Court of Appeal reduced theft and burglary sentences but upheld endangerment penalty for consecutive terms.

THE COURT OF APPEAL

Birmingham, J.

Sheehan, J.

Mahon, J.

Appeal Number: 223/13

The People at the Suit of the Director of Public Prosecutions

-v-

Matthew Conroy

Appellant

Judgment of the Court (ex tempore) delivered on the 12th h day of December 2014 by Mr. Justice Mahon

1. This is an appeal against the severity of sentences imposed at Nenagh Circuit Criminal Court on 9th October 2013, totalling fifteen

years in respect of five separate offences committed in quick succession on the night of 24th November 2012 in an area in and

around Thurles, Co. Tipperary, and which resulted in a total actual sentence of seven years, with the last eighteen months suspended

subject to conditions.

2. The five offences involved the breaking into the home of a Mr. Mannix, the taking of his car keys, the theft of his private car, the

theft of a small sum of money from the car,. and the crashing of the car while being pursued by gardaí, and having, immediately prior

to that pursuit, placed Garda Collins at grave personal risk as he, the appellant, attempted to manoeuvre the car in order to make

good his escape.

3. The appellant’s lifestyle in the period leading up to the evening in question was unusual and somewhat eccentric. He lived a

generally isolated lifestyle, which included sleeping in the mountains. He is completely estranged from his family including his children.

He is apparently well educated.

4. The appellant has an enormous number of previous convictions, numbering 90 in total, but none related to the burglary of dwelling

houses or the stealing of cars. Most involved intoxication in some form or another. He had previously served short periods of times in

prison. He was by all accounts an habitual offender, albeit at a relatively minor level. He does not appear to have been a man given to

personal violence.

5. The sentences imposed by the learned trial judge involved one group of three concurrent prison sentences of three years, four

years and three years in relation to the theft of money, the burglary of the house and the theft of the car respectively, and a second

group of two concurrent prison sentences of three years and two years in relation to the endangerment incident and the crashing of

the car, respectively. The learned trial judge proceeded to direct that both sets of concurrent sentences be served consecutively

with the result that the appellant received an effective prison term of seven years, including an eighteen month suspended element.

6. A number of grounds of appeal were submitted on behalf of the appellant. In general terms, it was contended that the learned trial

judge erred in principle in relation to certain aspects of the sentencing process. In particular it was contended that the learned trial

judge treated the appellant’s large number of previous convictions as an aggravating factor, rather than the absence of a mitigating

factor. It was also submitted that the offences were placed at too great a level on the relative scale of gravity, and that the

sentences imposed were excessive. It is submitted that the learned trial judge misunderstood the evidence relating to the car owner’s

financial loss arising from the crash of his car and that, in fact, the owner suffered no financial loss in that he recovered the car’s

value from his insurer. It was also submitted that the learned trial judge’s decision to direct consecutive sentences involved an error

of principle in that he failed to give reasons for so doing, and failed to sufficiently take into account that the offences, although

involving separate and distinct incidents, were, in reality, part of the one act of criminality on the night in question. It was further

submitted that, in their totality, the sentences were unduly harsh.

7. These criticisms were rejected by the respondent who contended that the sentences were reasonable and proportionate, and that

the learned trial judge did not err in principle in relation to his approach to, and his actual imposition of, the sentences handed down.

The appellant’s plea of guilty, his apology and his difficult background and lifestyle were matters which the learned trial judge clearly

considered and accepted were mitigating factors.

8. Of the various offences, the endangerment offence was undoubtedly the most serious, with Garda Collins avoiding serious injury

only by his quick thinking and agile reaction. While the appellant sought to explain this offence by reference to his bewilderment at

the unexpected and unplanned position he then found himself in having stolen a car, it was nevertheless a very serious offence, and

it’s circumstances certainly justify the sentence of the nature of that imposed, namely three years. This sentence will therefore not

be altered by this court.

9. Equally the sentence for the offence arising from the crashing of the car was a reasonable and appropriate one having regard to

the circumstances, and having regard to the appellant’s previous convictions.

10. Of particular concern to this court are the sentences for the theft of €15 in cash, the burglary offence and the car theft, being

three years, four years and three years respectively. This court is satisfied that these sentences were unduly severe. In particular it

is of the view that the learned trial judge erred in principle in failing to adequately consider, or give sufficient weight to, the

unchallenged evidence provided to the court to the effect that the appellant broke into the house in the belief that it was unoccupied

and merely for the purposes of finding a place to sleep, and that he then promptly left on discovering the position to be otherwise.

11. On this basis therefore the sentences for the theft, burglary and the theft of the car should be reduced.

12. This court must also consider the issue of the imposition of consecutive sentences, either in the manner determined by the

learned trial judge namely, directing that the sentences of two groups of offences be served consecutively, or in a different

combination.

13. It is argued on behalf of the appellant that all the offences were in reality the same incident played out over a relatively short

period of time, and that consecutive sentencing was therefore not appropriate. This submission linked into the contention that in

terms of the totality of the sentences, there was an error in principle by the learned trial judge in the imposition of the overall

sentence of seven years, less eighteen months suspended.

14. It is accepted by this court that in the particular circumstances of this case, including the appellant’s plea of guilty, the fact that

his previous convictions, albeit large in number, were for relatively minor offences and also the linked nature of the offences in this

case, there was an error of principle on the learned trial judge’s part in his decision to impose consecutive sentences, which in their

totality would result in a custodial sentence of seven years (with the final eighteen months suspended). This court will therefore

substitute the following sentences in their place:-

15. In respect of the offence of the theft of the fifteen euros the sentence will be reduced from three years to one of six months.

16. In respect of the burglary of the house of Mr. Mannix the sentence of four years will be reduced to one year.

17. In respect of the offence of the car theft the sentence of three years will be reduced to one year.

18. In respect of the endangerment offence, which is the most serious of all the offences, the sentence of three years was

appropriate and will remain unaltered, as will the sentence of two years for the criminal damage offence.

19. The above sentences will be concurrent which will, in effect, provide for a total prison sentence of three years. No part of the

three year term will be suspended.