DPP v Judge
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 12 May 2017 |
| Neutral Citation | [2017] IECA 148 |
| Docket Number | Record No: 2016/182 |
| Court | Court of Appeal (Ireland) |
| Date | 12 May 2017 |
[2017] IECA 148
THE COURT OF APPEAL
Edwards J.
Birmingham J.
Mahon J.
Edwards J.
Record No: 2016/182
Sentencing – Burglary – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Judge, pleaded guilty on the 2nd of February 2016 in respect of two counts of burglary, contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A further three counts were to be taken into consideration. On the 17th of June 2016 the appellant was sentenced to four years imprisonment on counts 1 and 3 on the indictment, both sentences to run concurrently and to date from the 7th of May 2016. The remaining counts on the indictment pertaining to criminal damage contrary to s. 2 of the Criminal Damage Act 1991 were taken into consideration. The appellant appealed to the Court of Appeal against his sentence on the grounds that it was unduly severe. The appellant submitted that: 1) the sentence imposed by the trial judge was excessive and oppressive in all the circumstances; 2) the trial judge erred in law and in fact in locating the offences before the court in the higher range of offences of burglary contrary to s. 12 of the 2001 Act in terms of assessing the applicable penalties to be imposed; 3) the trial judge erred in law and in fact in determining the seriousness of the offences in and of itself to be an aggravating factor; 4) the trial judge erred in law and in fact in attaching excessive weight to the aggravating factors as outlined during the course of the sentencing hearing; 5) the trial judge failed to have regard sufficiently or at all to the extensive efforts made by the applicant in respect of his rehabilitation and further failed to have regard to the objective of rehabilitation insofar as same is a component part of any sentence.
Held by the Court that the four year sentence nominated was excessive in the circumstances of the case, particularly in the absence of any suspended element which might have served to incentivise rehabilitation. The Court quashed the sentence imposed by the Court below and proceeded to re-sentence the appellant.
The Court held that it would nominate five years as the appropriate headline sentence but reduced that by one year to reflect mitigating circumstances. The Court would then suspend a further year of the resultant four year sentence for a period of three years in order to incentivise rehabilitation; in doing so the effective custodial sentence to be served, assuming the appellant complies with his bond, would be three years. The conditions upon which the Court was prepared to partially suspend the sentence would be that, in addition to the standard requirement to enter into his own bond in the sum of €100 to keep the peace and be of good behaviour, the appellant shall continue to engage with drug rehabilitation services during the remainder of his sentence, and following his release during the period of the suspension of his sentence; in addition he must during the same period engage with, and comply with all recommendations of, the Probation Service.
Appeal allowed.
The appellant was arraigned and pleaded guilty on the 2nd of February 2016 in respect of two counts. i.e., counts 1 and 3 on the indictment before the court, of burglary, contrary to s.12 of the Criminal Justice (Theft and Fraud Offences) Act 2001. A further three counts were to be taken into consideration.
On the 17th of June 2016 the appellant was sentenced to four years imprisonment on counts 1 and 3, both sentences to run concurrently and to date from the 7th of May 2016. The remaining counts on the indictment pertaining to criminal damage contrary to s.2 of the Criminal Damage Act 1991 were taken into consideration.
The appellant now appeals against his sentence on the grounds that it was unduly severe.
On the 28th of June 2015 the appellant committed burglaries at two premises, both of which were unoccupied. The sentencing court heard evidence from Garda Brendan Noone who told the court that at approximately 7 p.m. on the 28th of June 2015 he and a colleague, Garda Mick Kilkenny, attended Murtagh's Hardware in Ashbourne, County Meath following an alarm activation. Garda Noone met with the owner of the shop, Mr. Colin Murtagh, who took them to a warehouse at the rear of the shop and pointed out broken windows. Garda Noone viewed CCTV footage showing the intruder attempting to move the CCTV camera and he recognized the intruder as the appellant. The appellant stole a hammer and there was evidence of windows having been broken and further evidence that the appellant had searched the office area of the building. Drawers had been pulled open and paper had been disturbed and removed from a drawer. No money was taken.
Later on the same date, Garda Noone received a call in relation to a suspected burglary at the Ashbourne Community Centre. Garda Noone and Garda Kilkenny attended the premises and found a window was open. They waited approximately 40 minutes for the key holder. While waiting they could hear noises from inside and it appeared to Garda Noone that a person within was attempting to break out of the building. Essentially the appellant had broken into the centre and found himself trapped within the building. During a subsequent search of the ground floor toilets Garda Noone located the appellant hiding in one of the cubicles. He was arrested at the scene and initially provided his name as 'Karl Blake' but made immediate admissions to breaking into Murtagh's Hardware earlier in the evening.
The court heard of the damage to the community centre. A door had been taken from its rail to allow the appellant access to the upper floor and a further two office doors were completely smashed open. There was severe damage to a safe. The estimation of the damage in monetary terms was just under €2,000. In respect of the community centre the appellant admitted to Gardaí that he broke in looking for money. He found the safe but couldn't open it and then heard Gardaí coming.
It was accepted at trial that the appellant had been co-operative with the investigation and despite initially giving a false name his correct name was ascertained at an early stage. He did not require a solicitor to attend at the Garda station and made admissions. He was not armed, nor did he have a history of violent offences.
Garda Noone told the court that at the time of sentence the appellant had forty previous conviction of which approximately thirty were convictions for burglary and related theft offences. The appellant's first conviction was when he was 14 and he received his first custodial sentence at the age of 16. His offending behaviour then continued in a cyclical manner. At the time of the commission of this offence the appellant was on temporary release from prison. The court heard of the appellant's efforts to engage and deal with his drug addiction, and was provided with correspondence from Merchants Quay Ireland, that had clearly been produced for and presumably relied upon at a sentencing for an earlier offence, confirming that, when in Mountjoy prison on a previous occasion, the appellant had self referred to the MQI Addiction Services there, and that he had gained insight into his addiction problem and it was hoped to engage with him in developing a solid recovery plan upon his release. It appears that the hoped for recovery did not come to pass because, as counsel for the respondent has informed this court, not only did the appellant commit the offences the subject matter of the present appeal, he went on to commit further such offences of which he has since been convicted.
Be that as it may, at the sentencing hearing in the court below, the Court was again asked to take account of the appellant's progress towards rehabilitation. In addition to the said correspondence from Merchants Quay Ireland which was again relied upon the sentencing judge was also handed in certificates in respect of the completion of detoxification and relapse prevention programmes from several other agencies including the Ana Liffey Drug Project, the Harmony Preventing Drug and Alcohol Mususe Programme, the Coolmine Therapeutic Centre as well as a Prison Governor's report...
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DPP v Fitzgerald
...the respondent has referred us to a decision of this Court, i.e. that in The People (Director of Public Prosecutions) v Alan Judge [2017] IECA 148. In that case the appellant committed the offence of burglary on two premises that were unoccupied and both were business premises. The appella......
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DPP v Stanescu
...the same level of incarceration as the instant case but a radically different history of offending. 17 In People (DPP) v Alan Judge [2017] IECA 148, the appellant committed the offence of burglary on two unoccupied business premises. The appellant was seen on CCTV committing the offences. D......