Court of Appeal dismisses appeal against robbery sentences, upholding consecutive terms and bail aggravation.

THE COURT OF APPEAL

[Appeal No: 127/2014]

Finlay Geoghegan, J.

Irvine, J.

Hogan, J.

The People at the Suit of the Director of Public Prosecutions

Respondent

v

Gavin Kavanagh

Appellant

Judgment of the Court (ex tempore) delivered on the 24th day of November 2014, by Finlay Geoghegan J.

1. The appellant appeals against two sentences imposed by his Honour Judge O’Shea on the 14th May, 2014. The first sentence arose

from the conviction of the appellant having pleaded guilty to an offence of robbery contrary to s. 14 of the Criminal Justice (Theft

and Fraud Offences) Act 2001, in respect of which the facts were that on the 27th June, 2013, when at the Bar One Racing

Bookmakers, he stole a sum in excess of €4,000, close to closing time and exerted some force and put under fear the employee who

was then closing up the bookmakers. He pleaded to that offence on the 4th February, 2014.

2. The second offence to which he also pleaded on the 4th February, 2014, again was an offence contrary to s. 14 of the Criminal

Justice (Theft and Fraud Offences) Act 2001. This was an offence which took place on the 7th August, 2013, in a Dunnes Stores car

park when he stole from Mary MacDonald a sum of €70 and a number of personal matters. In the course of that offence he exerted

some considerable force on the unfortunate victim, where he banged her head off the ground on three occasions and as a result of

which she suffered lacerations to her head (five stitches) and was seven months out of work.

3. It was accepted by the prosecuting garda that these offences were probably not premeditated by the appellant. He appears at the

time to have been out of work and was engaging in both alcohol and drugs, and needed the money to pay for drugs and to pay off

drug dealers.

4. However, the second offence was committed after he had been charged with and was on bail for the first offence. Subsequent to

being charged with the second offence, he was released on bail and attended Victory Outreach for approximately two and a half

months and by the time of the sentencing had not further come to the attention of the gardaí and had clean urine test results.

5. His personal circumstances were that he had at the time of the sentencing, four children, two from a previous relationship aged 14

and 15 and two with his then current partner. His current partner had significant medical difficulties, suffering from diabetes and she

was also 21 weeks pregnant with their child. He also had 32 previous convictions and at the time of the commission of these offences

had previously been working in the construction industry. Unfortunately he had been laid off due to lack of work and as I have

indicated was involved during the summer of 2013, in engaging in drink and drugs.

6. All of those matters were matters which were taken into account by the Sentencing Judge and the sentence imposed in respect of

the first offence was two years and in respect of the second offence, a sentence of three years with the final six months suspended.

7. As the second offence was committed whilst on bail for the first offence, there were two relevant consequences imposed on the

sentencing judge by statute, the first was that he was obliged to make the sentence for the second offence consecutive to the

sentence for the first offence and the second was that he was obliged by statute to consider the fact that he was on bail as an

aggravating circumstances in relation to the second offence.

8. Counsel for the appellant appeals against the sentences firstly upon the ground that there was an error of principle by the

Sentencing Judge in his approach to sentencing, and secondly, in his failure to appropriately apply the totality principle to the overall

sentences.

9. The approach of the Sentencing Judge in respect of each offence, was to indicate that he considered that the offence itself was

such that it should be placed in the midrange of the spectrum in respect of the offence of robbery. Thereafter in respect of each

offence he then considered the aggravating and the mitigating factors in relation to the commission of the offence and the accused

prior to reaching his determination as to the appropriate sentence for each individual offence.

10. Counsel for the appellant submits that in taking this approach that he conflated the aggravating and mitigating factors in a

manner which is not permissible.

11. The court does not accept that submission, it is the court’s view that the methodology of the sentencing judge is permitted by

the judgment of the Court of Criminal Appeal delivered by Clarke J. in DPP v. Ryan [2014] IECCA 11 and in particular the alternative

approaches set out in para. 3.1 to 3.3 of that judgment. Those permit a sentencing judge to place the offence at the relevant point

on the spectrum as was done by the Sentencing Judge in indicating that these offences fell into the midrange and then to adjust for

the purpose of determining the actual period of the sentence having regard to the offence committed by the accused and the

personal circumstances of the accused.

12. Of necessity, this latter exercise requires a sentencing judge to consider both the aggravating factors insofar as they relate

either to the circumstances of the commission of the offence or the personal circumstances of the accused along with the mitigating

factors in relation to each. It appears to this Court, that such was the approach taken by the Sentencing Judge and there is no error

of principle in same.

13. The Court is further of the view that having regard to all the relevant facts pertaining to the commission of each of these

offences by the accused that there was no error of principle in the Sentencing Judge placing each of these offences on the midrange

of the spectrum of the offence of robbery.

14. Finally the Court is of the view that having regard to the statutory obligations imposed on the Sentencing Judge in relation to the

sentencing in respect of the second offence, in particular the statutory obligation to consider the fact that it was committed whilst

on bail as an aggravating factor, notwithstanding the attempts which the appellant had made in the period since the commission of

the offence to rehabilitate himself (which the Sentencing Judge did take into account), that there was no breach of the totality

principle in the sentences imposed and therefore the appeal must be dismissed.