The People (At the Suit of the DPP) v Jeffrey Crowley

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 24 June 2021
• Neutral Citation: [2021] IECA 178
• Docket Number: Record No: 53/2020
• Court: Court of Appeal (Ireland)

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

Jeffrey Crowley

Appellant

[2021] IECA 178

Edwards J.

McCarthy J.

Kennedy J.

Record No: 53/2020

THE COURT OF APPEAL

Sentencing – Assault causing harm – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe

Facts: The appellant, Mr Crowley, on the 17th of December, 2019, came before the Circuit Criminal Court to be sentenced in respect of offences on three Bills of indictment, numbers 326/18, 1228/19 and 1222/19, to which he had pleaded guilty. On the 21st of February, 2020, the following sentences were imposed: (i) an overall sentence of 2 years’ and 3 months’ imprisonment on Bill No 326/2018, which contained three counts; (ii) a sentence of 3 years’ imprisonment on Bill No 1222/2019, which contained a single count; and (iii) an overall sentence of 4 years’ imprisonment on Bill No. 1228/2019, which contained five counts. The appellant appealed to the Court of Appeal against the severity of his sentences on the following grounds: (i) the sentencing judge erred in principle by imposing multiple consecutive sentences; (ii) the resulting overall sentence was disproportionate and excessive; (iii) the sentencing judge did not take adequate account the mitigating factors and placed undue weight on the aggravating factors in the case; (iv) in respect, inter alia, of the sentence imposed for the offence of endangerment the sentencing judge did not place the offence correctly upon the range of offending for that particular offence, resulting in a sentence that was disproportionate and excessive; (v) the sentencing judge erred by imposing several consecutive sentences upon the appellant for the episode of offending; and (vi) the sentencing judge placed undue emphasis on the victim impact statements in sentencing the appellant resulting in an excessive and unduly severe sentence.

Held by the Court that the appeal would be allowed on ground (ii), but it was not disposed to do so on grounds (i) and (v). The Court held that, given the existence of three individual Bills of indictment, the large number of individual incidents, the multiplicity of victims, the nature of offences, the fact that some were committed whilst on bail, and the appellant’s bad record, it was a matter within the sentencing judge’s discretion whether to have resort to consecutive sentencing, and even consecutive sentencing upon consecutive sentencing. The Court held that the sentencing judge failed, having done so, to properly consider totality, resulting in an overall sentence that was disproportionate and excessive. The Court noted that counsel for the appellant conceded at the oral hearing that he could have had no complaint concerning the appropriateness of the individual sentences imposed by the sentencing judge if proper account had been taken of totality; and that while the individual sentences might perhaps be regarded as harsh, he had to accept that they were not so harsh as to render it likely that the Court would interfere with them on that account alone. In the circumstances the Court was not disposed to uphold grounds (iii) and (iv) respectively. The Court found no error in the sentencing judge’s treatment of the victim impact evidence per se. The Court was not therefore disposed to uphold ground (vi).

The Court re-imposed all of the individual sentences nominated by the sentencing judge at first instance but ignored her part suspension of the sentence on Count No 4 on Bill No 1228/2019. The Court also respected the sentencing judge’s decisions with regard to consecutivity, and again made the sentence on Bill No 1222/2019 consecutive to the sentences on Bill No 326/2018, and the sentences on Bill No 1228/2019 consecutive to that on Bill No 1222/2019. Having considered the provisional cumulative total of 9 years and 3 months imprisonment from the point of view of what might be a proportionate overall sentence in the circumstances of the case, the Court thought it was appropriate to adjust the overall figure downwards by 1 year, leaving a revised overall total of 8 years and 3 months. The Court held that the sentencing judge had a sufficient evidential basis for her decision to suspend 15 months of the sentence on Count No 4 on Bill No 1228/2019 in the interests of incentivising the accused to continue with the steps he had taken to address his substance abuse issues.

Order varied.

JUDGMENT of the Court delivered byMr Justice Edwardson the 24th of June, 2021.

Introduction

1 On the 17th of December, 2019, the appellant came before the Circuit Criminal Court to be sentenced in respect of offences on three Bills of indictment, numbers 326/18, 1228/19 and 1222/19 to which he had pleaded guilty. The sentencing judge heard the relevant facts and adjourned the matter until the 27th of January, 2020, and then to the 21st of February, 2020, on which date the following sentences were imposed:

• (i) An overall sentence of 2 years' and 3 months' imprisonment on Bill No 326/2018, which contained three counts, to date from the 21st of February, 2021 (the date of sentencing); the overall sentence consisting of:

  • a) 8 months' imprisonment, in respect of Count No. 2, which charged criminal damage involving a mobile phone belonging to a Ms Deborah Preveaux;

  • b) 2 years' and 3 months' imprisonment, in respect of count No. 3, which charged assault to the said Ms Deborah Preveaux causing her harm, to run concurrently with the sentence on Count No. 2.

  • c) Count No 1, which charged attempted theft of a mobile phone belonging to the said Ms Deborah Preveaux, was taken into consideration.

• (ii) A sentence of 3 years' imprisonment on Bill No 1222/2019, which contained a single count, i.e., Count No. 1, which charged assault to a Mr Jason Kidd causing him harm. This sentence was to run consecutive to the sentence imposed on Count No 3 on Bill No 326/2018.

• (iii) An overall sentence of 4 years' imprisonment on Bill No. 1228/2019, which contained five counts, the overall sentence consisting of:

  • a) 14 months' imprisonment, in respect of Count No. 1, which charged theft of a mobile phone belonging to a Mr Darren McGivney;

  • b) 8 months' imprisonment in relation to Count No. 2, which charged criminal damage to a bicycle lock belonging to a Ms Gabriella Osti.

  • c) 14 months' imprisonment in relation to Count No 3, which charged theft in respect of a bicycle belonging to a Mr Fabio Fulci.

  • d) 4 years' imprisonment in relation to Count No 4, which charged the endangerment of a Ms Christine Booth. The final 15 months of this sentence were suspended.

  • e) Count No 5, which charged unlawful possession of a pedal cycle belonging to Ms Gabriella Osti, was taken into consideration.

  The sentences on counts 1 to 4 were to run concurrently inter se, but consecutive to the sentence of 3 years' imprisonment imposed on Count No 1 on Bill No 1222/2019.

2 The appellant now appeals against the severity of his said sentences.

Background to these matters

Bill No 326/2018

3 The court heard evidence from Garda Catherine Byrne, who informed the court that on the 11th of December, 2016, the injured party, Ms Deborah Preveaux, a French student who had come to Ireland to improve her English while also working as an au pair, was at the Smithfield Christmas market in Dublin. She was speaking on her phone to her mother when the appellant, who had approached her from behind while riding a bicycle, grabbed her arm and took her phone. Showing considerable fortitude, Ms Preveaux jumped on the appellant before he could move forward on the bicycle and make his escape, causing him to fall off the bicycle, at which point she wrestled with him in an attempt to retrieve her phone. The appellant pushed and kicked her, causing her to fall to the ground. A bystander who had seen the incident then grabbed the appellant. Five or six persons had gathered at the scene at this point. Ms Preveaux's phone was returned to her after she was picked up off the ground. She noticed that the phone had been broken during the incident but was still able to take a picture of the appellant which she later provided to Gardai.

4 The appellant was subsequently arrested, detained and interviewed. The interview yielded nothing of evidential value. He was charged with the three offences on Bill No 326/2018 on the 4th of September, 2017, and was on bail for those matters when he committed the further offences the subject matter of Bill No 1222/19 and Bill No 1228/19, respectively.

Impact on the victim

5 Ms Preveaux prepared a victim impact statement for the court. The appellant caused €150 worth of damage to her phone which had otherwise been worth €280. She said she could not afford to get it repaired at the time. Ms Preveaux described how the appellant had repeatedly kicked and pushed her, which resulted in bruises as well as a cut to her knee. She also said she didn't have enough money at the time to get medical treatment for these injuries. She was terrified and traumatised by the event and has since developed a nervous disposition. Ms Preveaux was further distressed by the fact that she had been speaking to her mother on the phone, and she had been able to hear the incident taking place. She was staying not far from where the incident occurred, and after the incident she became fearful travelling to and from her accommodation. Since the incident she is nervous and alert at all times and rarely uses her phone in public anymore. She has taken up martial arts in order to better defend herself in case such an incident occurs again.

Circumstances in which the appellant pleaded guilty

6 The sentencing court heard that the appellant entered a guilty plea in respect of Count 3 on this bill of indictment, that being the assault on Ms Preveaux causing her harm, on the 14th of November, 2019, which...