Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Cunningham [2015] IECCA 2 (27 March 2015)
URL: http://www.bailii.org/ie/cases/IECCA/2015/C2.html
Cite as: [2015] IECCA 2
[New search] [Help]
Judgment
___________________________________________________________________________ | ||||||||||||||||||||||||||||||
COURT OF CRIMINAL APPEAL [Record No: 265/2012] Clarke J. Moriarty J. Barr J.
The People (at the suit of the Director of Public Prosecutions) Prosecutor/Respondent and
Francis Cunningham Accused/Appellant Judgment of the Court delivered by Mr. Justice Clarke on the 27th March, 2015. 1. Introduction 1.2 In substance, potentially three further issues were identified. They are:-
(ii) Mr. Cunningham's appeal against a separate conviction in relation to the unlawful use of a vehicle; and (iii) Mr. Cunningham's appeal against a suspension from driving imposed as a result of the conviction referred to at (ii). Obviously, this aspect of the appeal only arises in the event that his appeal against the relevant conviction is dismissed. 2. The Sentence for Theft 2.2 It must also be recalled that the circumstances in which Mr. Cunningham came to be convicted of theft arose from an aspect of the case made at trial on behalf of Mr. Cunningham which, as this Court pointed out in the previous judgment, "centred on the suggestion that a Mr. O'Toole and a Mr. Postol were complicit in the events on the occasion in question". As the Court pointed out there were at least three possibilities.
Second, the jury might have concluded that Mr. Cunningham's explanation for his presence on the occasion in question as being entirely innocent was either accepted or created a sufficient doubt to prevent it being established to the criminal standard that Mr. Cunningham was involved with whatever wrongdoing occurred. In such an eventuality Mr. Cunningham would have to have been entitled to be acquitted in respect of all the offences concerning the incidents relating to the cigarettes. It might, of course, in respect of some or all of those matters, have been the case that some but not a sufficient number of the jury were convinced beyond reasonable doubt thus leading to a disagreement. However, there remained a third possibility in which the jury were persuaded beyond reasonable doubt that Mr. Cunningham was involved in the unlawful enterprise but also were persuaded that Mr. O'Toole and Mr. Postol were not innocent victims but were complicit. In those circumstances it is possible to see how a jury might have come to the view that Mr. Cunningham was involved in stealing or theft but, because of the complicity of Mr. O'Toole and Mr. Postol, had not used violence or a threat of violence and, thus, could not be convicted of robbery." (See paras. 5.9 - 5.11) 2.3 As the Court then observed, the clear inference to be drawn from the finding of guilty by the jury in respect of an offence of theft and the other verdicts returned was that the jury was satisfied beyond reasonable doubt as to the third possibility noted above. The Court did not understand counsel for either the D.P.P. or for Mr. Cunningham to disagree with that analysis. In those circumstances, the offence for which Mr. Cunningham was to be sentenced was one in which he was found to be actively involved in a criminal enterprise but where, owing to the fact that those, in whose possession the relevant cigarettes were at the time in question, were themselves potentially complicit in the illegal enterprise (or, perhaps, more rigorously, where the jury was not satisfied beyond reasonable doubt that they were not so complicit), a finding of guilt in respect of robbery was not made. 2.4 There is no doubt but that, at least in general terms, an offence of robbery, involving as it does violence or the threat of violence, is potentially more serious than an offence of theft. However, it does not, of course, necessarily follow that all offences of robbery are more serious than all offences of theft. It is possible to envisage an offence of robbery at the lower end of the scale where there is, perhaps, some threat of violence but where that threat is minimal. Furthermore, the individual role of an accused in offences of, respectively, robbery and theft, may vary considerably. One person may be a relatively minor player in a robbery. A second person may be a significant figure in a theft. For all of those reasons, the Court is not satisfied that the fact that theft can be described as a lesser offence than robbery necessarily, and without more, carries with it a requirement that a conviction for theft might not, quite properly, even when arising out of the same broad circumstances, give rise to a more severe sentence than one for robbery, even where all else is equal. However, that being said, the Court is also satisfied that the fact that the jury was not persuaded beyond reasonable doubt that Mr. Cunningham used violence or the threat of violence is a factor which was required to be properly reflected in any sentence imposed. 2.5 There were differentiating factors between Mr. O'Driscoll's case and that of Mr. Cunningham. Mr. O'Driscoll pleaded guilty. It was said on behalf of Mr. Cunningham that he could not have pleaded guilty to the offence of which he was ultimately found guilty, for that offence was not on the indictment. That much is true, and it is also true that Mr. Cunningham was acquitted of the offence of robbery, which did appear on the indictment. However, there was no suggestion that Mr. Cunningham had offered a plea to theft. While far from decisive, it is also relevant to note that the original charges proffered against Mr. Cunningham when the case was before the District Court included a charge of theft, although, in fairness, as pointed out in the previous judgment, that charge was withdrawn by the D.P.P. and replaced with the robbery charge which ultimately went to the jury. In all of those circumstances, there is no doubt but that the sentencing judge was entitled to have regard to the way in which Mr. O'Driscoll met the case against him as differentiating him, in a material respect, from Mr. Cunningham. It is not, of course, the case that Mr. Cunningham is to be punished for failing to plead guilty. Rather, it is that the Court was entitled to regard the way in which the two parties had respectively met the cases against them as being a factor which would justify a difference of approach in sentencing. 2.6 In addition, the Court was entitled to have regard to the respective roles played by Mr. O'Driscoll and Mr. Cunningham in the enterprise as a whole. On the basis of the finding of guilt in respect of theft, the jury must have been satisfied that Mr. Cunningham was involved in a pre-planned criminal enterprise of some significance. 2.7. In that context, the sentencing judge described the criminal enterprise in the following terms:
2.12. It was in those circumstances that the Court came to the view that the overall sentence imposed was too severe and that a sentence of five years imprisonment, with two years suspended, would have been more appropriate. As already pointed out, it does not necessarily follow that a conviction for robbery necessarily amounts to a conviction for a more serious offence, on the facts of any particular case or cases, compared with an offence of theft. Nonetheless, given that both Mr. Cunningham and Mr. O’Driscoll were involved in the same enterprise, and given that the sentencing judge did not seek to place any particular weight on the different roles which they might have played in that enterprise, the Court was satisfied that there was an unacceptable disparity between the sentences imposed in both cases. 2.13 The sentencing judge was, of course, entitled to have regard to the fact that Mr. O’Driscoll had pleaded guilty. It is difficult, however, to justify the level of disparity between the two sentences on that ground alone. While it does not, of course, necessarily follow that an unjustified disparity between the sentences imposed on two persons, sentenced in respect of closely connected offences, must always give rise to a successful appeal (just because one person may obtain a sentence which may be very lenient does not necessarily give a right to another person to obtain an equally lenient sentence), nonetheless, any unexplained or unjustified disparity is a matter which this Court must consider. (See The People (Attorney General) v. Poyning [1972] I.R. 402). 2.14 While there are factors which would undoubtedly have justified the sentencing judge in imposing a more severe sentence on Mr. Cunningham than that which pertained in the case of Mr. O’Driscoll, this Court was not satisfied that the disparity between the two sentences, on the facts of this case, could be justified. Furthermore, the Court was satisfied that the degree of disparity was such as would warrant intervention unless this Court felt that, by so intervening, it would be imposing a sentence on Mr. Cunningham which was unduly lenient. The Court was not, however, satisfied that a sentence of five years with two years suspended would have been unduly lenient in all of the circumstances, and the Court was persuaded, therefore, that it would be appropriate to allow the appeal on sentence on the theft offence and to substitute such a sentence. 2.15 Finally, the Court should express its view that the proper approach in a case such as this, where the sole or main ground of appeal is based on an alleged disparity of sentencing, is for the Court to first consider whether there is any such disparity or whether, alternatively, any differentiation between the respective sentences can be justified by reference to legitimate sentencing considerations. If it should appear to the Court that there is an unjustified disparity, then the Court should attempt to adjust the sentence imposed on the appellant in a way which either removes any disparity or reduces the difference in sentences to a level which can be justified on the basis of appropriate sentencing principles. However, there is a limit to the extent to which the Court can make such an adjustment. 2.16 It is true that there is a range of sentences which may be open to a sentencing judge to impose in the circumstances of a particular case. The well established jurisprudence of this Court, and of other appellate courts, makes clear that the Court will only interfere where there is a sufficient error in sentencing to render the sentence either so severe or so lenient that the Court must intervene to correct an error in principle. Between those two points, a sentencing judge must be accorded a significant margin of appreciation. However, an appellate court, in adjusting a sentence to attempt to remove what it has found to be an unjustified disparity, cannot alter the sentence imposed on the appellant to such an extent that the new sentence would itself meet the criteria for undue leniency. To take such a course of action would be to displace one potentially unjustified approach with another equally unjustified sentence. The Court has sought to apply those principles in this case. 2.17 It is next necessary to turn to the question of the conviction of Mr. Cunningham in respect of the road traffic offence. 3. The Road Traffic Conviction 3.2 In substance, the D.P.P. argues that the jury was entitled to consider that Mr. Cunningham was part of a common design which involved the unauthorised use of a vehicle. There was no evidence at the trial which suggested that Mr. Cunningham was ever physically on, or in, the vehicle in question. Indeed, the trial judge, in charging the jury, made that clear. However, it is argued on behalf of the D.P.P. that there was clear evidence, first, that the vehicle in question was being used as part of the criminal enterprise to which reference has been made, and further, that it had been taken and was being so used without the consent of its owner. In those circumstances, it is said that the jury was entitled to consider that Mr. Cunningham was part of a joint enterprise involving that use. 3.3 In the written submissions filed on behalf of Mr. Cunningham, the trial judge’s charge is criticised on the basis of a suggestion that the trial judge inappropriately focused on the fact that the vehicle in question was being used for the purposes of transporting material to which Mr. Cunningham was a party. In this Court’s view, there was nothing inappropriate about the trial judge’s charge in that regard. A vehicle can be used for many purposes. It may be used simply as means of transporting its driver from one place to another. However, it may also be used for the purposes of transporting other persons or goods. Doubtless, indeed, although not particularly relevant on the facts of this case, a vehicle may be used in ways which do not involve transport at all. But what is clear is that the transport of goods is one possible use of a vehicle. If a vehicle is being used without the consent of its owner for the purposes of transporting goods, then clearly an offence under s.112 of the 1961 Act can arise. The fact that a person may be part of a joint enterprise involving the transporting of the relevant goods permits, therefore, such a person to be potentially found guilty of the offence of unauthorised use by means of being connected, by virtue of the joint enterprise concerned, with the transport of the goods in question, and thus with the unauthorised use of the relevant vehicle. 3.4 On that basis, the Court is not satisfied that there was any error in the trial judge’s charge in that regard. 3.5 A second point is made which suggests that the trial judge, as it were, entered into the arena by informing the jury that “there is no doubt that Mr. O’Driscoll was unlawfully using the vehicle”. However, that one phrase needs to be seen in the context of the remainder of the charge which the trial judge gave on this question. 3.6 After the matter had been the subject of legal debate, following a break in the judge’s charge, the trial judge said the following:
3.8 For those reasons, the Court is not satisfied either that there was no evidence on which the jury could properly convict, or that the jury was not properly directed. The appeal against conviction for the offence of unauthorised use of a mechanically propelled vehicle is, therefore, rejected. 3.9 It follows that it is necessary to turn to the disqualification imposed on Mr. Cunningham. 4. The Disqualification
4.3 The Supreme Court, in Conroy, held that such disqualifications are not primarily to be seen as punishments, and should not be so regarded by trial judges. Indeed, as the Court of Appeal pointed out in Sweeney, it was on that very basis that the constitutionality of s.49 of the1961 Act was upheld in Conroy. 4.4 It follows that a disqualification under s.27 of the 1961 Act cannot, likewise, be regarded as primarily a punishment, but rather requires a judicial determination of unfitness to drive which would warrant the disqualification in question. 4.5 There were, of course, other provisions of s.112 of the 1961 Act which could have been invoked by the trial judge to impose an appropriate punishment on Mr. Cunningham in respect of the offence under that section of which he had been convicted. However, it does not seem to this Court that, in circumstances where a court, in imposing a disqualification, is required to focus primarily on fitness to drive, where the offence on the facts did not itself involve driving at all and where there did not appear to have been a separate inquiry by the sentencing judge relating to any specific issue arising from the facts of the case which might touch on whether Mr. Cunningham was a fit person to hold a driving licence, the disqualification in question can stand. To that extent the Court will, therefore, allow Mr. Cunningham's appeal in respect of that disqualification. 5. Conclusions 5.2 For the reasons addressed in this judgment, the Court does not agree that there was no evidence on which Mr. Cunningham could properly have been convicted of the offence of unauthorised use of a mechanically propelled vehicle. Likewise, the Court is not satisfied that the charge to the jury by the trial judge in relation to that offence was deficient. On that basis, the Court dismisses Mr. Cunningham's appeal against his conviction under s.112 of the 1961 Act. 5.3 Finally, again for the reasons set out earlier in this judgment, the Court is not persuaded that, in the circumstances of this case, it was appropriate to impose a disqualification from driving. The Court will, therefore, allow Mr. Cunningham's appeal insofar as it is directed towards that disqualification order. | ||||||||||||||||||||||||||||||