DPP v Fitzgerald
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 22 October 2018 |
| Neutral Citation | [2018] IECA 330 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 11/2018 |
| Date | 22 October 2018 |
[2018] IECA 330
THE COURT OF APPEAL
Edwards J.
Birmingham J.
Edwards J.
Hunt J.
Record No: 11/2018
Sentencing – Burglary – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Fitzgerald, on the 28th of November 2017, was arraigned and pleaded guilty in Kilkenny Circuit Criminal Court to one count of burglary contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud) Offences Act 2001. On the 13th of December 2017, he was sentenced to a term of four years' imprisonment with the final year suspended on the following conditions: that he keep the peace and be of good behaviour while in custody for three years post release; that he come under the supervision of the Probation Service post-release; and that he remain drug and alcohol free during that period. The appellant appealed to the Court of Appeal against the severity of said sentence, submitting that the sentencing judge: failed to have any or adequate regard to the personal circumstances of the appellant; erred in principle and in law in imposing a four-year sentence in all of the circumstances of the case; took matters into account which were not before the court in evidence; and erred in principle and in law in failing to have sufficient regard to the mitigating circumstances of the case, in particular the early guilty plea entered by the appellant.
Held by the Court that the headline sentence of six years' imprisonment was too high, representing a point just below the middle of the mid-range. The Court held that this was a case properly to be located in the low range and that to have located it in the mid-range was an error of principle. Having regard to the aggravating factors in the case, the Court considered that the offending conduct would have merited a headline sentence of three years rather than six years. The Court held that it would quash the sentence imposed by the court below and re-sentence the appellant.
The Court held that it would nominate a headline sentence of three years' imprisonment, and discount from that by one third to reflect mitigation. In addition, the Court held that it would suspend the final six months of the resultant two year sentence to incentivise the appellant's continuation of work towards his eventual rehabilitation, subject to the conditions (i) that he enters into a bond in the sum of €100 to keep the peace and be of good behaviour for a period of three years following his release, (ii) that he remains drug and alcohol free during that three year period and (iii) that he submits to the supervision of, and engages with, the Probation Service during that three year period and complies with all of their directions and instructions. The Court held that the sentence was to date from the same date as the sentence imposed in the court below, i.e., the expiration of the last of any sentences that he was already serving on the date of his sentencing by the court below.
Appeal allowed.
On the 28th of November 2017, the appellant was arraigned and pleaded guilty in Kilkenny Circuit Criminal Court to one count of burglary contrary to section 12(1)(b) of the Criminal Justice (Theft and Fraud) Offences Act 2001 ('the Act of 2001').
On the 13th of December 2017, he was sentenced to a term of four years" imprisonment with the final year suspended on the following conditions – that he keep the peace and be of good behaviour while in custody for three years post release; that he come under the supervision of the Probation Service post-release, and; that he remain drug and alcohol free during this period.
The appellant now appeals against the severity of said sentence.
Sergeant Cormac O" Connell gave evidence at the sentence hearing that Gardaí received a report from a Ms. Helen Power that a burglary had taken place, at her premises – a coffee shop called the ' Flaky Tart' - at 34 Rose Street Inn, Co. Kilkenny. Ms Power reported, on the 20th of June 2017, that on the previous evening the shop had been entered into by a trespasser and approximately €300 had been stolen from the cash register. Upon taking a statement from Ms. Power, Gardaí initiated an investigation into the matter. Detective Garda Leech, upon viewing CCTV footage from a premises nearby, recognised the appellant. Later that evening Detective Garda Leech encountered the appellant at Hebron Park, Kilkenny and arrested him at 23.10 on suspicion of having committed the offence of burglary. The appellant was brought to Kilkenny Garda Station where he was detained for the proper investigation of the offence for which he was arrested and was interviewed in the course of that detention. He made full admissions in respect of the burglary. These admissions were adduced in evidence at the sentence hearing in the following terms: 'I bumped into Adam outside the pizza place. I had to meet someone to get something. We went back to the pizza place. He ordered his pizza. I went and I did what I had to do. I went back and ate the pizza in the street. Basically, we were just walking down the street and I saw the window. I jumped into the window, grabbed the till, brought it into the middle of the shop and took the money. I got back out the window and went our separate ways. I got on the bus the following morning to give someone money and I'm not willing to say.'
The appellant was sent forward for trial, was arraigned, pleaded guilty and was ultimately sentenced in the terms outlined at the outset of this judgment.
The evidence at the sentence hearing was that Ms. Power was informed of her right to give a victim impact statement to the sentencing court. However, it appears that she opted not to do so.
The sentencing court did not have the benefit of a Probation Report in respect of the appellant. However, from the defence counsel's plea in mitigation, the following picture emerges as to the appellant's personal circumstances. The appellant was born on the 1st of January 1989. He left school after fifth class. His counsel's instructions were to the effect that he was taken into HSE care from the age of three. He has been intermittently in and out of emergency homeless accommodation, both in Kilkenny and in Dublin. The court was informed that the appellant was in Merchant's Quay Hostel accommodation at the time of the present offence.
Under cross-examination, Sergeant O" Connell accepted that the appellant is 'well known to the gardaí as a drug user and carries out those offences for the purpose of feeding a drug habit'. His counsel submitted to the sentencing court that the appellant was introduced to drugs at the age of eight and has continued using drugs throughout his life.
The appellant has an extensive list of previous convictions – 109 in total, largely convictions for robbery, theft, criminal damage, drug offences and for possession of knives. He first entered the courts" system and received a detention order at the age of 12. At the time of sentencing, the appellant was currently in custody on foot of a six-month prison sentence for threatening to kill or cause serious harm contrary to s. 5 of the Non-Fatal Offences against the Person Act 1997. The appellant has five previous convictions for offences contrary to s. 3 of the Misuse of Drugs Act 1977. In terms of relevance to the present offence, the appellant has a number of previous convictions for theft and burglary. He has six previous convictions for theft contrary to s. 4 of the Act of 2001 and 13 previous convictions for burglary contrary to s. 12 of the Act of 2001.
In imposing sentence upon the appellant, the sentencing judge made the following remarks:
'There was no name that the Court can put to the Flaky Tart, but I hope that lady is well. I note that she did not wish to become involved in giving a victim impact statement and that is totally understood by the Court. Not an uncommon, but a very understandable reaction from many people in her situation. The less association she has, no doubt, with the offender, as far as she is concerned, the better. Nonetheless, be it -- in spite of the fact that it is a non-residential premises it is quite likely that the offender, the accused, Mr Fitzgerald, had no idea whether or not he was going to meet anybody on the premises. He could never be sure of that. Even in spite of the fact that she did not reside there, it is still nonetheless an invasion on that lady's privacy, on that lady's property and on that lady's peace of mind when she arrived at her premises the following morning to find evidence of the break-in and she had to involve An Garda Síochána and bring them to the premises and all that followed therefrom. The Court hopes that she has recovered from the horrible, horrible experience of having one's space and peace of mind invaded by a stranger for criminal activity.
The Court is obliged to consider not only those matters, but must also consider the personal circumstances of the accused, and any sentence that is imposed must be proportionate both to the crime committed and to the personal circumstances of you, Mr Fitzgerald. And for that purpose the Court must go on to consider those personal circumstances; any aggravating or mitigating factors; any -- consider any remorse shown by you, or any appreciation of your wrongdoing; must consider your past record and the likelihood of you reoffending; and the consequences of this crime and the impact thereof, not only on society but on the lady whose premises you broke into; what was the level of cooperation, if any, with An Garda...
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...This involves the same period of imprisonment but with one premises and no previous convictions. 18 In People (DPP) v William FitzGerald [2018] IECA 330, the appellant was sentenced to a burglary relating to the theft of €300 from a cash register in a coffee shop called ‘The Flaky Tart'. He......
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DPP v Healy
...not use any implements or tools that would cause the court to think that this was anything other than an the facts in DPP v Fitzgerald [2018] IECA 330, the premises was unoccupied at the time of the commission of the offence, no weapon or violence was used, there was a low monetary value o......