DPP v O'Rourke
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 21 April 2016 |
| Neutral Citation | [2016] IECA 132 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 79CJA/15 |
| Date | 21 April 2016 |
[2016] IECA 132
THE COURT OF APPEAL
Edwards J.
Record No: 79CJA/15
Sheehan J.
Mahon J.
Edwards J.
IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993
Sentencing – Theft – Undue leniency – Applicant seeking a review of sentences – Whether sentences were unduly lenient
Facts: The respondent, Mr O?Rourke, on the 31st July 2012, made a 999 call to the Gardaí in Salthill, Galway, from ?Siopa An Phobail?, a Supervalu supermarket premises, at Inverin, Co. Galway. The respondent reported that he had freed himself from bonds after being kidnapped earlier at gunpoint by an unknown assailant. He alleged that he had been abducted as he was getting into his parked car shortly after leaving a public house in Inverin, and that he had been forced by his abductor to drive his own car past his own home, at which point he had been warned by his assailant that he knew where the respondent lived, and he was threatened. The respondent further stated that he and his assailant then drove to the supermarket ?Siopa An Phobail?, where the respondent was employed as an Assistant Manager. A sum of ?44,578 in cash was taken from a safe within the premises to which the respondent held the keys. The respondent further alleged that after the safe had been emptied he was then tied up and imprisoned in a bathroom on the premises. In the course of the Garda investigation that followed, close examination of all relevant CCTV footage revealed discrepancies in the account given by the respondent to the Gardaí. He became a suspect and was arrested on the 23rd of July 2013 following which he was detained at Galway Gardaí station and formally interviewed. In the course of being interviewed he admitted that his abduction had been faked, and that he was party to a plan to rob the supermarket. The respondent pleaded guilty before Galway Circuit Criminal Court on the 11th November 2014 to one count of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and one count of giving false information contrary to s. 12(a) of the Criminal Law Act 1976. The respondent was sentenced to 240 hours community service in respect of the theft offence and to two years imprisonment, suspended in its entirety for a period of three years upon the respondent entering into a bond in the sum of ?100.00 to keep the peace and be of good behaviour, in respect of the offence of giving false information. The applicant, the DPP, applied to the Court of Appeal seeking a review of both sentences pursuant to s. 2 of the Criminal Justice Act 1993 on the grounds that the said sentences were unduly lenient. The applicant submitted that the trial judge erred in law in?that: (a) The said sentences were unduly lenient having regard to all of the circumstances of the case including the nature of the charges and the circumstances attending the commission of the offences; (b) The said sentences did not adequately reflect the nature of the charges and the consequences of the acts of the accused and their effect; (c) The trial judge erred in principle in failing to give any or any adequate weight to the commission of the offences admitted and, in particular the many aggravating factors in this matter.
Held by Edwards J that, having applied The?People (DPP) v Byrne [1995] 1 ILRM 279, the sentences did not send a sufficiently strong message to other would be wrong doers who might be tempted to engage in a deception of the egregious type engaged in by the respondent. To that extent the sentences imposed, viewed together as an overall regime of penalties intended to address the totality of the offending conduct in this case, were unduly lenient in the Court?s view. Edwards J quashed the sentences imposed and sentenced the appellant afresh.
Edwards J held that the desired general and specific deterrence could be achieved by re–imposing the same sentences as were imposed in the Circuit Court, but making the suspension of the two year term of imprisonment for the offence of making a false statement conditional upon three conditions which the Court considered appropriate having regard to the nature of the offence. First, the Court re–imposed the condition that he must keep the peace and be of good behaviour during the period of the suspension of his sentence. Second, pursuant to s. 99(3) of the Criminal Justice Act 2006, the Court added the further condition that he should pay the sum of ?10,000 by way of compensation to the injured party within three years, a minimum of ?5,000 of which was to be paid within two years and the balance of ?5,000 of which was to be paid on or before the 20th April 2019. Third, and pursuant to s. 99(4) of the 2006 Act, the Court added the requirement that he was to submit to supervision by the Probation Service for the duration of the suspended sentence and comply with all of their directions and requirements.
Application granted.
In this case the respondent pleaded guilty before Galway Circuit Criminal Court on the 11th of November 2014 to one count of theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and one count of giving false information contrary to s.12(a) of the Criminal Law Act 1976.
The respondent was sentenced to 240 hours community service in respect of the theft offence and to two years imprisonment, suspended in its entirety for a period of three years upon the respondent entering into a bond in the sum of ?100.00 to keep the peace and be of good behaviour, in respect of the offence of giving false information.
The applicant seeks a review of both sentences pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) on the grounds that the said sentences were unduly lenient.
In the early hours of the 31st of July 2012, at 1.10 am approximately, the Gardai in Salthill, Galway, received a 999 call, which was made from ?Siopa An Phobail?, a Supervalu supermarket premises, at Inverin, Co. Galway. The caller, who was the respondent, reported he had freed himself from bonds after being kidnapped earlier at gunpoint by an unknown assailant. He alleged that he had been abducted as he was getting into his parked car shortly after leaving a public house, known as An Poitin Stil, in Inverin, where he had gone for a few drinks after work, and had been forced by his abductor to drive his own car past his own home, at which point he had been warned by his assailant that he knew where the respondent lived, and he was threatened. In the subsequent investigation the alleged abduction of respondent was observed to have been captured by a CCTV camera on nearby premises. The respondent further stated that he and his assailant then drove to the supermarket ?Siopa An Phobail? at Inverin, Co. Galway, where the respondent was employed as an Assistant Manager. Once again, when relevant CCTV was viewed in the subsequent investigation, the respondent was observed being taken at gunpoint into the shop by a man wearing a Balaclava. A sum of ?44,578 in cash was taken from a safe within the premises to which the respondent held the keys.
The respondent further alleged that after the safe had been emptied he was then tied up and imprisoned in a bathroom on the premises and that he had succeeded in freeing himself when his assailant had left. The respondent told the Gardaí that his car keys and car were also taken. These were later recovered by the Garda Armed Support Unit in a follow up search.
The ?Siopa An Phobail?, Supervalu supermarket was owned by the respondent's maternal uncle. However, in January 2012 it had been placed in receivership and although it was still continuing to trade on the date of the offence its future was uncertain.
In the course of the lengthy Garda investigation that followed the respondent was interview many times and he persisted in maintaining that he had been the innocent victim of an abduction. However, close examination of all relevant CCTV footage revealed discrepancies in the account given by the respondent to the Gardai. He became a suspect and was arrested on the 23rd of July 2013 following which he was detained at Galway garda station and formally interviewed. In the course of being interviewed he admitted that his abduction had been faked, and that he was party to a plan to rob the supermarket. He explained that his reason for becoming involved in this criminal enterprise was that he was upset at having learned that the business had been put into receivership. He had convinced himself that the crime would be relatively victimless as any loss would be suffered by the bank concerned and not by his uncle.
The respondent has refused to name the co-offender who was with him at the time of the crime, or any other accomplice, claiming that he was in fear for his own safety and that of his family. From information provided by the respondent in the course of being interviewed by the Probation Service, and which is contained in the Probation Report submitted to the sentencing court, it appears that he had at least two accomplices and that they were from Dublin. However, the respondent has adamantly refused to disclose any further details concerning them.
None of the stolen monies were ever recovered. The respondent claimed that he had received ?7,000.00 for his part in carrying out the plan. He told the Probation Officer who later assessed him that he had spent it on personal things.
The Respondent pleaded guilty on the 11th day of November 2014, which was the earliest opportunity for him to do so and he was subsequently sentenced on the 11th day...
To continue reading
Request your trial