DPP v Joyce
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 05 March 2021 |
| Neutral Citation | [2021] IECA 124 |
| Docket Number | Record No. 143/CJA/20 |
| Court | Court of Appeal (Ireland) |
| Date | 05 March 2021 |
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
[2021] IECA 124
McCarthy J.
Kennedy J.
Donnelly J.
Record No. 143/CJA/20
THE COURT OF APPEAL
Sentencing – Robbery – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Joyce, pleaded guilty to a single count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The offence was committed on the 26th September, 2019 at The Square Tallaght. On the 18th June, 2020 he was sentenced to twenty-one months, backdated to the 26th September, 2019. The applicant, the Director of Public Prosecutions, applied to the Court of Appeal to review the sentence of the respondent on the grounds of undue leniency pursuant to the provisions of s. 2 of the Criminal Justice Act 1993. The grounds of application were that: (a) the sentencing judge did not identify a headline sentence; (b) as no headline sentence was identified, it was not possible to ascertain what credit was given to the mitigating factors; and (c) the sentencing judge attributed too little weight to the aggravating factor.
Held by the Court that the appropriate headline sentence for the robbery was one of 6 years; this was a little higher than the top end of the lowest scale because of the particular aggravating factor of his highly relevant previous convictions. The Court held that as that was the correct headline sentence, the reduction to a sentence of 21 months was a clear divergence from the norm even allowing for mitigation for the respondent’s early plea of guilty, his addiction, his sad personal circumstances, namely the bereavement of his partner, his other circumstances and his determination to remain free of heroin; that reduction would represent a deduction of more than 66% which was far in excess of any possible deduction that could be merited in the case. The Court considered therefore that the sentence was unduly lenient. The Court proceeded to resentence the respondent.
The Court held that the mitigation in the case amounted to no more than a third from the headline sentence. The Court held that the correct sentence in the Circuit Court should have been 4 years but in light of the fact that the respondent had been released from prison and was engaging with various services the Court believed it was appropriate to suspend the last 6 months of that sentence. The Court therefore allowed the appeal. The Court quashed the sentence imposed in the Circuit Court and resentenced the respondent to 4 years imprisonment with 6 months suspended on condition that he enter a bond of €100 to be of good behaviour for a period of 2 years. The Court held that he was to be credited for the portion of the sentence already served.
Appeal allowed.
This is an application taken by the DPP to review the sentence of the respondent on the grounds of undue leniency pursuant to the provisions of Section 2 of the Criminal Justice Act, 1993. The respondent pleaded guilty to a single count of robbery contrary to Section 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The offence was committed on the 26th September, 2019 at The Square Tallaght. On the 18th June, 2020 he was sentenced to twenty-one months, that was backdated to the 26th September, 2019.
The facts of the case can be summarised as follows: -
(a) The victim had finished work on the 26th September, 2019 at approximately 21:00 and was standing at the bus stop on her own. She was approached by the respondent who was initially looking for a light and then asked for a smoke which she gave to him. He was walking around and telling her that he was cold.
(b) Shortly after that he grabbed her by the shoulder and told her that he had a knife. He first asked for her bag and then he grabbed it and ran off. She did not resist as she thought that he might have a knife.
(c) A security guard in The Square heard what had happened over the radio and the description of the suspect. He noticed a person running past the door that matched that description. As a result, the Gardaí were able to apprehend the respondent very shortly afterwards when he was still in possession of some of the injured party's property.
(d) There was CCTV footage of the incident and the respondent was also identified from this. He was arrested that evening, detained and interviewed but nothing of evidential value arose.
(e) The victim did not wish to make a victim impact statement. Section 4 of the Criminal Procedure Act, 2010 provides that where there is not a victim impact statement that the court cannot draw an inference that the offence had little or no effect.
(f) The respondent had seventeen previous convictions, ten of which were Circuit Court convictions and included five robberies, two burglaries, four assaults and possession of a firearm or ammunition with the intent to endanger life. There was a gap in the convictions between 2001 and 2012.
(g) He had been in custody since the date of the offence.
(h) It was also accepted that while the respondent did not physically harm the injured party “ he was using his weapon as a means of intimidating the victim.”
(i) The defence also lead evidence that the respondent had been arrested and charged earlier in the evening and released after tablets that he had in his possession were taken off him.
(j) The Gardaí did not have any difficulties in managing him while detained
(k) He entered a guilty plea at an early date – being the arraignment date. He was very remorseful.
In terms of the respondent's personal circumstances: -
(a) He was 50 at the time of sentencing.
(b) He had seven children and grandchildren and was ‘ a hands on father.’
(c) His mother had custody of three of his children at the time of the hearing.
(d) He developed a drug addiction, having started to take drugs at eleven years of age.
(e) He has periods where he is stable and not committing offences.
(f) His offending behaviour is linked to his drug addiction.
(g) His long-term partner of twenty-three years had committed suicide on 12th March 2018 when he was in custody serving a three-year sentence with one year suspended.
(h) He began ‘ dabbling in heroin’ when he was released from that sentence.
(i) He was on 50ml of methadone.
The respondent gave evidence to the sentencing court. He apologised and said that he was ‘ out of [his] head on tablets that day’. He also said that he had gone downhill after the death of his partner. He said that he had been off heroin for fourteen years and had relapsed. He wanted to go for bereavement counselling when he got out of custody. He asked for the sentence to be finalised on that day and did not want any reports.
The principles in an undue leniency appeal were set out by the Court of Criminal Appeal in The People (DPP) v Byrne [1995] 1 ILRM 279 and a number of other cases. They were not in dispute in this case. The principles establish that: -
(a) The DPP bears the onus of proof in showing that the sentence was unduly lenient,
(b) The appeal court should always accord great weight to the trial judge's reason for imposing the challenged sentence,
(c) It is unlikely to be of help to the appeal court to ask if, in the event that a more severe sentence had been imposed, it would have been upheld in a defence appeal based on error of principle. Different criteria apply to prosecution appeals,
(d) It is clear from the wording of Section 2 of the 1993 Act that, since the finding must be one of undue leniency, nothing but a substantial departure from what would be regarded as the appropriate sentence would justify the appeal court's intervention.
(e) A finding of undue leniency connotes a clear divergence by the court of trial from the norm and would, save perhaps in exceptional circumstances, have been caused by an obvious error of principle.
The sentencing remarks were as follows: -
“Thank you. Stand up, please. On the particular date, it seems this defendant robbed the injured party. He grabbed her by the shoulders and threated her that he had a knife. He took, I think, her bag and made his escape. He was easily apprehended. It seems he was spotted and, it seems, when he was arrested he had certain items of property belonging to the injured party.
Now, Mr Joyce is a 50-year-old man. He has a history of offending. I think 17 convictions in all. Some for quite serious offences. I suppose it's noteworthy that these 17 offences have been spread out over 20 years. It seems he has gone on the straight and narrow for periods of time, but he has relapsed into crime, it seems to feed his drug problem.
He is a man with seven children in total. While seven children, it seems three of them are still dependent. It seems three children are living with his mother in Cushlawn. And it seems when he emerges from prison he will live there with his mother and children. It seems he is an intelligent man. He has had challenges and, I suppose, tragedies in his life. The mitigating factors are clear. He has pleaded guilty. It seems he is remorseful and it seems he can reform himself. There is no doubt about that. And I think the appropriate sentence, taking all the factors into account, obviously including the mitigating factors, is a term of imprisonment of 21 months to be backdated to the date when he went first into custody – what date's that? Sometime in September, wasn't it?”
The grounds of application are that: -
(a) The sentencing judge did not identify a headline sentence.
(b) As no headline sentence was identified, it is not...
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