DPP v O'Brien

JudgeMr. Justice Edwards
Judgment Date16 January 2018
Neutral Citation[2018] IECA 2
Docket NumberCJA 65/17
CourtCourt of Appeal (Ireland)
Date16 January 2018



[2018] IECA 2

Edwards J.

Edwards J.

Hedigan J.

Whelan J.

CJA 65/17


Crime & sentencing - Review of sentence - Burglary - Application by DPP for review on basis of undue leniency

Facts: The respondent had been convicted of a count of burglary and sentenced to a term of imprisonment, with a portion suspended. The applicant considered the sentence to be unduly lenient and applied for a review of the sentence.

Held by the Court, that the application would be dismissed. The Court reviewed the evidence before the sentencing judge, the impact on the victim and the respondent's circumstances and agreed the sentence was lenient. However, the leniency of the sentence was within the judge's discretion and could not be said to be a substantial error of principle.

Judgment of the Court delivered on 16th January 2018 by Mr. Justice Edwards .

In this case the applicant seeks a review of a sentence of three years' imprisonment, with the final two years thereof suspended upon conditions, imposed upon the respondent on the 20th of February 2017 by the Dublin Circuit Criminal Court in respect of a single count of burglary contrary to s.12 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, on the grounds that the said sentence was unduly lenient.

The evidence at the sentencing hearing

The Circuit Court heard from Garda William Brosnan that the burglary occurred on the 31st of August 2016 and was in respect of a private dwelling house on Marlborough Road in Glenageary, South County Dublin owned and occupied by a lady called Marian Shanley, who had lived there for the past 36 years.


Mrs Shanley had left her home at 10.15 that morning, setting the burglar alarm as she left. At about 2.30pm she received an alert by telephone from her alarm monitoring company notifying her that her alarm had been triggered by a sensor in her house. She decided not to return immediately and to monitor the situation, but at 7.15pm she was contacted again by the monitoring company who informed her that there had been a lot of activity detected by sensors in the house and that they were calling the Gardai. Mrs Shanley decided to return home at that point, and telephoned her sister Bernice on her way there asking her to meet her there.


Mrs Shanley's sister in fact reached the house first, who observed evidence of an apparent break-in. Suspecting that the intruder might still be in the house, she opened a door and shouted that she was there and that the Gardai were on their way. Mrs Marian Shanley then arrived and she observed that there was broken glass, and there were doors open that should be shut. At this point the intruder appeared and ran through the kitchen door. He was not recognised at that point but both ladies were subsequently able to describe him as having red shaggy hair and as wearing predominantly blue checked shorts, which were falling down and which the intruder was holding up as he ran.


The intruder was observed running through the kitchen into the conservatory and then exiting the house and running across the garden. He was pursued by Mrs Shanley and her sister. When it seemed to the intruder that he had no apparent means of escaping from what was an enclosed garden other than by route through which he had entered it, he ran back past the two ladies, re-entered the conservatory and locked the door behind him leaving the two ladies in the garden and locked out of the house. At this point Mrs Shanley's sister recognised the intruder. She had lived in Dún Laoghaire for a long time and realised that the intruder was a man that she knew to have been living at Crosthwaite Park in Dún Laoghaire.


There was in fact a side entrance to the garden which the intruder had failed to notice in his haste and Mrs Shanley went out through this side entrance and observed the intruder exiting the front door of the house and running down the road away from the house.


The intruder was observed to be carrying a pink shopping bag containing certain goods when he first exited the house and ran in to the garden, but he dropped this bag and left it behind him in the garden. The bag was subsequently examined and all of the goods within it were found to be the property of Mrs Shanley. A later check of the house revealed that a sum of US$500 had been also been taken, as well as a gold coin of sentimental value. Neither the cash nor the gold coin were in the bag that was dropped in the garden, and they were never recovered.


The Gardai arrived shortly after the intruder had run away, and commenced an investigation. The received, inter alia, a description of the intruder from Mrs Shanley and her sister, and Mrs Shanley's sister also informed them of her belief that the intruder was known to her, although not by name, and that he lived at Crosthwaite Park in Dún Laoghaire. In the course of the Garda investigation CCTV footage recorded on the 31st of August 2016 was recovered from Glenageary Dart station and was viewed by Garda Brosnan. This CCTV footage had captured the arrival there of an individual with red hair and distinctive shorts matching the description furnished by the two ladies. This individual was personally known to Garda Brosnan, and was identified by him as the respondent.


Further CCTV footage recorded on the day following the burglary was recovered from the Bank of Ireland in Dún Laoghaire. This captured the respondent exchanging a quantity of US dollars for Euro.


The respondent was arrested on the 21st of September 2016, and was detained at Dún Laoghaire Garda Station where he was interviewed. Nothing of evidential value emerged from the interview, other than an admission that he lived at Crosthwaite Park in Dún Laoghaire.

The impact on the victim

The transcript reveals that the court below received a victim impact statement on behalf of Mrs Shanley, and it was considered by the sentencing judge. Although this was not read into the record, and we have not been provided with a copy of what was handed in, the sentencing judge summarised the contents of the victim impact statement in her sentencing remarks, stating that:

'The Court has heard evidence of the impact on the victim, and Mrs Shanley found the events extremely distressing, and she did not want her family to have a particular view of her as a vulnerable person, and that impacted on her that she may be ' they may consider her vulnerable and it's not an appellation that she wanted to have, or for her family to view her in that way, and they are of course of significance. Mrs Shanley lives in the house on her own.

The respondent's personal circumstances.

The court below heard that the respondent was born on the 11th of May 1986, making him 30 years of age at the time of the burglary.


The respondent had 103 previous convictions, including the following:

- Three convictions for possession of drugs with intent to supply contrary to s.15 of the Misuse of Drugs Act 1977;

- Four convictions for possession of drugs contrary to s.3 of the Misuse of Drugs Act 1977;

- Two convictions for causing criminal damage;

- Three convictions for the unlawful taking of a motor vehicle;

- One conviction for driving under the influence of an intoxicant;

- Six convictions for burglary, the most recent of which was dated the 23rd of January 2015, and in respect of which the respondent had received a four-year suspended sentence that was imposed by Dublin Circuit Court. The offence giving rise to the sentence the subject matter of this review was committed during the currency of that suspended sentence;

- Eleven convictions for theft;

- One conviction for being in possession of an article with the intention that it be used in the course of, or in connection with, a theft or burglary, contrary to section 11 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

- Four convictions for assault contrary to s.2 of the Non Fatal Offences Against the Person Act 1997;

- Two convictions for assault causing harm, contrary to s.3 of the Non Fatal Offences Against the Person Act 1997;

- Numerous road traffic offences and public order type offences; and

- Six convictions for failing to appear in court, contrary to s.13 of the Criminal Justice Act 1984.


Following his arrest the respondent did not succeed in securing station bail, and was brought before the District Court on the following day (22nd September 2016) where he was refused bail by the presiding judge and was remanded in custody. He was sent forward for trial on indictment to the Dublin Circuit Criminal Court in November 2016. The matter was then first listed before the Dublin Circuit Criminal Court on the 2nd of December 2016, on which occasion he was arraigned and pleaded guilty. Counsel for the applicant accepts that, for the purposes of s. 29(1)(a) of the Criminal Justice Act 1999 this was to be regarded as being a plea at the earliest opportunity. However, with regard to s.29(1)(b) the plea was offered in circumstances where he had in effect been caught red-handed and there was a strong case against him.


The respondent had not served a custodial sentence in five years. He ordinarily lived with his parents. He has a child with his estranged partner. He was employed in the past as a groundsperson at Leopardstown Racecourse but was let go six or seven years ago, although not for any reason that would reflect adversely on him. After he was let go he developed a drug addiction and ultimately he became a heroin addict. He also developed mental health problems in this period, and has been diagnosed as being depressed and was prescribed Desipramine...

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