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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. Nugent [2008] IECCA 98 (4 July 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_98.html
Cite as: [2008] IECCA 98
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Neutral Citation: [2008] IECCA 98
COURT OF CRIMINAL APPEAL
In the matter of Section 2 of the Criminal Justice Act 1993
Fennelly J.
Budd J.
Birmingham J.
240CJA/06
The People at the Suit of the Director of Public Prosecutions
V
Gerard Nugent
Respondent
Judgment of the Court (ex tempore) delivered on the 4th day of July 2008 by Fennelly J.
This is an application for review brought by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Procedure Act 1993. It is well established and accepted that in order for the Director to succeed in such an application he must show that an error of principle has been made by the sentencing judge. In this case the sentences because there are three, were imposed in respect of three bills, in the following respects.
The sentences were imposed by the Circuit Court on the 5th December, 2006. They all relate to offences committed over a period from 2004 to 2006, all serious offences of robbery, burglary or theft respectively, in each case, and all involving a degree of violence. The sentences are respectively on Bill 526/06 in respect of the offence of robbery committed on 17th November, 2004 a sentence of two years imprisonment; and on the Bill 525/06 in respect of the offence of burglary committed on 5th February. 2005 four years imprisonment concurrent with that sentence; and then on Bill 837/06 in respect of the offence of theft on 10th March, 2006 two years imprisonment consecutive to the four years imprisonment imposed on Bill 525 giving a total therefore of six years. The focus of the submission is made by Mr. O'Briain on behalf of the Director is not on the length of the sentences, amounting in total to six years, but on the fact that the learned sentencing judge, Judge McDonagh, decided to suspend these sentences in their entirety or at least in their entirety so far as they still
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had time to run from the date he imposed the sentence, on condition that the respondent entered into a bond conditioned on him submitting himself to a programme of treatment and rehabilitation in respect of his drugs addiction at Coolmine. The Director submits that the judge erred in principle in deciding to suspend the balance of the sentence in its entirety.
Each of the offences was as already stated effectively very strongly associated with the drug addiction of the respondent, Mr. Nugent, and that of course was the focus of the decision to suspend the sentence so that he would be rehabilitated. Each of the offences which can very briefly be described is also a serious one involving violence Two of the victims were ladies in their eighties. The third victim was a student who was robbed effectively in his own dwelling his home and his savings taken.
The first one is the 17th November, 2004 involved an 82 year old lady, Ms. Mulholland. She had just left the post office in Rathmines and he followed her out and down a nearby road and tripped her from behind grabbed her handbag and stole it. The second offence is the burglary of the flat of a student, Mr. Clogher, where he rifled the flat and found the entire savings of Mr. Clogher, who was saving up for his education and stole €1,600 although a substantial sum was recovered subsequently. He was accosted by Mr. Nugent, the victim and by a mixture of violence and ruses and lies he managed to make his escape. In the course of that he produced a scissors, which was on his person, and held up to the throat of Mr. Clogher. Mr. Clogher was not actually physically injured or wounded by the scissors but it obviously was a very frightening experience.
The third one was the robbery of a purse from an 80 year old lady, a lady indeed it has been established at the hearing now over 80 years in a supermarket when he stole her wallet out of her bag, and that indeed was the occasion in which he was finally accosted, because she resisted, in his attempt to escape. He ran into a door and was surrounded and apprehended. Each of these offences is attended by an amount of violence and in particular violence against two very elderly ladies. It cannot be doubted that the offences are very serious. The court is not actually particularly concerned with the length of the sentences, the two years and four years consecutively
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making it six years because the Director does not challenge it. It is the question of the suspension of the sentence.
The court of course accepts that in an appropriate case it is a very proper part of the sentencing function of a judge to consider rehabilitation. That is indeed very well established in the authorities that have been opened to the court. The court is fully conscious of the appropriate role in the sentencing by courts of endeavouring to secure rehabilitation but the question is in this case were the circumstances of Mr. Nugent such as to warrant that exceptional course. He was in detention one way or the other from April of 2006 part of that period serving another sentence of three months but at any rate he was in custody on remand for a period from August 2006.
The relevance of all of that is that during part of that period he had himself moved to the Midlands Prison and he there submitted to urine analysis tests with a view to presenting himself as a prisoner for rehabilitation pending the sentencing hearing that was due to take place later in that year. There are three separate letters from Coolmine indicating his acceptability as a candidate but they do not go any further than that. During that period of the urine analysis there were nonetheless three separate negative findings two in respect of cannabis and one in respect of opiates, effectively heroin. Therefore the record is not entirely clear in any event. The fact is that the respondent had a very long series of previous offences in his record.
He had a very long regular and regular and persistent record of offending and in those circumstances the court is satisfied that only the most exceptional circumstances would have warranted the suspension of the entire balance of the sentence which the learned judge in fact did. On the evidence apart from the violence attended by the particular offence, no real evidence of rehabilitation in a non prison context has happened as it has in other cases. Even in the present context there was not the sort of consistent and clear evidence of amendment that would have been required in order to make it correct for the judge to suspend the entire balance of the sentences. In these circumstances the court is satisfied that the learned Circuit Judge erred in principle but accedes to the application of the Director and it decides at this stage that it will set aside the sentence imposed by him insofar as the Director asks that it interfere in respect of the suspension of the sentence.
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SECOND PART-AFTER ADJOURNMENT
In this matter the court has already made it clear that it accepts the submission of the Director in his s. 2 application that the sentence imposed in the Circuit Court was unduly lenient.
In this situation however the court must now itself perform the sentencing function and must achieve a result which firstly accedes to the Director's basic contention but secondly takes account of the submissions made on behalf of the respondent, in particular by Mr. Rea today, that there should be some account taken of the original intentions of the sentencing judge and some provision made for the possibility of rehabilitation in the future.
Thirdly, of course, the practicalities have to be addressed insofar as we must impose a period of time to run from today. In imposing a sentence now we will fix a time running from today but it will take account that that time is already taking account of the period served on remand so there will be no further provision for it, but if the sentence we are about to announce takes provision of the time on remand and also so far as that is relevant the period spent in Coolmine between December 2006 and February 2007, but this gives rise to the need to make some adjustment in the sentences already imposed.
The object therefore is to have in principle a six year period but to take account of the matters already indicated. What the court therefore proposes to do is to impose the following sentences to run as from today. Firstly, the two year period of imprisonment in respect of Bill 526/06 will remain but running from today, secondly the sentence of four years imposed on Bill 525/06 will be become three years and the sentence by contrast and to compensate for that the sentence imposed on Bill 837/06 will become three years. But the last 18 months of that sentence which in effect means that the total period will be suspended on condition that a bond be entered into in due course before the Governor of the prison, if and when the respondent is apprehended, on his own bond of €100 to be of good behaviour and to keep the peace and, on his release from prison, to undergo the supervision of the probation service and to comply with all the requirements of that service taking account in particular of his history of addiction to drugs and to comply with any such directions as the
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probation service may consider proper in relation to the submission to urine analysis or other appropriate testing procedures. That is the decision of the court.