Court of Appeal quashes excessive theft sentences and imposes suspended terms with a bond for rehabilitation.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Record No.: 44/2016

Between/

The Director of Public Prosecutions

Respondent

- and–

Caroline McDonagh

Appellant

Judgment (ex tempore) of the Court delivered on 3rd November 2016 by Mr. Justice Mahon

1. The appellant pleaded guilty to two counts of theft, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001,

on 18th November 2015 at Trim Circuit Criminal Court. On 19th February 2016, the appellant was sentenced to two years

imprisonment in respect of each count, both sentences to run concurrently from that date. This is the appellant’s appeal against

sentence.

2. Both offences relate to incidences of shop lifting on dates in February and March 2015 in Navan, Co. Meath. On 11th February

2015, the appellant entered the premises of TK Maxx in Navan and attempted to steal a number of towels and a suitcase to the

approximate value of €190. When confronted by a security guard, she and an accomplice became threatening and abusive and made

good their escape. On 11th March 2015, the appellant entered Londis supermarket in Navan and stole a number of bottles of alcohol

pop to the approximate value of €24. In the first incident, the goods were recovered, while in the second they were not. In relation

to the first incident, the appellant initially denied any involvement in the incident, while in the second incident, he accepted

responsibility.

3. The appellant has a number of previous convictions relating to offences committed between 2007 and 2013. A number of these

concern theft and handling stolen goods. She has one previous conviction for criminal damage, and a small number for road traffic

offences.

4. The appellant grounds of appeal are that the learned sentencing judge erred in placing the offences on the middle range for the

type of offending behaviour, and that he failed to have sufficient regard to efforts at rehabilitation, the effect of domestic violence on

her, and that her husband, who was identified as the main author of the offences, was incarcerated. It was also contended that the

learned sentencing judge ought to have suspended a portion of the sentence imposed.

5. In the course of his sentencing judgment, the learned sentencing judge identified the aggravating factors as including:-

(i) The pre-meditated nature of both offences;

(ii) the number of previous convictions, particularly for theft;

(iii) the high risk of re-offending in the opinion of the probation officer, and

(iv) the appellant’s abuse directed at a security guard who confronted her in relation to the first offence.

6. In relation to both offences, the learned sentencing judge deemed them to be serious.

7. He identified the mitigating factors as including the following:-

(i) The pleas of guilty;

(ii) the expression of remorse;

(iii) the appellant’s attempts at rehabilitation, including her attendance at educational courses;

(iv) her difficult personal circumstances. She is estranged from her husband and her four children are in foster care.

8. The appellant was also the subject of a probation service report. That indicates that she had been previously assessed on a

number of occasions in relation to similar type offending. It considers the appellant to be at a high risk of re-offending within twelve

months. Tellingly, it states as follows:-

“Ms. McDonagh has always presented as willing to engage with this service, however, the continued pattern of offending

over a significant period of time would indicate a low level of motivation to adequately address the factors highlighted in

the risk assessment.”

9. It was pointed out to the Court that the appellant had not threatened the security guard who pursued her and her husband

following the TK Maxx robbery. Her husband had threatened the security guard, while she had been merely abusive. In fact, the

evidence from Gda. O’Sullivan was that the appellant had shouted obscenities at the security guard while at the same time her

husband was threatening him. It appears to have been the behaviour of both that prompted the security guard to retreat for his own

safety.

10. Counsel for the appellant emphasised the fact that the learned sentencing judge placed these offences at the middle range in

terms of their gravity, which he submitted was too high. While this submission is well made and has some substance, it must also be

said that sentences of two years could not be said to represent mid range sentences.

11. The striking feature of this case is the number of previous convictions for similar offending, and the fact that, by all accounts, the

appellant had become a serial shop thief. In such circumstances, stiffer and longer sentencing become unavoidable even where, taken

on their own, the offenses may be relatively minor. That said, the fact that the most recent relevant previous offending pre-dated

these offences by almost three years may suggest that there is some reason to hope for rehabilitation.

12. The Court is satisfied that the learned sentencing judge erred in imposing custodial sentences which were unduly severe having

regard to the nature of the offending on these occasions, and in failing to provide for the prospect of rehabilitation in circumstances

where, having regard to the gap and time since the previous offending, there was some, albeit minimal, prospect for rehabilitation.

Such might have been acknowledged by suspending a portion of the terms of imprisonment so that the appellant would have a clear

incentive to avoid repeat offending.

13. In these circumstances, the Court will quash the sentences of two years in respect of both offences and will re-sentence the

appellant as of today, and in so doing it takes account of the testimonials and letters handed into court. These disclose some basis

for hoping that the appellant has taken the decision to mend her ways and to avoid trouble in the future. The Court will re-impose a

two year sentence in respect of the TK Maxx offence (count no. 1), but will suspend the final nine months of that term on condition

that the appellant enter into a bond in the sum of €100 to keep the peace and to be of good behaviour for two years post release. In

relation to the second count the Court will impose a sentence of six months, both sentences will be served concurrently.