DPP v Barnaville
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Mr. Justice Edwards |
| Judgment Date | 01 November 2018 |
| Neutral Citation | [2018] IECA 351 |
| Docket Number | Record No: 116/2017 |
| Date | 01 November 2018 |
[2018] IECA 351
THE COURT OF APPEAL
Edwards J.
Birmingham P.
Edwards J.
McCarthy J.
Record No: 116/2017
Sentencing – Robbery – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Barnaville, on the 28th of April 2017, appeared before Nenagh Circuit Criminal Court and pleaded guilty to two counts (counts 2 and 3) of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001. A nolle-prosequi was entered in respect of count 1 on the indictment, namely a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. On the same date, a "full-facts" sentencing hearing took place. The appellant was subsequently sentenced to five years' imprisonment in respect of both counts of robbery, both sentences to run consecutively, with the final four years of the cumulative sentence of ten years to be suspended on the following conditions: that the appellant enters into a bond of €100; that he keep the peace and be of good behaviour; and that he engage with the Probation Services for a period of two years and comply with any relevant request of the Probation Services. The appellant appealed to the Court of Appeal against the severity of the sentence on the grounds that the sentencing judge: (i) erred in assessing the seriousness of the offence as within the top range in determination of sentence; (ii) erred in giving insufficient allowance in regard to the mitigating factors of the appellant and early plea of guilt; and (iii) failed to have regard or any adequate regard to the appellant's real and substantial efforts at rehabilitation since the date of his conviction
Held by the Court that gravity was correctly assessed in this case and that mitigation was adequately reflected.
The Court held that the appeal would be dismissed.
Appeal dismissed.
On the 28th of April 2017, the appellant appeared before Nenagh Circuit Criminal Court and pleaded guilty to two counts (counts nos. 2 & 3) of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001. A nolle-prosequi was entered in respect of count no. 1 on the indictment, namely a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997.
On the same date, a 'full-facts' sentencing hearing took place. The appellant was subsequently sentenced to five years" imprisonment in respect of both counts of robbery, both sentences to run consecutively, with the final four years of this cumulative sentence of ten years to be suspended on the following conditions: that the appellant enters into a bond of €100; that he keep the peace and be of good behaviour, and; that he engage with the Probation Services for a period of two years and comply with any relevant request of the Probation Services.
The appellant now appeals against the severity of this sentence.
Garda Rob Sheehy gave evidence that, on the 24th of January 2016, at approximately 10.30pm, a Mr Kevin Barry was standing outside a pub on Kickham Street, Thurles. Mr. Barry had been socialising in this pub and was outside smoking a cigarette. In an unprovoked attack, as captured on the CCTV footage outside of the pub, Mr Barry received a punch to the side of the face from a male who came up from behind him. It was accepted in evidence that this punch was perpetrated by a third party who, at the time of sentencing, was before the District Court, having been charged with assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. While Mr. Barry was lying on the ground in a state of semi-consciousness, the appellant was seen on CCTV walking over to where Mr. Barry was lying, standing over him, looking up at the CCTV camera directly and pulling his hood over his head. The evidence was that the appellant then proceeded to get on his knees and take a mobile phone from Mr Barry's pocket. Subsequently, the appellant stood up and began to kick Mr. Barry into the chest and stomach seven to eight times while lying on the ground. Garda Sheehy testified that the 'CCTV shows that Kevin Barry's body can be seen to be physically lifting off the ground with each kick.' A quantity of change, which had fallen from Mr Barry's pocket, was then picked up by the appellant. The appellant went through all of Mr. Barry's pockets and took the money that he had in his possession, which amounted to approximately €35. This incident was the subject matter of count no. 2.
In respect of count no. 3, in the early hours of the morning of the 25th of January 2016, sometime after 3am, the appellant was involved in an altercation with a male outside Supermac's Restaurant in Thurles. The evidence was that a Mr Aldis Groakes, who could be seen on CCTV subsequently recovered by Gardaí, was talking to a female who was in the appellant's company. The appellant confronted Mr. Groakes, then began to grapple with him, then tripped him to the ground, and then proceeded to kick him in the stomach a number of times. Subsequently, and with his victim seemingly unconscious on the ground, the appellant leant over Mr Groakes and took certain of his belongings from his pocket, before again kicking the victim several further times, into the face, head and body, while he lay unconscious.
The evidence was then that, soon after the second incident, the appellant was arrested on Liberty Square, Thurles, on foot of certain public order offences. Whilst in custody, he was searched and was found to be in possession of a number of items, including a social services card in the name of Mr. Groakes, a black Nokia mobile phone, a silver bracelet owned by Mr. Groakes, and approximately €65 in cash. The appellant, who was detained pursuant to s. 4 of the Criminal Justice Act 1984 for the proper investigation of the offences for which he had been arrested, was later released and was then re-arrested on suspicion of having committed the present offences and detained for the proper investigation of those offences.
The appellant was interviewed three times whilst in custody by investigating Gardaí from Thurles Garda Station. CCTV obtained by Gardaí was shown to the appellant, and, upon viewing this footage, he made full admissions regarding the offences, describing in detail what he did at both scenes. Segments of these admissions were adduced in evidence. In respect of the robbery of Mr. Barry, the appellant, on being shown the footage by Garda Sheehy said: 'It looks like I'm looking up at the camera, pulling up my hood. It looks bad, Rob, I know.' He also admitted to kicking Mr. Barry on the ground when the footage was shown to him. In respect of the robbery of Mr. Groakes, the appellant admitted in interview that 'I beat the guy up, took his belongings and that's when you arrested me 20 minutes later.'
The appellant was ultimately charged, arraigned, pleaded guilty and was sentenced in the terms outlined at the outset of this judgment. He now appeals against the severity of his sentences.
Both victims opted not to furnish the sentencing court with victim impact statements. However, certain evidence was adduced at the sentencing hearing which gives some indication as to the suffering inflicted upon the victims by the offending conduct. Garda Sheehy testified that both victims suffered 'severe bruising and lacerations' as a result of the incident. Photographs of both victims in the aftermath of the incidents were also handed into the sentencing court. The statement of Mr. Groakes given to Gardaí stated that he had 'severe pain on my face after it. I definitely don't remember the point I was hit or punched.' Mr. Barry's statement stated that 'I can't remember what happened to me, but what I can say is that I have a mark on my forehead, the right hand side. I have a cut on the top of my head. My jaw is sore to the left hand side. My teeth and gums to the front of my mouth is sore and I can't chew food without pain. Half my fingernail is missing from the ring finger on my right hand. I did not have these injuries before I got up to go outside to have a cigarette.'
Most of the coins taken from Mr. Barry were retrieved but his mobile phone was never returned to him.
The appellant was born on the 7th of November 1994, making him twenty-two-years-old at the time of sentencing. The Probation Report ('The Report') before the sentencing court indicates that, prior to going into custody as a result of breaching his bail conditions in respect of the present offences, the appellant was living with his mother and brother in Littleton, Co. Tipperary. His father, who has issues with alcohol and who has a violent disposition when intoxicated, still lives in the family home in Thurles.
The appellant is a poly substance abuser, and has a very significant substance misuse problem, something which the appellant contends 'his offending behaviour is directly linked to'. He claims to have been highly inebriated and under the influence of benzodiazepines at the time of committing both offences. Indeed, Garda Sheehy testified under cross-examination that when the appellant is 'drug free, he's he has extremely likable qualities....... I couldn't say enough about the guy when he's sober, extremely talented sportsman and easy to talk to, but there's just been so many so many falls on his behalf over the years.' He is reported to have begun taking drugs from the age of 15, 'using almost the full range of illegal substances'. In 2016, the appellant reported to have been hospitalised last year on foot of...
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DPP v O'Sullivan
...of ten and a half years' imprisonment reflected the gravity of the offence. 20 We were also referred to People (DPP) v Barnaville [2018] IECA 351, where the appellant in that case had been sentenced to five years imprisonment on two robbery charges to run consecutively and with the final fo......