DPP v Conroy

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 14 October 2019
• Neutral Citation: [2019] IECA 251
• Docket Number: Record No: CA202/2018
• Court: Court of Appeal (Ireland)
• Date: 14 October 2019

[2019] IECA 251

THE COURT OF APPEAL

Edwards J.

McCarthy J.

Kennedy J.

Record No: CA202/2018

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

MARTIN CONROY

APPELLANT

Sentencing – Burglary – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Conroy, came before the Circuit Criminal Court sitting in Castlebar, County Mayo, on the 30th January, 2018, and pleaded guilty to both counts on an Indictment laid against him: the first being an offence of burglary contrary to s. 12(1)(b) and 12(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001; and the second being the offence of impersonating a member of An Garda Síochána contrary to s. 60(1)(a) of the Garda Síochána Act, 2005. On the 12th June, 2018, the trial judge imposed a sentence of five years imprisonment on Count No 1, with the final eighteen months suspended for a period of eighteen months on condition that the appellant should, upon his release, undergo a residential treatment course, to be arranged by the Probation Service, to address his alcohol abuse, and further that he should submit to the supervision of the Probation Service for the duration of the suspended period. Count No 2 was taken into consideration. The appellant appealed to the Court of Appeal against the severity of the sentence imposed on him on the following grounds: (i) the sentencing judge failed to identify an appropriate and proportionate pre-mitigation starting point in sentencing the appellant; (ii) the judge attached too much weight to the fact that the appellant had previous convictions for similar type offences; (iii) the judge erred in law and in fact in assessing the gravity of the offence and failing to place the offence on a scale; (iv) the judge erred in law in failing to give any or the appropriate weight to the mitigation put forward on the appellant’s behalf and failed to balance adequately the mitigating factors against the aggravating factors; (v) the judge erred in law and principle in failing to place adequate value on, or give adequate credit or weight to the appellant pleading guilty at the first available opportunity; and (vi) the judge erred in law in imposing a sentence solely for punitive and deterrent purposes.

Held by the Court that the sentence was not disproportionate in respect of either the gravity of the offence and the appellant’s personal circumstances. Having taken the circumstances of the crime into account, including the aggravating factors and the fact that Count No 2 was going to be taken into consideration, the Court did not consider that a headline sentence of five years was inappropriate, and it found no error of principle. The Court held that the sentencing judge’s approach was the appropriate one having regard to the state of the evidence.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 14th day of October 2019 by Mr. Justice Edwards

Introduction

1 The appellant came before the Circuit Criminal Court sitting in Castlebar, County Mayo, on the 30th January, 2018, and pleaded guilty to both counts on an Indictment laid against him; the first being an offence of burglary contrary to s. 12(1)(b) and 12(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001; and the second being the offence of impersonating a member of An Garda Síochána contrary to s. 60(1)(a) of the Garda Síochána Act, 2005. The maximum sentences which can be imposed for such offences are imprisonment for up to 14 years and for up to 5 years, respectively.

2 On the 12th June, 2018, the trial judge imposed a sentence of five years imprisonment on Count No 1, with the final eighteen months suspended for a period of eighteen months on condition that the appellant should, upon his release, undergo a residential treatment course, to be arranged by the Probation Service, to address his alcohol abuse, and further that he should submit to the supervision of the Probation Service for the duration of the suspended period. Count No 2 was taken into consideration.

3 The appellant now appeals against the severity of the sentence imposed on him.

Background Facts

4 On the 12th December, 2016, Mr Padraig Boland, a man in his seventies and the sole occupant of a residential property 104 Chestnut Grove, Castlebar, County Mayo, arrived home at around 6 p.m. to find the front door ajar and a sitting room window pane shattered. Mr Boland could see the appellant through the window, wearing a high visibility jacket. The appellant stated: “It's alright Sir, I'm a Garda”. After asking for identification which was not produced, Mr Boland repaired to a neighbour's house to request that the real gardaí be telephoned. Mr Boland then witnessed the appellant walking away from the house and attempted to follow him but was unsuccessful in pursuing him as the appellant broke into a run.

5 Gardai quickly arrived on the scene, and the investigating member, Garda Noelle Barrett, spoke to Mr Boland on their arrival. It appeared that nothing of monetary value had been taken from the property. Gardai ascertained that an independent eye witness had observed the appellant leaving the scene, followed initially by Mr Boland, and that this witness had recognised the appellant as being her friend's father's friend.

6 Gardai then went to a dwelling house at a nearby address and searched the property with the consent of the occupant. During this search Garda Barrett located the appellant hiding in a dog kennel at the rear of the house. The appellant was arrested on suspicion of burglary and was taken to Castlebar Garda Station where he was detained under s. 4 of the Criminal Justice Act 1984 for the proper investigation of the offence for which he had been arrested. He was interviewed while in detention and made full admissions to the offences with which he was subsequently charged and to which he ultimately pleaded guilty.

Impact on Victim

7 While nothing of monetary value was taken during the incident, Garda Barrett informed the sentencing court that Mr Boland, who lived alone, was very anxious after the incident and that he continued to suffer from anxiety.

Appellant's Personal Circumstances

8 The appellant was born in England on the 28th October 1973, and moved to Ireland in 2003, sometime after the deaths of his parents. The appellant has been a heavy drinker since he was in his early twenties. He is now in his mid-forties and unfortunately he suffers from Cirrhosis of the liver. He is estranged from his wife due to his alcohol issues and has a 12 year old daughter.

9 As regards the appellant's previous convictions, the sentencing judge was informed that he had 50 various convictions relating to burglary, public order, disorderly conduct, failing to appear in court, theft, trespassing, dangerous driving, criminal damage, and drink driving, all of which were dealt with in the District Court. His most recent convictions were at Castlebar District Court on 15/11/2017 in respect of four burglaries to business premises. He received sentences of three months on each, with the second third and fourth sentences, all to be served consecutively. The appellant was also sentenced for three burglary offences on the 25th September 2013 for which he received sentences of six months imprisonment, four months imprisonment and four months imprisonment to be served consecutively. However, the present case represents his first time before the Circuit Court on indictment.

10 It is apparent that much of the appellant's past criminality can be attributed to some extent to his alcoholism, a condition which began in his early twenties and steadily worsened after the age of 28, aggravated by the death of his mother. Although he acknowledges that he has a problem and has in the past made some attempts at recovery, these attempts can only be described as limited.

11 The sentencing court was in receipt of a Probation Report concerning the appellant, which categorised him as being at high risk of re-offending should he not address his risk factors, namely homelessness, unemployment, family factors and alcohol addiction. He was not suitable for Community Service as his issues with alcohol had not been addressed. He had previously been the subject of a Community Service Order but had failed to adhere to the conditions on which it was granted. The report indicated that while probation supervision could support him, for it to be successful would necessitate a serious effort on his part to address his drinking. This could only be gained through a period of time in residential treatment. He had been referred to the Addiction Services within the prison where he was serving his sentences for the four burglaries in respect of which he was sentenced on 15/11/2017, for assistance and with a view to eventually accessing a place in residential treatment. The report records that the appellant has expressed readiness to address his drinking through a residential treatment program and that it is his hope that he will be offered the opportunity to do so following his release. It states, inter alia, that:

“He is also concerned due to health issues, that unless he addresses his use of alcohol he will not get to see his daughter grow up. He mentioned that he has been diagnosed with Cirrhosis of the liver and this has been an eye-opener to him in terms of his future”.

12 A Prison Governor's report handed in to the sentencing judge indicated that he was receiving enhanced privileges, had not been the subject of any negative reports and was engaging well in work and education.

Sentencing Judge's Remarks

13 In passing sentence on the appellant, the sentencing judge commented:

“In my view all burglaries are serious and they're particularly serious when the occupier, the owner, the inhabitant is at home or comes home...