DPP v Doherty
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] IECA 60 |
| Court | Court of Appeal (Ireland) |
| Docket Number | 267/CJA/16 |
| Date | 02 March 2017 |
[2017] IECA 60
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Mahon J.
Hedigan J.
267/CJA/16
In The Matter of an Application Pursuant to Section 2 of the Criminal Justice Act 1993
Sentencing – Burglary – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Doherty, pleaded guilty to burglary for which he was sentenced in the Dublin Circuit Criminal Court (Sheehan J) on the 6th October, 2016, to two and a half years imprisonment with one and half years suspended for two years, unlawful use of a mechanically propelled vehicle for which he received a sentence of one and half years imprisonment with six months suspended for two years, and four counts of dangerous driving for one of which he received a two year disqualification. There was also a charge of criminal damage for which a nolle prosequi was entered. The sentences were to run concurrently. The respondent had been denied bail so the sentences were backdated to the 13th April, 2016. The periods of suspension were on the following conditions: the respondent enter into a bond to keep the peace and be of good behaviour for two years; he attend for all appointments with the Probation Service and engage in offence focused work; he engage with all relevant support services in relation to substance misuse including residential treatment if required; he engage with the Linkage Service in relation to education/employment/training needs and attend relevant programmes as directed. The appellant, the DPP, appealed to the Court of Appeal seeking a review of sentence, arguing that the sentence imposed was unduly lenient. It was submitted that the sentencing judge erred in principle in: (i) the manner in which the sentences imposed were structured by applying insufficient weight to the aggravating features of the case and/or undue weight to the mitigating factors present which resulted in her failing to adequately reflect the seriousness of the offending behaviour before her; (ii) circumstances where the sentences imposed failed to adequately reflect the principles of specific and/or general deterrence; (iii) imposing an entirely insufficient additional punishment on the respondent for the commission of escalating offences similar to those for which he had been convicted in the past.
Held by the Court that the trial judge erred in that she gave insufficient weight to the aggravating factors of two very serious offences or alternatively gave too much weight to the very limited mitigating factors that were present. The Court held that the sentences imposed would be quashed and the Court proceeded to re-sentence the respondent.
The Court held that the two sentences on counts one and two would be consecutive but concurrent inter se. The Court held that the suspensive provisions of each would be increased by an additional three months. The Court held that the sentences would therefore be: (i) on count one – two years and six months imprisonment with the final one year and nine months suspended for two years on the same conditions; (ii) on count two – one year and six months with the final nine months suspended for a period of two years on the same conditions.
Appeal allowed.
This is an appeal by the Director of Public Prosecutions who argues that the sentence imposed was unduly lenient. The respondent was sentenced by Her Honour Judge Elma Sheehan in the Dublin Circuit Criminal Court on the 6th October, 2016. The respondent pleaded guilty to burglary for which he was sentenced to two and a half years imprisonment with one and half years suspended for two years, unlawful use of a mechanically propelled vehicle for which he received a sentence of one and half years imprisonment with six months suspended for two years, four counts of dangerous driving for one of which he received a two year disqualification, the remainder were taken into consideration. There was also a charge of criminal damage for which a nolle prosequi was entered. He is currently a prisoner in Wheatfield Prison. The sentences were to run concurrently. The respondent had been denied bail so the sentences were backdated to the 13th April, 2016.
The periods of suspension were on the following conditions. The respondent enter into a bond to keep the peace and be of good behaviour for two years. He attend for all appointments with the Probation Service and engage in offence focused work. He engage with all relevant support services in relation to substance misuse including residential treatment if required. He engage with the Linkage Service in relation to education/employment/training needs and attend relevant programmes as directed. In sentencing, the learned trial judge found the aggravating factor to be the serious nature of the offences. The mitigating factors identified were the respondent's early plea, his drug addiction, his efforts at rehabilitation while in prison and his supportive parents.
On 6th May, 2016, less than a month after the commission of the within offences the respondent was sentenced for ten offences (including burglary, criminal damage, s. 112 RTA and possession of housebreaking implements) in the Children's Court and was sentenced to a total of seven months detention. Five days after that appearance the respondent withdrew a District Court appeal wherein he had appealed the imposition of a six month detention order for eight other offences (including burglary, criminal damage, failure to stop for a Garda and possession of knives). The seven month detention order imposed by the Children's Court (6th May, 2016) and the six month detention order (6th June, 2016) as affirmed by the Circuit Court were to run concurrently to each other and also concurrently to the sentences as imposed by the learned sentencing judge. As such, the penalty imposed by the learned sentencing judge extended the respondent's stay in custody by just three months and seven days.
In the early hours of the morning on the 13th April, 2016, the respondent and an accomplice burgled the residence of Ms. Howard while she was asleep upstairs. Her television, X-Box games console, handbag containing cash and car keys were stolen. Ms. Howard did not know the burglary had taken place until alerted by her neighbour.
Her car keys were then used to steal her Volkswagen Polo. The Gardaí responded within minutes and came across the stolen car being driven in convoy with a Hyundai. Lights and sirens were activated and an attempt was made to block the path of the vehicles.
The Volkswagen Polo, being driven by the respondent, crashed into Garda Gerard Smith's patrol car. Both vehicles then led a fleet of Garda cars on a high speed chase. Speeds of up to 170kph were reached and a number of red lights broken during the five kilometres chase before the Hyundai crashed through the bridge wall at Celbridge and landed on its roof in the river. The Volkswagen Polo followed through the gap and landed upright 40 feet from its point of entry.
Garda Smith then rescued and arrested the respondent. The respondent acknowledged that the Garda probably saved his life. At this point he stated that he was a passenger in the vehicle. During questioning the respondent denied committing the burglary, driving the stolen vehicle and knowing that the vehicle had been stolen. The respondent pleaded guilty at the earliest possible stage before the Circuit Court.
A probation and welfare report was ordered. The respondent re-affirmed his denials of driving the Volkswagen Polo but subsequently expressed remorse. He was deemed to be at a high risk of re-offending. He was 17 years old at the time of the offence and 18 years old when sentence was imposed.
At the time of sentencing he had 33 previous convictions. These included seven convictions for unlawful use of a mechanically propelled vehicle, five for burglary, four for criminal damage, four for possession of articles for theft or fraud, two for interference with motor vehicles, two for possession of knives or other articles, and one for theft, trespass, robbery, public order and failing to stop for Gardaí.
On the 6th May, 2016, the respondent received a total of seven months detention from the Children's Court for ten offences. Five days later the respondent's appeal against the imposition of six months detention for eight other offences was withdrawn. These sentences were to run concurrently with each other and the sentence the subject matter of this appeal. As such the penalty imposed herein extended the respondent's stay in custody by three months and seven days.
Garda Smith accepted that most of the convictions related to offences which occurred in 2014 and 2015.
In mitigation it was submitted that the respondent was a young man. He entered a guilty plea at an early stage. He was a regular drug user who had made some efforts to rehabilitate himself. He had the support of his family. Due to administrative delays he lost the opportunity to make submissions in the Children's Court pursuant to s. 75 of the Children Act 2001.
In sentencing the learned judge found the aggravating factor to be the serious nature of the offences. The mitigating factors identified were the respondent's early plea, his drug addiction, his young age, his expressed wish to become a productive member of society, his efforts at rehabilitation while in prison and his supportive parents.
It was the appellant's submission that the sentences imposed on each count are individually and cumulatively unduly lenient. It was...
To continue reading
Request your trial