Irish Court of Criminal Appeal

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Cite as: [2008] IECCA 78

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Neutral Citation: [2008] IECCA 78

COURT OF CRIMINAL APPEAL 136CJA/07

Finnegan J.

Herbert J.

de Valera J.

IN THE MATTER OF SECTION 2 CRIMINAL JUSTICE ACT 1993

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

CHRISTOPHER DORAN

RESPONDENT

Judgment of the Court (ex tempore) delivered on the 26th day of May 2008

This is an application by the Director of Public Prosecutions pursuant to section 2 of the Criminal Justice 1993. The respondent Christopher Doran was sentenced on the 16th May 2007 on foot of offences set out in four separate Bills. The offences on the first Bill 58 of 2006 are two counts of burglary contrary to section 12 subsection l(b) and subsection 3 of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the second Bill 307 of 2006 again two counts of burglary. On the third Bill a single count of burglary, that is on Bill 1308 of 2006. On the fourth Bill, 268 of 2007, one count of burglary.

Perhaps I should first say that the four offences which are contained in the last three mentioned Bills were committed while on bail. The sentences imposed by the learned trial judge in respect of Bill 58 of 2006 were terms of two years imprisonment on each count to be concurrent. In relation to Bill 307 of 2006 three years imprisonment on each count concurrent among themselves but consecutive to the terms imposed on Bill 58 of 2006 and with the last year on each count suspended for

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nine years on terms. On Bill 1308 of 2006 he was sentenced to a term of four years imprisonment which term was to be consecutive to those imposed on Bill 307 of 2006 and the entire of the term was suspended for nine years unconditionally. On Bill 268 of 2007 a sentence of four years imprisonment was imposed consecutive to the term imposed on Bill 138 of 2006 but again the entire of the term was suspended unconditionally for nine years. The effective sentence therefore in relation to all four Bills were terms of two years and three years with one year suspended.

Against those sentences the Director of Public Prosecutions applies to court on the grounds that the sentences which were imposed were unduly lenient. There are other legal matters that arise on this application. The first matter to be borne in mind is the Criminal Justice Act 1984 which requires sentences in respect of offences committed while on bail to be consecutive to the longer of any other terms of imprisonment being served.and the learned trial judge was advised of this and clearly had it in mind. There was, however, no specific reference to the Bail Act 1997 section 10 which provides that where an offence is committed while on bail that is an aggravating circumstance. In the ordinary course of events where, as here, the offences are very similar in their nature one would expect an increasing scale of imprisonment on each of the four Bills which I have mentioned. That in fact is not what occurred and it does seem to this court that the structure of the sentence was inappropriate. The Bail Act 1997 section 10 was not in fact reflected in the manner in which the sentence was structured. However the principle which should guide this court is that it should look at the overall time which the respondent will spend in prison having regard to the offences which are involved.

There is remarkable consistency in the circumstances of the offences. The respondent's modus operandi was to source out a house occupied by a very elderly

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person. Under the guise of being a workman or a window cleaner he would call to the house, ask for water and when the householder went to assist him would make his way into the house and see what could be stolen. In the first Bill, the victim in the first count was an 85 year old woman and using the modus operandi which I have described, he entered a premises and stole €150.00. In the second count in that Bill the householder was an 80 year old woman. He entered the premises and stole €800.00 and $1,000. €200 was recovered. On the second Bill the two offences again involved much the same modus operandi. In the first count the house was occupied by a 95 year old woman and in the second case an elderly man whose age was not specified. In the first count nothing was taken: he was unsuccessful. In the second count he stole €500.00. On the third Bill the victim was an 84 year old woman and in that count he stole $400.00. On the fourth Bill the occupier of the house was a 92 year old woman with her elderly companion. He stole €1,500 of which €450 was recovered.

There were prompt admissions and a plea of guilty in each case and that was quite properly taken into account by the learned trial judge. Other circumstances were also taken into account and considered by the learned trial judge and in particular the circumstance that the respondent was 57 years of age. He is a married man with a family of four. He had managed to amass seventy seven previous convictions between January 1964 and June 2005. He had a large number of convictions for burglary, breaking and entering and larceny. The longest term of imprisonment which he had served was three years in 1986. One thing that can be said with certainty is that the respondent has not learnt from his time in prison.

In the circumstances there is very little reason to believe that the terms of imprisonment suspended in his case would lead to any amendment in the way he goes

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about his life. It is suggested to us that having discovered and attended Alcoholics Anonymous before being sent to prison for these offences that this is chink in an otherwise very grey and cloudy sky. It might well be appropriate that some measure of hope should be left to him and that some suspension of sentences is appropriate.

In this case the court is satisfied that there was an error in principle in the way in which the sentences were constructed in that they failed to have regard to the requirements of the Bail Act 1997 section 10 which adds as an aggravating factor to the offence the circumstance that it was committed while on bail and secondly there was an error that sentences imposed for offences committed while on bail are required to be consecutive and to impose a sentence and suspend the entirety thereof unconditionally does not seem to this court to meet the requirements of section 11 of the Criminal Justice Act 1984 in this case.

Having regard to the nature of the offences, the vulnerable nature of those upon whom he has made it his career it would seem to prey, this court is satisfied that the sentences imposed are unduly lenient having regard to the totality principle. They do not reflect the seriousness of the offences. This is the case having regard to everything which was said in the Circuit Court and which Ms Baxter has very eloquently said in this court on behalf of Mr Doran. In any event the court thinks the appropriate sentences and the way in which they should be structured in the present case are as follows:

On Bill 58 of 2006 on each of counts 1 and 2 the court will impose sentences

of two years imprisonment concurrent.

On Bill 307 of 2006 on counts 1 and 2 the court will impose sentences of three years, those sentences to be concurrent between themselves but with the last

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two years of each sentence to be suspended and consecutive to the sentences imposed on Bill 58 of 2006.

On Bill 138 of 2006 on the single count the court imposes a sentence of four years, that sentence to be consecutive to the sentence on Bill 307 of 2006 with the last three years thereof to be suspended.

On Bill 268 of 2007 on the single count the court imposes a sentence of five years imprisonment that sentence to be consecutive to the sentence on Bill 138 of 2006 the last three years thereof to be suspended.

DPP v Doran