DPP v Freeman

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 03 October 2018
• Neutral Citation: [2018] IECA 312
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 222CJA/17
• Date: 03 October 2018

[2018] IECA 312

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Hedigan.

Edwards J.

Record No: 222CJA/17

IN THE MATTER OF S.2 OF THE CRIMINAL JUSTICE ACT, 1993, AND IN THE MATTER OF:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

CARL FREEMAN

Respondent

Sentencing – Aggravated burglary – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondent, Mr Freeman, on the 25th of July 2017, pleaded guilty in Bray Circuit Criminal Court to one count of aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the 26th of July 2017, he was sentenced to a period of seven years' imprisonment in respect of count 1, with the final three years suspended on the condition that he enter into a bond of €200 to be of good behaviour for a period of three years post-release. In sentencing the respondent, the sentencing judge also took into consideration the following further counts on the indictment: two counts (counts 2 and 3) of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997, and two counts (counts 4 and 5) of assault causing harm contrary to s. 3 of the 1997 Act. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal seeking a review of the said sentences under s. 2 of the Criminal Justice Act 1993, on the basis that they were unduly lenient. The application for a review was based on the following two grounds: (i) the suspension of the final three years of the seven year sentence imposed for aggravated burglary was (a) excessive, and (b) unwarranted on the facts notwithstanding the plea entered by the respondent; (ii) the sentence imposed was disproportionate to the gravity of the offence and the surrounding circumstances both of the respondent and the victims, and represented a disproportionate elevation of the mitigating factors over the aggravating factors in the overall context of the sentence imposed.

Held by the Court that an appropriate headline sentence in this case would have been in the range from nine years to eleven years. Proceeding on the basis that the seven-year headline sentence nominated by the sentencing judge was in reality somewhat higher, but less than eight years, four months and three weeks, any figure bracketed in that way would have been somewhat outside of the range of the judge's margin of appreciation; it represented a very lenient starting point, and it was a divergence from the norm in the Court's view. It was satisfied that the sentence was unduly lenient. It held that it would quash the sentence in the court below and proceed to a re-sentencing.

The Court held that the correct headline sentence would have been one of ten years' imprisonment. The Court held that it would suspend three years and six months of that (representing a discount of 35%) to take account of mitigation, to reward progress to date towards rehabilitation and to incentivise future rehabilitation. To take account of the "disappointment factor" from the perspective of the respondent, who was faced with having to serve a longer sentence than he had been given to expect, The Court held that it would suspend a further six months of the sentence. Accordingly, the ultimate sentence was one of ten years' imprisonment with the final four years thereof suspended; what this amounted to in terms of time to be actually served (excluding remission, and assuming he keeps to the conditions upon which his sentence was being partly suspended) was a sentence of six years' imprisonment. To take account of the time served solely for the road traffic offences the Court held that it would backdate the start date for the sentence by sixteen months and three weeks to the 10th of July 2015, rather than the 4th of December 2016 which was the start date for the sentence imposed by the court below; the partial suspension of the sentence was to be on the same terms and conditions as attached to the partially suspended sentence imposed at first instance.

Appeal allowed.

JUDGMENT of the Court delivered on the 3rd of October 2018 by Mr. Justice Edwards .

Introduction

1 On the 25th of July 2017, the respondent to this appeal pleaded guilty in Bray Circuit Criminal Court to one count of aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

2 On the 26th of July 2017, the respondent was sentenced to a period of seven years" imprisonment in respect of count one, with the final three years suspended on the condition that he enter into a bond of €200 to be of good behaviour for a period of three years post-release. In sentencing the respondent, the sentencing judge also took into consideration the following further counts on the indictment: two counts (counts nos. 2 & 3) of false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act, 1997, and two counts (counts nos. 4 & 5) of assault causing harm contrary to s.3 of the Non-Fatal Offences Against the Person Act, 1997.

3 The applicant, namely the Director of Public Prosecutions, now seeks a review of the said sentences under s. 2 of the Criminal Justice Act 1993, on the basis that they were unduly lenient.

Background facts

4 At the sentence hearing on the 26th of July 2017, Sergeant Pat Carroll gave evidence as to the circumstances in which the offences were committed. The victims were a Mr. William Crean ('Mr. Crean') and his wife, Mrs. Kathleen Crean ('Mrs. Crean') and the incidents occurred at their family home at Ashlawn, Killoughter, Ashford, Co. Wicklow. Their home is in a rural area, about a mile and a half from Ashford Village, at a cross roads on a back road between Rathnew and Newcastle.

5 Mr. Crean was born on the 16th of August 1942, making him 72 years of age at the time of the offence, whilst Mrs. Crean was born on the 28th of August 1949, making her 65 years old at the time of the offence. Mrs. Crean did not enjoy good health. She had unfortunately been suffering from cancer and kidney failure for some time prior to the incidents and was on a lot of medication.

6 The offences were committed in the early hours of Thursday the 12th of March 2015. Earlier on the night of the 11th of March, Mr. Crean had locked up his house at around midnight and had gone to bed, Mrs. Crean being the only other person in the house. Mrs. Crean woke in the early hours with some physical discomfort associated with her medical problems. As she lay in bed awake she saw the headlights of a car turning in their driveway, and their dog started barking. This was at about 3:30am. Mrs. Crean woke her husband who got up immediately because, as he explained, 'the dog does not bark..I knew there was someone or something outside.' Mr. Crean walked from the bedroom up to the kitchen, opened the inside kitchen door and turned on the kitchen light. As he did so, there was a bang and the outside kitchen door came in and three men entered the kitchen. Mr. Crean went to close the inside kitchen door and one of the men hit the inside door twice. The glass in the door broke but did not smash.

7 Mr. Crean then retreated to their bedroom, and tried to shut the bedroom door, but the door was pushed in on top of him. One of the men shouted at him to 'Get into bed'. In his statement to the Gardaí, Mr. Crean described one of the men as being of his own height, with a 'flattish face', and as wearing a grey hoodie with the hood up and having gloves in his hand. This man also had a hurl in his hand. In fact, each of the men was armed with a hurl, but the individual in the grey hoodie did all the talking. He asked: 'Where is the money? We know you have money'. This man then drew out his hurl and hit Mr. Crean 'as hard as he could give it' on his left shoulder. Mr. Crean was then ordered to 'Get up off the bed' and he was marched down the hall, his assailant all the while screaming back into the bedroom and shouting. The intruder then demanded to know what was out in the garage, and Mr. Crean replied 'There is nothing, only rubbish.' The man in the grey hoodie kept shouting 'We know you have money, we know[you] have guns, we know you have silver, we know you have gold'. Mr. Crean told him in reply 'We have nothing in here. We don't have money.'

8 Mr. Crean was later in a position to also describe the other two intruders to Gardaí, but they had their faces covered unlike the man in the grey hoodie who had his face uncovered. Mr Crean stated to the Gardaí that 'The other lads did not hassle us. It was the lad with the smudge face, the boss, who hassled us.'

9 Mrs. Crean in turn described how the intruder who had his face uncovered told her to sit on the bed, and he then grabbed her by the throat. Mrs. Crean believed he was checking to see if she had gold chains on. He then grabbed both her hands and looked at her fingers to see whether she had any rings on. She had in fact no rings on as she had earlier removed them due to the fact that her fingers were swollen due to her medical condition. The intruder then held his hurley over Mrs. Crean's legs in a threatening manner as if he was going to hit her, but Mr. Crean pleaded with him 'Don't hit her. She's not well.'

10 The man kept on at Mr. Crean 'about money, guns, gold and silver', but eventually the intruders left, having taken about €150.00 in cash. They ripped the landline out of the wall as they left and took Mr. Crean's mobile phone so the elderly couple were left with no way of contacting the Gardaí after the incident. Mr. Crean eventually walked to a neighbour's house to raise the alarm. The Gardaí were then contacted and Mr. Crean reported what had happened.

11 The sentencing court was told that a Garda Brian McCormack had just finished his shift in Tallaght Garda Station at 7 am on the morning of the 12th of March 2015, and was driving home when he...