The People (At the Suit of the DPP) v Trevor Ormond
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 12 October 2021 |
| Neutral Citation | [2021] IECA 279 |
| Docket Number | Record No.: 88/2020 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 279
Birmingham P.
McCarthy J.
Donnelly J.
Record No.: 88/2020
THE COURT OF APPEAL
Sentencing – Robbery – Severity of sentence – Appellant seeking to appeal against sentence – Whether sentence was unduly severe
Facts: The appellant, Mr Ormond, appealed to the Court of Appeal against severity of sentence in respect of a single count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant first appeared before the Dublin Circuit Criminal Court on the 31st May, 2019 and he pleaded guilty on his trial date on the 9th December, 2019. The appellant was sentenced on the 29th April, 2020 to six and a half years’ imprisonment with eighteen months suspended on the condition that he undergoes twelve months’ probation supervision and that he abide by all the conditions imposed by his probation officer. The appellant advanced the following grounds of appeal: (i) the sentencing judge erred in law in setting the headline sentence at seven and a half years; and (ii) the sentencing judge erred in law and in fact in imposing a disproportionate and overly punitive sentence in all the circumstances.
Held by the Court that the sentencing judge did not err in identifying a headline sentence of seven and a half years in respect of the robbery. The Court was also satisfied that the sentence she imposed was a fair and proportionate sentence in all the circumstances.
The Court dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered ( ex tempore) on the 12th day of October, 2021 by Ms. Justice Donnelly
This is an appeal against severity of sentence brought by the appellant in respect of a single count of robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The appellant first appeared before the Dublin Circuit Criminal Court on the 31st May, 2019 and he pleaded guilty on his trial date on the 9th December, 2019. The appellant was sentenced on the 29th April, 2020 to 6.5 years' imprisonment with 18 months suspended on the condition that he undergoes 12 months' probation supervision and that he abide by all the conditions imposed by his probation officer.
The evidence was heard on the 14th February, 2020. The incident occurred on the 5th October, 2018. The victim was walking down the quays in Dublin with his friend at 12:30am when he took his phone out to book a taxi. The victim had his phone out for a short time when he was approached by the appellant and another male. One of the males said “howya buddy”, which made the victim look up from his phone. The appellant, in front of the victim at this stage, grabbed the victim's phone from his hand and the victim held on to it. The victim grabbed the phone with his other hand and a struggle ensued. Both parties fell to the ground while gripping the phone. The appellant then shouted at his friend “stab him Paddy stab him”. The victim confirmed that he believed at this point that the other male had a knife. The victim's friend tried to help but the appellant had got the phone out of his hand and the appellant and his accomplice ran in the direction of O'Connell street. The victim immediately reported the incident to the gardaí and CCTV footage confirmed that it was the appellant who was outside Londis Shop on O'Connell street after the incident.
The appellant was subsequently arrested on the 26th November, 2018 for the single count of robbery and nothing of probative evidential value emerged in the interviews. The appellant has 30 previous convictions dating from 1994 to 2019. These convictions range from drug offences, a theft offence, a public order offence and twenty road traffic offences. At the time the offence the subject of this appeal was committed, the appellant was on station bail for a drugs offence which occurred on the 10th July, 2018. He obtained station bail for that offence on the 13th September, 2018. He had been in custody since the 11th February, 2019, but was also serving a sentence of seven months during the period which was imposed on the 12th April, 2019.
A victim impact statement was put before the sentencing court evidencing both financial loss and psychological distress suffered by the victim. His phone was never recovered and he is now much more wary of taking his phone out when in public. It was a frightening experience for him.
After hearing the evidence, the sentencing judge put the matter back to the 29th April, 2020 to obtain a probation report, a prison governor's report and urinalysis. The report referred to various infractions committed by the appellant while in custody – the most recent being on the 26th April, 2020. The reports obtained from the Prison Governor disclosed that he had 5 such P19 infractions. These concerned destruction of prison property, attempted assault of the Governor, refusing an order and seeking to retrieve contraband twice. The Probation Report indicated that he was in the high risk category for re-offending, that for reasons set out in the report it was difficult to assess the genuineness of the remorse he expressed and questioned whether he was motivated to change his life style given his frequent rule-breaking of a serious character while in prison.
The plea of mitigation on behalf of the appellant referred to the fact that he had previously set up a roofing and contracting business upon his last release from prison thereby showing that he could be productive and of assistance to his family. He had been living in the family home and making an important contribution to family life. After over 10 years of a crime free life he had lapsed back into addiction in terms of cocaine and tablets. The appellant was the father of two children aged eighteen and eight. He has struggled with addiction issues and at the date of the sentence hearing, he was on 70ml of methadone.
The appellant pleaded guilty to the offence at the trial date although he had indicated before the trial date that he would be pleading guilty.
The appellant advanced two grounds of appeal. They are as follows:-
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(i) The sentencing judge erred in law in setting the headline sentence at 7.5 years; and
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(ii) The sentencing judge erred in law and in fact in imposing a disproportionate and overly punitive sentence in all the circumstances.
In arriving at the headline sentence, the trial judge stated:-
“In any event the aggravating factor in the case is the fact that there was violence used in the accused's efforts to get hold of the phone and also the threat or the exhortation that was made by the accused to his associate and also an item of some considerable value was stolen. Therefore, in terms of where the offence lies for a robbery offence, I'm placing it in the mid-range for a robbery offence and I'm setting a headline sentence of seven and a half years.”
In sentencing the appellant, the sentencing judge addressed the appellant's background and his struggle with addiction as follows:-
“He is a 41-year-old man with 30 previous convictions. A large number of those are road traffic offences and the root of his offending generally is an addiction to drugs which has plagued him throughout his adult life. There is some evidence that in the past when he stabilised on methadone that he was capable of sticking with a regime and he was in fact not offending for a sustained period lasting 10 years at one point in the past.”
The mitigating factors were considered by the sentencing judge:-
“I'm going to give Mr Ormond credit for the plea of guilty which undoubtedly is useful and would have come as a relief to the inured party in the case. I also take into account the fact that his addiction and his need for money to finance his addiction is at the root of his offending on this occasion and in the past. I also take into account in particular the efforts that Mr Ormond has made in the past and the fact that he is somebody who is capable of living a law-abiding life when he is not in the throes of addiction. I also take into account the stabilising influence of his relationship and his personal circumstances and in particular his desire to have a relationship with his two children. And I also take into account that the prison regime is a particularly difficult regime at the present time and that is a factor to which I believe I am entitled to have some regard. And lastly I take into account the recommendation of the probation report and the clear need for the Court to incorporate a regime for Mr Ormond following his release.”
The appellant submits that the sentencing judge erred in setting the headline sentence at 7.5 years' imprisonment. He accepts that this sentence was in the midrange of offending but submits that the headline sentence indicated by the sentencing judge, falls within the mid to upper range of the scale and is disproportionately high in the circumstances. The appellant submits that it should have been set at the lower end of the mid-range of sentences. The appellant relies on O'Malley, Sentencing Law and Practice (3rd Edn., Round Hall, 2016) at para. 15–36 wherein he states:-
“Use of a knife or other weapon, including an imitation firearm, will usually bring a robbery into the mid-range or higher. This will certainly be true where any appreciable level of violence was inflicted on a victim, whether with a knife...
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