DPP v Wall

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 04 November 2016
• Neutral Citation: [2016] IECA 319
• Date: 04 November 2016
• Court: Court of Appeal (Ireland)
• Docket Number: CJA 45/16 CJA 46/16

[2016] IECA 319

THE COURT OF APPEAL

Edwards J.

Sheehan J.

Mahon J.

Edwards J.

CJA 45/16

CJA 46/16

In the matter of section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Applicant

V

Edward Wall

and

Patrick Wall

Respondents

Sentencing – Burglary – Undue leniency – Applicant seeking review of sentence – Whether sentence was unduly lenient

Facts: The respondents, Mr E Wall and Mr P Wall, both pleaded guilty before Dublin Circuit Criminal Court to one count of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and one count of attempt contrary to common law to commit the offence of burglary contrary to the same provision. The respondents were each sentenced to four years imprisonment on the burglary count to date from the 5th February, 2016, with the final year thereof suspended upon conditions and also to three years imprisonment on the attempted burglary count also to date from the 5th February, 2016, both sentences to run concurrently. 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 firstly that the sentencing court gave insufficient weight to the aggravating factors in the case, secondly that the sentencing court had inadequate regard to the fact that the offences committed by the respondent were apparently carefully planned and sophisticated in their execution, and thirdly that the sentencing court had inadequate regard to the fact that the respondent had numerous previous convictions for similar offences.

Held by Edwards J that the sentences had not been demonstrated to be unduly lenient, having cited The People (DPP) v McCormack [2000] 4 IR 356, The People (DPP) v Redmond [2001] 3 IR 390 and The People (DPP) v Byrne [1995] 1 ILRM 279. Edwards J noted that the jurisprudence with respect to the jurisdiction to review a sentence under s. 2 of the 1993 Act indicated that before a reviewing court can find the sentence to have been unduly lenient, it must be satisfied that the sentence imposed involved “a clear divergence by the court at trial from the norm” that will have been caused by “an obvious error of principle”. The Court was not persuaded that the sentences, though undoubtedly lenient, were so lenient as to be a deviation from the norm. Edwards J considered that that onus of proof had not been discharged by the applicant.

Edwards J held that the application should be dismissed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 4th day of November 2016 by Mr. Justice Edwards

1 In this respondents both pleaded guilty before Dublin Circuit Criminal Court to one count of burglary contrary to s. 12 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and one count of attempt contrary to common law to commit the offence of burglary contrary to the same provision.

2 The respondents were each sentenced to four years imprisonment on the burglary count to date from the 5th February, 2016, with the final year thereof suspended upon conditions and also to three years imprisonment on the attempted burglary count also to date from the 5th February, 2016, both sentences to run concurrently. The applicant seeks 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.

3 The facts of the matter are as follows. On the 31st October, 2014, in the course of a joint operation being conducted by the Organised Crime Unit, the National Surveillance Unit and the Emergency Response Unit of An Garda Síochána, a silver Mazda motor vehicle bearing an O7 C set of registration plates was observed to be parked at the Red Cow Inn on the Naas Road, Dublin 12. It was decided on the basis of intelligence received to monitor the movements of this vehicle. Later during the course of that day the number plates on that vehicle were noted to have been changed to 09 D 11500.

4 At 8.20 pm on the same evening the vehicle was intercepted by gardaí in Balbriggan travelling south on the R132 Road in circumstances where gardaí had reason to suspect that its occupants had recently committed a burglary in the Drogheda area. Although gardaí signalled to the vehicle to stop it failed to stop. The gardaí in the intercepting garda vehicle gave chase, in the course of which the suspect vehicle collided with other garda vehicles but continued on. The suspect vehicle was subsequently observed turning on to a minor road, following which the driver of it abandoned his still moving vehicle and ran into the garden of a house. Moments later the suspect vehicle collided with the gateway of another house. Gardaí in the pursuing vehicle arrived on the scene and with firearms drawn two of them immediately apprehended the two rear seat occupants of the suspect vehicle, one of whom was the respondent Patrick Wall.

5 The men in the rear seats were found to be wearing balaclavas and gloves and to be equipped with pry bars. Another garda pursued the driver of the suspect vehicle and in due course successfully apprehended him also. The driver was the respondent Edward Wall. The suspect vehicle was then searched and in the front passenger footwell a sock was found contained various items of jewellery which it was later established were the property of a Ms. Julie Riordan and which had been stolen earlier that evening in the course of a burglary from the home in Drogheda which Ms Riordan shared with her partner, Mr. Adam O'Donovan.

6 In the course of a subsequent forensic examination the jewellery in the sock was found to have DNA on it which matched a sample taken from Edward Wall. In addition to the pry bars previously mentioned, a number of other housebreaking implements were also found in the boot of the suspect vehicle including an axe like log splitter, pliers and screwdrivers.

7 The home of Ms. Riordan and Mr. O'Donovan in Drogheda had been entered when they had gone out in the early evening for something to eat and their house was vacant and secured. The couple returned at about 8.20 pm to discover that their house had been ransacked and damaged and that a number of items had been stolen. The stolen items including a gold necklace with a diamond pendant in the shape of flower, which was valued at €50; a gold bracelet valued at €500; a flat gold chain with a small diamond; a gold rectangle ring with a diamond; a Claddagh ring; a silver ring; a two colours gold ring with a square shaped jewel; and a gold diamond tennis bracelet. In addition an Armani watch was taken and a pair of Lacoste shoes belonging to Mr. O'Donovan was taken The respondent Patrick Wall was found to be wearing these shoes at the time that the was apprehended. All property with the exception of the Armani watch was recovered. However, damage to the house estimated at €4,600 was caused. A wall had been dug out in an attempt to access a safe and the safe itself was severely damaged. The householders were, however, insured and it is anticipated that they will recover the cost of making good the damage from their insurers.

8 The attempted burglary to which the respondents also pleaded guilty occurred on the same date, but after the burglary just described. In this instance the respondents attempted to break into a house at Woodgrange, Painstown, Co Meath. However, unknownst to them the occupants of the house in question, a Mr. and Mrs. O'Boyle, were at home. Mrs. O'Boyle observed the suspect vehicle from an upstairs window of an unlit room as it drove slowly past their house and then turned around and came back. She observed a man who was carrying a flashlight walking entering their garden by means of the front driveway and walking alongside her car. This man proceeded in the direction of a side gate which happened to be locked. She then saw him return to the front driveway. Next she saw three figures in the driveway, one of whom wearing beige trousers and she then heard a loud bang similar to a shotgun. She believed that her husband had been shot and started screaming as a result of which the men outside attempted to flee the scene.

9 Mrs. O'Boyle's husband was downstairs at the time. He also heard the bang and looked outside and saw two men there. He immediately telephoned the gardaí and as he was doing so he heard a car screech away.

10 As the would be burglars attempted to flee in their vehicle, they encountered a brave neighbour of the O'Boyles', a Mr. O'Ciabháin, who having heard the commotion correctly concluded that his neighbours had been raided in some fashion and had armed himself with a iron bar and gone out on the road. The O'Boyles' house was around a bend in the road from where Mr. O'Ciabháin positioned himself. He then heard a car start up, rev its engine, and take off at speed. Mr. O'Ciabháin remained where he was and waited for the car to come around the bend. As it did so he struck the speeding car on the windscreen with the iron bar damaging its windscreen. While the car was able to continue on its journey and did not stop it bore the damage inflicted by Mr. O'Ciabháin. When the vehicle in which the respondents were travelling was intercepted in Balbriggan later that evening, it was found to have a windscreen that bore damage consistent with it having been struck with an iron bar.

Evidence as to the personal circumstances of the respondents

11 The sentencing court heard evidence that Patrick Wall who was of traveller ethnicity was born on the 15th April, 1979. He is married and has five children. He relatively recently suffered the loss of his brother, Gerry, in tragic circumstances. He grew up in poverty and in otherwise difficult circumstances following the abandonment of his mother by his father...