DPP v Moran

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Sheehan
• Judgment Date: 22 June 2015
• Neutral Citation: [2015] IECA 141
• Docket Number: 131CJA/11
• Date: 22 June 2015

[2015] IECA 141

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

131CJA/11

In the matter of Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Applicant

and

Robert Moran

Respondent

Sentencing – Aggravated burglary – Undue leniency – Applicant seeking review of sentence imposed on the respondent on grounds of undue leniency – Whether sentencing judge gave sufficient weight to aggravating factors

Facts: The respondent, Mr Moran, in May 2011, was sentenced to three years imprisonment in respect of an offence of aggravated burglary and five years imprisonment with the final two years suspended in respect of two other burglary offences. All sentences were to run concurrently. These sentences were also to run concurrently with a sentence of three years imprisonment imposed in respect of an offence of robbery committed in June 2010. No order was made in respect of another count on the indictment which consisted of an offence of assault causing harm committed at the time of the robbery. On that same date the respondent also appeared for sentence in respect of an offence of robbery committed in February 2009. The sentencing judge ordered that this offence was to be taken into consideration with the other sentences. However, when the respondent committed the said aggravated burglaries and the robbery in June 2010 he was on bail in respect of the robbery committed in February, 2009. The respondent entered a plea of guilty in respect of all the offences. The sentencing judge imposed a total sentence of five years imprisonment with the final two years thereof suspended for five years. The applicant, the DPP, appealed to the Court of Appeal pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the sentence imposed on the respondent on the ground of undue leniency. The DPP, relying on s. 11 of the Criminal Justice Act 1984, submitted that the sentencing judge: (i) failed to identify an appropriate starting point to reflect the nature of the said offences and the aggravating factors of each of the offences; (ii) failed to have regard to the impact of the said offences on the injured party; (iii) gave excessive weight to the mitigating factors; (iv) failed to have regard to the respondent”s history of offending; (v) failed to treat the fact that the respondent committed some of the offences whilst on bail as an aggravating factor; (vi) wrongly treated the offence committed in February, 2009 as an offence which could properly be dealt with by being taken into consideration. The respondent submitted that the sentencing judge carefully considered the sentence imposed and did not underestimate the seriousness of the offences and submitted that the trial judge correctly balanced the particular circumstances of the commission of the offences with the personal circumstances of the respondent.

Held by Sheehan J that, having considered s. 2 of the Criminal Justice Act 1993 and The People at the Suit of the DPP v Derrick Stronge [2011] 5 JIC 2301, the sentencing judge applied the principle of proportionality and also sought to reconcile that principle with the penal aim of rehabilitation. However in light of the overall offending committed by the respondent, Sheehan J held that the point on the scale where the sentencing judge placed these offences amounted to an error in principle as he failed to give sufficient weight to the many aggravating factors.

Sheehan J held that the sentence imposed by the sentencing judge constituted a substantial departure from what would be the appropriate sentence in the particular circumstances of the case. Accordingly, the Court held that the sentence was unduly lenient.

Appeal allowed.

Judgment of the Court delivered on the 22nd of June 2015 by Mr. Justice Sheehan

1 This an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, for a review of the sentence imposed on the respondent on the ground of undue leniency.

2 On the 19th May 2011, the respondent was sentenced to three years imprisonment in respect of an offence of aggravated burglary and five imprisonment with the final two years suspended in respect of two other burglary offences. All sentences were to run concurrently. These sentences were also to run concurrently with a sentence of three years imprisonment imposed in respect of an offence of robbery committed in June 2010. No order was made in respect of another count on the indictment which consisted of an offence of assault causing harm committed at the time of the robbery.

3 On that same date the respondent also appeared for sentence in respect of an offence of robbery committed on the 18th February, 2009. The sentencing judge ordered that this offence was to ‘be taken into consideration’ with the other sentences. However, when the respondent committed the said aggravated burglaries and the robbery in June 2010 he was on bail in respect of the robbery committed on the 18th February, 2009. It should be noted from the outset that the respondent entered a plea of guilty in respect of all the above-mentioned offences.

4 The sentencing judge imposed a total sentence of five years imprisonment with the final two years thereof suspended for five years. The Director of Public Prosecutions submitted that this sentence was unduly lenient on the grounds that the sentencing judge:-

(i) Failed to identify an appropriate starting point to reflect the nature of the said offences and the aggravating factors of each of the offences.

(ii) failed to have regard to the impact of the said offences on the injured party.

(iii) Gave excessive weight to the mitigating factors.

(iv) Failed to have regard to the respondent's history of offending.

(v) Failed to treat the fact that the respondent committed some of the offences whilst on bail as an aggravating factor.

(vi) Wrongly treated the offence committed on the 18th February, 2009 as an offence which could properly be dealt with by being taken into consideration.

5 In order to consider these submissions it is necessary to set out the background to the offences.

Background

6 The background to the three incidents of offending is as follows. On the 18th February 2009, the respondent was involved in a robbery of an off-licence in Limerick. The respondent's role was that of a look-out and an accomplice armed with a large kitchen knife entered the off-licence and threatened to stab members of the staff. The accomplice took the contents of two tills which amounted to €480. The respondent was aware that a knife was going to be used prior to the robbery. The CCTV footage of the commission of this crime was not sufficient to ground a case against the respondent. Therefore, the respondent's admissions when interviewed by the gardaí were of critical importance to the prosecution. The respondent was charged with this offence on the 25th March, 2010, and released on bail.

7 On the 19th January, 2010, an intruder, armed with a hunting knife, carried out a robbery of a petrol station in Limerick. The intruder approached a male member of staff from behind, placed a hunting knife at his throat and demanded the contents of the till. A female member of staff ran behind the counter and pressed the panic alarm. A struggle ensued between the intruder and the male member of staff during which the staff member was injured when he received a significant cut to his neck. The intruder ran towards the till and lunged at a female staff member who was trying to remove the key from the till. He pointed the hunting knife at the female staff member and another shop assistant and leaned over the counter and opened the till. A further altercation ensued with the male member of staff resulting in the intruder dropping his knife. However he succeeded in escaping with €1,060.00.

8 Two days prior to the robbery the respondent was seen in the petrol station wearing similar clothing to that of the intruder. When interviewed by gardaí on the 20th January, 2010, he made full admissions and expressed remorse. He informed the gardaí that his motive was to steal money to purchase heroin.

9 The male staff member received a six-inch cut to the right-hand side of his neck which has since healed. He did not wish to make a Victim Impact Statement.

10 The respondent was charged and released on bail but these charges were subsequently struck out. As a result he was not on bail for these offences at the time of the commission of the aggravated burglaries. These offences were subsequently re-entered after the aggravated burglaries had been committed.

11 The respondent committed the three offences of aggravated burglary in May and June 2010. The injured party, who suffered from a mental disability, was born in 1964 and lived in a house owned by the St Vincent de Paul. At about 3.30 pm on the 7th May 2010, the respondent broke a bedroom window...