DPP v Robert Devine and Lee Kelly
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 26 April 2021 |
| Neutral Citation | [2021] IECA 125 |
| Docket Number | Record Number: 280/19 & 281/19 |
| Court | Court of Appeal (Ireland) |
| Date | 26 April 2021 |
[2021] IECA 125
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 280/19 & 281/19
THE COURT OF APPEAL
Sentencing – Burglary – Proportionality – Appellants seeking to appeal against sentence – Whether the net sentence was proportionate in the circumstances
Facts: The appellants, Mr Devine and Mr Kelly, appealed to the Court of Appeal against sentence where they each pleaded guilty to a count of burglary contrary to s. 12 (1)(a) of the Criminal Justice (Theft and Fraud Offences) Act 2001 and two counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. Mr Devine received an aggregate sentence of twenty years’ imprisonment with the final eight years suspended on terms and Mr Kelly received an aggregate sentence of seventeen years’ imprisonment with the final ten years suspended on terms. In submissions and in oral hearing on appeal, counsel on behalf of the respondent, the Director of Public Prosecutions, accepted that the judge erred in imposing the sentences on a consecutive basis, however, the respondent contended that the net sentence for the respective appellants of twelve years in the case of Mr Devine and seven years for Mr Kelly was proportionate in the circumstances of such grave offending.
Held by the Court that, proceeding on the basis that the judge erred in imposing sentences on a consecutive basis, it would allow the appeal, quash the sentences imposed and proceed to re-sentence the appellants. The Court was satisfied that the burglary and the assault offences fell with the upper range. Insofar as Mr Kelly was concerned, the Court found that there were two factors which operated to extenuate his culpability; these were the fact that he was influenced and led by his father to commit the offences and that he intervened and pulled his father from Mr O’Reilly senior. In the circumstances, the Court held that a pre-mitigation sentence of twelve years in the case of Mr Divine and ten years in the case of Mr Kelly was appropriate.
The Court held that, in order to incentivise Mr Devine’s rehabilitation, it would suspend the final two years of his sentence on the usual mandatory term in the sum of €200.00 for a period of two years and on the condition that he remain under probation supervision and follow the directions of that service; it was also a condition of that suspension that he stay away from his victims in perpetuity. The Court held that the four-year sentence on each assault count would remain but was imposed on a concurrent basis with the balance of the counts referable to Mr Devine to be taken into consideration. In light of the matters urged in mitigation, and cognisant of Mr Kelly’s previous convictions resulting in a progressive loss of mitigation, the Court reduced the headline sentence of ten years to one of seven and a half years. Furthermore, in order to incentivise his rehabilitation, the Court suspended the final year of that sentence on the mandatory condition in the sum of €200.00 for a period of two years on the condition that he remain under probation supervision for that period and comply with the directions of that service. The Court imposed a further condition that he remain away from the victims in perpetuity. The Court held that this limited reduction in Mr Kelly’s custodial sanction was justified given the significant intervention by the Court in significantly reducing the period suspended by the court below. The Court held that, as with his father, the four year sentence on each assault count would remain but was imposed on a concurrent basis with count 7 taken into consideration. The Court held that the sentences were backdated as in the court below.
Appeal allowed.
JUDGMENT of the Court delivered on the 26th day of April 2021 by Ms. Justice Isobel Kennedy.
The appellants appeal against sentence where they each pleaded guilty to a count of burglary contrary to section 12 (1)(a) of the Criminal Justice (Theft and Fraud Offences) Act 2001 and two counts of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act 1997. Robert Devine received an aggregate sentence of twenty years' imprisonment with the final eight years suspended on terms and Lee Kelly received an aggregate sentence of seventeen years' imprisonment with the final ten years suspended on terms.
On the 17th December 2017 the appellants, Robert Devine and Lee Kelly, entered the home of PJ O'Reilly and his son Brian O'Reilly. PJ O'Reilly's wife was also home at the time. It seems that Brian O'Reilly owed €50.00 to Mr Devine. The previous day Mr Devine had phoned Brian O'Reilly looking for the money and PJ O'Reilly had informed him that he would not be getting any money and hung up the phone.
The appellants entered the house in the early hours of the 17th December 2017. PJ O'Reilly and his wife woke up and heard their son shouting. Brian O'Reilly ran into the bathroom and Lee Kelly smashed a golf club against the door. A panel was knocked out from the door and Mr Kelly pushed a knife through the space, stabbing Brian's hand.
PJ O'Reilly grabbed one of the men and recognised him as Robert Devine. When asked what he wanted Mr Devine indicated that he wanted his money. PJ O'Reilly hit Robert Devine in the face and as he bent down Lee Kelly hit him with an object. Mr Kelly continued to hit him on his leg as he grappled with Mr Devine in order to stop him hitting him with his hammer. Mr O'Reilly felt a prodding action on his leg but it was only after the incident that he realised it was a stab wound. Mr O'Reilly was hit repeatedly on the ground and he was struck by Mr Devine with a hammer to the side of the head. During this time Mr Devine was shouting “Finish him, finish him. Where is the money?”
Mr Kelly pulled Mr Devine away from Mr O'Reilly and said to Mr Devine that they needed to get out of there. At that stage, Mr O'Reilly was struck a blow to his left ankle as the men were leaving. The gardaí arrived at the scene and Mr O'Reilly was able to positively identify the men. In terms of injuries, Brian O'Reilly suffered lacerations to his hands. PJ O'Reilly suffered multiple injuries including lacerations to his hands, stab wounds in the area around his cruciate ligament which has resulted in loss of mobility and balance and a blow to the head that has resulted in continuous sleeplessness and residual headaches.
Following their arrest and detention both appellants made certain admissions and accepted that they were in the house although Mr Devine initially stated that he was acting in self-defence.
Robert Devine is the father of Lee Kelly. He has 35 previous convictions including a conviction for manslaughter before the Central Criminal Court, two convictions for criminal damage, convictions under the Theft and Fraud Offences Act, convictions under the Forgery Act, a conviction for escape from lawful custody, a conviction under the Domestic Violence Act, a conviction for possession of firearms and ammunition, two convictions for minor assaults and one conviction for possession of a flick knife. A...
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