Court of Appeal quashes excessive consecutive sentence to preserve rehabilitation incentives from prior ruling.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No: CCA256/14

The People at the Suit of the Director of Public Prosecutions

Respondent

v

Larry Connors

Appellant

Judgment of the Court (ex tempore) delivered the 14th day of December, 2015 by Mr. Justice Edwards

Background to the Appeal :

1. In this case the appellant appeals against a sentence of two years and six months imprisonment, imposed upon him at Naas Circuit

Criminal Court on the 2nd of December 2014 to date from the 18th of November 2014, following his plea to a count of possession of

certain articles contrary to section 15 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

2. The facts of the case were that on the 2nd July 2013 a black Subaru Legacy vehicle was seen by members of An Garda Síochána

and patrol car sirens were activated in order to get the vehicle to stop. It did not stop and increased speed and drove in a dangerous

manner. The vehicle ultimately crashed and the four occupants attempted to flee on foot. Chase was given and the appellant was

arrested nearby. His father and co-accused, Edward Connors, was the driver of the vehicle. When the vehicle was inspected, Gardaí

found “cable ties, a lump hammer, vice grips, snips, a hacksaw, shears, two scissors, balaclavas, a walkie-talkie handset, and two nail

bars”.

3. The appellant had six previous convictions, one for robbery, two for burglary and three arising from a public order incident and a

failure to appear in court. Evidence was given that the appellant was 17 at the time of this offence. However, he had attained his

majority at date of his sentencing.

4. The appellant’s father, who was co-accused with him in respect of the s.15 offence, received a sentence of three years

imprisonment. However, he also pleaded guilty to other charges, namely endangerment and dangerous driving, for which he received a

three and a half year sentence, to run concurrently with the three year sentence for the s.15 offence. The court heard that the

appellant’s father had a much worse record than the appellant, involving thirty two convictions under the Road Traffic Acts, sixteen

convictions for handling stolen property, four convictions for burglary, one for robbery and six convictions for various public order

offences.

The common previous conviction for robbery.

5. At the date of sentencing both the appellant and his father were in prison serving sentences imposed on them by Westmeath

Circuit Criminal Court on the 5th of November 2014 in respect of their involvement in an armed robbery on a Tesco supermarket at

Castlepollard, Co Westmeath on the 14th of March 2011. The appellant was aged fifteen at the time of the Castlepollard robbery. The

s.15 offence with which this court is presently concerned was committed while the appellant and his father were both on bail for the

Castlepollard robbery. The appellant’s father received a sentence of 12 years imprisonment with the last five years thereof suspended

for his role in that robbery, and the appellant received a sentence of six years imprisonment with the last three years thereof

suspended for his part in it.

6. In structuring the appellant’s sentence for the Castlepollard robbery in that way, the sentencing judge had stated:

“…, it seems to me that there must be a public interest in trying to turn what is still a relatively young man away from

the course upon which he has embarked, because if Mr Connors continues in his current vein he's going to develop into a

serious criminal, not that he isn't one already by virtue of this conviction, but he's going to continue on that trajectory

with everything that that involves for the public in terms of offending, in terms of the expense of investigation and

incarceration. I consider that there really has to be an effort and an incentive to see if this man can be put on the right

track. His first criminal offence is such that the custody threshold is comfortably passed and he has to deal with that

over the next period of time, but the fact of a sentence is sometimes as important as the length of a sentence and I

think at some reasonable point we have to examine the concept of rehabilitation and the possibility of that.”

The sentencing judge’s remarks in the present case

7. In sentencing the appellant in the present case the sentencing judge, who was a different judge to the one that had sentenced

him for the Castlepollard robbery, stated:

“Then in respect of Mr Larry Connors, count No. 1, the maximum custodial prison sentence is five years, and I must

decide where does this count lie in respect of the maximum sentence. I am satisfied it is in the higher level in respect of

the maximum sentence. The personal circumstances: he was 17 at the date of the offence; he is now 18 years, going

on 19 years. He is the eldest child of the family of five. His father is the co-accused, Edward Connors. He attended

secondary school to first year, but he would have no formal education and did not complete any state examinations. In

mitigation, there was a plea of guilty. He has expressed remorse. While in remand in Cloverhill he's on an enhanced

regime and is working as a cleaner. It indicates that he is well behaved and is taking progressive steps while in remand in

Cloverhill, or in custody. The aggravating factors in the case is that count No. 1 is a serious offence, the items that

were found in the car - that's the car being driven by his father, Edwards Connors - two nail bars, screwdrivers,

sledgehammer, angle grinder, balaclavas, cables, lump hammer, vice grips, snips, shears, scissors and a walkie-talkie

handset with the intention that they be used in the course of a burglary. These are matters or items which one would

associate with committing the offence of burglary and indeed are serious items to be in possession of. The previous

convictions: This offence was committed while he was on bail. Being on bail for any offence is extremely serious, but he

was on bail for an extremely serious offence, being armed robbery, and this offence was committed while on bail. He's

assessed by the probation officer high risk of reoffending within the coming 12 months. Of course he's in custody, but

it's important that the probation officer puts him in that high level of risk. They are substantial aggravating factors in his

case, as there is in his father's case, Edward Connors. In respect of Larry Connors, if he was 17, then of course the

provisions of the Children's Act don't apply; if he was under 17 the provisions of the Children's Act would apply…”

“I must have regard to the seriousness of the offence and to the substantial aggravating factors and balance them

against the mitigating and the personal circumstances. Likewise, have regard to the proportionality and totality principle

in his case. And also take into account his age at the time and that he was with his father, who might have some degree

-- though very fairly and correctly he's attributing no fault to his father in respect of this offence, but I'll give him some

slight discount; his father had far more previous convictions. His father would certainly would appear to have been,

without categorising people, probably the leader. He would have been part of the group. But I'll give him a little -- he is

still getting a custodial prison sentence, but I'll give him a little bit of discount. So in respect of count No. 1 I'm imposing

a two and a half years and I'm giving reasons why it's not three years as in respect of his father -- two and a half years.

And two and a half years to run consecutive to the sentence that he's now serving, credit to be given in respect of the

period that he's been in custody in respect of this matter.”

The Gounds of Appeal

8. The appellant appeals against the severity of his sentence on various grounds which may be summarised as follows:

1. The Learned Trial Judge failed to give adequate weight to the totality principle;

2. The Learned Trial Judge failed to have adequate regard to the positive probation report prepared for the Appellant and

the possibilities of community based sanctions;

3. The Learned Judge gave undue weight to the aggravating factors in relation to the offence including the fact that this

offence was committed on bail;

4. The learned Trial Judge failed to give adequate weight to the mitigating factors;

5. The learned Trial Judge failed to have adequate regard to the principle of rehabilitation. Without prejudice to the

generality of the foregoing, the learned Trial Judge imposed a sentence which has the effect of setting at naught the

rehabilitative effect of a suspended sentence imposed in an earlier sentence;

6. The learned Trail Judge failed to have adequate regard to the differences in capacity and complicity between the

Appellant and his co-accused;

7. The learned Trial Judge failed to have adequate regard to the fact that the Appellant was a child at the time of the

commission of the offence;

8. The learned Trial Judge failed to have adequate regard to the efforts the Appellant has made to rehabilitate himself in

custody.

9. At the hearing before this court counsel for the appellant conceded that these could be distilled down into four basic complaints

i.e., that the trial judge erred (i) in how he applied the consecutivity principle; (ii) in failing to have adequate regard to the totality

principle; (iii) in failing to properly incentivise rehabilitation and (iv) in failing to have regard to the difference in capacity between the

appellant and his co-offender who was his father.

Alleged error in applying the consecutivity principle

10. It was contended that the trial judge was in error in treating the fact that the appellant was on bail for the Castlepollard robbery

at the time that he committed the present offence as an aggravating factor. In making this case, counsel for the appellant relies on

the terms of s.11 of the Criminal Justice Act 1984, and specifically subsection 4 thereof which was inserted by s. 10 of the Bail Act

1997.

11. The relevant section states:

(1) Any sentence of imprisonment passed on a person for an offence—

(a) committed while on bail, whether committed before or after the commencement of section 22 of the

Criminal Justice Act 2007, or

(b) committed after such commencement while the person is unlawfully at large after the issue of a

warrant for his or her arrest for non-compliance with a condition of the recognisance concerned,

shall be consecutive on any sentence passed on him or her for a previous offence or, if he or she is sentenced in respect

of two or more previous offences, on the sentence last due to expire, so however that, where two or more consecutive

sentences as required by this section are passed by the District Court, the aggregate term of imprisonment in respect of

those consecutive sentences shall not exceed 2 years.

(2) Subsection (1) shall not apply where any such sentence is one of imprisonment for life or is a sentence of detention

under section 103 of the Children Act, 1908.

(3) Subsection (1) shall apply notwithstanding anything contained in section 5 of the Criminal Justice Act, 1951

(4) Where a court—

(a) is determining the sentence to be imposed on a person for an offence committed while he or she

was on bail,

and

(b) is required by subsection (1) to impose two or more consecutive sentences,

then, the fact that the offence was committed while the person was on bail shall be treated for the purpose of

determining the sentence as an aggravating factor and the court shall (except where the sentence for the previous

offence is one of imprisonment for life or where the court considers that there are exceptional circumstances justifying its

not doing so) impose a sentence that is greater than that which would have been imposed in the absence of such a

factor.”

12. Counsel for the appellant’s argument in support of this ground is predicated on a belief that breach of bail could only be regarded

as an aggravating factor in the circumstances provided for in s. 11(4) of the Criminal Justice Act 1984. We do not consider it

necessary to decide this point, as the case can be disposed of on other grounds. It is sufficient, however, to remark that while s.

11(4) undoubtedly prescribes the particular circumstances in which a sentencing court is obliged to regard breach of bail as an

aggravating circumstance, it does not prima facie appear to preclude a Court from also regarding it as such on a discretionary basis in

other circumstances.

Alleged breach of the totality principle

13. The Court is content to state without hesitation that it is satisfied that there has been no breach of the totality principle. Both

the Castlepollard offence and the s.15 offence with which this Court is now concerned were very serious offences, and a combined or

aggregate sentence of five and a half years for those two offences could not be said to represent a error of principle per se, having

regard to their seriousness, even after taking full account of the appellant’s youth and personal circumstances. We therefore reject

this ground of appeal.

Alleged failure to incentivise rehabilitation.

14. The complaint under this heading is that the sentencing judge failed to attach sufficient weight to the principle of rehabilitation.

While the provisions of the Children Act 2001 did not apply to the appellant as he was an adult at the time that he was sentenced, it

was submitted that these provisions should have had persuasive effect in the circumstances of this case. The appellant had only

recently attained his majority when being sentenced and was a minor at the time of the offence. The Children Act 2001 mandates

that a court shall only impose a sentence of detention if it is satisfied that it is the only suitable way of dealing with the child and as

a last resort. It was submitted that it is for this reason that probation reports are mandatory before sentence is imposed in respect of

children.

15. A probation report was produced in respect of the appellant. However, the only reference to this report made by the sentencing

judge was that the appellant had been assessed as high risk of re-offending with the next twelve months. It was submitted that this

was academic as the appellant was serving a three year sentence imposed for the Castlepollard robbery. It was submitted that the

effect of the sentence imposed by the sentencing judge in this case was to negative the incentive to rehabilitation so carefully

constructed by the sentencing judge in the Castlepollard case.

16. We are satisfied that the sentencing judge was entitled to take the view that a custodial sentence was unavoidable in the

present case, and he was indeed obliged to make any such sentence consecutive to the sentence that the appellant was already

serving. However, the sentencing judge ought, in the particular circumstances of this case, have sought to structure his additional

sentence in a manner that was condign with the overall objective of incentivising rehabilitation in the circumstances envisaged by his

colleague. It was appropriate for the sentencing judge to require some additional term to be served by the appellant but not so great

a term as to very largely negative the incentive created just three weeks earlier by his colleague, in circumstances where there had

been no additional offending in the meantime, and where the appellant had had no opportunity of building a track record of positive

engagement with the prison education and welfare regime. We consider that there was an error in principle in failing to leave sufficient

residual light at the end of the tunnel for this accused, and in the circumstances will quash the sentence imposed.

Difference in criminal capacity

17. Although there was a substantial difference in criminal capacity, or perhaps more correctly culpability, between the appellant and

his father in terms of their involvement in the s. 15 offence, there a difference of six months only between the sentences imposed on

each of them respectively. Notwithstanding that that is so, we are satisfied that there was no error in principle in approaching

matters in the manner in which the sentencing judge approached them with respect to the issue of capacity or culpability.

18. In the Court’s view the low sentence imposed on the appellant’s father almost certainly resulted, from the sentencing judge’s

need to have regard to the totality principle in imposing sentence on the appellant’s father, bearing in mind that he had had a

sentence of twelve years with five years suspended imposed on him in respect of the Castlepollard robbery. Accordingly, we are not

persuaded that there was any error of principle in failing to impose more divergent sentences on father and son, respectively.

Re-sentencing

19. In circumstances where the court has found an error of principle with respect to the failure to adequately incentivise

rehabilitation, this Court will quash the sentence of two years and six months imposed on the appellant in this case and will substitute

for it a sentence of two years and six months imprisonment with the final twelve months thereof suspended, that sentence to be

consecutive to the sentence imposed for the Castlepolland robbery. The appellant will be required to enter into a bond to keep the

peace and be of good behaviour for a period of two years from his release.