DPP v Grey
 IECA 9
THE COURT OF APPEAL
111/2013 - Kelly Peart Mahon - Court of Appeal - 10/11/2014 - 2014 15 4215 2014 IECA 9
DPP v GEASLEY UNREP CCA 10.6.2013 [TRANSCRIPT NOT AVAILABLE]
AG, PEOPLE v POYNING
Sentencing – Attempted robbery – Excessive sentence – Appellant seeking an appeal against severity of sentence – Whether trial judge failed to take mitigating factors into account
Facts: The appellant, Mr Grey, has a lengthy criminal record. He has 31 previous convictions, three of them were for robbery and in respect of them he received sentences of either three or four years each. In July, 2010, the appellant, together with Mr Heffernan, went to the EBS Greystones premises and entered them. With a gun in his hand, he vaulted over the counter and held it to the cashier Ms O'Reilly”s head and shouted at her ‘give me the money’. When the alarm was sounded he made off and drove away and ultimately was apprehended after a car chase. The appellant pleaded guilty to one count of attempted robbery and was sentenced to five years imprisonment by the Circuit Criminal Court at Wicklow in April 2013. The appellant appealed to the Court of Appeal against the severity of the sentence. The appellant complained that in fixing on that tariff, the judge failed to take into account all of the mitigating factors which had been outlined in evidence before him. The second criticism made by the appellant pertained to the alleged disparity between the treatment given to the appellant and his co-accused Mr Heffernan; it was said that the treatment was so different and not based upon rationality that it ought to be condemned as an error in principle.
Held by Kelly J that, having considered the transcript of what went on before Judge O”Shea on the 18th April, 2013, it was clear that immediately prior to the imposition of sentence, all of the relevant material was opened to him and that he took all that into account; for example, he expressly referred to the fact that he was not going to go through the psychiatric report in public so as to avoid embarrassing the accused. Kelly J did not think that this could be regarded as a basis for criticising the judge for not taking that matter into account. The judge also heard, just before he imposed sentence, evidence which he referred to during the course of the sentencing: for example, the apology to Ms O'Reilly, the attendance which the appellant had had with an organisation called Hope, the evidence of a senior project worker and the ‘hands on peer education’ were all referred to. Kelly J noted that the judge took those matters into account and weighed them up and contrasted them with the aggravating factors which he also identified; the frightening, intimidating, aggressive manner in which the offence was carried out, the use of the gun, the demand for the money and so on. Kelly J was satisfied that no legitimate criticism could be made of the judge in the way in which he conducted the sentencing hearing, nor by reference to an allegation that he did not take everything into account. Referring to The People (Attorney General) v Poyning  IR 402, Kelly J held that the trial judge was careful to differentiate the position between the appellant and Mr Heffernan. Firstly, insofar as the offence itself was concerned, Kelly J held it to be clear that the more active party in the commission of the offence was the appellant in that he brandished the gun, vaulted over the counter, shouted at the cashier and then drove away. Mr Heffernan, by contrast, was seen to have taken a more minor part in the whole affair. Secondly, insofar as the criminal record of the two individuals was concerned, Kelly J held that the criminal record of the appellant is clearly more serious, with 31 previous convictions including three of robbery compared to his co-accused”s 23 previous convictions with two for robbery. Hence, the judge imposed a sentence of four years on Mr Heffernan and a sentence of five years on the appellant. Kelly J held that the differentiation in treatment was justified.
Kelly J held that with no error in principle having been identified by reference to the various criticisms which have been levelled against the trial judge, the appeal failed and the order of the court was that the appeal be dismissed.
1. This is an appeal against the severity of a sentence imposed by His Honour Judge O'Shea at the Circuit Criminal Court at Wicklow in April 2013. The accused, Gerard Grey, on that occasion pleaded guilty to one count...
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