DPP v Vasile Marin
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 30 May 2019 |
| Neutral Citation | [2019] IECA 151 |
| Date | 30 May 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 54/2019 |
[2019] IECA 151
Record No: 54/2019
THE COURT OF APPEAL
Sentencing – Robbery – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Marin, on the 27th February 2019, was sentenced to three years’ imprisonment with the final 18 months suspended for 18 months, conditional on, inter alia, 12 months of probation supervision, in respect of a robbery offence. He appealed to the Court of Appeal against the severity of that sentence on the following grounds: (i) the sentence imposed was excessive in all the circumstances of the case; (ii) the sentencing judge erred in attaching disproportionate weight to the age of the injured party and in sentencing the appellant to an immediate custodial sentence primarily on the basis that elderly people are required to be protected from opportunistic crime; (iii) the judge erred in failing to attach any or any sufficient weight to the appellant’s mitigating circumstances and the documentation submitted on his behalf; (iv) the judge erred in failing to take into consideration the particular hardship which an immediate custodial sentence would entail for the appellant given the fact of his being a non-national with very limited English, hearing difficulties and whose depression is of such a level as to warrant the payment of disability benefit; (v) the judge erred in failing to give the applicant sufficient credit for his good character, represented by his low level of previous convictions and not having come to Garda attention since the index offence; (vi) the judge erred in placing the offence too high on the scale of gravity having regard to the low level of force used by the appellant and the relatively low value of property involved; (vii) the judge failed to attach any or any sufficient weight to the appellant’s early plea of guilty and his expressions of remorse for his behaviour; (viii) the judge failed to attach any or any sufficient weight to the Probation and Welfare Report and in particular the recommendations in that report; (ix) the judge erred in failing to give any or any sufficient consideration to the imposition of a fully suspended sentence.
Held by the Court that it had not found any error of principle in how the sentencing judge dealt with this matter.
The Court held that the appeal would be dismissed.
Appeal dismissed.
On the 27th of February 2019 the appellant was sentenced to three years' imprisonment with the final 18 months suspended for 18 months, conditional on, inter alia, 12 months of probation supervision.
He now appeals against the severity of that sentence.
Background Facts
At trial, Garda Cian Daly gave evidence to the effect that on the 10th of September 2016, the injured party, Mrs Elizabeth O'Toole was shopping at a Eurospar grocery store in Bayside. After paying with cash, she estimated that she had around €300 remaining in her purse.
Mrs O'Toole placed the groceries and her purse in a personal shopping trolley, then left the shop and proceeded in the direction of her home which was just a short distance away. As she approached the back of her house, a male came up from behind her. He placed one arm around her, primarily to distract her, he says, but it undoubtedly had the effect of also restraining her, and while she was so distracted and restrained he reached into her shopping trolley with his other hand and removed her purse from it, before then making his escape.
Following the incident, Mrs O'Toole, who was very shaken by what had occurred, reported what had happened to the Gardaí and was able to provide a description of the man. After examining CCTV footage, Gardaí identified the appellant and arrested him on foot of a Section 48 warrant.
During the resulting interview, the appellant was very forthcoming. When asked what he remembered about the day in question, he replied: ‘I went to the shop. I went to pay. When I went to the counter the woman was in first, she was buying stuff, she leaves, I left the shop as well. When I got out, I saw the woman walking away, I then followed her and took her wallet. I didn't hit her or use bad language, I just took the purse.’
When asked how much money he took, the appellant answered that it was €190. When he was asked if he put his hands on her, he replied: ‘No, I'm sorry for what I did. I was a bit drunk, I wasn't really aware of what I was doing.’ When it was put to him that the weight of his actions stemmed not from the sum of money but rather the psychological trauma caused by his following and robbing the victim, the appellant replied: ‘I'm really sorry, it's the first time it happened, it will never happen again’.
When asked about his reasons, the appellant answered ‘I owed some money to somebody that I played roulette with’.
When presented with the CCTV footage, the appellant identified himself.
Immediately following the incident, Mrs O'Toole was in a state of shock to the extent whereby she was unable to open her door, having to ring the doorbell to enable someone else to let her in. Mrs O'Toole is 81 years of age and had recently undergone heart surgery during which a pacemaker had been implanted.
She described an awful shock as a result of the experience, and is still at pains to discuss it. The fact that the occurrence took place so close to her home caused her much anxiety. She reported involuntary shaking for several days and continued mental trauma when thinking about what happened. Mrs O'Toole became quite reclusive as a result of the appellant's actions, and could not bring herself to leave the house for over six months following the robbery. However, she reports that she eventually resolved that she was not going to let this incident wreck her life, and eventually started going out again.
Nevertheless, the incident caused lasting effects. The complainant remains extremely nervous and anxious, and has relinquished her financial tasks to her son as she will no longer wishes to handle or deal with cash. Moreover, she still does not go grocery shopping, availing of the services of her home help to do it for her.
The appellant was from Romania and came to Ireland with his family in 2002. He is one of ten children and resides with his mother and several siblings. His educational attainments are limited as he was suspended from school shortly after completing his Junior Certificate exams due to non-attendance. He cites his failure to complete his education as being part of the reason for his poor English skills.
He was 22 years old when he committed the offence. At that point in time, he was already in a relationship with his partner; she was then pregnant with their second child.
He enjoys the support of his family, his partner, his Church pastor, and several friends who offered positive testimonials. The appellant has never had employment apart from brief casual work as a gardener. He has a hearing difficulty and is in receipt of disability benefit on that account and on foot of a diagnosis of depression. His daily routine involved helping his mother, including activities such as chaperoning his brothers to and from school.
The appellant cites desperation as the motivation for his actions – he had accrued a gambling debt of €700. He says that he had made attempts at paying off part of it but was receiving threats to repay the amount in full. He claims that he has since ceased gambling.
The appellant has only a limited criminal record, involving two previous convictions for s.4 theft, both of which were dealt with non-custodially in the District Court. The prosecuting garda confirmed that he had not come to their attention for any reasons since the offence.
The sentencing judge stated as follows:
‘All right, the position is, Mr Marin has pleaded guilty to count 1 on the indictment, and the details of the incident were given in evidence on the 22nd of November of this year. The court heard how the injured party, Mrs betty O'Toole, an 81-year old lady, was making her way home from the Eurospar in...
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