Court of Appeal allows review of unduly lenient sentences by varying suspension conditions for theft and false statement offences.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

Record No: 79CJA/15

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

v

GORDON O’ROURKE

Respondent

Judgment of the Court (ex tempore) delivered the 21st day of April, 2016 by

Mr. Justice Edwards

Introduction:

1. In this case the respondent pleaded guilty before Galway Circuit Criminal Court on the 11th of November 2014 to one count of

theft, contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and one count of giving false information contrary

to s.12(a) of the Criminal Law Act 1976.

2. The respondent was sentenced to 240 hours community service in respect of the theft offence and to two years imprisonment,

suspended in its entirety for a period of three years upon the respondent entering into a bond in the sum of €100.00 to keep the

peace and be of good behaviour, in respect of the offence of giving false information.

3. The applicant seeks a review of both sentences pursuant to section 2 of the Criminal Justice Act 1993 (the Act of 1993) on the

grounds that the said sentences were unduly lenient.

The facts

4. In the early hours of the 31st of July 2012, at 1.10 am approximately, the Gardai in Salthill , Galway, received a 999 call, which was

made from “Siopa An Phobail”, a Supervalu supermarket premises, at Inverin, Co. Galway. The caller, who was the respondent,

reported he had freed himself from bonds after being kidnapped earlier at gunpoint by an unknown assailant. He alleged that he had

been abducted as he was getting into his parked car shortly after leaving a public house, known as An Poitin Stil, in Inverin, where he

had gone for a few drinks after work, and had been forced by his abductor to drive his own car past his own home, at which point he

had been warned by his assailant that he knew where the respondent lived, and he was threatened. In the subsequent investigation

the alleged abduction of respondent was observed to have been captured by a CCTV camera on nearby premises. The respondent

further stated that he and his assailant then drove to the supermarket “Siopa An Phobail” at Inverin, Co. Galway, where the

respondent was employed as an Assistant Manager. Once again, when relevant CCTV was viewed in the subsequent investigation, the

respondent was observed being taken at gunpoint into the shop by a man wearing a Balaclava. A sum of €44,578 in cash was taken

from a safe within the premises to which the respondent held the keys.

5. The respondent further alleged that after the safe had been emptied he was then tied up and imprisoned in a bathroom on the

premises and that he had succeeded in freeing himself when his assailant had left. The respondent told the Gardaí that his car keys

and car were also taken. These were later recovered by the Garda Armed Support Unit in a follow up search.

6. The “Siopa An Phobail”, Supervalu supermarket was owned by the respondent’s maternal uncle. However, in January 2012 it had

been placed in receivership and although it was still continuing to trade on the date of the offence its future was uncertain.

7. In the course of the lengthy Garda investigation that followed the respondent was interview many times and he persisted in

maintaining that he had been the innocent victim of an abduction. However, close examination of all relevant CCTV footage revealed

discrepancies in the account given by the respondent to the Gardai. He became a suspect and was arrested on the 23rd of July 2013

following which he was detained at Galway garda station and formally interviewed. In the course of being interviewed he admitted

that his abduction had been faked, and that he was party to a plan to rob the supermarket. He explained that his reason for

becoming involved in this criminal enterprise was that he was upset at having learned that the business had been put into

receivership. He had convinced himself that the crime would be relatively victimless as any loss would be suffered by the bank

concerned and not by his uncle.

8. The respondent has refused to name the co-offender who was with him at the time of the crime, or any other accomplice, claiming

that he was in fear for his own safety and that of his family. From information provided by the respondent in the course of being

interviewed by the Probation Service, and which is contained in the Probation Report submitted to the sentencing court, it appears

that he had at least two accomplices and that they were from Dublin. However, the respondent has adamantly refused to disclose

any further details concerning them.

9. None of the stolen monies were ever recovered. The respondent claimed that he had received €7,000.00 for his part in carrying out

the plan. He told the Probation Officer who later assessed him that he had spent it on personal things.

10. The Respondent pleaded guilty on the 11th day of November 2014, which was the earliest opportunity for him to do so and he

was subsequently sentenced on the 11th day of March 2015.

11. The respondent, who had worked for his uncle for some seven years, returned to work shortly after the incident and continued to

work there in his role as Assistant Manager for another six months. He then moved to work in a similar capacity in another large

supermarket and remained there until July 2014, when he resigned for personal reasons connected with this case. He is now

estranged from the uncle who owned “Siopa An Phobail”, and he has stained relations with a number of other members of his family

arising out of his involvement in this crime. At his sentencing hearing the court was told that in recent times he had been working part

time in a tyre fitting business owned by a friend who was aware of his situation and was supportive of him. The gentleman in

question, a Mr Aberton, had furnished a letter to the sentencing court confirming that this was the case and expressing his intention,

once a planned expansion of his business had taken place, to offer the respondent a full time position.

12. The respondent was born on the 31st of October 1981 and accordingly was 30 years of age at the time of the offences, and 33

years of age at the date of his sentencing. He is married with two very young children.

13. While evidence was led before the sentencing judge that he was previously convicted of a larceny offence in 1998, for which he

received a suspended sentence, that evidence should not in fact have been led in circumstances where s.258 of the Children Act

2001 applies to his situation, and he was entitled to be treated as having been of previous good character. Fortunately, although the

sentencing judge’s attention was not drawn by counsel on either side to s.258 of the Children Act 2001, the judge decided to treat

him in any event as “having no relevant previous convictions”.

14. The probation service assessed the respondent in February 2015 as being at low/medium risk of re-offending within the next

twelve months.

The sentencing judge’s remarks

15. In the course of sentencing the respondent the sentencing judge said:

JUDGE: Well, of course, it's -- it's not difficult to have sympathy for the accused man and the situation he comes in, in a

situation -- into court, having a relatively blameless life before that and a history of work, and got involved in something

and is sorry for it, and the probation and welfare service take the view that he's at a low medium risk or reoffending.

It's not difficult to be sympathetic for him because he faces a jail sentence, the maximum sentence for the theft

offence, which is the more serious of the two in the view of the legislature, in that it carries a maximum sentence of 10

years. But, at the same time, it's not hard to be sympathetic for the people who trusted him and employed him and

made him manager or assistant manager and gave him the keys and gave him access to the premises, trusted him with

their money, gave him the keys to the safe. This is an offence that involves a grave and serious breach of trust. As a

consequence of what he did, his employers, the people who trusted him, are out of pocket to the tune of €45,000 that

was taken. Mr Goldby says he only got 7,000. Well, I don't know if he feels aggrieved by the fact that he only got 7,000

out of the 45 that was stolen because that may be his view. But as far as I'm concerned, his employers have lost

€45,000, and there's not a penny of it back.

And then, if that wasn't bad enough, again he decided that he'd lay a false trail. That involved a huge waste of public

money, valuable garda time. The theft offence -- and I'm re-emphasising that no money was recovered nor has there

been any offer of compensation -- warrants a sentence of four years' imprisonment. It stands at the low side of medium

for similar offences. The making of a false statement warrants a sentence, based on a maximum of five years, of three

years' imprisonment.

Now, taking into account mitigating and aggravating factors, in mitigation, he has pleaded guilty. He has no relevant

previous convictions. He cooperated to a certain extent eventually. He asserts that he -- or at least this is the report

that is record by the probation and welfare service in their comprehensive report, that effectively he got sucked into

this out of some sense of grievance, wherever he got it from. He characterises the real culprits as the people who he

got involved with and he asserts that he regretted becoming involved from early on when he realised what was going on

and he went through with this only because he was afraid of them, that they would harm his or family. Well, that's his --

that's what he said, but who knows whether that's true or not? The degree of planning that went into this showed clear

premeditation. Notwithstanding his assertion that he was afraid, he had ample opportunity to back away from this.

That's undoubtedly an aggravating feature, as his failure to materially cooperate with the investigation and, in fact,

impede it -- positively impede it by his deception during the investigation.

So, where does that leave us? The last line of the probation report places me in a slight quandary. It says that the Court

may wish to consider another sanction, and I'll read the paragraph. "In conclusion, Mr O'Rourke is assessed as being at a

low-medium risk of reoffending in the coming 12 months. Given this, our service wouldn't recommend probation

intervention at this moment in time, but the Court may wish to consider another sanction." Well, the only other sanction

-- there are a number of sanctions I consider. I believe that this is an offence, bearing everything in mind, that warrants

a custodial sentence, and what I would have in mind is imposing a sentence of three years on the theft offence, and

suspending the final 18 months of it for a period of two years, and imposing a two-year sentence on the -- the making a

false statement, and suspending the final 12 months of it. But, before I finalise the sentence, in view -- and only in view

of the last sentence in the probation report, I'm going to ask the Probation Service to advise me as to whether there --

this man is suitable to perform community service. I say this -- I suppose, backing away from the offences, and while

they are offences and crime -- of a criminal nature and a crime offends all society, they're essentially economic crimes,

and, in a way, given that he has wasted a lot of guard time and wasted a lot of public money, perhaps he might be able

to repay it by way of community service as an alternative to some or all of the prison sentence. So, that's the way I'm

going to leave it. That's my -- until we have an indication from the probation and welfare service, which could be

obtained very quickly.”

16. The matter was then adjourned pending a further report from the Probation Service concerning the respondent’s suitability for

community service. The matter was then re-listed when that report was to hand on the 11th of March 2015. The Probation Service

having assessed the respondent to be suitable, the sentencing judge imposed the sentences now the subject matter of this review.

In the course doing so, he had the following exchanges with counsel which are informative as to his thinking:

JUDGE: “…he is considered suitable by the probation and welfare service for community service. The difficulty, I

suppose, I have with this is that, on the face of it, it's a very serious offence, do you know? And the sentence that I

indicated based on the evidence and the matters that were opened to me, I'm not certain if the interests of justice

would be represented by substituting community service for it.”

MR MADDEN: “… I say to you, Judge, that in the circumstances I think that if he was given this chance that he will

obviously, according to the probation report and from what I know of him, speaking to him myself, complete the

community service order that is made. He has -- he would have a suspended sentence hanging over him. And he has

that --

JUDGE: Well, not if he does community service. That's the problem. Well, I suppose I could impose -- I could impose a

suspended sentence and on -- one of the offences and community service on another, Mr Fahy, I think, couldn't I?

MR FAHY: I think you could, Judge, yes.

JUDGE: Okay. Well, it's a bit of a -- it's a bit of an act of faith because, I mean, this was a gross breach of trust by this

man. It's the worst nightmare for any employer, if a trusted employee takes advantage of the trust that has been put

in him, but, in view of the matters that have been outlined and a relatively probation report, what I propose to do as

follows. I'm going to impose a three-year sentence on the theft charge in lieu of which I'm going to require the accused

to perform 240 hours community service within 12 months. And on the false statement, I'm going to impose a two-year

sentence and suspend that in its entirety for three years on condition that he enters into a bond to remain of good

behaviour during that period.

The grounds of appeal

17. The Applicant submits that the trial judge erred in law in the following respects:

a. The said sentences were unduly lenient having regard to all of the circumstances of the case including the nature of

the charges and the circumstances attending the commission of the offences;

b. The said sentences did not adequately reflect the nature of the charges and the consequences of the acts of the

accused and their effect;

c. That the learned Trial judge erred in principle in failing to give any or any adequate weight to the commission of the

offences admitted and, in particular the many aggravating factors in this matter:

i. the clear breach of trust by the accused in committing the offences;

ii. the thoroughness and time scale of the planning and premeditation that went into the commission of the

offences;

iii. the initial and prolonged maintenance by the accused that the ‘robbery’ was a real robbery and lack of co-

operation with the Gardaí in their investigation;

iv. the admission by the accused that the ‘robbery’ was not a real robbery and lack of co-operation with the Gardaí

in their investigation;

v. the admission by the accused that he had ultimately received a sum of €7,000.00 for his involvement in the

offences;

vi. the failure by the accused to make any form of restitution to the owners of the premises;

vii. the failure of the accused to co-operate with the Gardaí in their investigations into the identities of the other

persons involved in the offences;

viii. the fact that the accused had a previous conviction under section 23 of the Larceny Act, 1916.

Discussion and Analysis.

18. The relevant principles that must guide this Court in the conduct of a review such as the present, are well established.

19. The jurisdiction to review a sentence on the grounds that it was unduly lenient derives from s. 2 of the Act of 1993, as amended,

which (to the extent relevant) provides:

2.—(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as

the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Appeal

to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days, or such

longer period not exceeding 56 days as the Court may, on application to it in that behalf, determine, from the day on

which the sentence was imposed.

(3) On such an application, the Court may either—

(a) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

(b) refuse the application.

20. In terms of the general principles governing such reviews, the leading authority is The People (Director of Public Prosecutions) v.

Byrne [1995] 1 I.L.R.M. 279. This was a judgment of the former Court of Criminal Appeal in the first case referred to it under s. 2 of

the Act of 1993, and in it, O’Flaherty J giving judgment for the court, sets out a number of principles and considerations relevant to

the conduct of such reviews. He said:

“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; even where the victims chose not to come to court as

in this case — both women were very adamant that they did not want to come to court — 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 circumstances 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. W.C. [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? And that is because, as submitted by Mr Grogan

SC, the test to be applied under the section is not the converse of the enquiry the court makes where there is an appeal

by an appellant. The inquiry the court makes in this form of appeal is to determine whether the sentence was ‘unduly

lenient’.

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.”

21. Since then, the relevant statutory provision has also been considered by the Supreme Court in The People (Director of Public

Prosecutions) v. McCormack [2000] 4 I.R.356. In that case Barron J. stated:

“In the view of the court, undue leniency connotes a clear divergence by the court of trial from the norm and would, save

perhaps in exceptional circumstances, have been caused by an obvious error of principle.

Each case must depend upon its special circumstances. The appropriate sentence depends not only upon its own facts

but also upon the personal circumstances of the accused. The sentence to be imposed is not the appropriate sentence

for the crime, but the appropriate sentence for the crime because it has been committed by that accused. The range of

possible penalties is dependent upon those two factors. It is only when the penalty is below the range as determined on

this basis that the question of undue leniency may be considered.”

22. This Court has considered the full circumstances of this case, and the trial judge’s remarks at sentencing. The first thing to be

said is that it is clear that the trial judge approached this case conscientiously and with great care. He followed the recommended

practice of assessing the seriousness of the offences with reference to the spectrum of available penalties before then discounting

for mitigation. The trial judge concluded that the offences warranted a custodial sentence and was initially minded to impose a

sentence of three years on the theft offence and to suspend the last eighteen months of it and also to impose two years on the

offence of making a false statement and to suspend the last twelve months of that sentence. However he seems to have been

swayed by the positive probation report to at least consider alternative dispositions and adjourned the case to allow these to be

explored. When the Probation Service came back and confirmed the respondent’s suitability to do community service, he decided to

avail of a combination of community service for one offence and a suspended sentence for the other. He was particularly concerned

that the accused should be the subject of both of these forms of non custodial penalties. In deciding to adopt these options he

carefully explained his thinking which was that, as the crimes were essentially economic ones, and as the accused had wasted a lot

of Garda time and a lot of public money, it was appropriate to require the accused to effect a degree of repayment to society by

making him do community service as an alternative to prison.

23. The applicant’s main objection to the sentences imposed, as articulated to this Court by her counsel at the appeal hearing, is that

the sentencing judge, notwithstanding the undoubted care and conscientiousness of his approach, failed to get the balance right in

his weighing of the seriousness of the offences on the one hand and the relevant personal circumstances of the accused person on

the other hand. It is contended that, because he failed to get the balance right, the sentences actually imposed were unduly lenient.

24. Counsel for the applicant contended that the circumstances of the offences were so egregious that some degree to actual

custody was required to properly take account of the interests of society. The sentences imposed may have addressed the

sentencing objectives of retribution and rehabilitation, but they failed in a significant way to address the further sentencing objective

of deterrence and in particular general deterrence.

25. Counsel for the respondent contended that the sentences were not unduly lenient and that a custodial sentence was not required

in circumstances where the respondent was of previous good character or at least entitled to be treated as being of previous good

character. He was entitled to be treated as a first offender, had pleaded guilty, had been cooperative to a degree and was also

remorseful.

26. This Court acknowledges and agrees with the injunction expressed in the second of the principles enunciated by O’Flaherty J. in

the Director of Public Prosecutions v. Byrne that a reviewing court “should always afford great weight to the trial judge’s reasons for

imposing the sentence that is called into question”. The reasons expressed by the sentencing judge in this case were cogent and

clearly articulated. We also recognise that a trial judge must be afforded a considerable margin of appreciation in his sentencing and

that we will only be justified in interfering if the sentence(s) imposed represent(s) a clear divergence from the norm.

27. However, we consider that such were the aggravating features of this particular case that any combination of sentences to be

imposed needed, in the public interest, to incorporate a significant general deterrent, though not necessarily a custodial element.

28. The sentences so carefully constructed by the trial judge did meet the requirements of individual retribution, specific deterrence

and rehabilitation, but they did not send a sufficiently strong message to other would be wrong doers who might be tempted to

engage in a deception of the egregious type engaged in by the respondent. To that extent the sentences imposed, viewed together

as an overall regime of penalties intended to address the totality of the offending conduct in this case, were unduly lenient in our

view.

29. We will therefore proceed to quash the sentences imposed and to sentence the appellant afresh. In accordance with established

jurisprudence, the parties in this case were invited to put before the court on a contingent basis any additional materials that they

might wish to have taken into account in the event of the court having to proceed to a re-sentencing. A number of additional items

were provided to the court on behalf of the respondent, including an updated character reference from Mr. Aberton who has

confirmed that his position remains the same and that, in the event of Mr. O’Rourke remaining at liberty following this review, a job will

be available to him to take up. The court also was provided with a certificate of achievement in respect of the completion of a Start

Your Own Business course recently completed by the respondent and, finally, the court has received a letter written by the

respondent’s wife drawing to the court’s attention that a custodial sentence will have a number of adverse consequences for her and

indeed their two young children, and the court takes these matters into account.

30. We consider that the desired general and specific deterrence could be achieved in this case by re-imposing with effect from

today’s date the same sentences as were imposed in the Circuit Court, but making the suspension of the two year term of

imprisonment for the offence of making a false statement conditional upon three conditions which we consider appropriate having

regard to the nature of the offence. First, we will re-impose the condition previously imposed that he must keep the peace and be of

good behaviour during the period of the suspension of his sentence. Secondly, pursuant to s. 99(3) of the Criminal Justice Act 2006

(the Act of 2006), we will add the further condition that he should pay the sum of €10,000 by way of compensation to the injured

party within three years of today’s date, a minimum of €5,000 of which is to be paid within two years of today’s date and the balance

of €5,000 of which is to be paid on or before the 20th April, 2019. Finally, and pursuant to s. 99(4) of the Act of 2006, we add as a

third condition the requirement that he is to submit to supervision by the Probation Service for the duration of the suspended

sentence and comply with all of their directions and requirements.

31. In imposing these additional conditions we have borne in mind that the respondent’s Probation Officer will have power to re-enter

the matter pursuant to s. 99(14) of the Criminal Justice Act 2006 in the event of there being non compliance with any of the

conditions on which the sentence is being suspended.

32. So the sentence on the theft offence of 240 hours community service remains in place unaltered. The sentence in respect of the

making of false statement remains as before in terms of its duration, that is two years, but the terms upon which it is being

suspended have been varied in the manner that I have indicated. The court believes that the combined effect of those two

sentences achieves all of the sentencing objectives that the sentencing judge attempted to address while also catering for the

additional requirement of building in a sufficient degree of general deterrence into the overall sentencing regime.