DPP v Byrne

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 22 October 2015
• Neutral Citation: [2015] IECA 235
• Court: Court of Appeal (Ireland)
• Date: 22 October 2015

[2015] IECA 235

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

45/15

DPP v Byrne

The People at the Suit of the Director of Public Prosecutions

Respondent

- V -

Michael Byrne

Appellant

Crime & sentencing – Robbery – Sentencing – Appeal against severity of sentences

Facts: The appellant had robbed a minor of a number of items on the DART service as well as a robbery of a security van. He had been handed two sentences of imprisonment in relation to two counts of robbery. He now appealed against the severity of those sentences.

Held by Edwards J in an ex tempore judgment, that the appeal would be dismissed. The Court could find no evidence of the sentencing judge falling into error on the principles to be applied when sentencing the appellant. Due account had been taken of the mitigating factors and the time already spent by the appellant in custody.

1 1. This is an appeal by the appellant against the severity of a sentence of two years imprisonment imposed upon him at the Dublin Circuit Criminal Court on the 17 ^th of February 2015 on Bill No DUDP0523/2014 (hereinafter Bill No 523/2014), following his arraignment and plea of guilty to a count of robbery, contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2 2. The appellant also appeals against the severity of a further sentence of three years imprisonment, also imposed upon him at the Dublin Circuit Criminal Court on the 17 ^th of February 2015 on Bill No DUDP0661/2014 (hereinafter Bill No 661/2014), following his arraignment and plea of guilty to a further count of robbery, contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

3 3. The said sentence of three years imprisonment in respect of Bill No 661/2014 was made consecutive to the said sentence of two years imprisonment in respect of Bill No 523/2014.

4 4. The salient facts of the robbery the subject matter of Bill 523/2004 were as follows. The robbery was perpetrated on the DART on the 1 ^st of March 2014 between Sutton Station and Bayside Station, A young man called Adam Smith, who was aged 13. was travelling by DART from Sutton Station to Grand Canal Dock. He was seated on the train and was texting on his new iPhone 5S. Two men entered his carriage, one of whom sat beside him while the other sat opposite him. The man who sat beside him was the appellant, who engaged the boy in conversation and commented on his phone. The appellant then produced his own phone which was also an iPhone with a distinctive Ferrari sticker on it. The appellant said to the boy "Can I see your phone?" but the reply was "No". The appellant asked again, stating that he only wanted to see it for a minute and again was told "No", and the boy further stated that he had to get off the train.

5 5. The appellant then responded by stating that he had to get off the train as well, and he then tried to grab the Adam Smith's iPhone with his right hand. The second man then stood up and he also tried to grab the boy's iPhone. However young Mr Smith managed to hold on to his phone. The boy then shouted for help and the second man told him that if he didn't stop shouting he would punch him in the face. Despite this the boy continued to shout and the second man raised his fist up in front of him. Mr Smith was very afraid at this point and believed that he was going to be punched.

6 6. The appellant then went through the boy's bag and took from it a number of items including a pair of Beats headphones by Dr Dre, and an iPad mini. As the appellant was doing this the second man searched the boy's pockets and took his iPod Classic.

7 7. The thieves also took the boy's iPhone 5S and a quantity of cash amounting to €6 approximately that he had had in his pockets. Then when the train stopped at Bayside both thieves got off the train taking the property they had stolen with them. The total value of the property stolen was €1,700.00.

8 8. Following the incident the injured party experienced a panic attack and was unable to get off the train until the Donaghmede stop, where he reported the incident. The matter was referred to the Gardaí who commenced an investigation. Using CCTV footage recovered from Bayside and other DART stations they identified the appellant, and another man whose face was covered, as suspects. The CCTV footage of the appellant at Bayside Station recorded him as being in possession of a pair of Beats headphones by Dr Dre A search warrant was obtained to search an address at Kilbarrack connected to the appellant, where clothing similar to the clothing the appellant was seen to be wearing on the CCTV was found. The appellant subsequently presented himself at Raheny Garda Station on the 3 ^rd of March 2014 and was arrested. He was detained for questioning where, following some initial dissembling, he made a number of admissions including that he was present during the robbery, and had received some of the proceeds of the robbery. However, he contended that the actual robbery was perpetrated by the second man and that he had not participated in it.

9 9. The appellant was duly charged with robbery, and pleaded guilty upon arraignment on the first date on which the matter was listed for mention having been returned for trial to the Circuit Criminal Court.

10 10. Turning then to Bill No 661/2014, there were two counts on that bill, comprising one count of robbery and one count of criminal damage to a cash box. The accused entered a plea of guilty to the robbery count and this was acceptable to the respondent providing that the full facts relating to both counts, which were interlinked in their facts, would be opened to the sentencing judge, which duly occurred. A nolle prosequi was subsequently entered in respect of the criminal damage count.

11 11. The facts underlying the charges the subject matter of Bill No 661/2014, were that on the 27 ^th of April 2014 a Mr James Quinn, the owner of a Ford Focus estate motor car. registration no 03D 1322, had driven to his girlfriend's house, and had there exited the car for the purpose of bringing in shopping while leaving it unlocked and the keys in the ignition. As he was speaking to his girlfriend at the doorway of her house he heard the door of his vehicle slamming. He ran towards it but it was driven away by a party whose identity was unknown at that point.

12 12. On the following day. the 28 ^th of April 2014, a Ms Patricia Whelan was in her motor car which was parked outside a pharmacy on St Brigid's Road in Artane. Ms Whelan was waiting for her sister who had gone into the pharmacy to transact some business. She became aware of another vehicle to her left, which was an estate car, and which contained a number of men. She observed these men to be wearing dark clothes and balaclavas. She noted that one of the men who was in the front passenger seat, and another man who was in the rear of the vehicle, had their faces fully covered by the balaclavas they were wearing. A third man, who was the driver, was also wearing a balaclava but in his case it was rolled up on his head.

13 13. At that point a security van, otherwise known as a cash in transit van, arrived and the men in the estate car were observed to be looking in the direction of the said security van. Ms Whelan's sister then emerged from the pharmacy and got back into Ms Whelan's car. Following a conversation between them, one of them called 999 and on being put through to the Gardai provided them with the registration no displayed on the estate car, namely 06D59738. It subsequently transpired that the estate car was fitted with false registration plates, and that in fact it was the vehicle that had been stolen from Mr Quinn vehicle on the previous day. the correct registration number of which was 03D 1322.

14 14. Ms Whelan observed the security van leave the area of St Brigid's Road and she saw the estate car follow it. Subsequently, the security van arrived at the AIB branch at Raheny shopping centre and a Mr Dave Collins, who is employed by Group 4 Security, got out of it. went to the back of the van, opened a hatch and lifted out a cash box containing €50,000.00. As he turned away from the hatch and towards the bank where he was intending to deliver the cashbox he was struck by a man. later identified as being the appellant, in the upper chest area. He was physically lifted off the ground and knocked onto his back, striking his head as he fell. The cash box was knocked out of his hand.

15 15. The appellant grabbed the cash box and jumped into the estate car that had. at this point, pulled up beside him. The estate car then drove away at speed, initially exiting the shopping centre by turning left on to the Howth Road in Raheny and then turning on to Station Road in Raheny and continuing on to Donaghadee Road in Cooloek. It then entered the Coolock Industrial Estate where it was observed by a security man. who noticed that it was being driven aggressively, and in particular had reversed twice against the wall of a business premises. The security man further observed that after the second reversal, one of the occupants of the vehicle, who was wearing a balaclava, got out and had with him what appeared to a cash box with a grey hoody thrown over it. It appeared to the security man that the vehicle had been used to try to open the cash box. When it was ascertained that that they had been unsuccessful in opening the cash box in that way the man with the cash box, who again was subsequently ascertained to have been the appellant, threw the cash box over a fence and...