Court of Appeal reduces attempted robbery sentence from five to four years with adjusted suspension terms.

THE COURT OF APPEAL

[CA 31/15 ]

Sheehan J.

Mahon J.

Edwards J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

STEPHEN O’SULLIVAN

APPELLANT

JUDGMENT (Ex tempore) of the Court delivered by Mr. Justice Mahon on the 2nd day of November 2015

1. This is an appeal against a sentence of five years imprisonment, with the final 18 months suspended on conditions, in respect of

the offence of attempted robbery contrary to Common Law on 27th October 2014.

2. The appellant pleaded guilty at the Cork Criminal Court on 2nd February 2015 and was sentenced on 6th February 2015.

3. The victim of the attempted robbery was Ms. Marta Torres, a Spanish national, who had arrived in Ireland one week previously, to

work as an au pair in Cork. At about 6.00pm on 27th October 2014, Ms. Torres was sitting in a doorway at South Mall in Cork, waiting

for a bus, when she was approached by the appellant and a co-accused who spoke to her and asked her for money. She refused to

give them money, whereupon the two men walked away a short distance, and then, moments later, returned and attempted to

forcefully Ms. Torres’ handbag from her. The effort to take the handbag was described by Garda Barrett as “a violent enough

attempt”. The incident lasted about a minute and a half, during which time Ms. Torres was forcibly rammed against a door three or

four times.

4. The appellant and his co-accused then left the scene. They were followed by a number of witnesses and by Garda Barrett who had

been called to investigate the incident and both men were arrested. They were identified by Ms. Torres as being the two men who

attempted to rob her. There was also quality CCTV footage available which identified the two men.

5. Ms. Torres was badly shaken by her experience. As of February 2015, she was still feeling frightened and was continually still

thinking that she was being followed. She described herself as “scared” of the appellant and his co-accused.

6. The appellant comes from a difficult and dysfunctional background. In his childhood, he was in foster care and institutional care

and received limited formal education. He developed an alcohol addiction problem and became homeless. He is now 33 years of age.

He has expressed deep remorse for his involvement in this incident.

7. The appellant has 31 previous convictions, some of which are particularly relevant to this offence. In February 2004, he was

convicted of robbery and was sentenced to six years with the final three years of that term suspended. Also, on the same date, he

was convicted of attempted robbery for which he received a three-year prison sentence. He also has other convictions for attempted

robbery and one for robbery in respect of which he received two years. On 31st October 2014, he received a six-month sentence for

an offence committed on 7th March 2014.

8. In the course of sentencing the appellant and his co-accused, the learned sentencing judge expressed his view that the offence

was at the “middle range of an attempted robbery, given the fact that there was two of them involved and they were prepared to

pull and drag this young woman”. He also remarked that the likelihood of rehabilitation was remote given their backgrounds, their

addiction problems and their lengthy list of previous convictions (the appellant’s co-accused had a significantly greater number of

previous convictions than had the appellant). The learned sentencing judge indicated that if the men had not pleaded guilty, but had

been instead convicted by jury, he would have had no hesitation in sentencing them to six years’ imprisonment. He stated, however,

that having regard to their guilty pleas, he believed the appropriate sentence in each case was five years, and he proceeded to

suspend the final 18 months of them on certain conditions. He stated that he was suspending this portion of the sentences in the

hope that both men would receive treatment for their addiction problems.

9. The grounds of appeal were originally three in number, but at the commencement of the hearing of this appeal, they were reduced

to just one, namely, that the learned sentencing judge did not have sufficient regard for the particular circumstances of the offence

in arriving at the sentence.

10. Undoubtedly, this was a particularly nasty offence and, understandably, had a significant effect on the victim. It did involve a

degree of violence and force, probably because the young lady bravely resisted the attempt to take her bag as she was perfectly

entitled to do. The fact that the offence was committed in a busy location early in the evening indicates the appellant’s absolute

callous disregard for both the law and for common decency.

11. Counsel for the appellant suggested that there was minimal premeditation involved in the offence. However, there was in fact a

significant element of premeditation in that the appellant and his companion approached the victim and then walked away from her

before deciding to return and violently attempt to steal her handbag. It was not, therefore, an offence committed in an impromptu or

unplanned fashion.

12. It is argued that the learned sentencing judge erred in principle in placing the offence too high on the scale of severity for an

attempted robbery charge. This Court accepts that there is some substance in this submission and that consequently a prison

sentence of five years (with the final 18 months suspended) was unduly severe in the circumstances.

13. This Court is of the view that the appropriate sentence in this case is one of four years rather than five years, and that the

suspended element should be 20 months rather than 18 months. A significant prison term is warranted because of the fact that this

was not merely, as might be described by some as a handbag snatch, was that but with the added element of physical force which,

thankfully, not causing physical injury to Ms. Torres, did result in considerable psychological trauma. Furthermore, it was a violent

handbag snatch committed by an individual with a significant number of previous convictions, including some for attempted robbery.

14. Much to his credit, the appellant pleaded guilty and expressed genuine remorse and is by all accounts doing well in prison. There is

therefore some reason to hope that this offence will mark a turning point for him and that a significantly suspended term hanging over

him when released from prison will assist him to avoid repeat offending when released.

15. The sentence now being imposed in place of that imposed in the Circuit Criminal Court is four years with the final 20 months

suspended for a period of two years post-release, subject to the appellant entering into a bond in the sum of €100.