DPP v Keane
| Jurisdiction | Ireland |
| Court | Court of Appeal (Ireland) |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 28 March 2017 |
| Neutral Citation | [2017] IECA 118 |
| Docket Number | 150/CJA/16 |
| Date | 28 March 2017 |
[2017] IECA 118
THE COURT OF APPEAL
Hedigan J.
Peart J.
Mahon J.
Hedigan J.
150/CJA/16
In The Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993
Sentencing – Robbery – Undue leniency – Appellant seeking review of sentence – Whether sentence was unduly lenient
Facts: The respondent, Mr Keane, entered a guilty plea, on 13th November, 2015, to robbery and a threat to kill or cause serious harm. Two counts of s. 3 assault causing harm and production of an intimidating article were taken into consideration. The respondent was sentenced on the 11th May, 2016, to two and a half years on the robbery count. This was back dated to the 21st July, 2015, when he went into custody. The balance of the sentence not already served was to be suspended from the date the respondent was admitted to Cuan Mhuire. A sentence of one year was imposed on the threat to kill or cause serious harm also back dated to the 21st July, 2015. The suspension was on the condition that the respondent go immediately to Cuan Mhuire for treatment for ADHD and addiction. On admission the balance of the sentence would be suspended for three years. This was on the condition that he voluntarily admit himself to a 20 week treatment program and follow any recommendations of a psychiatrist regarding treatment, that upon release from Cuan Mhuire he place himself under the supervision of the Probation Services for a period of 18 months on his own bond of €200 and that he engage in victim and offence focused work and any education/employment training offered. The appellant, the DPP, appealed to the Court of Appeal against the sentence on the robbery charge on the grounds of undue leniency. It was submitted that the sentencing judge failed to take into account the maximum penalty of life imprisonment for robbery. The DPP submitted that the sentence did not contain any element of deterrence, nor did it reflect the injury, both physically and psychologically, to an innocent commuter. It was the appellant’s further submission that the sentencing judge failed to give due regard to the aggravating factors, in particular the respondent’s previous convictions and that the robbery involved an unprovoked attack and gratuitous violence involving kicking a person repeatedly in the head while he was on the ground unconscious.
Held by the Court that owing to the egregious violence involved in the assault, it could not agree with the sentencing judge’s fixing the headline at 4 years. The Court held that the judge erred in principle on this point. The Court considered the appropriate headline to be one of 7 years. Thus the Court proceeded to resentencing.
The Court held that the appropriate sentence allowing for the aggravating and the mitigating factors involved including the possibility of rehabilitation and employment was one of 7 years with 3 ½ years suspended for a period of 3 years including 18 months post release Probation Service supervision; the sentence would date from 21st July, 2015.
Appeal allowed.
This is an appeal by the Director of Public Prosecutions on the basis that the sentence imposed was unduly lenient. The respondent entered a guilty plea, on 13th November, 2015, which was the first mention date, to robbery and a threat to kill or cause serious harm. Two counts of s. 3 assault causing harm and production of an intimidating article were taken into consideration. The respondent was sentenced on the 11th May, 2016, to two and a half years on the robbery count. This was back dated to the 21st July, 2015, when he went into custody. The balance of the sentence not already served was to be suspended from the date the respondent was admitted to Cuan Mhuire. A sentence of one year was imposed on the threat to kill or cause serious harm also back dated to the 21st July, 2015.
The suspension was on the condition that the respondent go immediately to Cuan Mhuire for treatment for ADHD and addiction. On admission the balance of the sentence would be suspended for three years. This was on the condition that he voluntarily admit himself to a 20 week treatment program and follow any recommendations of a psychiatrist regarding treatment, that upon release from Cuan Mhuire he place himself under the supervision of the Probation Services for a period of 18 months on his own bond of €200 and that he engage in victim and offence focused work and any education/employment training offered. He should comply with all directions.
It is the sentence on the robbery charge which is being appealed on the grounds of undue leniency.
The offences arose out of two separate but related incidents involving two separate injured parties on the 17th April, 2015. The robbery occurred at Citywest Luas stop where the respondent with another man attacked Mr. Benson. He was kicked and punched onto the ground, knocked unconscious whereupon the respondent continued to kick him in the head. Then he stole his mobile phone. The injured party could not remember what happened. He was taken to hospital where he spent three days due to concussion. He had cuts to his head and it was swollen. His victim impact statement noted he still has pain in his neck and wrist, headaches and has trouble sleeping. He also referred to the psychological impact of the incident and that he is nervous and afraid when walking in public places.
Approximately an hour and a half later the respondent in the company of some other youths approached one Mr. Clinton who was working as a security guard at Citywest Shopping Centre. The respondent shouted abuse at Mr. Clinton, pulled out a Stanley knife and threatened to ‘strife’ him. The respondent was known to the security guard.
When arrested the respondent made no admissions and sniggered when shown the video of the robbery.
The respondent was 17 years old when these offences occurred. He left school after his junior certificate. He had done well in primary school but ADHD affected his schooling. The ADHD diagnosis was made by Dr. O'Domhnaill, a psychiatrist, who prepared a report for the defence. He reported that he had a chaotic home life and developed a serious drug habit at a young age. He now knows what he did was wrong and accepted responsibility. He wrote a letter to the Court and Dr. O'Domhnaill believes the remorse was genuine. His addiction resulted in a drug debt which lead to him being stabbed in the wrist and head. His habit was out of control and he was offending to pay his debts. He chose not to take up bail which was granted in the High Court. He underwent a detox programme and presented as drug free to the sentencing court. He had 16 previous convictions but nothing further was pending and this was his first time in the Circuit Court. His previous convictions were two s. 4 thefts; three for possession of knives; two for violent behaviour in a Garda station; two for criminal damage; one for possession of stolen articles; and the remaining for public order offences.
A probation report put the respondent at high risk of re-offending should he be without the intervention of probation services and detailed his poor past engagement. Mr. Richardson from the Solas Project informed the Court that the respondent was now willing to address his addiction difficulties.
In sentencing the learned judge listed the aggravating factors for the robbery as the undoubted seriousness, viciousness and cruel nature of the crime, the method in which it was perpetrated and the respondent's previous convictions. It was noted that these included public order offences and some were before the juvenile courts. The sentencing judge found that the offence merited a four year custodial sentence as a headline. The mitigating factors identified were the respondent's youth, being 18 years old at sentencing, his early plea and cooperation with the Gardaiì, his family circumstances which could not be said to have provided him with the strongest platform for a crime free life and his extensive use of drugs and alcohol over a prolonged period, particularly, surrounding the time of the offence.
It was submitted that the sentencing judge failed to take into account the maximum penalty of life imprisonment for robbery. Four years imprisonment before mitigation was in error given the gratuitous violence involved which could have resulted in serious brain damage or death. The judge appeared to double count the mitigation. First, she reduced the sentence to two and a half years but then discounted again by suspending the balance. It is accepted that rehabilitation is one of the aims of the criminal justice system but it is submitted that undue weight was given to the perceived mitigation and insufficient to the very serious nature of the offence and the respondent's prior record of lack of engagement with rehabilitation.
The sentence does not contain any element of deterrence. Nor does it reflect the injury, both physically and psychologically to an innocent commuter. It does not reflect society's opprobrium for this type of random, unprovoked behaviour.
The sentence appears to have been based on the psychiatric report prepared from one interview. It was also submitted that the sentencing judge attached undue weight to the report of Dr. O'Domhnaill, psychiatrist, and his proposed treatment for ADHD. The judge...
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