DPP v Cunningham

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 27 March 2015
• Neutral Citation: [2015] IECCA 2
• Court: Court of Criminal Appeal
• Docket Number: [Record No: 265/2012]
• Date: 27 March 2015

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Francis Cunningham

Accused/Appellant

[2015] IECCA 2

Clarke J.

Moriarty J.

Barr J.

[Record No: 265/2012]

COURT OF CRIMINAL APPEAL

Sentencing – Theft – Unlawful use of a vehicle – Appellant seeking to appeal against sentence – Whether the charge to the jury by the trial judge was deficient

Facts: The appellant, Mr Cunningham, appealed against his conviction of an alternative offence of theft. The Court of Criminal Appeal dismissed the appeal and proposed hearing counsel on three further issues ([2014] IECCA 40): 1) Mr Cunningham's appeal against the sentence imposed in respect of the conviction for theft which was upheld in the previous judgment; 2) Mr Cunningham's appeal against a separate conviction in relation to the unlawful use of a vehicle; 3) Mr Cunningham's appeal against a suspension from driving imposed as a result of the conviction referred to at 2). The Court indicated that it would allow his appeal against sentence and substitute a sentence of five years imprisonment with two years suspended for the sentence of seven years imprisonment with two years suspended which had been imposed by the trial judge. The Court indicated that it would give its reasons for coming to that view in due course and that, in the same judgment as would contain those reasons, the Court would also deal with the other issues raised. The main point made on this appeal on behalf of Mr Cunningham was to suggest that the sentence imposed on him was disproportionate to that which had been imposed on a Mr O'Driscoll, who had pleaded guilty to robbery arising out of the same incident. Regarding the road traffic conviction, the trial judge”s charge was criticised on the basis of a suggestion that the trial judge inappropriately focused on the fact that the vehicle in question was being used for the purposes of transporting material to which Mr Cunningham was a party. Placing reliance on The People (Attorney General) v Poyning, Conroy v Attorney General [1965] IR 411 and DPP v Sweeney [2014] IECA 5, it was argued for Mr Cunningham that a disqualification for ten years in the circumstances of the case was inconsistent with appropriate principles for the imposition of such disqualifications.

Held by Clarke J that, having considered the jurisprudence of the Court, and of other appellate courts, it is clear that the Court will only interfere where there is a sufficient error in sentencing to render the sentence either so severe or so lenient that the Court must intervene to correct an error in principle. However, Clarke J held that an appellate court, in adjusting a sentence to attempt to remove what it has found to be an unjustified disparity, cannot alter the sentence imposed on the appellant to such an extent that the new sentence would itself meet the criteria for undue leniency as to take such a course of action would be to displace one potentially unjustified approach with another equally unjustified sentence. In the Court”s view, there was nothing inappropriate about the trial judge”s charge in that a vehicle can be used for many purposes. The Court was not satisfied either that there was no evidence on which the jury could properly convict, or that the jury was not properly directed. The appeal against conviction for the offence of unauthorised use of a mechanically propelled vehicle was, therefore, rejected. It did not seem to the Court that, in circumstances where a court, in imposing a disqualification, is required to focus primarily on fitness to drive, where the offence on the facts did not itself involve driving at all and where there did not appear to have been a separate inquiry by the sentencing judge relating to any specific issue arising from the facts of the case which might touch on whether Mr Cunningham was a fit person to hold a driving licence, the disqualification in question can stand. To that extent the Court, therefore, allowed Mr Cunningham's appeal in respect of that disqualification.

Clarke J held that it was appropriate to allow Mr Cunningham's appeal in respect of the sentence imposed on him in relation to the offence of theft and substitute, for the sentence of seven years imprisonment with two years suspended, a sentence of five years imprisonment with two years suspended. The Court did not agree that there was no evidence on which Mr Cunningham could properly have been convicted of the offence of unauthorised use of a mechanically propelled vehicle. Likewise, the Court was not satisfied that the charge to the jury by the trial judge in relation to that offence was deficient. On that basis, the Court dismissed Mr Cunningham's appeal against his conviction under s.112 of the Road Traffic Act 1961. The Court was not persuaded that, in the circumstances of the case, it was appropriate to impose a disqualification from driving. The Court allowed Mr Cunningham's appeal insofar as it was directed towards that disqualification order.

Appeal allowed in part.

Judgment of the Court delivered by Mr. Justice Clarke on the 27th March, 2015.

1. Introduction

1.1 This judgment follows on from a previous judgment of this Court on this appeal (D.P.P. v. Cunningham [2014] I.E.C.C.A. 40) (‘the previous judgment’). In that judgment, and for the reasons set out therein, the Court dismissed the appeal of the accused/appellant (‘Mr. Cunningham’) against his conviction of an alternative offence of theft. As noted in the final sentence of that judgment, the Court proposed hearing counsel further on ‘whether there are any remaining aspects of this appeal which require to be heard’.

1.2 In substance, potentially three further issues were identified. They are:-

(i) Mr. Cunningham's appeal against the sentence imposed in respect of the conviction for theft which was upheld in the previous judgment of this Court;

(ii) Mr. Cunningham's appeal against a separate conviction in relation to the unlawful use of a vehicle; and

(iii) Mr. Cunningham's appeal against a suspension from driving imposed as a result of the conviction referred to at (ii). Obviously, this aspect of the appeal only arises in the event that his appeal against the relevant conviction is dismissed.

1.3 Further written submissions were filed directed towards those issues. An oral hearing ensued. Having taken some time to consider the principal issue, which concerned the sentence imposed on Mr. Cunningham in relation to his conviction for theft, the Court indicated that it would allow his appeal against sentence and substitute a sentence of five years imprisonment with two years suspended for the sentence of seven years imprisonment with two years suspended which had been imposed by the trial judge. The Court indicated that it would give its reasons for coming to that view in due course and that, in the same judgment as would contain those reasons, the Court would also deal with the other issues raised. The purpose of this judgment is to set out those reasons and to deal with the other issues. The basic underlying facts are set out in the previous judgment and it is unnecessary to repeat them here. The Court, therefore, turns first to the appeal against sentence on the theft charge.

2. The Sentence for Theft

2.1 As already noted, the sentence imposed by the trial judge was one of seven years imprisonment with two years suspended. The main point made on this appeal on behalf of Mr. Cunningham was to suggest that the sentence imposed on him was disproportionate to that which had been imposed on an Aaron O'Driscoll, who had pleaded guilty to robbery arising out of the same incident. Mr. O'Driscoll was sentenced to four years imprisonment with two and a half years suspended. In that context, it was suggested that the offence of theft, of which Mr. Cunningham was ultimately convicted, was a lesser offence than the offence of robbery to which Mr. O'Driscoll pleaded guilty. It must be recalled that the conviction by the jury of Mr. Cunningham for theft was on the basis of theft being an alternative offence of which it was possible to convict Mr. Cunningham even though no count of theft appeared on the indictment.

2.2 It must also be recalled that the circumstances in which Mr. Cunningham came to be convicted of theft arose from an aspect of the case made at trial on behalf of Mr. Cunningham which, as this Court pointed out in the previous judgment, ‘centred on the suggestion that a Mr. O'Toole and a Mr. Postol were complicit in the events on the occasion in question’. As the Court pointed out there were at least three possibilities.

‘ First, the jury might have accepted the evidence of Mr. O'Toole and Mr. Postol and rejected the evidence of Mr. Cunningham and thus accepted that there was a robbery in which Mr. Cunningham played a part. The jury obviously did not come to that conclusion for they did not find Mr. Cunningham guilty of robbery.

Second, the jury might have concluded that Mr. Cunningham's explanation for his presence on the occasion in question as being entirely innocent was either accepted or created a sufficient doubt to prevent it being established to the criminal standard that Mr. Cunningham was involved with whatever wrongdoing occurred. In such an eventuality Mr. Cunningham would have to have been entitled to be acquitted in respect of all the offences concerning the incidents relating to the cigarettes. It might, of course, in respect of some or all of those matters, have been the case that some but not a sufficient number of the jury were convinced beyond reasonable doubt thus leading to a disagreement.

However, there remained a third possibility in which the jury were persuaded beyond reasonable doubt that Mr. Cunningham was involved in the unlawful enterprise but also were persuaded that Mr. O'Toole and Mr. Postol were not innocent victims but were complicit. In...