Court of Appeal partially allows appeals by suspending six months of custodial sentences for theft and criminal damage. The court found the original sentences too harsh given the appellants' potential for rehabilitation. The trial judge erred by failing to consider rehabilitation options despite their expressed willingness to treat. Consequently, the final six months of both sentences are now suspended on good behaviour conditions.

THE COURT OF APPEAL

Neutral Citation Number: [2015] IECA 136

Sheehan J.

Mahon J.

Edwards J.

Appeal No. 63/15

Appeal No. 64/15

The People at the Suit of the Director of Public Prosecutions

Respondent

- and –

Craig McDermott and Robert Nevin

Appellants

Judgment (ex tempore) of the Court delivered by Mr. Justice Mahon on the 23rd day of June 2015

1. These are appeals against sentences imposed at Leitrim Circuit Criminal Court on 17th February 2015 following a conviction by a

jury after a two day trial in respect of two offences, namely:-

• Criminal damage, contrary to s. 2(1) of the Criminal Damage Act 1991

and

• Theft, contrary to s. 2(1) of the Criminal Justice (Theft and Fraud Offences) 2001.

2. Mr. McDemott’s sentences were three years for each offence, to run concurrently. Mr. Nevin’s sentences were two years on each

offence, also to run concurrently.

3. The subject matter of the offences was a Mitsubishi Jeep, the property of a Mr. John Tansey. A neighbour of Mr. Tansey’s became

suspicious on the night of 2nd June 2013 when he noticed two men close to the vehicle, one was underneath it, and the other was

keeping a look out. He alerted the gardaí.

4. The gardaí intercepted the appellants’ vehicle as it was leaving the location, and inside it they discovered a number of items

including cutting equipment, balaclavas and a woollen hat. The exhaust and catalytic converter of the Mitsubishi vehicle which had

been removed from it and were found by the gardaí on the other side of a fence close to where the vehicle had been parked.

5. Neither appellant admitted his involvement in the theft of these vehicle parts. They vehemently denied their involvement and

proceeded to plead not guilty.

6. In Mr. McDermott’s case, the ground of appeal focussed on relates to the disparity between his sentence of three years and his

co-accused’s sentence of two years. It is this appellant’s case that there was no reasonable basis on which he should have received

a sentence one third greater than that imposed on his co-accused in that there was little to distinguish between them in terms of

involvement in the offences and, and their own personal backgrounds.

7. The learned sentencing judge did identify distinguishing features as between the two. While he accepted that their involvement in

the crime was equal, he identified two important differences, both of which are particularly relevant to sentencing. One of these

concern previous convictions, and it was correctly noted by the learned sentencing judge that Mr. McDermott had more previous

convictions than had Mr. Nevin. While in number most of Mr. McDermott’s previous convictions date back to the period 2001 to 2004,

more recently he has convictions in 2011 and 2007. The 2007 conviction is for robbery, and was relatively serious in that it resulted in

an eleven month prison sentence which was not appealed.

8. In Mr. Nevin’s case on the other hand, his smaller number of previous convictions date back many years.

9. The second important difference between the two in the context of sentencing relates to their respective probation reports. Mr.

McDermott’s probation report was reasonably described by the learned sentencing judge as being not a very favourable report, while

he described Mr. Nevin’s probation report as good. A closer perusal of both reports immediately identifies significant differences as

between the two. In Mr. McDermott’s report it is suggested that there is a very high risk of re-offending within twelve months, and a

number of worrying risk factors are identified. In Mr. Nevin’s case, that risk is put at moderate.

10. Having regard to, in particular, the foregoing, the court is satisfied that the disparity between the sentences is not unreasonable

or unfair.

11. In Mr. Nevin’s case, the emphasis of his appeal relates to the learned sentencing judge’s request that the probation reports

directed by him in respect of each appellant should consider, inter alia, their suitability for community service. This direction, Mr.

Nevin maintained, led him (as so advised by his counsel) to believe and expect that in the event that his probation report indicated

his suitability for community service, that rather than a custodial sentence would be his sentence on the adjourned date. It was

contended on his behalf that having regard to that direction, and the expectation of a non-custodial sentence that that created,

imposed an obligation on the learned sentencing judge, at a minimum, to give his reasons for not ultimately ordering community

service. He did not order community service, nor did he give any reasons for not doing so. It was accepted that the learned trial

judge had not in giving his direction as to what he wished to have covered in the probation report, bound himself to either make a

community service order or to otherwise avoid the imposition of a custodial sentence.

12. The court entirely rejects this submission. The learned trial judge was quite entitled to request that the probation report should

address the suitability for community service so that he would have before him when sentencing the opportunity to consider all

sentencing options, including community service, as well as a custodial sentence. Equally, he was free to consider a wholly or partly

suspended a sentence, and/or imposing a fine. His direction in relation to advising as to his suitability for community service being

included in the report was nothing more than an exercise in efficiency, designed to enable a sentencing hearing on a future date

proceed and conclude without unnecessary delay. It could not have been more than that in circumstances where he had not heard

evidence specifically relating to sentencing.

The sentences generally

13. The sentences of three years and two years respectively were not unreasonable. Both appellants had engaged in a carefully

planned robbery and had in their possession the paraphernalia necessary for the operation, including, somewhat disturbingly,

balaclavas. They both had previous convictions, albeit it on a difference scale. They both lied about their involvement in the crime,

and could not be said to have co-operated.

14. The court is satisfied that the learned sentencing judge appropriately considered the relevant aggravating and mitigating factors,

but with the exception of the issue of rehabilitation. In the case of both appellants there was a basis for some degree of expectation

that there might be meaningful rehabilitation in relation to both men. Mr. McDermott had expressed his willingness to undergo

treatment for his addiction problem and he acknowledged his wrongdoing on this occasion, and he expressed remorse. Mr. Nevin had

already attended the Cuan Mhuire treatment facility and had acknowledged his wrongdoing and had expressed remorse. There was

therefore a reasonable basis to incentivise rehabilitation in both cases, as part of the sentencing.

15. The learned sentencing judge did not however appear to have considered the issue of rehabilitation in formulating his sentences,

and to this limited extent fell into error.

16. The court will in those circumstances direct that both sentences will have their final six months suspended on condition that in

each case the appellant will be of good behaviour while in custody, and for one year post release.

17. For clarity, Mr. McDermott’s sentence remains at three years, but the final six months of that term will be suspended on the basis

indicated. Mr. Nevin’s sentence remains at two years, but the final six months of that term will be suspended on the basis indicated.