D.P.P.-v- Mark Drinkwater, [2007] IECCA 84 (2007)

Docket Number:140/06
Judge:Murray C.J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL

Murray C.J. 140/06

Herbert J.

McGovern J.

BETWEENTHE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

MARK DRINKWATERAPPLICANTJUDGMENT of the Court delivered on the 31st day of July, 2007 by Murray C.J.

This is an application for leave to appeal against a sentence of imprisonment for two years for the offence of burglary contrary to s. 12(b)(3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 which was imposed by the Dublin Circuit Court on 26th June, 2006 the applicant having first pleaded to the offence on 22nd February, 2005.

Facts relating to the offence

On 15th June, 2006 evidence was given before the Circuit Court by investigating Garda to the effect that the applicant along with his co-offender, Noel Blake, was arrested in the early hours of the morning of 22nd January, 2004 in Bloomfields Shopping Centre, Dun Laoghaire. The evidence was that they had entered the cash office in the car park of the shopping centre. They had attempted to remove a safe in the office which was subsequently ascertained by the Gardaí to have contained 9,042.00.

Evidence was given that the applicant, at the time of the Circuit Court hearing, was 33 years of age with a partner and a 14 year old girl and that he was unemployed. He had 34 previous convictions. Most of the convictions were road traffic offences. On 5th October, 2001 the applicant was convicted of assault, "threatening, abusive and insulting behaviour; hit and run; failure to remain at the scene of a road traffic accident; driving without reasonable consideration" and for that he received one month imprisonment, one month imprisonment and two fines of 63.49. He was not on bail when he committed the offence in this case.

The case put by counsel for the applicant was that he had not been convicted of any offence since he was arrested in 2004. It was also stated that he was a heroin addict.

It was further stated on behalf of the applicant that he had reached intermediate certificate level at school and on leaving school took up apprenticeship as a carpenter and that continued for a period of approximately 3½ years. At the age of 19 he began abusing drugs and that for a long period throughout his 20's and into his early 30's "he struggled with a heroin addiction". Counsel for the applicant relied on the applicant's plea of guilty, the absence of any further offences in the two years since he was arrested in 2004 and that he was registered with the relevant authorities in Bray as actively seeking work.

Particular emphasis was placed by counsel for the applicant, when addressing the learned trial Judge, that the applicant appeared to have taken steps to overcome his heroin addiction by contacting authorities at an establishment called Asheire which treats such addicts. It was stated that he may be on a waiting list but that there were a number of preconditions, 1. that the criminal proceedings would have to be behind him and 2. that he provide a urine analysis clear of drugs. It was acknowledged that he was not providing a urine analysis to anybody but he intended to address this.

Some documentation was handed in in connection with the Asheire establishment and the learned trial Judge pointed out that the pre-admission requirements were that firstly that he detoxify completely, secondly undergo drug screening, thirdly the pending criminal case would have to be resolved before a bed was offered to him, fourthly that he make contact with the establishment the following Friday and fifthly that he bring a deposit of 2,500.00 and pay the balance of fees through his account. The trial Court raised the question as to how he intended to foot the cost of any treatment at the centre.

The applicant gave evidence that the treatment would cost initially 2,500.00 and then 30.00 a week for two years. His evidence was to the effect that his mother would pay for the treatment. The learned trial Judge indicated that it was easy for someone to say that their mother was going to give them the money but the person to give such evidence was the mother herself. The learned trial Judge also indicated that he was not familiar with Asheire and its activities.

Counsel for the applicant then said "Well if the Court wishes to put it back for reasons which may be twofold, one his mother and two is information from Asheire?", to which the learned trial Judge replied, "I would like to hear a little more about Asheire and a little more from his mother before I take, as you put it, take a chance."

A probation report on the applicant, which had been sought at an earlier time, was before the learned trial Judge on this date but apart from a brief reference to that fact there was no other reference made to it by the learned trial Judge or counsel for the applicant on that occasion.

The sentencing of the applicant was adjourned to 26th June. Evidence had been given to the Court concerning the applicant's co-accused, Noel Blake, who was before the Court on a similar charge plus other charges on other bills of indictment and that too was adjourned until 26th June.

On the resumed date on 26th June the trial Judge stated that he had had an opportunity to look back over his notes of the evidence in the case and to read the probation and welfare reports in relation to both the accused, that is to say, the applicant and Noel Blake. The learned trial Judge then proceeded to make reference to the charges to which the accused Noel Blake pleaded guilty other than that on which he was jointly indicted with the applicant. When he came to the indictment on foot of which the applicant and Mr. Noel Blake were jointly charged counsel for the applicant intervened in the following terms:"Sorry to interrupt the Court at this point, Mr. Drinkwater's mother is in Court and the Court asked that she be here to tell the Court if she is going to fund Mr. Drinkwater's treatment in Asheire and you asked for more information about Asheire if that was available to the Court and I can tell the Court that Mrs. Drinkwater is in a financial position, I have seen a Credit Union statement, as if (sic) the Courts want to formally hear from her."In response the learned trial Judge said:"No, that is not going to be necessary, I have read through everything over the weekend and this is a question of burglary at Bloomfields Shopping Centre when the Gardaí - the Gardaí had previously been at the shopping centre, two men having been seen hopping over a fence."He went on to make reference to the particular facts of the case. He then proceeded to sentence Noel Blake. Having done so, he then proceeded to deal with the circumstances and sentencing of the applicant. In the course of sentencing he mentioned the probation report according to which the applicant did not accept full responsibility for the offence to which he had pleaded guilty and that the Probation and Welfare Service stated that they were unable to...

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