DPP v Fagan

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 27 October 2020
• Neutral Citation: [2020] IECA 290
• Date: 27 October 2020
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 155/2019 DUDP0821/2017 DUPD0909/2017 DUPD1098/2017

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

Respondent

V

DAVID FAGAN

Appellant

[2020] IECA 290

Birmingham P.

Edwards J.

McCarthy J.

Record No: 155/2019

Bill Nos: DUDP0581/2017

DUDP0821/2017

DUPD0909/2017

DUPD1098/2017

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr Justice Edwards on the 27 ^th of October, 2020.

Introduction

1 On the 6 ^th of June 2019 the appellant was before the Dublin Circuit Criminal Court for sentencing on foot of four separate Bills of Indictment, in respect of which he had offered pleas of guilty on arraignment, as follows:

• on Bill No 581/2017, one count of robbery, contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001;

• on Bill No 821/2017, two counts of robbery, contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001;

• on Bill No 909/2017, one count of robbery, contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and one count of production of an article, contrary to s.11 of the Firearms and Offensive Weapons Act 1990;

• on Bill No 1098/2017, one count of attempted robbery, one count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 and two counts of production of an article, contrary to s.11 of the Firearms and Offensive Weapons Act 1990.

2 The appellant received the following sentences:

(i) Bill No. 581/2017 - 3 years imprisonment on the sole count of robbery;

(ii) Bill No. 821/2017 - 3 years imprisonment in respect of each of the two counts of robbery;

(iii) Bill No. 909/2017 - 3 years imprisonment in respect of the count of robbery, with the count of production of an article being taken into consideration;

(iv) Bill No. 1098/2017 - 3 years imprisonment with the final 18 months suspended, in respect of the robbery consecutive to the sentence on Bill no. 581/2017, with the count of attempted robbery and the two counts of production of an article being taken into consideration.

3 With the exception of the sentence on Bill No 1098/2017, which was made consecutive to the sentence imposed on Bill No 581/2017 in circumstances where it had been committed whilst the appellant was on bail, all sentences were to be served concurrently, and were to date from the date on which sentence was imposed but credit to be given for all time spent in custody exclusively on those Bills since January 2019.

4 The appellant now appeals against the severity of his sentences.

The Circumstances of the Crimes

5 Evidence was given by Garda Seán Parker that the sole count on this Bill concerned a robbery committed on the 24 ^th of September 2016 at the Applegreen Service Station in Baldoyle, Co. Dublin. On the occasion in question a Mr. Justinas Malvijevas was working there and had started his shift at approximately 8.30 in the evening. He was behind a till and engaged in serving a customer, just two minutes or so after starting his shift, when he noticed a male person beside him who had come behind the counter. This person had a cloth over his face and was wearing a blue jacket. Mr. Malvijevas could see a kitchen knife in this person's hand and the person shouted: “Get the fucking money”. Mr. Malvijevas could only see the person's eyes, and he felt immediate fear. Accordingly, he opened the till and the man in question took money from it. He then ran from the store, out the front door, and turned right. Mr. Malvijevas stated to Gardaí that during the robbery he had contemplated trying to prevent it, but he had feared for his life and decided against doing so.

6 A customer, Lisa Lawless, who was present during the robbery was in a position to give a description of the robber. She described him as very calm. A Mr. Stephen O'Connor, was working as a supervisor in the store, received a report from a female customer that “You're being robbed”, following which he looked in the direction of the till and saw a male person behind Mr. Malvijevas who was at the till and this person had a knife. Mr. O'Connor reported that it looked like a chef's knife with a 6-inch blade, wide at the base and sharp.

7 Evidence was given that €600 was taken during the course of the robbery. After the robber had made his getaway the Gardaí were summoned, and they took possession of CCTV footage. With the assistance of this CCTV footage they identified the appellant as a suspect and sought a search warrant to enable them to search his house. This search was carried out on the 27 ^th of September 2016 and an item of clothing was seized. The appellant was not present during the search. However, on the following day, the 28 ^th of September 2016 Garda Parker came across a vehicle while he was on mobile patrol, which appeared to be abandoned and which had a broken window. Upon closer inspection he discovered the vehicle to be occupied with the appellant lying in the backseat of it. Garda Parker observed presence of paraphernalia suggesting drug use and he seized a number of items of clothing, and also a silver and gold watch and a black bracelet with coloured religious depictions, which were present in the vehicle. These items were to be seen on the CCTV footage taken from the Applegreen Service Station as being worn by the robber at the time of the robbery.

8 The appellant was subsequently arrested in Naas on the 11 ^th of January 2017 in connection with this robbery. He was interviewed while in detention and made relevant admissions.

9 It was accepted by Garda Parker in the course of being cross-examined by counsel for the appellant that his admissions had been extremely helpful, and also that the appellant was a drug addict. The appellant had offered the explanation to the gardaí for his conduct that he owed money and had acted under pressure. He accepted that he had put the staff of the service station in fear when he had produced the knife, remarking, “I was stabbed before. I know that it is traumatising.”

10 None of the stolen monies were recovered. When asked what he had done with the proceeds of the crime the appellant stated, “I paid off people.”

11 Detective Garda Ken McGreavy gave evidence that the counts on this Bill concerned two robberies of the same premises, namely the Texaco Service Station at Strand Road in Portmarnock, Co. Dublin, initially on the 24 ^th of December 2016 and again on the 30 ^th of December 2016.

12 In respect of the first of these robberies which occurred on Christmas Eve, a Mr. Roman Harvey was working on the premises at the time. He had started work at 2:00 PM and the premises was due to close at 8:00 PM. At approximately 7:40 PM his work colleague left to empty the bins and he was in the shop on his own. He was behind the till, and at 7:43 PM, a man walked into the shop. This man had a grey woollen hat and it was pulled down to his eyes. In addition, he had a black snood pulled up to the bridge of his nose. Mr. Harvey was later able to give Gardaí a description to this effect and an estimate of the height of the man in question. The man had a knife in his right hand. It had a long thin blade about 10 inches long. The man pressed the knife to Mr. Harvey's left side and said “Open the till”. He spoke with the Dublin accent. There was around €400 in notes in the till, and the man with the knife, having grabbed that money, demanded to know “Where is the rest of it?” and repeated this several times. Mr. Harvey told him that that was all there was.

13 At this, the man grabbed two packets of cigarettes and as he was walking out of the premises said, “Don't ring the alarm or I will be back for you”. Mr. Harvey recalls the robber as wearing black woollen gloves on this occasion. Mr. Harvey informed Gardaí that he was terrified but that once the robber had left the premises he dialled 999 and reported the matter.

14 A few days later Mr. Harvey was again working in the same Texaco service station shop. At about 6:55 PM he was alone behind the till when he noticed a male come into the shop. This male had his hoodie up and was trying to cover his face and was keeping his head down. He immediately came around to the area where Mr. Harvey was standing and said, “Open the till”, a few times, before then beginning to count “One, two, three, four ….” He had a broken brown bottle in his right hand and was not wearing gloves. The person concerned was judged by Mr. Harvey to be very jumpy and he seemed to be bouncing a bit on his tiptoes. Mr. Harvey was fearful that the robber would use the broken bottle against him. The robber then removed notes from the till drawer and also some €2 coins. At this point Mr. Harvey realised that he was the same person who had robbed the premises six days previously. Approximately €800 was taken from the till and the robber also took four boxes of assorted cigarettes. Before leaving the premises, the robber addressed Mr. Harvey stating, “Don't follow. I'm telling you, don't follow me”. As soon as the robber had gone Mr. Harvey pressed a panic button in the premises to summon assistance. He then ran to the side of the building and met a customer who told him that the perpetrator had gotten into a taxi which was just about to move away. Mr. Harvey and the customer noted the details of the taxi and later provided these details to Gardaí who successfully traced the taxi.

15 A statement was subsequently taken from the taxi driver which was of considerable assistance. While the perpetrator of the robbery was in the taxi he made a phone call on his mobile phone during which he introduced himself to the person at the other end of the line as “Fagan”. At one point, while this person was still in the taxi, the Gardaí telephoned the taxi driver who calmly said that he would call them back in a few minutes. The robber demanded to know of the taxi driver “What did they want”, and the taxi driver displaying remarkable sangfroid responded that they wanted to talk to him...