DPP v Byrne

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 26 April 2018
• Neutral Citation: [2018] IECA 120
• Docket Number: Record No: 208 CJA/2017
• Court: Court of Appeal (Ireland)
• Date: 26 April 2018

IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT, 1993, AND IN THE MATTER OF:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

LEON BYRNE

Respondent

[2018] IECA 120

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No: 208 CJA/2017

THE COURT OF APPEAL

Sentencing – Burglary – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Byrne, pleaded guilty in respect of three separate Bills of Indictment being: Bill No. 564/2015 (involving a single count of robbery contrary to s. 14 of the Criminal Law (Theft and Fraud Offences) Act 2001); Bill No. 711/2015 (involving a count of aggravated burglary contrary to s. 13(1) of the 2001 Act, a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 and a count of production of an article, to wit a broken tile, contrary to s. 11 of the Firearms and Offensive Weapons Act 1990); and Bill No. 373/2017 (involving a count of burglary contrary to s. 12(1)(b) of the 2001 Act, a count of production of an article, to wit a knife, contrary to s. 11 of the 1990 Act and a count of unlawful taking of a vehicle contrary to s. 112 of the Road Traffic Act 1961). On the 17th of July 2017 the respondent received a sentence of imprisonment for two years in respect of Bill No. 564/2015, a sentence of imprisonment for four years with the final three years suspended in respect of the aggravated burglary on Bill No. 711/2015, to run concurrently with a sentence of eighteen months imprisonment in respect of the assault causing harm, the remaining count on the indictment relating to production of an article being taken into consideration, and finally a sentence of imprisonment for four and a half years with the final three years suspended in respect of the burglary on Bill No 373/2017, with once again the other counts on the indictment being taken into consideration. The sentences in respect of the Bill No 711/2015 and 373/2017 were to be concurrent inter se but consecutive to the sentence on Bill No 564/2015. The net effect of this was that the global or aggregate total of the custodial sentences to be actually served by the respondent was three and a half years. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the said sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.

Held by the Court that, regarding Bill No 564/2015, the headline sentence set by the sentencing judge was too low; it represented a considerable departure from the norm. The Court held that this was an error of principle and that the sentence was accordingly unduly lenient. Regarding Bill No 373/17, the Court regarded the headline sentence of five and a half years nominated by the court below as significantly outside the norm and too low by a considerable margin. The Court considered that a discount for mitigation of 72% was excessive in the circumstances of the case, unjustified on the evidence, and an error of principle. Regarding Bill No 711/15, the Court regard the headline sentence of six years nominated by the court below as significantly outside the norm and as being too low by a considerable margin. The Court considered that a discount for mitigation of 75% was excessive, not justified on the evidence and an error of principle. In all the circumstances, the court would re-sentence the respondent.

The Court held that it would, on Bill No 564/15, nominate a headline sentence of five years, and would discount from that by two years to reflect mitigation. On Bill No 373/2017 it would nominate a headline sentence of eight years, and would discount from that by three years to reflect mitigation. On Bill No 711/2015 it would nominate a headline sentence of eight years, and would discount from that by three years to reflect mitigation; the separate sentence of eighteen months imprisonment in respect of the assault causing harm was to remain unaltered. The Court would make the sentences on Bills Nos. 373/2017 and 711/2015 concurrent inter se but directed that they were to be consecutive to the sentence on Bill No 564/15, and commence on the lawful expiration of that sentence. To take account of the totality principle the Court would reduce the sentence on Bill No 564/15 by one year, giving a revised aggregate figure of seven years’ imprisonment. To incentive rehabilitation, the Court was disposed to suspend the final two years of the global and aggregate term of seven years’ imprisonment; to give effect to this the final two years of the sentences on Bills Nos. 373/2017 and 711/2015 would be suspended upon the same terms as applied in the case of the sentences part suspended in the court below.

Appeal allowed.

JUDGMENT of the Court delivered the 26th of April, 2018 by Mr. Justice Edwards .

Introduction

1 The respondent pleaded guilty in respect of three separate Bills of Indictment being:

• Bill No. 564/2015 (involving a single count of robbery, contrary to s.14 of the Criminal Law (Theft and Fraud Offences) Act 2001 (‘the Act of 2001’);

• Bill No. 711/2015 (involving a count of aggravated burglary, contrary to s. 13(1) of the Act of 2001; a count of assault causing harm, contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997 (‘the Act of 1997’) and a count of production of an article, to wit a broken tile, contrary to s.11 of the Firearms and Offensive Weapons Act 1990 (‘the Act of 1990’), and

• Bill No. 373/2017 (involving a count of burglary, contrary to s. 12(1)(b) of the Act of 2001; a count of production of an article, to wit a knife, contrary to s.11 of the Act of 1990; and a count of unlawful taking of a vehicle, contrary to s.112 of the Road Traffic Act 1961).

2 On the 17th of July 2017 the respondent received a sentence of imprisonment for two years in respect of Bill No. 564/2015; a sentence of imprisonment for four years with the final three years suspended in respect of the aggravated burglary on Bill No. 711/2015, to run concurrently with a sentence of eighteen months imprisonment in respect of the assault causing harm, the remaining count on this indictment relating to production of an article being taken into consideration; and finally a sentence of imprisonment for four and a half years with the final three years suspended in respect of the burglary on Bill No 373/2017, with once again the other counts on this indictment being taken into consideration. The sentences in respect of the Bill No 711/2015 and 373/2017 were to be concurrent inter se but consecutive to the sentence on Bill No 564/2015.

3 The net effect of all of this was that the global or aggregate total of the custodial sentences to be actually served by the respondent was three and a half years.

4 The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences under s. 2 of the Criminal Justice Act 1993 on the basis that they were unduly lenient.

The relevant facts

The Robbery Offence (Bill No. 564/2015)

The relevant facts

5 Garda Ross Mannix, a community Garda in Rialto, told the sentencing court that on the 30th of April 2014 the injured party, Mr Xiang Tong, disembarked from the Luas at the Rialto stop near his home at Reuben Street, Rialto, Dublin 8. He was about 10 metres from his home at about 11.25 p.m. when the respondent approached him wearing a dark baseball cap with a light blue top and light coloured sports trousers. He asked him for the time and Mr Xiang gave it to him. The respondent then asked him to show him his phone, to which he replied ‘I told you the time, you don't need to see my phone.’ Mr Xiang then carried on to his front door, and he felt a push on his back just as he opened the door. He turned around and saw the respondent. He described him as ‘a young guy with a white face.’ The respondent then grabbed Mr Xiang's neck in the hallway and placed his other hand behind his back. Mr Xiang thought that he had a weapon and he was afraid. The respondent then said: ‘give me your phone.’ Mr Xiang gave him his phone, a black Samsung S4 with a blue cover worth €650. The respondent then demanded Mr Xiang's wallet. Mr Xiang gave him the wallet which had no cash in it, but did contain some bank cards, driver's licence and his GNIB card. Mr Xiang pleaded with the respondent to return bank cards, driver's licence and his GNIB card but the respondent refused to do so. The respondent then told him to go to the lift, still holding him by the neck. Mr Xiang described in his statement that he could feel pain in his neck from where he was being held and that he was still afraid that he would be hurt, so he tried not to say a lot in case he would anger the respondent. The respondent forced Mr Xiang to enter the lift while he continued to hold him by the neck. In being required to do so, Mr Xiang had to leave a Navy Nike sports bag behind him in the hallway. The lift doors then closed and a button was pressed causing the lift to ascend. When the lift doors opened on floor three the respondent told Mr Xiang not to move or he would be killed. The respondent then released his grip on the Mr Xiang's neck and dashed out of the lift and down some adjacent stairs. Mr Xiang, who was still in fear on account of the threat that he would be killed if he moved, remained in the lift momentarily but then made his way back down to the hallway and out on to the street where he encountered a woman who rendered assistance to him. When he emerged on to the street he could see in the distance the respondent running away from the scene, and also saw that the respondent was carrying the Navy Nike sports bag that he had left behind him in the hallway. Mr Xiang suffered a deep graze on the lower left side of his neck in the course of his ordeal.

6 In the subsequent Garda investigation, and based on CCTV...