DPP v Higgins
| Jurisdiction | Ireland |
| Judge | Mr. Justice Peart |
| Judgment Date | 23 October 2017 |
| Neutral Citation | [2017] IECA 270 |
| Docket Number | 168/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 23 October 2017 |
[2017] IECA 270
THE COURT OF APPEAL
Peart J.
Peart J.
Birmingham J.
Mahon J.
168/2016
Crime and sentencing – Appeal against sentence – Robbery – Submission that sentence of imprisonment with element suspended was overly severe
Facts: The appellant had pled guilty to an offence of robbery in 2015 in Limerick Circuit Court, and sentenced to a term of imprisonment with a portion of that term suspended. The appellant contended the sentencing judge had failed to structure the sentence by specifying the tariff and then allowing for any mitigating factors. The matter now came before the Court of Appeal.
Held, that the sentencing judge had fallen into error not in respect of the tariff but by failing to give sufficient weight to the mitigating factors present. On that basis, the Court would resentence the appellant. People (DPP) v. Byrne [2017] IECA 97 considered.
The appeal would therefore be allowed.
This is an appeal against severity of sentence. The appellant entered a guilty plea on the 14th December, 2015, to the offence of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offence Act 2001, in Limerick Circuit Court. The facts were heard on the 7th March, 2016. The matter was put back to allow the sentencing judge to consider it. On the 3rd May, 2016, he was sentenced to six years imprisonment with the final two suspended for six years.
The suspension was on the condition that he enters into a bond of €100 and that he keep the peace and be of good behaviour for the period of the suspension. The sentence was backdated to the 21st May, 2015, when the appellant first went into custody despite the fact that he was serving another sentence between the 29th June and the 26th September, 2015. He was also charged with producing an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. A nolle prosequi was entered in relation to this charge.
The offence occurred a little after 12.50 am on the 17th March, 2015, when the appellant with another man, in Limerick, robbed Mr. Patrick Long of €80 in cash and an 02 WiFi dongle. Detective Garda John Keane described the offence. The injured party had been parked on a square attempting to make a phone call when the front and rear passenger doors were opened whereupon two men suddenly entered the vehicle. They each had their hoods up and faces covered. The man in the back held a knife to the left side of the injured party's neck and brought his right hand across the injured party's throat. The blade was described as being a rusty six or seven inch blade.
The appellant was the man in the front seat. They both shouted at the injured party demanding to know where the money was. The injured party reported being in a state of shock. He pointed out the drawer on the dash where the cash was located. The appellant took the cash, and the dongle which was in the centre console. The man in the back continued shouting for the money, and told him to make sure he gave it up. The appellant went through the glove box but did not find anything. He was attempting to take the injured party's wristwatch when the man in the back said to go. As he was leaving the appellant told the injured party to ‘keep his fucking mouth shut’.
The injured party described the man in the back as wearing a cream sweatshirt and dark jeans. The man in the front was wearing all dark clothing. He then proceeded to the Garda station and reported the offence. He was taken back to the scene in a patrol car but no one was located.
CCTV was taken from premises in the area. At 12.50 am the injured party is seen parking his car and two men are seen leaving the appellant's apartment. One man was wearing a dark jacket and light coloured bottoms. The other was wearing dark bottoms and a light or bright jacket with the hood up. They are followed on various CCTVs to and from the location of the offence. The appellant is seen wearing a black hat, black puffy jacket, grey tracksuit bottoms and black runners and has a cigarette in his mouth. He was identifiable from the footage. The other man is not clearly identifiable.
They are seen entering the square where the injured party was parked. One passenger door can be seen opening. There was also a woman seen in the vicinity. The three people are then seen walking back to the appellant's apartment where he uses his key to gain entry. He left again shortly afterwards in different clothes and is clearly identifiable from CCTV.
The clearer CCTV shots were those closer to the appellant's apartment. The appellant was arrested and questioned on the 1st April, 2015. The appellant made clear admissions in custody although he was somewhat reticent initially. It was accepted by D/Garda Keane that these admissions greatly helped the prosecution case. He stated he was put under pressure by the other man. This was not accepted by D/Garda Keane who said that there was nothing in the CCTV to indicate duress. He denied taking the dongle or attempting to take the wristwatch. He knew the other man had a knife. He entered a very early plea of guilty.
A victim impact statement was handed into the Court. The injured party described being threatened with violence and stated that he has lost confidence while driving at night. He is always afraid now, and has changed his security system so that his car doors lock automatically. Before this offence he would regularly stop and help people on the roadside but is now afraid to do so. He feels guilty about not stopping. He had nightmares for weeks afterwards. He constantly checks to make sure that windows and doors are locked. He travels a long distance twice a week to visit his mother. This causes her and his family to be nervous. He described how it is not a nice way to live and that he is being supported by a doctor and medication.
The appellant was aged 18 at the time of the offence. The co-accused was 32. He was in care from a young age. He has limited education, and has spent time in juvenile detention. He has a history of confrontational behaviour and of being approached by the Gardaiì. He has an issue with prescription tablets.
The appellant has a number of previous convictions including in respect of offences of criminal damage, road traffic offences, theft, unauthorised taking, unauthorised carriage, possession of an article, s. 2 assault, public order offences and burglary. Until the present offence the appellant has been involved in what may be described as relatively minor offending. He does not have a history of serious violence in the community.
A parish priest, Fr. O'Riordan, gave evidence on the appellant's behalf. He has known the appellant for a number of years. He arranged a trial of employment for him and agreed that the appellant could reside with him under strict conditions until more long term accommodation could be found....
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