Director of Public Prosecutions v Stokes
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 24 July 2023 |
| Neutral Citation | [2023] IECA 213 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 60/2022 |
[2023] IECA 213
The President.
McCarthy J.
Kennedy J.
Record Number: 60/2022
THE COURT OF APPEAL
Sentencing – Criminal damage – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Stokes, pleaded guilty to four counts of criminal damage contrary to s. 2(1) of the Criminal Damage Act 1991, on four separate bill numbers. Bill numbers 59/2019 and 61/2019 and bill numbers 03/2021 and 60/2019 were grouped into two blocks of offending for the purposes of sentencing. On the 9th March 2022, the judge nominated a headline sentence of five years’ imprisonment in each case and considering the mitigating factors, reduced that sentence to a period of three years in respect of each of the offences. The sentences for offences within the first block of offending were imposed concurrent inter se as were the sentences for offences within the second block of offending however, the sentences imposed in respect of each block of offending were imposed consecutively, leading to a period of six years’ imprisonment. The final two and a half years of that six-year sentence were suspended for a period of three years to incentivise the appellant’s rehabilitation and to ensure that he properly engaged with mental health services. The appellant relied on the following grounds of appeal in his appeal to the Court of Appeal against sentence: (1) the trial judge erred in law and/or in principle in imposing a sentence which was excessive in the particular circumstances of the case; (2) the judge erred in law and/or in principle in imposing a sentence that was disproportionate in all the circumstances and failed to have sufficient and/or due regard to the principles of proportionality and totality; (3) the judge erred in fact and/or in law in failing to give sufficient weight to the mitigating factors in the case; (4 the judge erred in law and/or principle in placing excessive reliance on the principle of deterrence to the exclusion of the other appropriate principles of sentencing; (5) the judge erred in law and/or principle in placing excessive reliance on the victim impact evidence; (6) the judge erred in law and/or principle in failing to have due regard for the rehabilitation of the appellant; (7) the judge erred in law and/or principle in that the sentence as structured to include the period of suspension was excessive, disproportionate, and unwarranted in all the circumstances; (8) the judge erred in giving excessive weight to the aggravating features; and (9) in all the circumstances, the appellant’s sentence was excessive.
Held by the Court that it found no error regarding identifying individual headline sentences and imposing a headline sentence, identifying and placing weight on the aggravating factors, and discounting for mitigation. The Court held that the judge did not consider the issue of totality; whilst totality was mentioned by the judge, it was said in the context of whether consecutive sentences were or were not appropriate. Accordingly, the Court quashed the sentences imposed and proceeded to re-sentence de novo.
The Court imposed a five year headline sentence on all offences. Looking to mitigation, the Court reduced each sentence to that of 3 years’ imprisonment; the sentences on bill numbers 59/2019 and 61/19 were concurrent inter se and consecutive to the two other bill numbers. In considering the totality principle, the Court looked to the indicative sentence of 6 years imprisonment and in order to ensure proportionality, addressed the sentences by imposing 2 years on each bill relating to Ms O’Keeffe, imposed on a consecutive basis to those on the bills concerning the Hennesseys; thus, leading to a sentence of 5 years’ imprisonment. In order to incentivise rehabilitation, the Court suspended the final 2 years of the sentence.
Appeal allowed.
JUDGMENT of the Court delivered ( ex tempore) on the 24 th day of July 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against severity of sentence. On the 9 th March 2022, the appellant was sentenced in respect of four separate bill numbers concerning four incidents of criminal damage and three injured parties.
. The appellant pleaded guilty to four counts of criminal damage contrary to s. 2(1) of the Criminal Damage Act, 1991, on four separate bill numbers: bill number 59/2019, bill number 61/2019, bill number 03/2021 and bill number 60/2019.
. Bill numbers 59/2019 and 61/2019 and bill numbers 03/2021 and 60/2019 were grouped into two blocks of offending for the purposes of sentencing.
. On the 18 th August 2018, An Garda Síochána were made aware that four tyres had been punctured together with damage to the wingmirrors of a vehicle, belonging to a Ms O'Keeffe at her place of residence in Kildare Town. This was a gated area. The appellant was arrested following identification on CCTV footage and made full admissions. The damage caused to the two wing mirrors was approximately €250 in value. It appears that the genesis of the offending behaviour was that the injured party was an acquaintance of the appellant, and he became infatuated with her, holding certain unfounded beliefs that he had been in a romantic relationship with her and that she was involved with another of the injured parties.
. On the 21 st November 2018, Ms O'Keeffe reported to An Garda Síochána that the glass from her wing mirrors was missing. The appellant was identified from CCTV. Again, he made full admissions. The value of the damage done on this occasion was €105.
. The injured party made a victim impact statement in which she states that as a result of the offending, she had to leave her family home after 47 years, that she has trouble sleeping and finds it difficult to go into work most days.
. On the 26 th April 2018, Gardaí received a report of criminal damage to two vehicles belonging to a Mr Hennessey and his wife at their home just outside of Naas Town. Noises were heard by the injured party at approximately 4:30am and at 6:00am a neighbour called to the house to point out the damage done to the cars. The windows of two cars had been smashed in with a blunt instrument. There was no CCTV at the address at this time, however, Gardaí obtained a blood sample and sent it for analysis by Forensic Science Ireland. It was ultimately discovered that the blood sample was a match to the appellant herein. An amount of €244.03 was paid through their insurance policy for the glass damage.
. Following the incident in April 2018, the Hennessey's installed CCTV cameras at his home and around 5:50am on the 18 th November 2018, the injured party and his wife again awoke to noises outside their home. An individual could be seen damaging the windows of the cars using an implement. The damage in respect of one vehicle, a Volkswagen, totalled €4341.53 and the damage in respect of the other vehicle, a Skoda, totalled €809. The CCTV footage was retrieved and the appellant was identified. He again made admissions.
. Victim impact statements were prepared where they detailed that they lived in their home without incident for over 30 years before these incidents and that their children who were awoken by the second incident asked: “ Has the bad man come back again?”
. The appellant is a man with 11 previous convictions. Seven of the appellant's previous convictions are for road traffic matters. He has one previous conviction for a s. 2 assault and two previous convictions for s. 2 criminal damage.
. The sentencing judge listed the aggravating factors common to all four incidents as the level of premeditation and planning involved, including the targeting of people at their home, the appellant's determination to enter into the locus in question, no restitution, the impact of the offences and the appellant's previous convictions, in particular, for criminal damage. She further had regard to the entry onto private property in respect of the first set of offences and the use of an implement in respect of the second set of offences.
. By way of mitigation, the judge considered inter alia that the offending was as a result of a fixation, that full admissions were made, and that when charged, the appellant exhibited genuine remorse, and when confronted with the DNA evidence, he accepted responsibility and he has not come to Garda attention since 2019.
. The judge accepted that the appellant's early plea saved considerable time and expense during covid and that a plea during covid entitled the appellant to extra mitigation. She considered that the psychiatric report of Dr Moran put before the court provided some insight into the offending and noted that incarceration would be difficult for the appellant on account of his issues and on account of the covid restrictions in place in prisons at that time.
. The judge nominated a headline sentence of five years' imprisonment in each case and considering the mitigating factors, reduced that sentence to a period of three years in respect of each of the offences. The sentences for offences within the first block of offending were imposed concurrent inter se as were the sentences for offences within the second block of offending however, the sentences imposed in respect of each block of offending were imposed consecutively, leading to a period of six years' imprisonment. The final two and a half years of that six-year sentence were suspended for a period of three years to incentivise the appellant's rehabilitation and to ensure that he properly engages with mental health services.
. The appellant relies on the following nine grounds of appeal in his...
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