DPP v Kelly

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 05 July 2016
• Neutral Citation: [2016] IECA 204
• Docket Number: CCA 255/15
• Court: Court of Appeal (Ireland)
• Date: 05 July 2016

Sheehan J.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

SHAUN KELLY.

Appellant

[2016] IECA 204

Edwards J.

CCA 255/15

THE COURT OF APPEAL

Sentencing ? Burglary ? Severity of sentence ? Appellant seeking to appeal against sentence ? Whether sentence was unduly severe

Facts: The appellant, Mr Kelly, pleaded guilty on the 11th of November 2014 before Dundalk Circuit Criminal Court to two counts of burglary contrary to s. 12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, being Counts No. 2 and 3, respectively, on the indictment preferred against him. Count No. 2 related to Unit No 12 within the Workspace Centre, Mayoralty Street, Drogheda, Co. Louth, and involved criminal damage to property within that specific unit, whereas Count No. 3 related to Mayoralty Street, Drogheda, Co. Louth and involved criminal damage to the Workspace Centre itself. The appellant was sentenced to three years and six months imprisonment on each count, to run concurrently and to date from the 20th of October 2015, with the final twelve months of the said sentences suspended upon the condition that he keep the peace and be of good behaviour for a period of one year upon surety of ?200. The appellant appealed to the Court of Appeal against the severity of those sentences. It was contended that the sentences imposed were unduly severe, and that the sentencing judge erred in principle in a number of respects. In particular it was alleged that the sentence was excessive and disproportionate in all the circumstances, and specifically because: (a) the sentencing judge erred in law and in fact in failing adequately to give the appellant due credit for his plea of guilty and the stage at which that plea was entered; (b) the sentencing judge failed to adequately take into account the mitigating factors; (c) the sentencing judge erred in finding that the aggravating factors completely outweighed and outbalanced the mitigating factors and personal circumstances. In addition, it was contended that the sentencing judge failed to have regard sufficiently or at all to the efforts made by the appellant 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 Edwards J that, having referred to The People (DPP) v Davin Flynn?[2015] IECA 290, the sentencing judge made an error of principle in having balanced aggravating factors against mitigating factors in the way that he did; ?the process of arriving at a sentence which is proportionate requires an assessment, with reference to the spectrum of available penalties, of the appropriate headline sentence having regard gravity of the case, against which mitigating factors (not already taken into account) should then, and only then, be discounted.?Edwards J held that it was completely unclear from the sentencing judge?s judgment precisely what weight he was attaching to the aggravating and mitigating circumstances respectively, and therefore it was impossible to know whether an appropriate allowance was in fact given for mitigation.?To have failed to specify the actual allowance being made for mitigation (even if it was going to be cancelled out) was also held by Edwards J to be an error of principle. Having found a number of errors of principle in the sentencing judge?s approach to the appellant?s sentencing, the Court proceeded to quash the sentences imposed and proceeded to a re-sentencing.

Edwards J held that the appropriate headline sentence for the offences was one of four years imprisonment. From that he discounted eighteen months to reflect the mitigating circumstances not already taken into account, principally the plea, his co-operation, his family circumstances, his expression of remorse, the payment of ?1000 towards the uninsured victim, his medical issues and his progress to date, albeit that there had been some slippage, towards rehabilitation. Further, to incentivise the appellant?s continued rehabilitation the Court suspended a further nine months of the balance of thirty months remaining on the usual terms.

Appeal allowed.

Judgment of the Court delivered on the 5th day of July 2016 by Mr. Justice Edwards .

1 In this case the appellant pleaded guilty on the 11th of November 2014 before Dundalk Circuit Criminal Court to two counts of burglary contrary to s.12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, being Counts No's 2 and 3, respectively, on the indictment preferred against him.

2 Count No 2 related to Unit No 12 within the Workspace Centre, Mayoralty Street, Drogheda, Co Louth, and involved criminal damage to property within that specific unit, whereas Count No 3 related to, Mayoralty Street, Drogheda, Co Louth and involved criminal damage to the Workspace Centre itself.

3 The appellant was sentenced to three years and six months imprisonment on each count, to run concurrently and to date from the 20th of October 2015, with the final twelve months of the said sentences suspended upon the condition that he keep the peace and be of good behaviour for a period of one year upon surety of ?200.

4 The appellant appeals against the severity of his said sentences.

The facts as established in evidence.

5 The sentencing court heard evidence from Garda Alan Connell that a Mr Paul Laffin is the owner of a commercial building known as the Workspace Centre, Mayoralty Street, Drogheda, Co Louth. This building is divided into a number of units that are let out to various persons, and at all material times the tenant of unit no 12 was a private college, called Clane College, which ran FÁS initiative courses.

6 Very early on the morning of the 30th of July 2013 Mr Laffin arrived at the Workspace Centre in response to the activation of an alarm and discovered that there were a number of youths on the roof of the premises. He duly reported their presence to the Gardai, and shortly afterwards at 5.20am, Garda Connell and a Garda Dunne arrived at the scene. Garda Connell immediately recognised two of the youths on the roof, neither of which was the appellant. These two youths were ultimately co-accused with the appellant and dealt with separately.

7 The Gardaí ordered the youths to get down from the roof but this instruction was ignored and a standoff developed. In the course of this standoff the intruders came and went between the roof and the building via a fire-escape door which had been opened from the inside, one of them having earlier gained initial entry to the building through a window. At one point the appellant was observed by Gardaí to be inside unit no 12 and to be throwing a number of items including office equipment out of the window.

8 The standoff lasted for one hour and forty five minutes during which the Gardaí cordoned off the building. The youths within the building ransacked unit no 12, bursting open a safe containing exam papers and scattering them, smashing computers, damaging desks, electrical fans and other office equipment, smashing mugs, and throwing papers and business records all over the place.

9 At one stage the appellant was observed to exit the building via the second floor door on to the fire escape where he picked up a can of beer and then re-entered the premises again. The Gardaí eventually gained control of the building and the intruders were persuaded to leave voluntarily. They were arrested as they emerged. All were juveniles, with the exception of the appellant who was 28 at the time. The appellant was then taken to Drogheda Garda Station where he was detained and interviewed.

10 The Workspace building was found to have been damaged by the intruders when it was subsequently examined. There was damage to roof tiles and slates, and to a fire and air vent, amounting in total to ?4750, and in respect of which Mr Laffin was uninsured.

11 In addition, physical damage amounting to ?4,352 had been caused to the interior and contents of unit no 12. Clane College was insured and was compensated for its physical losses by its insurer. However, there were other victims of this crime as well. The exam papers within the safe that had been broken into were deemed to have been compromised, and this caused much distress and inconvenience to the students of the college.

12 In the course of being interviewed the appellant admitted his involvement. He stated that he had gone out at about 6pm on the evening before, had had some drinks and had fallen into company with a couple of other individuals. Having consumed a good deal of alcohol they decided to break into the Workspace Centre. One individual had swung in through a window and had opened a door for the rest of them to enter. He said that once they were in they had ?destroyed the place?. The appellant denied that he was personally involved in damaging computers and initially disassociated himself from the exchanges with Gardaí that had taken place on the roof.

The appellant's personal circumstances

13 The appellant was born on the 12th of November 1984 and was 30 years of age at the date of his sentencing. He was unemployed and receiving disability benefit. He has mental health difficulties, involving depression and anxiety. He has a history of attempted self harm. He is also addicted to alcohol and heroin and also has a history of cannabis and other substance abuse and misuse. He had been on a methadone program for six years prior to his sentencing for these offences and was taking 30mls of methadone daily at that point.

14 The appellant had fifteen previous convictions in total. All of these were dealt with in the District Court. They included convictions for possession of drugs, and possession of drugs for sale or supply in 2006 for which he received a fine, and a...