DPP v Stanescu

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 09 March 2020
• Neutral Citation: [2020] IECA 55
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 240/2019
• Date: 09 March 2020

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

V

ROMEO STANESCU

APPELLANT

[2020] IECA 55

Birmingham P.

Edwards J.

McCarthy J.

Record No: 240/2019

THE COURT OF APPEAL

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

Facts: The appellant, Mr Stanescu, on the 10th of October 2019, came before Kilkenny Circuit Criminal Court, and pleaded guilty to one count of burglary, contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001. On the 29th of October 2019, he was sentenced to three years imprisonment. He appealed to the Court of Appeal against the severity of his sentence on the following grounds: (i) the trial judge erred in ruling that the offence fell in the low end of the mid-range of seriousness; and (ii) the trial judge erred in ruling that the appellant was not entitled to any of his sentence suspended due to his nationality and perceived likelihood of him leaving the jurisdiction upon his release in any event.

Held by the Court that it found no error of principle in the sentencing judge’s approach to the question of possible part suspension of the sentence. The Court held that a sentencing judge has a wide margin of discretion concerning how to structure a sentence and concerning which objective of sentencing to prioritise. The Court considered that the complaint in that regard fell far short of establishing or indicating any error. The Court readily accepted that the moral culpability of the offender was somewhat aggravated by what the sentencing judge saw as “some element of pre-meditation”. The Court also noted that non-recoverable loss in the sum of €3,500 was caused. However, the Court held that these two features on their own could not justify placing this offence in the mid-range, and for the sentencing judge to have done so was an error of principle. In circumstances where the Court was satisfied that there was an error of principle in the way gravity was assessed, it quashed the sentence imposed by the court below and proceeded to re-sentence the appellant.

The Court assessed the gravity of the offence as meriting a sentence in the lower one third of the available range of custodial sentences, and it therefore nominated a headline sentence of three years and six months imprisonment. The Court discounted from that by eighteen months to reflect the mitigating circumstances in the case, leaving a net post mitigation sentence of two years imprisonment.

Appeal allowed.

JUDGMENT of the Court (ex tempore) delivered on the 9th day of March 2020 by Mr Justice Edwards

Introduction

1 On the 10th of October 2019, the appellant came before Kilkenny Circuit Criminal Court, and pleaded guilty to one count of burglary, contrary to s.12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. On the 29th of October 2019, the appellant was sentenced to three years imprisonment.

2 The appellant now appeals against the severity of his sentence.

Background Facts

3 The sentencing court heard evidence that on the 11th of June 2019, at around 11.30 a.m., gardaí arrived at the Playwright bar in Kilkenny City following a call notifying them of a burglary there. Upon arrival, the gardaí were informed by the manager of the premises, a Ms Frisby, that €3,500 had been stolen by an intruder from an office in the private staff area of the premises a short time previously. The private staff area was monitored by a CCTV system, and there was a good quality recording which was shown to gardaí. The recording showed a male entering the staff office, opening filing cabinets, and then emptying numerous bundles of banknotes from a cupboard on to a desk and placing those banknotes inside his jacket. On leaving the staff office he entered another part of the private staff area and attempted unsuccessfully to gain access to a safe and a number of locked cabinets before finally exiting the building.

4 Ms Frisby told the gardaí that at around 9.40 a.m., shortly after the premises had opened, a man had come into the bar. She asked him if he was all right and received a mumbled, unintelligible reply, before the man turned around and walked back out the door. Approximately an hour and a half later she witnessed the same man coming down the stairs. She again asked him if he was alright, to which he replied that he was looking for the toilet. She then said: “No, you're not because you were in here already this morning.” “You were definitely upstairs. I'm going to ring the gardaí”. The man promptly made his exit. It was then discovered that the private staff area of the premises had been burgled, prompting Ms Frisby to immediately report the crime to the gardaí.

5 After examining CCTV footage from the premises, the gardaí were able in due course to identify the man as the appellant, with an address in Dublin City. Subsequently a warrant was obtained for the arrest of the appellant which was executed on the 3rd of July 2019. The appellant was taken to a garda station where he was detained and interviewed while in detention. He was co-operative and admitted his involvement. However, the stolen money was not recovered. He was subsequently charged with burglary and remanded in custody.

Appellant's Personal Circumstances

6 The appellant had no previous convictions and pleaded guilty at an early stage. When questioned by gardaí, he made full admissions and asked for the staff of the premises to be told, “Sincerely I am sorry”. Having been remanded in custody since the date of his arrest of the offence, he was not able to offer restitution to the affected business.

7 The appellant is 30 years old and is originally from Romania. He had no formal education and had to teach himself how to read and write his own national language. He had been in Ireland for around two months prior to the committing of the offence and has very limited English. He had been to Ireland twice before, working for six-month periods on building sites to support his 6-year-old daughter and partner living in Romania.

8 The appellant claimed through his counsel at the sentencing that the offence was an opportunistic one; he had been invited by a friend to travel from Dublin to Kilkenny on the promise of work, which did not materialise upon his arrival. He maintains that he had been depending on getting work as he was down to his last €100. He claimed that having suffered the disappointment there was no work for, he decided to have a coffee before starting his journey back to Dublin. He maintains that he entered the Playwright seeking only a coffee but that while there he saw, and succumbed to, an opportunity for theft when he noticed the apparent lack of staff.

Sentencing judge's Remarks

9 In sentencing the appellant, the sentencing judge stated the following:

“The Garda has outlined the facts; I don't propose to repeat them. It was theft from a pub of €3,500, which has not been recovered, and it is said that there was no element of premeditation. I'm not entirely comfortable necessarily with all of that because the whole idea of him being – or the whole explanation for him being in Kilkenny, given that he was residing in Dublin, is fairly thin, to be honest, and I don't really accept that he just came down to see if he could get a labouring job, didn't speak to anybody at all about the labouring job, apart from this “friend”. So it all strikes one as pretty thin and one would reasonably come to the conclusion that he came to Kilkenny to carry out stealing and to engage in crime.

Where does it lie on the normal scale? I think it's probably at the lower end of the mid scale. The money has not been recovered. As I say, my view would be that there is no real excuse for this and there is certainly some element of premeditation about it and described by counsel as a blatant crime. So I'm going to say it lies at the lower end of the mid range, given the amount involved, and it seems to me that the headline sentence would be five years.

So is there anything that should mitigate that? Well, the early plea of guilty is clearly of use to the state. I appreciate he was caught on CCTV and all of that, but he has co-operated with the guards and he has no previous convictions and I think the early plea should result to his benefit to some extent. I have to take into account the fact the money has not been recovered, so the element of co-operation is limited to that extent. There is an apology, for what it's worth, and there's very little else that one can say about him. He came into this country apparently just a couple of months before the commission of this crime and nonetheless committed the crime. So I think applying the largest element of mitigation is the early plea of guilty and the co-operation to the limited extent that I have described with the police and the fact that he has no previous.

Taking these into account, I will reduce the sentence to one of three years, which will be backdated to the date he went into custody, which is the 9th of July 2019 I am informed. I don't really see much by way of any reason why I should suspend a portion of the sentence. There's nothing really that I can put my hand on to say that he ought to be encouraged with rehabilitation. Sometimes it's very difficult because you get various different judgments from above, some say rehabilitation is a good idea, some are more dismissive, and the problem is there has to be some sort of rational basis for rehabilitation. This man is not connected with this country. When he is released it is very likely that he will leave the country rather than anything else and it's not a drug case, it's nothing of that sort that one can point to treatment or something of that nature, it's just an opportunistic theft. So I don't really see much point in introducing an element of suspending the sentence for...