DPP v Sweeney
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 21 February 2017 |
| Neutral Citation | [2017] IECA 49 |
| Docket Number | Record No. 167/16 |
| Court | Court of Appeal (Ireland) |
| Date | 21 February 2017 |
[2017] IECA 49
Record No. 167/16
THE COURT OF APPEAL
Sentencing – Robbery – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Sweeney, pleaded guilty to an offence of robbery before Roscommon Circuit Criminal Court on the 9th of March 2016. He was sentenced on 2nd of June 2016 to eight years' imprisonment, with the final two years and six months suspended. The appellant appealed to the Court of Appeal against the severity of that sentence on the grounds that the trial judge: 1) erred in imposing a sentence of 8 years imprisonment, in that the trial court measured the level of severity of the offence at an excessively high level on the scale of seriousness for the offence of robbery; 2) recognised mitigating circumstances, but erred in sentencing by giving insufficient effect to them, in particular the mitigating factors of the appellant's early guilty plea and genuine remorse.
Held by the Court that the sentencing judgment revealed no error of principle. The Court held that the sentencing judge's approach to sentencing was impeccable, in that he properly assessed the seriousness of case both with respect to moral culpability and harm done, and having done so located the offence at an appropriate place on the range of available penalties so as to determine upon a headline sentence before taking account of mitigating factors. The Court held that even if a 20% discount for mitigation was on the low side, it was more than compensated for by the very generous further effective discount that the judge went on to apply in terms of suspending an additional two and a half years with a view to incentivising rehabilitation; the combined effect of the 20% discount for pure mitigation and the further 25% to incentivise rehabilitation resulted in a net overall discount of 45%. The Court held that by any standards this was generous in the circumstances of the case and fully took into account the personal circumstances of the appellant.
The Court held that the appeal should be dismissed.
Appeal dismissed.
The appellant pleaded guilty to an offence of robbery before Roscommon Circuit Criminal Court on the 9th of March 2016. He was sentenced by His Honour Judge Keenan Johnson on 2nd of June 2016 to eight years' imprisonment, with the final two years and six months suspended. The appellant appeals against the severity of this sentence.
On the evening of the 24th of August 2015, the victim, Mr Gaynor, who was 90 at the time of the incident, was walking through the Demesne Town Park in Castlerea, Co Roscommon, when he was approached by the appellant, who demanded money. Mr Gaynor offered him some change. In what appears to have been an unplanned attack, the appellant grabbed Mr Gaynor's umbrella from him, threatened him with it and pushed him into some nettles. He struck the victim several times in the upper body with the umbrella. Mr Gaynor then gave the appellant approximately €450 in cash, or about two months' worth of his pension. The appellant, who was under the influence of drugs and alcohol, used the money to buy vodka for himself and two others. The facts were established from the victim's evidence and from CCTV footage of the incident. The appellant did not contest the charges and immediately admitted wrongdoing when questioned by Gardaí.
The sentencing court received evidence concerning the physical and psychological harm Mr Gaynor had suffered as a result of the incident in the form of a victim impact statement that was read into the record, and a doctor's report. The pushing had resulted in a fracture to his second lumbar vertebrae. Prior to the incident the victim had had no history of back pain but since then has had continual lower back pain. His walk is slow and painful and he has trouble getting in and out of beds and chairs. He experienced regular sleep disturbance over an extended period. Despite having volunteered with the Park Committee over many years, Mr Gaynor now does not enter the park unaccompanied and he said he is 'very disappointed that [he] cannot use the park freely'. In his statement, the victim told the Court that at the time of the incident he was very afraid the appellant would knock him unconscious, or that the incident would provoke the reoccurrence of a stroke which he had had previously.
The appellant is a paranoid schizophrenic and a substance abuser. On the evening in question, the appellant was heavily intoxicated, having consumed a large amount of alcohol and cocaine and having abused his prescription drugs. Evidence was given in court that the appellant had 'gone off the rails' when his mother, to whom he was close, had recently died. He is from a family of 19 children and has a young daughter who lives with his brother as both he and the child's mother are unable to care for her. He left school at the age of nine because of bullying, and is illiterate. He has no work history, owing to his lack of skills and time spent in prison. He has eight previous convictions, one of which relates to a manslaughter in circumstances where he hit a friend over the head with a bottle while intoxicated. After the incident the inhabitants of Castlerea held a demonstration in expression of their anger at what had happened to Mr Gaynor and it was accepted by the Court that as a result of this, it is unlikely that Mr Sweeney could plausibly return to live in the town. He had no recollection of the incident, but when showed CCTV footage at the Garda station four days later he admitted his guilt completely and showed remorse.
It should be noted that the appellant and his counsel were keen to emphasise that neither Mr Sweeney's mental illness, nor his alcohol and drug abuse nor the pain caused by the death of his mother were being relied upon as in any way excusing his behaviour. A psychiatric report handed into Court also made clear that his risk of reoffending was linked to his alcohol and drug abuse, but not to his mental illness.
In sentencing Mr Sweeney, the sentencing judge in that case had regard to a number of principles as enunciated by this Court and its predecessor, the Court of Criminal Appeal, as well as other considerations:
'The principles to be considered are (a) that the sentence must be proportionate to the crime; (b) I must take into accounted any aggravating factors, mitigating factors and the circumstances of the accused; (c) I must consider whether the accused has shown remorse and displayed appreciation for his wrongdoing; (d) I must look at the accused's record and the likelihood of him reoffending; and (e) I must consider the effect of the consequences of the offence on the victim, Mr Gaynor; and I must also consider the accused's cooperation with the gardaí throughout the investigation of the offence. I'm required, under section 5 of the Criminal Justice Act 1993, to take into account the victim impact report which has been submitted to the Court. I must also consider the probation report that has been prepared for this sentencing together with the psychiatric report on the accused which has been prepared by Dr Gulati.'
The sentencing judge went on to identify the aggravating factors of the case as being: the aggression and level of physical violence; the fact that the victim was a vulnerable individual who may never fully recover; the nature and frequency of the appellant's previous convictions together with his high risk of reoffending; and finally, a failure to make restitution, which was taken to indicate a lack of appreciation of the gravity of the offence.
The sentencing judge went on to identify a number of mitigating factors,...
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DPP v Barnaville
...this proposition, the appellant has referred us to a recent decision of this Court in People (Director of Public Prosecutions) v Sweeney [2017] IECA 49. In this case, the appellant received a sentence of eight years" imprisonment with the final two-and-a-half-years suspended for the offenc......