Court of Appeal quashes burglary sentences for failure to specify mitigation weighting and orders re-sentencing.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

CCA 255/15

THE PEOPLE AT THE SUIT OF THE

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

SHAUN KELLY.

Appellant

Judgment of the Court delivered on the 5th day of July 2016 by Mr. Justice Edwards.

1. In this case the appellant pleaded guilty on the 11th of November 2014 before Dundalk Circuit Criminal Court to two counts of

burglary contrary to s.12(1)(b) of the Criminal Justice (Theft and Fraud Offences) Act, 2001, being Counts No’s 2 and 3, respectively,

on the indictment preferred against him.

2. Count No 2 related to Unit No 12 within the Workspace Centre, Mayoralty Street, Drogheda, Co Louth, and involved criminal

damage to property within that specific unit, whereas Count No 3 related to, Mayoralty Street, Drogheda, Co Louth and involved

criminal damage to the Workspace Centre itself.

3. The appellant was sentenced to three years and six months imprisonment on each count, to run concurrently and to date from the

20th of October 2015, with the final twelve months of the said sentences suspended upon the condition that he keep the peace and

be of good behaviour for a period of one year upon surety of €200.

4. The appellant appeals against the severity of his said sentences.

The facts as established in evidence.

5. The sentencing court heard evidence from Garda Alan Connell that a Mr Paul Laffin is the owner of a commercial building known as

the Workspace Centre, Mayoralty Street, Drogheda, Co Louth. This building is divided into a number of units that are let out to

various persons, and at all material times the tenant of unit no 12 was a private college, called Clane College, which ran FÁS initiative

courses.

6. Very early on the morning of the 30th of July 2013 Mr Laffin arrived at the Workspace Centre in response to the activation of an

alarm and discovered that there were a number of youths on the roof of the premises. He duly reported their presence to the Gardai,

and shortly afterwards at 5.20am, Garda Connell and a Garda Dunne arrived at the scene. Garda Connell immediately recognised two

of the youths on the roof, neither of which was the appellant. These two youths were ultimately co-accused with the appellant and

dealt with separately.

7. The Gardaí ordered the youths to get down from the roof but this instruction was ignored and a standoff developed. In the course

of this standoff the intruders came and went between the roof and the building via a fire-escape door which had been opened from

the inside, one of them having earlier gained initial entry to the building through a window. At one point the appellant was observed

by Gardaí to be inside unit no 12 and to be throwing a number of items including office equipment out of the window.

8. The standoff lasted for one hour and forty five minutes during which the Gardaí cordoned off the building. The youths within the

building ransacked unit no 12, bursting open a safe containing exam papers and scattering them, smashing computers, damaging

desks, electrical fans and other office equipment, smashing mugs, and throwing papers and business records all over the place.

9. At one stage the appellant was observed to exit the building via the second floor door on to the fire escape where he picked up a

can of beer and then re-entered the premises again. The Gardaí eventually gained control of the building and the intruders were

persuaded to leave voluntarily. They were arrested as they emerged. All were juveniles, with the exception of the appellant who was

28 at the time. The appellant was then taken to Drogheda Garda Station where he was detained and interviewed.

10. The Workspace building was found to have been damaged by the intruders when it was subsequently examined. There was

damage to roof tiles and slates, and to a fire and air vent, amounting in total to €4750, and in respect of which Mr Laffin was

uninsured.

11. In addition, physical damage amounting to €4,352 had been caused to the interior and contents of unit no 12. Clane College was

insured and was compensated for its physical losses by its insurer. However, there were other victims of this crime as well. The exam

papers within the safe that had been broken into were deemed to have been compromised, and this caused much distress and

inconvenience to the students of the college.

12. In the course of being interviewed the appellant admitted his involvement. He stated that he had gone out at about 6pm on the

evening before, had had some drinks and had fallen into company with a couple of other individuals. Having consumed a good deal of

alcohol they decided to break into the Workspace Centre. One individual had swung in through a window and had opened a door for

the rest of them to enter. He said that once they were in they had “destroyed the place”. The appellant denied that he was

personally involved in damaging computers and initially disassociated himself from the exchanges with Gardaí that had taken place on

the roof.

The appellant’s personal circumstances

13. The appellant was born on the 12th of November 1984 and was 30 years of age at the date of his sentencing. He was

unemployed and receiving disability benefit. He has mental health difficulties, involving depression and anxiety. He has a history of

attempted self harm. He is also addicted to alcohol and heroin and also has a history of cannabis and other substance abuse and

misuse. He had been on a methadone program for six years prior to his sentencing for these offences and was taking 30mls of

methadone daily at that point.

14. The appellant had fifteen previous convictions in total. All of these were dealt with in the District Court. They included convictions

for possession of drugs, and possession of drugs for sale or supply in 2006 for which he received a fine, and a sentence of six months

imprisonment which was suspended, respectively. In addition he has three convictions for theft recorded at different times between

2006 and 2011, and for which he received fines and in one instance a sentence of ten months imprisonment. He also has convictions

for possession of knives and other articles, and criminal damage (all in 2009); for driving or attempting to drive an MPV while

intoxicated, for careless driving, and for possession of articles with intent to cause injury (all in 2013), and received fines for these

offences. In addition he has four convictions for minor public order offences involving intoxication and threatening and abusive

behaviour all of which were recorded between 2005 and 2010 and which were dealt with non-custodially.

15. The sentencing court also had the benefit of Probation Report on the appellant dated the 6th of October 2015. This noted his

previous convictions and in addition referred to the fact that the appellant was at that point on a waiting list to commence a 120

hour community service order handed down on the 11th of June 2015 for an offence (committed subsequent to the present offences)

of obstructing a peace officer. It also noted yet further convictions, (again committed subsequent to the present offences) recorded

on the 25th of June 2015 for failing to comply with the direction of a member of An Garda Siochána, and intoxication.

16. The Probation Report recorded him as coming from a difficult family background due to his father’s temperament and alcohol

abuse. It noted that he self harms and had made a suicide attempt in 2013 following a relationship breakdown. It stated that he had

been referred to psychiatric services, and had been prescribed medication but had not followed through on advised continued

engagement with those services.

17. In consultation with the plaintiff’s G.P. the probation officer was told that the appellant, in addition to his addictions, has

depression and suffers with chronic anxiety. He is probably bi-polar although has never been formally diagnosed as such. The

appellant had been referred to Beaumont Hospital for in-patient treatment for his mental health difficulties but had refused to attend

as he does not believe he needs to go in. The appellant is on prescribed benzodiazepines, but does not take his medication as

prescribed.

18. The Probation Report indicated that the appellant had little awareness of the impact of his crimes on those affected, and it

assessed him as being at very high risk of re-offending over the next twelve months.

Sentencing of co-accused

19. Two juveniles, DH and WK, respectively, were co-accused with this appellant. They had also pleaded guilty but were sentenced

earlier than the appellant by the same sentencing judge. DH received a three year custodial sentence with eighteen months thereof

suspended. WK also received a three year custodial sentence with 10 months thereof suspended.

The sentencing judge’s remarks.

20. In the course of sentencing the appellant, the sentencing judge recounted the circumstances of the offences, and commented

that:

“Mr Kelly, at the time, obviously had a chronic drug addiction but, of course, he would have been 27/28 years, at the

time, and he would have been the oldest person or one of the oldest persons there present at the time. Indeed instead

of giving example he did the opposite. A person of his age should be able to control the younger persons but they all

decided to go along, they all decided to act as burglars in respect of the premises. Burglary is an extremely serious

offence whether the property is occupied or unoccupied. It is a serious interference, a violation, invasion with the

peaceful enjoyment occupation and use of a person's property. The owner of the property, the commercial property, Mr

Laffin, was entitled to believe that his property would not be trespassed upon or that it would not be damaged. Also the

tenants or the persons, Clane College, who had 12 Workspace Centre taken, they likewise were entitled to believe that

their property would be safe, that it would not be trespassed, burglars would not go onto their property and their

property would not be damaged in the manner which it was damaged.”

21. He then noted that the maximum penalty for burglary was fourteen years imprisonment and proceeded to consider where on the

range the offences lay and stated that he was satisfied that they lay “in the middle range”.

22. Having done so, the sentencing judge went on to say:

“Then I must have regard to his personal circumstances. He is now 30 years of age, he left school at 14 years, a few

years later and he commenced a Fetac level five course with FÁS, which he didn't complete. He previously worked in his

uncle's sport shop. He is currently in receipt of disability. He suffers from anxiety and depression, is on medication. He

had a chronic drug addiction prior to and at the date of these offences, being a chronic heroin addiction.

In mitigation, there was pleas of guilty. He was cooperative with the investigation and made admissions. He has

expressed remorse. He is currently on -- sorry he underwent a methadone treatment program, which is the normal

course of treatment for a heroin addict and it appears that he certainly is progressing well on it in that he is currently

on 30 milligrams of methadone and he is currently drug clean. This indicates that he is taking positive rehabilitation steps

in respect of his drug addiction but there is some way to go but as of now he certainly is taking very positive drug

addiction rehabilitation, in respect of his drug addiction.

The aggravating factors in the case, is that, this is a serious offence, burglary is a serious interference, violation and

invasion for a person's entitlement and right to the peaceful occupation and use of their property. It was a serious

interference, violation and invasion with Clane College and Paul Laffin's entitlement and right to the peaceful occupation

and use of their property. The manner of the burglaries: climbing onto the roof of their properties; refusing to leave the

roof in respect of count number 2 and number 12 the Workspace Centre. The damage to their property; the office

completely destroyed, computers smashed, the safe open, exam papers compromised and the whole office was

completely damaged and destroyed. In respect of number 3, the damage to Mr Laffin's property. The main damage was

to the roof, the air-conditioning units and the clean-up damage but as both in properties, there was substantial damage

caused to the property.

He is assessed by the probation officer, the date of the report being the 28th of September 2015 at high risk of

reoffending within the coming 12-month period, which is the normal period and his previous convictions. There are

substantial aggravating factors in the case. I must have regard to the seriousness of the offence and to the very

substantial aggravating factors and balancing against the mitigating and the personal circumstances and I will have

regard to the mitigating and the personal circumstances. It appears in respect of Clane College that the insurance

company indemnified in respect of that damage, where as Mr Laffin has been left completely out of pocket and had to

pay himself for the damage caused to the property. So there was a substantial loss to both of the parties being Clane

College but they have been indemnified by an insurance company in respect of the damage whereas Mr Laffin has not

been indemnified in respect of any insurance policy. And that is not my concern, whatsoever; it is just that the damage,

that he is at a loss himself personally, that is my concern. My understanding is that there is a €1,000 in court in respect

of the damage. Having regard to his circumstances, it is a fairly substantial amount of money but these are very serious

offences and these are serious burglaries. Initially I believe that there is no merit whatsoever having regard to the

substantial aggravating factors completely outweighing and outbalancing the mitigating and the personal circumstances

in respect of the sentence I will impose, but I might give him some small light but it is only some small light on the

payment €1,000 to Mr Laffin but I am still imposing a substantial -- not substantial, I am imposing a sentence which

should reflect and must reflect the seriousness of the offence. In respect of count number 1, I'm imposing a three year

custodial prison sentence -- it's count number 2, my apologies, there is no count number 1. In respect of count number

2, I am imposing a three-year custodial prison -- well basically I'll start again. In respect of his previous convictions and

also in respect of his age I am going to put him in a higher category than the other person's sentences that I have

imposed. So, in respect of count number 2, I am imposing a three-and-a-half-year custodial prison sentence. In respect

of count number 3 I am imposing a three and a half years custodial prison sentence. Both sentences to run concurrently

and both sentences to run from today's date. However, I will give him some light in respect of each of the three years

three and a half years imposed because I am concerned about Mr Paul Laffin, to some degree, it is only some degree,

that the money that's in court by way of regret, remorse or contribution that it merely will go a small ways but

however on the handing over of the €1,000, which should be handed over immediately to Garda Connell I suspend the

final year, 12 months, that is in respect of count number 1. Likewise, in respect of count number 2, count number 2,

count number 3, again, I suspend the final 12 months. Meaning that the last year of the three and a half years to be

suspended and count number 2, likewise meaning the last year of the three and a half years in respect of count number

3 to be suspended on those terms.”

The grounds of appeal

23. It was contended on behalf of the appellant that the sentences imposed were unduly severe, and that the sentencing judge erred

in principle in a number of respects. In particular it was alleged that the sentence imposed by the sentencing judge was excessive

and disproportionate in all the circumstances, and specifically because:

(a) the sentencing judge erred in law and in fact in failing adequately to give the appellant due credit for his plea of guilty

and the stage at which that plea was entered.

(b) the sentencing judge failed to adequately take into account the mitigating factors.

(c) the sentencing judge erred in finding that the aggravating factors completely outweighed and outbalanced the

mitigating factors and personal circumstances.

24. In addition, it was contended that the sentencing judge failed to have regard sufficiently or at all to the efforts made by the

appellant in respect of his rehabilitation and further failed to have regard to the objective of rehabilitation insofar as same is a

component part of any sentence.

Submissions

25. Counsel for the appellant referred this Court to a number of authorities in support of her client’s case including The People

(Director of Public Prosecutions) v. Kelly [2005] 2 I.R. 321 and The People (Director of Public Prosecutions) v. McCormack [2000] 4

I.R. 356 in relation to the correct approach to sentencing generally. In addition the Court was referred to the cases of The People

(Director of Public Prosecutions) v. Mullen (Court of Criminal Appeal, Denham J, ex tempore, 17th December 2002) and The People

(Director of Public Prosecutions) v. Foley (Court of Criminal Appeal, Denham J, ex tempore, 19th February 2008) as comparators in

support of a suggestion that the offences ought properly to have been assessed as being at the lower end of the scale of burglaries,

or certainly on the lowest end of the middle range, in that the premises in question were commercial premises and the offences

occurred in the small hours when there was no likelihood of encountering an occupier.

26. In addition, the Court was referred to a passage from O’Malley on Sentencing, 2nd ed, p. 19, para 621 in support of the

contention that the appellant was entitled to significant mitigation on account of his guilty plea, as well s to s. 29(1) of the Criminal

Justice Act 1999 which provides:

“In determining what sentence to pass on a person who has pleaded guilty to an offence, other than an offence for which

the sentence is fixed by law, a court, may if it considers it appropriate to do so, shall take into account –

(a) the stage in the proceedings for the offence at which the person indicated the intention to plead guilty, and

(b) the circumstances in which this indication was given.”

27. Counsel for the appellant further submitted that factors had been taken into account as aggravating factors that were inherent in

the offence itself, and that the approach of “balancing” aggravating and mitigating factors against each other was entirely wrong.

28. Finally, in support of the grounds alleging inadequate regard to rehabilitation efforts to date, and failure to adequately incentivise

further rehabilitation, the Court was referred to The People (Director of Public Prosecutions) v. Jennings (Court of Criminal Appeal,

O’Flaherty J, ex tempore, 15th February 1999) where O’Flaherty J had stated:

“there comes a time in everyone’s life, and it is a principle of sentencing as well, where the court detects that it may be

make or break time. If he is given this, his last chance perhaps, he will hopefully take it and rehabilitate himself, get

employment and become a useful member of the community.”

29. In the written submissions filed on behalf of the respondent it was submitted that the sentencing process was measured and

balanced, entirely fair to this appellant, and took into account all appropriate factors to include his previous convictions which were

both substantial and relevant albeit all in the District Court. In oral submissions it was acknowledged that the sentencing judge’s

wording had perhaps been infelicitous in some respects but it was submitted that overall the judge’s sentences were appropriate for

the offences, and that they were not unduly severe.

Discussion

30. In this Court’s recent judgment in The People (Director of Public Prosecutions) v. Davin Flynn [2015] IECA 290 (Court of Appeal,

Edwards J, ex tempore, 4th December 2015) we stated (at para 14):

“There is a strong line of authority starting with The People (Director of Public Prosecutions) v M [1994] 3 I.R. 306 ; and

continuing through The People (Director of Public Prosecutions) v Renald (unreported, Court of Criminal Appeal, 23rd

November 2001); The People (Director of Public Prosecutions) v Kelly [2005] 2 I.R. 321; and The People (Director of Public

Prosecutions) v Farrell [2010] IECCA 116, amongst other cases, indicating that best practice involves in the first instance

identifying the appropriate headline sentence having regard to the available range, based on an assessment of the

seriousness of the offence taking into account aggravating factors (where seriousness is measured with reference to the

offender’s moral culpability and the harm done), and then in the second instance taking account of mitigating factors so

as to ultimately arrive at the proportionate sentence which is mandated by the Constitution as was emphasised in The

People (Director of Public Prosecutions) v McCormack [2000] 4 I.R. 356.

31. The judgment of the sentencing judge in this case indicates an intention to try to follow these consistent authorities, but some

level of misunderstanding on his part as to what circumstances can constitute aggravating factors; and at what stage, and how,

aggravating factors are to be taken into account. We therefore take this opportunity to attempt to clarify the position on these, and

some other, issues.

32. The construction of a proportionate sentence is fundamentally a two stage process. It involves in the first instance assessing

what is the appropriate headline or notional sentence to be applied in principle having regard to the relative gravity of the offence,

and with reference to the range or spectrum of available penalties. It then, in most cases, involves adjusting the headline or notional

sentence downwards to take account of relevant mitigating circumstances.

33. However, as has been stated on many previous occasions, the sentence to be imposed is not the appropriate sentence for the

crime, but the appropriate sentence for the crime because it has been committed by that offender. Accordingly, if the ultimate

sentence is to be a proportionate one, relevant circumstances that are personal or particular to the accused must be taken into

account at appropriate points in the process and given proper weighting, with care being taken to avoid double counting.

34. The gravity of an offence is measured by a consideration of the moral culpability of the offender for the offence and the harm

done. In performing this measurement while it is obviously necessary to take into account the general circumstances of the crime,

and to have regard to the range of available penalties, it is also necessary to take into account any particular circumstances, bearing

on moral culpability, that are personal or particular to the offender. These can be either aggravating or mitigating factors.

35. The intrinsic moral culpability of an offender for an offence depends on the offender’s criminal intention at the time he or she

committed the offence. The matter is well put in the following passage from O’Malley on Sentencing, 2nd ed, at para 5-15, of which

we approve:

“When assessing culpability, it is generally useful to have regard to the nature of the mens rea which the offender is

found, or appears, to have had when committing the act constituting the crime. Intention to cause harm clearly

represents the highest level of culpability and the more harm intended, the greater the blameworthiness. Recklessness, in

the sense of a conscious disregard of an unjustifiable risk, comes next, and again the greater and more dangerous the

risk, the greater the culpability. Negligence would rank as the lowest form of culpability, which is not to say that it should

be met with impunity if it has produced serious harm.”

36. It is at this point that aggravating factors come into play. Having had regard to the general nature of the offence and the

intrinsic moral culpability of the offender for that offence based on the nature of his mens rea, a sentencing judge is then obliged at

this point to take account of the offender’s actual behaviour at the time of committing the offence, and arrive at an overall view of

his actual moral culpability. What is meant by the offender’s actual behaviour is not the fact that he or she committed the various

ingredients of the offence, but mitigating or aggravating behavioural factors.

37. Thus, to give some examples on the mitigation side, where a person has acted under duress, or provocation, or under the

compulsion of an addiction (as opposed having merely been under the dis-inhibiting influence of self induced intoxication), his or her

moral culpability may, depending on the exact circumstances of the case, be less than it would be absent that factor and, if so, that

should be taken into account in assessing gravity. Equally, to take some more examples, this time on the aggravating side, if the

person has acted in breach of trust, or with premeditation or planning, or perhaps out of greed, his or her moral culpability will usually

be greater than it would be absent that factor and, if so, that should be taken into account in assessing gravity. The extent to which

the moral culpability for the offence is to be considered as increased or reduced by aggravating or mitigating factors bearing on it, is

a question of judgment to be exercised by the sentencing judge in every case.

38. The mere existence of an ingredient of an offence cannot be regarded as an aggravating factor. To take an example, if an

offender is charged with making a threat to kill or cause serious injury to another, intending the other to believe it will be carried out,

neither the fact that the offender had uttered such a threat, nor the fact that he intended the other to believe his threat would be

carried out, could ever be an aggravating factor. These are inherent components of every such offence. However, the offender’s

behaviour, or the attendant circumstances of the crime if they are within the control of the offender, can provide aggravation. To

return to the example already given, if the threat to kill was uttered while the offender was holding a knife and advancing on the

victim in order to physically attack him, then that behaviour could properly be treated as aggravating the basic offence.

39. It is impossible to provide an exhaustive list of the types of behaviours that can constitute aggravation as every case depends on

its own facts, but common ones (assuming the factor is not a basic ingredient of the offence) include breach of trust; the gratuitous

causing of especial harm, damage, degradation or suffering; the carrying or use of a weapon; premeditation and planning; feuding; a

racist or other discriminatory motivation; the violation of a dwelling; participation in organised criminal activity; previous convictions

for the same type of offending, and committing a offence for profit or commercial gain, to name but some.

40. It is important to appreciate that the taking into account of aggravating factors is part of the process of assessing gravity, and

not something that happens afterwards. This follows from an appreciation that aggravating circumstances operate to increase actual

moral culpability. It is therefore not a correct approach to perform an initial assessment of gravity based solely on the intrinsic moral

culpability of the offender and the harm done, and then to balance aggravating factors against mitigating factors in general to see if

that operates to change the initial assessment. Rather, gravity requires to be assessed before any discount is allowed for mitigating

factors in general. Moreover, in order for gravity to be properly assessed it is necessary to determine the actual, as opposed to the

intrinsic, moral culpability of the offender, and then to take that into account together with the harm done.

41. While ideally, and as we have indicated, those mitigating factors bearing on culpability should also be taken account of at this

stage we recognise that a practice has developed whereby in many cases they are not in fact taken into account at this stage and

instead account is taken of them later on during the second stage of the sentencing process, together with other mitigating factors

that do not bear directly on moral culpability, such as previous good character and post commission behaviour such as the entering of

a guilty plea, co-operation, the expression of remorse, efforts at rehabilitation, and the making of restitution (to list but some).

42. While recognising this reality, the proper weighing of the relative gravity of an offence requires that mitigating factors bearing on

culpability, but only those bearing on culpability, should, strictly speaking, be taken into account in the first stage of the process.

Where a judge does not do so, but instead takes them into account later on, while it will not give rise to any injustice in the individual

case as the resulting final sentence should be the same (assuming no double counting), the adoption of this incorrect approach does,

however, have the disadvantage of skewing the headline sentence rendering a case less suitable than it might otherwise be for use

as a comparator in future cases.

43. Turning then to the sentencing judge’s approach in the present case. Having started by reciting the basic circumstances of the

offences, he then commented that “burglary is an extremely serious offence”, and went on to elaborate at some length on why he

considered that that was so, referring in particular to the fact that it involves an invasion of a person’s property, and an inference

with and violation of the owner’s right to peaceful enjoyment and use of their property. Allowing for a degree of hyperbole in some of

the judge’s remarks, particularly the blanket characterisation of the offence as being “extremely” serious, we do not disagree that

burglary is to be regarded as a serious offence in general, reflecting the fact that the Oireachtas in enacting s.12 of the Criminal

Justice (Theft and Fraud offences) Act, 2001 has set a maximum penalty of fourteen years imprisonment for the offence.

44. That having been said, not every case of burglary will be of equal seriousness and while some will certainly justify the

characterisation of “extremely serious”, having regard to the moral culpability of the offender and the harm done in the particular

case, others may not be so serious. The very existence of a wide range of potential penalties running from non custodial penalties up

to a maximum penalty of fourteen years imprisonment envisages that the courts will encounter burglary cases of varying degrees of

seriousness. It is therefore essential that there be a proper weighing of the actual gravity of the offence in the individual case.

45. In this case, the trial judge, having made his said remarks, then proceeded correctly to note that the maximum available penalty

was one of fourteen years imprisonment, and further proceeded to assess these particular offences as falling within the middle range.

Although it is not expressly stated to be so, we presume that the middle range is to be taken as starting at four years and eight

months and extending to nine years and four months. To the extent that in his adoption of this approach the trial judge may be

assumed to have performed an initial assessment of gravity based on the intrinsic moral culpability of the offender and the harm done,

it was a correct procedure and is not to be quarrelled with. We express no view at this stage as to whether to have located the

offences in the middle range as a starting point was in fact correct, and will return to this later in the judgment.

46. What should have happened next was an examination of the mitigating and aggravating factors bearing on moral culpability, to

see if they affected the initial assessment. In the alternative, bearing in mind the previously acknowledged common, but sub-optimal,

practice of dealing with all mitigating factors in the second part of the process, the sentencing judge could equally have simply

proceeded to simply examine just the aggravating factors bearing on moral culpability, to see if they affected his initial assessment.

However, neither of these things in fact occurred.

47. Immediately after assessing both offences as falling “in the middle range”, the sentencing judge continued:

“Then I must have regard to his personal circumstances. …” (see his full remarks quoted earlier in this judgment at paragraph 22

above.)

The recitation of personal circumstances certainly included some factors possibly bearing on moral culpability, such as his heroin

addiction, but also included many that did not, such as the plea of guilty, his co-operation, his educational and work history, his

mental health and his progress towards rehabilitation. While it is true that the latter were all factors that the appellant was entitled to

have taken into account in the second part of the process, they were not relevant to the assessment of the gravity of the offence

and it is difficult to understand why they were being mentioned at this point, unless the sentencing judge regarded himself as having

moved on from the assessment of gravity stage.

48. However, the next portion of the sentencing judge’s remarks suggests the contrary, because he then turned to consider the

aggravating factors in the case, stating:

The aggravating factors in the case, is that, this is a serious offence, burglary is a serious interference, violation and

invasion for a person's entitlement and right to the peaceful occupation and use of their property. It was a serious

interference, violation and invasion with Clane College and Paul Laffin's entitlement and right to the peaceful occupation

and use of their property. The manner of the burglaries: climbing onto the roof of their properties; refusing to leave the

roof in respect of count number 2 and number 12 the Workspace Centre. The damage to their property; the office

completely destroyed, computers smashed, the safe open, exam papers compromised and the whole office was

completely damaged and destroyed. In respect of number 3, the damage to Mr Laffin's property. The main damage was

to the roof, the air-conditioning units and the clean-up damage but as both in properties, there was substantial damage

caused to the property.

49. We perceive a problem with the way in which the sentencing judge approached aggravation, and it is as follows. He referred again

to the fact that “burglary is a serious interference, violation and invasion for a person's entitlement and right to the peaceful

occupation and use of their property” and seemingly characterised these features as being “aggravating factors in the case”.

However, trespass is an express ingredient of the offence of burglary and that fact that there is trespass, which inevitably causes

interference, violation and invasion for a person's entitlement and right to the peaceful occupation and use of their property, cannot

be regarded as aggravating the offence of burglary. This was undoubtedly an error of principle.

50. The sentencing judge then moved on to consider “[t]he manner of the burglaries”, and the degree of “damage to their property”,

and these were certainly factors that he was legitimately entitled to have regard to as aggravation.

51. The sentencing judge ultimately concluded, as he was entitled to do, that “[t]here are substantial aggravating factors in the

case.”

52. Approaching the matter logically, what the sentencing judge was required to do next was to re-visit his initial assessment of

gravity and adjust it to take account of aggravation he had identified. However, the next thing the trial judge said was:

“I must have regard to the seriousness of the offence and to the very substantial aggravating factors and balancing

against the mitigating and the personal circumstances and I will have regard to the mitigating and the personal

circumstances.”

53. If these remarks simply represented the infelicitously couched expression of an intention to re-visit his initial assessment of

gravity and adjust it to take account of aggravation, and then to move to the second formal stage of the process and give an

appropriate discount for mitigation, they would be quite unobjectionable. However, they have to be considered in the light of the

further reference by the sentencing judge towards the end of his ruling to “the substantial aggravating factors completely

outweighing and outbalancing the mitigating and the personal circumstances in respect of the sentence I will impose”. It is not

appropriate to balance aggravating factors against mitigating factors in this way. Rather the process of arriving at a sentence which

is proportionate requires an assessment, with reference to the spectrum of available penalties, of the appropriate headline sentence

having regard gravity of the case, against which mitigating factors (not already taken into account) should then, and only then, be

discounted. We therefore find a further error of principle on the part of the sentencing judge in having balanced aggravating factors

against mitigating factors in the way that he did.

54. Moreover, it is completely unclear from the sentencing judge’s judgment precisely what weight he was attaching to the

aggravating and mitigating circumstances respectively, and therefore it is impossible to know whether an appropriate allowance was in

fact given for mitigation. While the sentencing judge does identify the mitigating factors he was prepared to have regard to, his

sentencing remarks are silent as to what weighting he was prepared to afford them beyond simply saying that he regarded them as

being cancelled out by the degree to which the gravity of the offence was aggravated by other factors. To have failed to specify the

actual allowance being made for mitigation (even if it was going to be cancelled out) was also an error of principle.

55. In circumstances where the Court has found a number of errors of principle in the sentencing judge’s approach to the appellant’s

sentencing, we must now proceed to quash the sentences imposed in the Court below and proceed to a re-sentencing.

56. In accordance with established jurisprudence, the parties in this case were invited to put before the court on a contingent basis

any additional materials that they might wish to have taken into account in the event of the court having to proceed to a re-

sentencing. A number of additional items were provided to the court on behalf of the respondent, including letters from the appellant’s

grandmother and from his parent’s respectively, and a letter from Drogheda Medical Centre confirming his addiction problems and

participation in a Methadone program, as well as certain mental health difficulties.

57. Adopting the approach we have commended, our assessment of the gravity of these offences based on the intrinsic moral

culpability of the offender and the harm done, and taking into account both mitigating factors bearing on culpability and the

aggravating factors, particularly the manner of the burglaries and the gratuitous nature of the damage caused, is that they fall within

the upper end of the lower range. We have taken into account the appellant’s addiction and alcohol problems as a mitigating factor

bearing on culpability, but have attached relatively little weight to it. The evidence that a compulsion stemming from addiction was a

major precipitating factor in the commission of these offences is not wholly convincing. There was certainly disinhibition from self

induced intoxication but that, per se, does not operate to reduce culpability.

58. We consider that the appropriate headline sentence for these offences is one of four years imprisonment. From that we will

discount eighteen months to reflect the mitigating circumstances not already taken into account, principally the plea, his co-

operation, his family circumstances, his expression of remorse, the payment of €1000 towards the uninsured victim, his medical issues

and his progress to date, albeit that there has been some slippage, towards rehabilitation. Further, to incentivise the appellant’s

continued rehabilitation which is very much in the interests of society we will suspend a further nine months of the balance of thirty

months remaining on the usual terms.