Court of Criminal Appeal dismisses review of suspended sentence for robbery based on youth and lack of prior convictions.

THE COURT OF CRIMINAL APPEAL

91 & 92 CJA/08

Hardiman J.

Budd J.

McCarthy J.

IN THE MATTER OF SECTION 2 CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

V. CUAN DE PAOR AND WOJCIECH ZDANOWSKI

RESPONDENTS

JUDGMENT of the Court delivered on the 19th day of December, 2008 by Mr. Justice Hardiman.

By notice of application for review dated the 20th March, 2008, the Director of Public Prosecutions seeks a review of the sentences

imposed on the above named respondents on the 22nd February, 2008, on Bill No. 85/2007 Cork Circuit Criminal Court. This review is

sought on the grounds that the sentences were unduly lenient. It is convenient to deal first-named respondent, Cuan de Paor.

A sentence of five years imprisonment suspended for five years was imposed on this respondent in respect of his conviction for

robbery contrary to s.1491) of the Criminal Justice (Theft and Fraud Offences) Act, 2001. The applicant had pleaded guilty to this

offence. He had also pleaded to a further count of robbery according to the same statute and to counts of false imprisonment

contrary to s.15 (1) of the Non-Fatal Offences against the Person Act 1997. All of these pleas were entered on the 27th June, 2007

and sentence in relation to them was adjourned until the 22nd February, 2008.

The Crime.

The offences to which the respondent pleaded guilty arose out of the fact that on the 17th December, 2006 at approximately 7.30am

on a Sunday morning a dwelling house in a suburb of Cork was broken into. Three people including the accused broke into the house,

the others were his co-accused and a third person is wanted on warrant. According to the evidence of Detective Sergeant Gerry

Crowley at the sentencing hearing, the other two participants planned the event and the person who is missing will have the highest

level of culpability. The house was entered through a back window which was left unlocked. The applicants were a married couple and

their fifteen year old son. The intruders were wearing Halloween masks and gloves. The man of the house heard a noise and got out

of bed. He was confronted by a masked man with a gun who tied him up with flex. His wife was held by another intruder. The

occupants were forced to give the combination of a safe but there was little or no money in it. The fifteen year old son of the house

was awoken by a man in his bedroom, who was the respondent. He was told to be quiet and to stay lying down. He was tied up and

gagged, though very lightly, according to himself. According to the boy, the man with him acted at all times on the instructions of a

third person outside the bedroom. At one point he was instructed to kick the boy in the head but he did not do so. The boy was

eventually put into a hot press. There was some talk of taking him as a hostage but that did not occur. The intruders then got the

pin numbers of three bank cards and laptop, a mobile phone and some Christmas presents. At one point a threat to kill the father was

made by one of the other intruders. A total of €2,400.00 was removed from a bank with the stolen cards.

Special features.

The above description indicates the commission of a very serious crime. There are however special features of the offence as far as

the accused is concerned. The accused was not convicted of either aggravated burglary contrary to s.13 of the Criminal Justice Act

2001 or of the making of a threat to kill contrary to s.5 of the Non-Fatal Offences against the Person Act, 1997. This is because his

plea of not guilty in relation to those offences was accepted by the State. This in turn is rather remarkable since on the face of it

they would have been entitled to rely on the doctrine of common design to make each accused guilty of all that was done in

pursuance of their common purpose at the victims’ house. But the State, represented in this Court by Mr. Donal McCarthy, expressly

said that they were not relying on that doctrine and accepted that the accused was not responsible for the possession of a gun or

for the making of a threat to kill. This, clearly, is of major advantage to the accused.

The second special feature of the case is that the principal garda witness, Sergeant Crowley, endorsed the terms of a probation

report, to be discussed below as follows:

“Q. As to the factual content of that [probation report] where Cuan de Paor is concerned, have you any observation to

make as to factual content?

A. As to factual content I feel that they are a fair comment.

Q. Any recommendation and the like is a matter for the judge, but factually are you happy with the contents of that

report?

A. I am with them, yes.”

Furthermore the same witness in evidence, speaking of this respondent said:

“I would be satisfied that he was truthful, that his offence or his participation in the offence was certainly lesser than the

other two people involved and he was basically I suppose doing their bidding.”

He also said that he believed that the respondent was “genuinely remorseful for what he did”.

The third special feature is the probation report compiled by Ms. Noreen Mulligan on the 5th February, 2008. This establishes that this

respondent, now twenty-one- years of age, was nineteen at the time of the offence. He is the second eldest of five children of a

very respectable family. The family reside in Galway. He was educated at two well known schools in the Galway area. He had a very

promising upbringing until his early teenage years when his behaviour deteriorated to the point to where he was twice asked to leave

home and on the second occasion was in fact homeless for a short period. He received psychological attention. Eventually however

his abuse of alcohol and drugs came to the point where his parents could no longer cope with his abusive behaviour.

The respondent came to Cork at the age of seventeen, in 2004, to stay with an uncle who gave him employment. He left this for

other employment after a period but took to gambling most of his earnings and lost his job.

In relation to the offence, the respondent was at the time of its commission sharing a house with his two co-defendants and a former

employer. He had been out drinking earlier on the night of the robbery and had gone home to go to bed. He heard the co-defendants

downstairs and went to join them, hoping for more drink. They then told him about their plans and he was invited to go with them

which he did. It would appear that the other two defendants, or one of them, had heard about the victims from someone he knew

socially and decided that they were appropriate targets for a robbery.

The respondent states that he did not realise the full extent of the plans and was unaware that they had a gun. It is at this point, in

particular, that the Detective Sergeant’s endorsement of the accuracy of the probation report is most important. He was later afraid

to pull out and specifically afraid that he would be attacked by the co-defendants. He was instructed to “look after the boy” and the

evidence was, as recited in the prosecution’s submissions on the hearing of this application, that he treated the boy with some

consideration.

Another feature of the case is that, when questioned by the gardaí “Mr. de Paor co-operated with the gardaí and admitted his part in

the offence… his co-operation was certainly able to lead us in certain lines and was a great help to us.” Indeed, it seems unlikely that

a case could have been made against the respondent without his own co-operation since the victims of the crime, who were badly

frightened, were unable to identify anybody and it does not appear to have been other evidence.

In all the circumstances then, this is a very serious offence committed by a young man for whom there is a good deal to be said on

grounds of youth and lack of previous convictions, for he has none. He also appears to have taken a number of constructive steps

after he was charged with the offence. Firstly he returned to Galway. He has completed a full time information technology course with

Fás, which is the first educational achievement he has had since the Junior Cert. He has now applied for and is attending an

advanced course in computerised accounts and payroll management. His commitment to and application for these two Fás course is

assessed as very good, especially when contrasted with his past educational and employment history.

The respondent’s very troubled and very troublesome youth is in the main due to his abuse of alcohol and drugs, and his habit of

gambling. He has contemplated self harm. On his return to Galway he commenced counselling with a Health Service Executive

addiction counsellor. He and his parents focussed on bringing him some structure and stability in his life. The addiction counsellor

reports that the respondent continues to make significant progress in counselling. His G.P. confirmed that he has attended for two

drugs screenings, both of which were clear. The counsellor is of the opinion that he has made significant progress and also considered

that he should attend the Bushy Park Addiction Treatment Centre for assessment. He is willing to do so. He is assessed by the

probation officer as somewhat immature but having made significant effort in changing his lifestyle and addressed the issues which led

to his involvement in crime.

In sentencing the applicant, the learned trial judge had this to say:

“As always arriving at the correct sentence is extremely difficult. This man played a part in a most dangerous and lethal

venture, went in by force to a house and literally terrorised the three inmates. It looks that he was the least culpable of

the three, shown by the fact that he joined in at the last minute. Apparently, according to the gardaí, he did not play a

role in the planning of it and did not profit as much by the proceeds as the others. Having said all of that it was a most

lethal and grievous venture for him to be involved in.

In mitigation, he has pleaded guilty and has co-operated fully with the gardaí. The Sergeant very fairly said that without

the co-operation of the two defendants, but especially this man, the offences might never have been proved in court. He

has no previous convictions. He is remorseful and this is shown by his offer of €10,000.00.

He is relatively young. He is still only 20 years of age. His parents are obviously and have been all along greatly concerned

by his behaviour and his father spoke quite honestly and clearly about this today.

Taking into account in full all the mitigating factors of which there are many and, in particular, the report of the probation

officer who says basically that further work in a structured environment needs to be done, my decision is to sentence him

on count 2 robbery contrary to s.14(1) of the Criminal Justice Act, 2001 to five years imprisonment, take the others,

3,4,5,6 and 11 into consideration, and suspend the five years imprisonment on the basis that he pays over to Sergeant

Crowley for onward transmission immediately the sum of €10,000.00 and that for a period of two years from today’s date

he is under the supervision of the probation service and in particular is to abide by the preconditions which they have laid

down, that he continue to do the addiction recovery treatment, including attendance at Bushy Park Addiction Treatment

Centre, that he attends for urine analysis as directed by the probation service and that he ensures the structure of the

work and training remain part of his lifestyle and of course he is of good behaviour for the period of five years.”

Principals applying on this application;

In DPP. v. Byrne [1995] 1 ILRM 279, said to be the first application brought under s.2 (1) of the Criminal Justice Act, 1993, this Court,

per O’Flaherty J. set out the relevant principles as follow

“In the first place, since the Director of Public Prosecutions brings the appeal the onus of proof clearly rests on him to

show that the sentence called in question was ‘unduly lenient’.

Secondly, the court should always afford great weight to the trial judge’s reasons for imposing the sentence that is called

in question. He is the one who receives the evidence at first hand… He may detect nuances in the evidence that may not

be as readily discernible to an appellate court. In particular, if the trial judge has kept a balance between the particular

sentences of the commission of the offence and the relevant personal circumstances of the person sentenced what Flood

J. has termed the ‘constitutional principle of proportionality’ (see People (DPP) v. WC [1994] 1 ILRM 321) his decision

should not be disturbed.

Thirdly, it is in the view of the court, unlikely to be of help to ask if there had been imposed a more severe sentence,

would it be upheld on appeal by an appellant as being right in principle?...

Finally, it is clear from the wording of the section that, since the finding must be one of undue leniency, nothing but a

substantial departure from what would be regarded as the appropriate sentence would justify the intervention of this

court.”

In the later case of Clerkin Mr. Justice McCracken had the following to say:

“What the Director of Public Prosecutions in this case has to show is that the sentence was unduly lenient. It may well be

said that it was a lenient sentence, and it may well be that if any of the members of this Court had been the trial judge a

custodial sentence would have been imposed. However, that is not the test. A trial judge is entitled to be lenient if he

considers that it is just to do so in all the circumstances of any particular case, and in the present case the learned trial

judge spelt out the reasons for his leniency and we can see no error in principle in applying those reasons to the present

case and in suspending the sentence on the respondent.”

Applying these principles, it seems clear that there was ample basis on which the learned trial judge might have decided to do what

he did, that is to take an unusually lenient course. The scope to do so was, indeed, opened by the prosecution who at the trial, as in

argument submitted during this appeal, specifically exempted the accused for responsibility for the more serious aspects of the

offence including the responsibility for the firearm and for the threat to life and recognised his much lesser role in the violence and the

tying up of a person. The investigating guard specifically agreed with the factual content of the probation report, which is another

matter of great importance. Then, the respondent is both a very young man (and still younger at the time of the offence) and a

person without previous convictions. It is clear from all the authorities that this latter aspect is a matter of great importance,

described as “absolutely crucial” by Fennelly J. in DPP v. Barrett (CCA unreported 19th May, 2003), in suspending a two year

sentence imposed on conviction for the supply of a controlled substance contrary to s.15 of the Mis-use of Drugs Act, 1977 as

amended.

The Court would observe that, contrary to the written submissions of the Director, it appears quite clear from the remarks quoted

above that the learned trial judge took into account the aggravating features of the case but also those features, and they were

significant, which tended to mitigation. He took the view that both the accused and society at large would be best served by

continuing the structured programme which was having good effect for the accused and gave the best hope of his rehabilitation. In

those circumstances, this Court would repeat what was said in DPP v. Keegan (CCA unreported 28th April, 2003):

“Now a judge having taken that view, plainly a view for which there was some objective support but fundamentally a

subjective decision, we have to address the question of whether we are in effect going to give a ruling which says that

he cannot do that, that in doing that he was wrong in principle.

In the circumstances of this case we do not believe that the prosecution has sufficiently discharged the burden which lies

on it… The judge seemed to be influenced by the youth of the defendant, by the drug problem of which there was some

evidence and which he was prepared to accept the respondent was addressing and by his prospects of reformation. We

cannot say that the judge erred in principle in considering these matters. It may very well be that this is a case where

this Court and indeed any of the members of it would have imposed a significant custodial sentence. But we cannot see

that the learned trial judge has been demonstrated to have erred in principle in these regards.”

In summary, this was an exercise of judgement by a learned judge in the Circuit Court with considerable experience in this area. His

decision was a rational one, for which there was evidential support, and even though it certainly is an example of unusual leniency for

such an offence, it is not one which this Court can stigmatise as wrong in principle in the circumstances of this offender and his

peculiar role in this offence and in the interests of the community in the prospect of his rehabilitation with the support of his family to

making an improved and lasting role in future as a good citizen in society.

For these reasons the Court refuses the application on behalf of the Director of Public Prosecutions under s.2 of the Criminal Justice

Act 1993.