jurisprudence we think these cases straddled the boundary between the high end
of the mid range and the low end of the high range. We consider that the offending
conduct of each of the respondents would, in the case of the robbery offence, have
merited a headline sentence of between nine years imprisonment in the case of those
least culpable and ten and a half years imprisonment in the case of the most culpable.
Accordingly, the headline sentences nominated by the sentencing judge of seven years
and eight years respectively were outside of the norm and represented an error.
48. We also consider that the discounts afforded for mitigation were excessive. While the
personal circumstances of the respondents were not precisely identical, we consider that
the appropriate discount to take account of their respective individual mitigating
circumstances should have been in the 20% to 25% bracket, particularly in circumstances
where they had been effectively caught red handed, and notwithstanding the
respondents’ guilty pleas. Accordingly, we are of the view that the sentencing judge was
Page 17 ⇓
in error in the degree to which he discounted for mitigation in the circumstances of the
case.
49. In each case the resultant post mitigation sentence imposed for the robbery offence was
outside the norm and was unduly lenient.
50. It is necessary to turn at this point to the sentencing for the firearms offence. We think
that the sentencing judge got it right in terms of the headline sentences of five years and
six years respectively that he nominated. He then generously discounted from these
figures for mitigation and arrived at post mitigation figures of three years and four years
respectively. It is not necessary for us to express a view on the level of discount afforded
for mitigation save to say that it is difficult to justify in the light of the views we have
expressed concerning the level of mitigation to which the respondents were entitled on
the robbery offence. Be that as it may, the real problem with the sentences imposed for
the firearms offence is that this was an offence which carries with it a presumptive
mandatory minimum sentence of five years imprisonment. It is presumptive because the
legislature has preserved the possibility for a sentencing judge to impose a sentence of
less than the presumptive mandatory minimum where the sentencing judge considers it
to be unjust to impose the presumptive mandatory minimum in the circumstances of the
case. In this case the sentencing judge arrived at that view. The question is was he right
to do so? It seems to us that the circumstances of the case were insufficiently
extenuating to have enabled the sentencing judge to come to the conclusion that it would
be unjust to impose the presumptive mandatory minimum sentence in the case of each of
these respondents. They had certainly pleaded guilty at the first available opportunity, but
there was nothing else exceptional about the case or their circumstances. It seems to us
that the mere fact that they had done so would not per se have rendered it unjust to have
imposed the presumptive minimum. The circumstances of this case were very serious.
The weapon involved was a sawn-off shotgun. While it was not discharged it was used to
frighten and intimidate in the course of an armed robbery. To have possessed such a
weapon with a view to using it in those circumstances was highly culpable and requires to
be marked by significant punishment. Moreover, it is public policy, reflected by the
Oireachtas having made provision in law for a presumptive mandatory minimum
sentence, that such offences should attract a custodial sentence of not less than five
years, save where it would be unjust to impose such a sentence. We think there would
have been nothing unjust about imposing the presumptive mandatory minimum sentence
in each of these cases. In our view the sentences actually imposed for the firearms
offence, being sentences in all cases below the presumptive five year minimum, namely
sentences of four years and three years, respectively,were outside of the norm and were
unduly lenient.
51. It is necessary in the circumstances to quash the sentences imposed by the court below
and to proceed to a resentencing of each of the respondents.
52. In the case of Mr Wall we will nominate a headline sentence of nine years imprisonment
for the robbery offence. We will afford him a discount of two years to reflect the
Page 18 ⇓
mitigating circumstances in his case, leaving a net sentence of seven years imprisonment
on the robbery offence. In addition, we will impose the presumptive mandatory minimum
sentence of five years for the firearms offence to run concurrently with the sentence for
the robbery offence.
53. In the case of Mr Walsh we will nominate a headline sentence of ten years imprisonment
for the robbery offence. We will afford him a discount of two and a half years to reflect
the mitigating circumstances in his case, leaving a net sentence of seven and a half years
imprisonment on the robbery offence. In addition, we will impose the presumptive
mandatory minimum sentence of five years for the firearms offence to run concurrently
with the sentence for the robbery offence.
54. In the case of Mr O’Connor we will nominate a headline sentence of ten and a half years
imprisonment to take account of his particularly bad previous record which includes two
relevant offences, and the fact that this offence was committed during the currency of the
suspended portion of an earlier sentence. We will afford him a discount of two and a half
years to reflect the mitigating circumstances in his case, leaving a net sentence of eight
years imprisonment on the robbery offence. In addition, we will impose the presumptive
mandatory minimum sentence of five years for the firearms offence to run concurrently
with the sentence for the robbery offence.
55. Finally, in the case of Mr Tynan we will nominate a headline sentence of nine years
imprisonment for the robbery offence and we will afford him a discount of one year and
nine months to reflect the mitigating circumstances in his case, leaving a net sentence of
seven years and three months imprisonment on the robbery offence. In addition, we will
impose the presumptive mandatory minimum sentence of five years for the firearms
offence to run concurrently with the sentence for the robbery offence.
Result: Allow and Vary