DPP v Casey

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 27 February 2017
• Neutral Citation: [2017] IECA 47
• Docket Number: 59CJA/16
• Court: Court of Appeal (Ireland)
• Date: 27 February 2017

[2017] IECA 47

THE COURT OF APPEAL

Hedigan J.

Mahon J.

Edwards J.

Hedigan J.

59CJA/16

In The Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Patrick Casey

Respondent

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

Facts: The respondent, Mr Casey, was sentenced on the 12th February, 2016, in respect of a charge of robbery, to three years which was suspended in full for a period of six years subject to certain conditions. This sentence was consecutive to a sentence of three years and six months imposed for an earlier robbery. The appellant, the DPP, appealed to the Court of Appeal on the basis that the sentence imposed by the trial judge was unduly lenient. The appellant submitted that the sentencing judge failed to reflect the following aggravating factors in identifying the appropriate headline starting point: (i) the victim was 16 years old; (ii) while the victim did not see the knife in the respondent’s possession the respondent threatened him with the weapon; (iii) an attempt was made to dissuade him from calling the Gardaí; (iv) it was an offence committed while on bail for a similar random, opportunistic robbery of a vulnerable victim. It was also submitted that only in exceptional circumstances should a sentence which must be consecutive due to being committed while on bail be suspended in its entirety; the suspended sentence constituted a substantial departure from the appropriate punishment.

Held by the Court that insufficiently exceptional circumstances existed in this case to justify the suspension of the whole of the sentence imposed of three years. On this basis the Court decided that an error of principle was made by the trial judge. The Court proceeded to resentence the respondent.

The Court held that it would impose the same sentence of three years in respect of count one in Bill No. 72/2015 which sentence will be consecutive to the sentences imposed in respect of convictions under Bills No. 3/2015 and 1/2015 but would suspend the last two years for a period of six years on the same terms. The Court held that the suspension period should date from 12th February, 2016.

Appeal allowed.

JUDGMENT of the Court delivered on the 27th day of February 2017 by Mr. Justice Hedigan

Introduction

1 This is an appeal brought by the Director of Public Prosecutions on the basis that the sentence imposed upon the respondent in respect of a charge of robbery by the learned trial judge was unduly lenient. The respondent was sentenced, having contested the charge, on the 12th February, 2016, in respect of the offence, to three years which was suspended in full for a period of six years subject to certain conditions. This sentence was consecutive to a sentence of three years and six months imposed for an earlier robbery.

2 The indictment contained five counts. The respondent was convicted by a jury on counts one and two. These, respectively, were the robbery of €15 cash and burglary of an inhabited caravan. The respondent had earlier pleaded guilty to counts four and five. These were possession of a knife at the time of the robbery and criminal damage in a Garda station. This application is not directed at the burglary or criminal damage sentencing. It focuses on the robbery conviction alone.

The Circumstances of the Offences

3 At 8pm on the 21st March, 2015, one Edward Quinlivan, who was 16 years old, was walking with two friends when he was approached by the respondent. The respondent said he had a knife and demanded money. Mr. Quinlivan having been put in fear handed him €15. The respondent advised one of the two companions not to call the Gardai. The Gardai were in fact informed and located him. On being searched he was found in possession of €15, a Stanley knife with a retractable blade and a ladies ring which was stolen from the inhabited caravan.

4 The respondent was questioned on the 21st and 22nd March, 2015. He denied having contact with the injured party or his companions. He stated the knife was for cutting lino. Later he said that he was unaware of it, that the jacket was borrowed and the knife must have been in the pocket.

5 At the time that the offences were committed the respondent was on bail in respect of two earlier offences. The first of these was the above robbery in which the handbag was stolen from a woman who was six months pregnant. She suffered a minor cut to her finger. This was a random and opportunistic offence. It was committed while he was on bail for yet another second offence. This was a charge of possession of a weapon. It arose from an incident where the Gardai intercepted a vehicle containing the respondent and eight other armed men. They were described by the judge as ‘a lynch mob’. The respondent was in possession of a pick axe handle. This was an orchestrated incident but the respondent was not one of the principal offenders. The respondent pleaded guilty at an early stage to both these offences.

The Respondent's Personal Circumstances

6 The respondent has a number of previous convictions which relate to offences relatively minor in nature compared to those mentioned above. The respondent's mother died in a road traffic accident and his father died in violent circumstances. He was an orphan at the age of 17 months. He did not have the support of caring parents during his formative years. He has also suffered further recent tragic bereavements. He has addiction issues which he is attempting to address.

7 In a letter sent on the 27th May, 2015, there is a general expression of apology, although this could not be said to extend to the contested charge. It also included statements about his intention to address his addictions and refers to the recent death of his brother.

Sentence

8 The learned trial judge dealt with all the offences before him as follows;

In relation to count one of Bill No. 72/2015 with which we are concerned herein, he found the aggravating factors were that the offence was opportunistic, menacing and intimidating. It was committed while the accused was on bail for two other charges including one of robbery. No remorse was expressed. In mitigation the judge found that there was no actual violence, there was an early plea albeit to only two of the charges and the accused had a difficult and tragic family background. He sentenced the accused on count one, the robbery, to three years consecutive to concurrent sentences of three years and six months imposed in respect of the other offences of robbery and possession of a weapon. The judge suspended the sentence in full for a period of six years from the date of the sentence. In respect of count two, that was taken into consideration. No order was made in respect of count three. In respect of count four a sentence of twelve months was imposed concurrent with the sentence in respect of count one and suspended on the same terms. Count five was taken into consideration. The accused having been in custody since the 28th April, 2015, the sentence was backdated to that date.

Appellant's Submissions

9 It was the appellant's submission that the sentence imposed failed to reflect a significant aggravating factor, namely, the commission of an offence involving violence or the threat of violence when on bail in respect of similar offences. The respondent did not have the benefit in mitigation of a guilty plea. He had been convicted by a jury following a trial.

10 The appellant refers to s. 11 of the Criminal Justice Act 1984 as amended by s. 10 of the Bail Act 1997 and as substituted in part by the Criminal Justice Act 2007 and submitted that in most cases where an offence is committed while an offender is on bail two consequences automatically follow:

i. It is mandatory to make any sentences imposed consecutive to the sentence for the...