Court of Appeal dismisses appeal against four-year burglary sentence, upholding proportionality despite prior convictions.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

254/13

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Jonathan Lynch

Appellant

Judgment of the Court (ex tempore) delivered on the 27th day of July 2015 by Mr. Justice Sheehan

1. This is an appeal against severity of sentence. The appellant received a four year sentence for burglary at Galway Circuit Court on

the 8th November, 2013, having pleaded guilty.

2. On that date he also pleaded guilty to two other burglaries committed on the same day which were taken into account by the

sentencing judge when he directed that the four year sentence be made consecutive to a sentence of one year and eight months

that the appellant was then serving for another burglary.

3. At the time of sentence the appellant was 27 years old and the court was told that he had 63 previous convictions, including 27

for burglary.

4. The appellant contends that the learned sentencing judge erred in principle in his approach to sentence. The appellant in particular

contends (i) that the sentence was excessive, (ii) that the previous convictions were wrongly treated as an aggravating factor, (iii)

that the learned sentencing judge failed to have adequate regard for the rehabilitation of the appellant and (iv) that the sentencing

judge, in his overall approach to sentence, fell into error when he failed to follow the approach to sentencing suggested by the

Supreme Court in DPP v M. [1994] 3 I.R. 306, which was subsequently endorsed in a judgment of the Court of Criminal Appeal in DPP v

Stephen Kelly [2004] IECCA 14.

5. In order to consider these grounds of appeal, it is necessary to set out the background to the offences.

6. On the 24th April, 2013, the appellant broke into a house in Ballinasloe. The injured party heard the appellant upstairs in his

bedroom and when he went upstairs, the appellant slammed the door in his face and tried to get away. Some jewellery had been

removed, but this was recovered. The appellant was arrested leaving the premises having injured himself when he jumped out of the

upstairs window.

7. The appellant pleaded guilty to committing another offence earlier that evening in which fishing gear and a sum of €400 was stolen.

The property was recovered, but not the cash.

8. The appellant also pleaded guilty to committing another offence prior to those outlined in paras. 6 and 7 of this judgment which

involved him entering a takeaway premises and stealing from there a wallet and keys. The wallet was recovered, but the keys were

not.

9. When the appellant was arrested and brought to the garda station he cooperated fully with the gardaí and he made complete

admissions at the time.

10. The personal circumstances of the appellant at the time of sentence were that he was 27 years of age and a single man who is

the father of a young daughter. The court was told that he had had an exceptionally troubled childhood and was now addicted to

drugs as well as having a problem with alcohol.

11. The sentencing court was also told that on the 24th April, 2013, when the offences were committed, he had been on bail for

another offence.

12. The court was further told that the appellant had been attending a programme on a weekly basis in Ballinasloe which was

designed to assist him in dealing with his addiction problems.

13. The court was told that he had made some progress while on these programmes and also that he had made some further limited

progress while in prison prior to sentence on these matters.

14. The sentencing judge decided that the appropriate overall sentence for the offending behaviour was four years imprisonment and

that the totality principle allowed him to take into account the other two offences which he identified as being deserving of

sentences of two years imprisonment in each case. In his approach to sentence, the learned sentencing judge gave appropriate

consideration to the appellant’s personal circumstances and to his efforts to deal with his addiction problems.

15. In the circumstances of this case it was not necessary for the judge to factor into the sentence a suspended period to

incentivise the rehabilitation of the appellant and it was sufficient for the judge to do as he did, namely, to recommend that the

appellant receive appropriate treatment for his addiction problems while serving his sentence.

16. The approach to sentence originally set out in the Supreme Court judgment in the M. case, and subsequently endorsed by the

Court of Criminal Appeal, is an approach which this Court continues to endorse. However, a failure to stick rigidly to that approach

does not always result in an error of principle.

17. In this case the sentencing judge approached his task in a careful manner taking into account all relevant matters. While this

Court notes what counsel for the appellant says about previous convictions not being aggravating factors, this Court nevertheless

holds that when a sentencing judge is deciding where the on scale of seriousness he should locate a particular offence, he is entitled

when performing that exercise to take into account relevant previous convictions. In this case the previous convictions for burglary

were clearly relevant previous convictions.

18. The Court is satisfied that the sentence imposed on the appellant was not excessive, but rather one that was proportionate to

the offending and to the appellant’s personal circumstances, and particularly in light of his previous convictions. Accordingly, the

Court dismisses the appeal.