Court of Appeal dismisses appeal against robbery sentence, upholding disparity due to co-accused guilty plea.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Record No. 175/2014

The People at the Suit of the Director of Public Prosecutions

Respondent

and

Aaron McCarthy

Appellant

Judgment (ex tempore) of the Court delivered on the 19th day of October 2015 by Mr. Justice Mahon

1. This is an appeal against sentences imposed on 29th July 2014 at Dublin Circuit Criminal Court of five years, two years and two

years respectively (all sentences to run concurrently) in relation to three offences, namely, robbery contrary to s. 14 of the Criminal

Justice (Theft and Fraud Offences) Act 2001, taking a vehicle without authority contrary to s. 112 of the Road Traffic Act 1961, and

the theft of a bicycle.

2. The appellant’s appeal against his convictions were dismissed earlier this year by this Court

3. The background to these offences is briefly as follows. On 13th August 2013, the appellant hailed a taxi to take him to Spencer

Dock in Dublin. En route, two additional passengers joined the appellant in the taxi. In the course of the journey the taxi driver, Mr.

Singh, was punched in the face and his mobile phone, bank cards and cash stolen. His taxi was also stolen. A short while later, the

appellant and another man were arrested by gardaí following a chase on foot.

4. The appellant’s co-accused received a sentence of four years imprisonment. The co-accused had one hundred and twenty

previous convictions.

The appellant’s personal circumstances

5. The appellant is twenty two years old; he was eighteen years old at the commission of the offences. He is a father of a baby girl

and has some educational achievements to his credit. In 2009, the appellant suffered a significant brain injury in a road traffic

accident which caused, inter alia, mood swings. He has a large number of previous convictions, some fifty six in total relating to

assaults, criminal damage, burglary, drugs and other offences.

The appellant’s grounds of appeal

6. The appellant relies on a number of grounds of appeal and which he maintains point to errors of principle on the part of the learned

sentencing judge. These are summarised as follows:-

(i) The apparent emphasis on the co-accused’s sentence of four years as being suggestive that a custodial

sentence must be imposed on the appellant.

(ii) The disparity of the sentence imposed on the appellant with that imposed on the appellant’s co-accused. It is

contended for on behalf of the appellant that the fact that he had approximately half the number of previous

convictions recorded against his co-accused justified a lesser sentence being imposed than that imposed on his co-

accused.

(iii) Penalising the appellant for contesting the case.

(iv) The failure of the sentencing judge to identity both the location on the scale of gravity of this offence, and the

appropriate sentence therefore prior to taking account of mitigating factors.

(v) The failure of the sentencing judge to take any or any sufficient account of the appellant’s personal

circumstances, the fact that he suffered a brain injury some years previously, his prospects for rehabilitation (which

his counsel suggested were and are very positive), and his young age.

Decision

7. The appellant’s main submission is based on the fact that the appellant’s co-accused, who had over double the number of previous

convictions than had been recorded against the appellant, received a lesser sentence.

8. At the outset it must be emphasised that the s.14 offence committed by the appellant was particularly serious. It involved a

robbery with considerable violence. Although relatively young at the time, the appellant had amassed a considerable number of

previous convictions. While none of these might, arguably, be classed as being particularly serious, some were of significance and

involved violence, and were relevant to this offence. However, of particular concern is the fact that the appellant committed a

number of offences while on bail for this offence. On the other hand, the offences committed by the co-accused were, while greater

in number, probably less serious in nature, although the learned sentencing judge expressed his view that in their totality the previous

offences of both the appellant and his co-accused were about equal. However, perhaps the most important distinction between the

appellant and his co-accused is the fact that the appellant contested his prosecution while the co-accused pleaded guilty. For

reasons well established in our jurisprudence it is commonly the case that a sentencing court will impose a lesser sentence in the face

of a plea of guilty than might otherwise be appropriate for that offence if no such plea was forthcoming. This is done in recognition of

the fact that a plea of guilty excuses a victim from the ordeal of having to give evidence and in addition, the saving of court time. A

plea of guilty is also an acknowledgment of wrongdoing by an offender.

9. In all the circumstances of this case, the learned sentencing judge was quite entitled, and indeed quite correct, to impose a

sentence on the appellant which was appropriate to the offence he was dealing with, and to the appellant as the offender,

notwithstanding that a co-accused received a different sentence. It is of course appropriate that a sentencing judge should have

regard to a co-accused’s sentence, and ideally, give a reason or reasons why a different sentence is to be imposed on one accused

as compared to the other, or others as the case may be.

10. In this case, there are, helpfully, obvious reasons for the different sentences being imposed. These are the co-accused plea of

guilty as compared to the appellant’s decision to fully contest his prosecution. In addition, the previous convictions recorded against

the appellant, albeit a lesser number than those recorded against the co-accused and the fact that a number of offences were

committed while on bail, clearly justify a distinction in the appropriate sentences in each case. It appears to be the case that the

learned sentencing judge’s reasoning for the imposition of a sentence greater than the four years imposed on the co-accused was,

essentially, the co-accused’s plea of guilty. This does not amount to, as suggested on behalf of the appellant, the imposition of a

penalty for contesting the case. On the contrary, it suggests a discount to the co-accused for pleading guilty.

11. It was also submitted that the learned sentencing judge failed to consider mitigating factors such as the appellant’s personal

circumstances, his previous brain injury and the issue of rehabilitation. Certainly, and perhaps unfortunately, the sentencing judgment

does not specifically refer to any of these, although they were comprehensively opened to the court by counsel for the appellant

immediately prior to sentence been passed. However, this court is nevertheless satisfied that the sentence of five years is the

appropriate sentence for this offender having allowed for the aforesaid mitigating factors.

12. The appeal is therefore dismissed.