DPP v Tache
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 22 April 2020 |
| Neutral Citation | [2020] IECA 115 |
| Docket Number | Record No: 101/2019 |
| Court | Court of Appeal (Ireland) |
| Date | 22 April 2020 |
[2020] IECA 115
Birmingham J.
Edwards J.
Ní Raifeartaigh J.
Record No: 101/2019
THE COURT OF APPEAL
Sentencing – Handling stolen property – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Tache, on the 13th of May 2019, was before Cork Circuit Criminal Court for sentencing on Bill No CYDP0038/2019, to which he had pleaded guilty on arraignment, and which contained a single count of handling stolen property, to wit forty nine mobile phones of different makes and models, to the value of €13,143.90, knowing that the property was stolen or being reckless as to whether it was stolen, contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant received a sentence of four years’ imprisonment to date from the 13th of May 2019. The matter came before the Court of Appeal by way of an appeal against the severity of that sentence. The Notice of Appeal filed by the appellant listed a total of nine complaints, namely: (1) the sentence of four years was excessive; (2) the sentencing judge erred in failing to suspend a portion of the total sentence; (3) the sentencing judge did not give any regard to rehabilitation as a guiding principle when formulating the sentence, particularly in failing to suspend a portion of the total sentence; (4) the sentencing judge erred in principle in failing to give due regard to the principle of totality; (5) in formulating the sentence the sentencing judge failed to give due regard to the level of cooperation offered by the appellant during the investigation; (6) in forming the sentence the sentencing judge did not give sufficient regard to the fact that the appellant pleaded guilty; (7) the sentencing judge erred in failing to give due consideration to the fact that the appellant was a foreign national and the effect that serving a custodial sentence in a foreign prison would have on the appellant; (8) in sentencing the appellant, the sentencing judge erred in principle in failing to have sufficient regard to the principles of proportionality and the personal circumstances of the appellant; and (9) in all the circumstances of the case, including the personal circumstances of the appellant, the sentence imposed was excessive and unjust.
Held by the Court that the headline sentence of six years was too high, notwithstanding that the appellant had previous relevant convictions, the fact that the crime was motivated by profit, and the substantial value of the stolen goods involved; by the same token, the stolen property was fully recovered in a saleable condition, and a period of eight years had elapsed since the appellant’s last conviction. In those circumstances the Court considered that a headline sentence of four and a half years would have been more appropriate and that to have nominated a headline sentence of six years was an error of principle. Accordingly, in circumstances of having identified an error of principle in terms of the headline sentence, the Court held that it would quash the sentence imposed by the court below and proceed to a re-sentencing of the appellant.
The Court held that, having noted the up to date information provided by counsel for the appellant, the appropriate headline sentence was one of four and a half years’ imprisonment. The Court held that it would discount from that by eighteen months (or one third) to reflect mitigation, leaving a net ultimate sentence of three years’ imprisonment. The Court did not consider it an appropriate case in which to suspend any portion of the sentence.
Appeal allowed.
On the 13th of May 2019, the appellant was before Cork Circuit Criminal Court for sentencing on Bill No CYDP0038/2019, to which he had pleaded guilty on arraignment, and which contained a single count of handling stolen property, to wit forty nine mobile phones of different makes and models, to the value of €13,143.90, knowing that the property was stolen or being reckless as to whether it was stolen, contrary to s.17 of the Criminal Justice (Theft and Fraud Offences) Act 2001.
We should say at the outset that while the figure in the indictment was €13,143.90, and the transcript is silent as to whether there was any amendment of that figure, the evidence in the case referred to a figure of €17,378.90. While we simply note this discrepancy, we do not consider it to be of any materiality in terms of the issues before us today.
The appellant received a sentence of four years' imprisonment to date from 13/05/2019. The matter comes before this court by way of an appeal against the severity of that sentence.
The court below heard evidence that there is a mobile phone sales and repair shop in Market Street in Bandon, County Cork known as “RepairIT.ie”. This shop was burgled at approximately 03.00 on the 28th of September 2018 and a large number of mobile phones were stolen from the premises. Upon the burglary being discovered the matter was reported to An Garda Siochána who initiated an investigation.
In the course of that investigation it was established from inquiries made, and from CCTV footage recovered, that five persons had entered the shop to effect the burglary and that they had used two vehicles to enter and leave the town of Bandon. The vehicles were identified as a Mitsubishi Carisma and a black Peugeot 206. Further inquiries revealed that the black Peugeot 206 had been purchased by a man named Mihai from West Cork Car Sales in Bishopstown. Gardai later received confidential information that a man named Mihai was offering mobile phones for sale online. This prompted the Gardaí to seek a search warrant to search the home of the appellant who was identified as living at 9 Elmvale, Wilton in Cork.
The search warrant was executed on the 4th of October 2018. In the course of the search gardaí found a total of 67 mobile phones concealed in two areas of the property, namely under a bed and in a wardrobe, to a total value of €17,378.90. All mobile phones have a unique identifier number known as an IMEI number. When the IMEI numbers of the mobile phones recovered in the course of the search were checked, gardaí were able to establish that amongst them were the mobile phones stolen from RepairIT.ie in the course of the aforementioned burglary on the 28th of September 2018.
On the following day the appellant, having contacted the Gardaí himself, attended at Bandon Garda station by appointment whereupon he was arrested. While the sentencing transcript is silent as to whether he was arrested on suspicion of burglary or of handling stolen property (it was clearly one or the other), the evidence was that he was detained and was interviewed on three occasions while in detention. During the course of these interviews the appellant maintained that he had purchased the phones with a view to reselling them at a profit. He claimed not to have previously known the persons from whom he had purchased the mobile phones and he would not identify the location at which he had made the alleged purchase. The property stolen from RepairIT.ie was identified by that firm's owner, the injured party, and has since been returned to him.
A victim impact statement was received by the court below from the injured party. It is not confined to the impact of the appellant's crime but related to the overall effect of the burglary and appropriation of stock from his business. He is no longer at any loss in terms of stock misappropriated. He suffered other financial losses but these were associated with damage caused in the course of the burglary (for which the appellant is not being sentenced) and the cost of additional security. The statement goes on to deal with the trauma and stress suffered by himself and his immediate family by virtue of his business having been burgled, and with difficulties in dealing with his customers and his employees in the aftermath of the incident. Once again, it requires to be stressed and emphasised that the appellant was not being sentenced for burglary, but rather for handling stolen property.
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DPP v John Gallagher
...was at lower end of such range. This was a valuable piece of machinery. Heavy reliance has been placed by the appellant on DPP v Tache [2020] IECA 115, in which the accused's appeal against severity of sentence in respect of a handling offence was allowed. The accused handled some 49 stolen......