DPP v Jones

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Hedigan
• Judgment Date: 16 November 2017
• Neutral Citation: [2017] IECA 302
• Date: 16 November 2017
• Docket Number: 14/15 15/15

[2017] IECA 302

THE COURT OF APPEAL

Hedigan J.

Birmingham J.

Mahon J.

Hedigan J.

14/15

15/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Alan Jones

Appellant

Sentencing – Robbery – Disproportionate sentence – Appellant seeking to appeal against sentence – Whether sentence was disproportionate

Facts: The appellant, Mr Jones, appealed to the Court of Appeal against severity of overall sentence. There were two appeals which were heard together. They related to sentences imposed in the Circuit Court on the 5th December, 2014, and the 18th December, 2014. The appellant was serving a total sentence of 13 years with the final three suspended arising from five bills of indictment. This was comprised of sentences in respect of four Circuit Court convictions for robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, one attempted robbery and one offence contrary to s. 11 of the Firearms and Offensive Weapons Act 1990. Two of the five bills related to suspended sentences which were reactivated in accordance with s. 99 of the Criminal Justice Act 2006. The appellant submitted that the previously suspended sentences were revoked under s. 99(10) of the 2006 Act which had since been struck down. It was submitted that the sentences imposed combined with the revocations resulted in a sentence which was disproportionate in the circumstances.

Held by the Court that it could identify no error of principle in the careful manner in which both judges approached the task of sentencing and thus it would not interfere.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 16th day of November 2017 by Mr. Justice Hedigan

Introduction

1 This is an appeal against severity of overall sentence. There are two appeals which are being heard together. They relate to sentences imposed in the Circuit Court on the 5th December, 2014, by Her Honour Judge Ryan and the 18th December, 2014, by His Honour Judge Hogan. The appellant is serving a total sentence of 13 years with the final three suspended arising from five bills of indictment. This is comprised of sentences in respect of four Circuit Court convictions for robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, one attempted robbery and one offence contrary to s. 11 of the Firearms and Offensive Weapons Act 1990 (‘the 1990 Act’).

2 Two of the five bills relate to suspended sentences which were reactivated in accordance with s. 99 of the Criminal Justice Act 2006 as amended (‘the 2006 Act’).

The circumstances of the offences

3 The offence in bill number 626/2008 occurred on the 1st October, 2007, at an Ulster Bank branch in Tallaght. The appellant entered the bank armed with a knife. His face was partially covered with a scarf. There were people in the bank waiting to be served. He went to the counter and demanded money. A member of staff filled up a bag with money. The sum of €1,800 was stolen. The Appellant escaped initially on foot. He then got in a taxi. He left the taxi, having thrown a €20 note at the driver, and got on a bus. He was arrested on the 8th October and detained. He was identified from CCTV and made full admissions in interview. The appellant entered a guilty plea on the first mention date. The matter was adjourned from time to time to monitor the appellant's progress and to allow him to engage with services. It was noted that he had made ‘trojan efforts to rehabilitate himself’. A sentence of three years suspended for three years was imposed on the 20th December, 2010, with probation supervision for 18 months. This was revoked on the 5th December, 2014.

4 The offence in bill number 1131/2009 occurred on the 10th July, 2008. The appellant and another man robbed a bookmakers in Tallaght. The appellant had a large kitchen knife while the other man had a hammer. Approximately ten members of the public were present. The staff members were threatened that the glass partition would be smashed. Money was demanded. The staff fled to a back room. They smashed a window and took between €2,000 and €3,000 in cash. The appellant entered a guilty plea. A fully suspended five year sentence was imposed on the 15th April, 2011, suspended for five years. This was consecutive to bill number 626/2008. On the 5th December, 2014, the suspended sentence was revoked.

5 The offence in bill number 889/2012 was committed on the 10th May, 2012. The appellant entered a guilty plea. He attempted to rob the handbag of a woman at a Luas stop. She refused to let go and was pulled to the ground. The appellant was restrained by passers-by and then arrested. Evidence was heard on the 8th March, 2013, and the appellant was placed under probation supervision before sentencing. Sentence was imposed on the 5th December, 2014. The appellant was sentenced to three years suspended consecutive to the sentences on bill numbers 626/2006 and 1131/2009. This offence was committed while he was on suspended sentences.

6 The offence in bill number 950/2013 occurred on the 19th April, 2013. The appellant robbed a woman at the ATM in a bank carpark in Tallaght using a knife. A man told her to empty her account. She gave evidence that she only noticed the knife when her hand hit off the blade which was protruding. The appellant had his right-hand over his face and said not to look at him. The appellant grabbed her by wrapping his arm around her and the blade was in and around her upper body. She said to leave her alone and that she wasn't going to give him anything. He grabbed her purse out of her hand and ran off. Her purse contained €60 and personal cards. The appellant was identified by the Gardaiì from CCTV of the incident. The victim's purse was found at the appellant's home address as was clothing matching the description. He was arrested on two occasions and denied involvement. The second arrest was on the 22nd August, 2013, and he has been in custody since that date.

7 The victim attended the sentencing hearing and gave evidence of the effect of the crime on her. She no longer goes to banks alone or walks alone. She takes taxis home if she finishes from about 8 pm onwards. She doesn't carry her purse, personal items or much money. She testified that she is terrified to be alone.

8 The appellant was convicted of robbery and an offence under s. 11 of the 1990 Act following an eight day trial on the 13th October, 2014, before His Honour Judge Hogan. For this reason, the sentencing in this matter took place separately to the other four bills. The appellant did not give evidence, accepted the verdict and apologised in the victim's presence. He was sentenced on the 18th December, 2014, to five years with the final three suspended. This was consecutive to the sentences on bill numbers 626/2006 and 1131/2009. He was on bond for bill number 1131/2009 and on bail pending finalisation of sentencing for bill number 889/2012.

9 The offence in bill number 43/2014 took place on the 15th August, 2013. The appellant robbed an off licence with a large kitchen knife. Money was demanded from a member of staff. The knife was waved in a threatening manner. The one customer present ran from the shop. The appellant stole €415. He was wearing gloves, a baseball hat and had his hood up. The member of staff was put in fear and pressed the panic button. After the appellant left he chased him with a baseball bat and hit him to try stop him until the Gardaiì arrived but the appellant ran away. Based on the description provided the appellant was apprehended shortly afterwards with a knife and bag of cash. He was arrested and detained. During the two interviews he denied involvement. At the time, he was on bail for the offence in bill number 889/2012. He entered a guilty plea on the 10th November, 2014, the trial date. An indication was given a week before that a guilty plea would be entered. On the 5th December, 2014, a two year suspended sentence was imposed. This was made consecutive to the three year suspended sentence on bill number 889/2012.

The appellant's personal circumstances

10 The appellant was born in 1975 and is now in his 40s. He has had a long-standing heroin addiction. His addiction problems go back to when he was 11 years old. He left school at 13 years old. His previous convictions date back to when he was 15 years old. During his 20s and 30s he went through periods of addiction, offending, rehabilitation and then non-offending. He made efforts to rehabilitate himself. He has attended counselling, undertaken education, obtained certificates and carried out charity work. He has worked as a window cleaner and at a sign company. It was noted at sentencing that he has the support of his partner and four children who are all minors.

11 Evidence was given that the appellant had 34 previous convictions, 12 in the Circuit Court. There were 6 for robbery. These were for, inter alia, robbery, possession of knives and other articles, production of an article in the course of a dispute/fight, criminal damage, theft, misuse of drugs, ss. 112 and 113 Road Traffic Act, s. 2 Larceny Act, assault and larceny, s. 34 Forgery Act, s. 47 Offences Against the Person Act, failing to appear, public order, s. 2 assault and road traffic matters.

Sentencing

12 On the 5th December, 2014, the appellant had the sentences on bill numbers 626/2006 and 1131/2009 reactivated in full given the nature of the triggering offences. The appellant was then sentenced in relation to bill numbers 889/2012 and 43/2014.

13 In relation to bill number 889/2012, the attempted handbag robbery, the sentencing judge found the aggravating factors were that it was a crime of violence and the serious nature of the charge. The mitigating factor was his early guilty plea.

14 She took into account that at...