DPP v Morgan
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 08 June 2018 |
| Neutral Citation | [2018] IECA 169 |
| Docket Number | Record No. 47/2018 |
| Court | Court of Appeal (Ireland) |
| Date | 08 June 2018 |
[2018] IECA 169
THE COURT OF APPEAL
Mahon J.
Mahon J.
Edwards J.
Hedigan J.
Record No. 47/2018
Sentencing – Robbery – Rehabilitation – Appellant seeking to appeal against sentence – Whether the sentencing judge erred in failing to structure the sentence to facilitate and encourage rehabilitation
Facts: The appellant, Mr Morgan, was convicted at Dublin Circuit Criminal Court on the 25th January 2018 of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001. He appealed to the Court of Appeal against the sentence of two years imprisonment imposed on the 16th February 2018 on the following grounds: (i) the trial judge, in imposing a custodial sentence on the appellant, erred in principle in failure to take into account adequately or at all the appellant's efforts to rehabilitate himself; (ii) the sentencing judge imposed a sentence that was excessive and erred in principle in the imposition of same; (iii) the sentencing judge erred in principle in failing to attach a sufficient weight to the testimony of the reports in court and effectively stopped the appellant from continuing with his addiction and training programmes.
Held by the Court that the decision to impose a custodial sentence was correct because of the very serious nature of the crime. The Court held that the sentencing judge erred in failing to structure the sentence to facilitate and encourage rehabilitation. The Court held that it would allow the appeal and impose a sentence designed to provide the appellant with the strongest possible incentive to continue his efforts to rehabilitate while at the same time reflecting the very serious nature of the crime.
The Court held that the sentence would be five years imprisonment with the final four years suspended for a period of three years post release on the appellant entering into a bond in the sum of €100 to keep the peace and be of good behaviour and comply with the requirement of the Probation Service during the said three years. The Court held that the said sentence would commence with effect from the 25th January 2018.
Appeal allowed.
The appellant was convicted at Dublin Circuit Criminal Court on the 25th January 2018 of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offences Act 2001. He now appeals the sentence of two years imprisonment imposed on the 16th February 2018.
On the 29th September 2016 the appellant assaulted Declan Foran at Sackville Place in Dublin. On that occasion Mr. Foran and his brother were homeless and were sleeping on the street. They were approached by a female who asked if she could sleep between them. When she received no response she became abusive, left and later returned with two men, one of whom was the appellant. The assault involved blows to the injured party's face and kicking between his legs. The female also participated in the assault as did the man accompanying the appellant. Mr. Foran's pockets were rifled and a newly purchased mobile phone stolen, and which he described as his only life line. Mr. Foran was taken to hospital but left before receiving any treatment for his wounds which included a laceration above his right eye and swelling to the right side of his face. The appellant was later arrested. Mr. Foran's stolen mobile phone was found on him, as were blood stains which were forensically linked to the injured party. The female accomplice is currently awaiting trial on similar charges to those preferred against the appellant. The male accomplice has pleaded guilty to a similar charge to that facing the appellant in addition to a charge pursuant to the Firearms and Offensive Weapons Act 1990 because he possessed, in the course of the assault, the top of a glass bottle which he used to intimidate his victim.
The following grounds of appeal are relied upon by the appellant:-
(i) the learned trial judge in imposing a custodial sentence on the appellant erred in principle in failure to take into account adequately or at all the appellant's efforts to rehabilitate himself. The appellant had not come to the attention of the gardaí since the offence of the 29th September 2016 and had been of no fixed abode at the time of the offence but had since secured accommodation;
(ii) the learned sentencing judge imposed a sentence that was excessive and erred in principle in the imposition of same. He furthermore failed in the first instance to have any or any adequate or sufficient regard to where on the scale of penalties the offence which the appellant committed lay prior to sentencing;
(iii) the learned sentencing judge erred in principle in failing to attach a sufficient weight to the testimony of the reports in court and effectively stopped the appellant from continuing with his addiction and training programmes. This is contrary to the recommendations of all of the reports handed into court and in particular to the evidence given by one James Murphy of the Spellman Centre.
The appellant has one hundred and one previous convictions. These include one threat to kill, eight s.2 assaults, four s. 3 assaults, forty nine public order offences, four incidents of violent behaviour at a garda station, three of robbery, four of burglary, four for theft, six for criminal damage and two under the Firearms and Offensive Weapons Act. He has served a number of prison sentences including one for eighteen months, one of three years and one of six months.
In the course of his sentencing judgment, the learned sentencing judge described the assault on the injured party as 'pretty savage'. He noted the fact that the appellant made admissions and pleaded guilty, that he had co-operated with the gardaí and that he was remorseful for what had occurred. He also noted that the appellant had made efforts to reform his life and to remain free of drugs. He went on to say:-
'...But obviously, the courts should try to reform individuals, but courts must also punish individuals. This was a...
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DPP v Liam Walsh
...this rehabilitation through partial suspension. 30 The appellant directs our attention to the Court of Appeal judgment in DPP v Morgan [2018] IECA 169, in which a sentence of two years imposed for a robbery which included the victim receiving a “severe” and “savage” beating was appealed due......