Court of Appeal allows appeal against excessive sentence for unauthorised taking and endangerment, ordering resentence.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

98/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Brian Reilly

Appellant

JUDGMENT of the Court delivered on the 5th day of July 2016 by Mr. Justice Sheehan

1. This is an appeal against sentence.

2. The appellant pleaded guilty to the unauthorised taking of a motor vehicle and to a count of endangerment committed in the

course of the unauthorised taking. The offences took place on the 22nd August 2013, at Balgaddy, Co. Dublin and the appellant

received a sentence of four years imprisonment for the unauthorised taking and a consecutive sentence of five years imprisonment for

the offence of endangerment. The final three years of the five year sentence were suspended on condition that the appellant keep

the peace and be of good behaviour for a period of three years following his release and that he be subject to the supervision of the

Probation Service during that time.

3. The appellant who was seventeen years old when he committed these offences had been visiting relatives in Lucan and according

to himself engaged in drug taking the previous evening.

4. He was making his way home to Navan at 9.00 in the morning when he came upon a van with the keys in the ignition. This van

belonged to a contract worker from An Poist and contained parcels for delivery. The owner of the van noticed the appellant starting

the van and he approached the driver’s window which was locked. As he attempted to smash the window with a machine he used for

recording postal deliveries the appellant backed the van into a wall and then drove forward in the process driving over the foot of the

owner and knocking him to the ground. The owner suffered bruising to his foot and body and a significant wound to his arm which

required stitching and has left a permanent scar. The injured party was out of work for six weeks and there was damage caused to

the rear of his vehicle. The appellant abandoned the vehicle in the Dunshaughlin area and was arrested shortly afterwards. He made

admissions in custody which the prosecution acknowledged were significant.

5. The appellant now challenges his sentence under nine different headings. The principal complaint of the appellant is that the judge

erred in his approach to sentence and imposed one that was excessive. The respondent rejects these submissions and submits that

the sentence was properly constructed and proportionate.

6. The appellant is the youngest of eight children who was brought up in the family caravan until he was fourteen years old, when the

family was obliged to move to Co. Meath following the receipt of serious threats. The sentencing judge had the benefit of a

psychiatric report which disclosed that the appellant had an exceptionally disturbed upbringing and had been subject to the

intermittent care of the psychiatric service being diagnosed with ADHD when he was ten years old. The report also disclosed a history

of poly substance abuse and self harm. In his pre sentence remarks the judge focused on the seriousness of the offence and the fact

that the appellant had at the time of sentence 90 previous convictions. 21 of these previous convictions were for the unauthorised

taking of motor vehicles. Although he had some convictions for theft and two for burglary most of the remaining convictions were for

Road Traffic Act offences associated with unauthorised takings. The judge was also told that the appellant was serving a sentence of

four years imprisonment comprising a sentence of eighteen months imprisonment for an unauthorised taking and two and a half years

imprisonment for a burglary charge. The judge commenced his remarks by stating:-

“It is very, very difficult for a court in this situation to address a young man like Mr. Reilly in terms that it has to do, but

the only safe and proper thing for any court is to keep Mr. Reilly out of circulation as long as possible within the law.”

The trial judge continued:-

“He is prepared to take motor cars belonging to others for no good reason and drive them in a way that would put

everyone at risk that gets in his way or attempts to stop him. I have to impose as lengthy a sentence as this Court can

possibly do.”

7. We have considered the submissions of the appellant and those of the respondent in light of the facts of the case and the judge’s

remarks. While it is clear that personal deterrence was at the forefront of the sentencing judge’s mind and that he acknowledged that

the appellant was entitled to credit for his plea of guilty and admission, it is unclear what allowance was made for this mitigation and

unclear whether or not the sentencing judge had regard to other mitigating material before him.

8. In our view this lack of clarity arises at least in part from the failure of the sentencing judge to identify a headline sentence in

respect of either offence. As a result of this we are unable to ascertain what allowance was made for mitigation.

9. In our view in a case such as this where each offence aggravates the other it is important for a sentencing judge when he or she

is departing from the general practice of concurrent sentences to explain why a consecutive sentence is being imposed. In our view it

is not sufficient to simply say that the only proper thing any court can do is to keep the appellant out of circulation as long as

possible within the law.

10. Accordingly we are unclear as to how the sentence was arrived at and in particular we are unclear as to what level of discount

was afforded for the mitigation advanced on behalf of the appellant. In view of these errors of principle, we will allow the appeal and

proceed to resentence.

11. As is usual at this point, the court reviewed additional material it had received on behalf of the appellant. The court also

requested an up to date probation report.

12. While the probation officer finds that the appellant continues to remain at serious risk of re-offending she also noted that the

prison psychology service indicated that the appellant was continuing to make progress and dealing with relevant personal issues. The

appellant had also completed further educational programmes since his sentence.

13. The offences are undoubtedly serious and require a substantial sentence. The maximum sentence in respect of the endangerment

count is seven years imprisonment. Given the appellant’s previous convictions and the harm caused to Mr. Griffin, the owner of the

vehicle, we identify a sentence of six years imprisonment as the appropriate headline sentence. The principal mitigating factors at the

time of the original sentence are the plea of guilty, the admissions made and the appellant’s progress in prison which also included a

report from the psychologist confirming that the appellant had attended for 21 sessions. All these matters require to be factored into

the new sentence and in our view twelve months should be allowed in respect of these matters. The appellant is a young man who

has the ability to make a contribution to society. Since the imposition of sentence he has worked hard in prison and has successfully

completed further education programmes. As we have already noted he continues his engagement with the prison psychologist. These

efforts and his own acknowledgment of the harm he caused to the injured party will be reflected by a further reduction in the amount

of time to be served. Accordingly in respect of the endangerment count we impose a sentence of six years imprisonment with the final

eighteen months suspended on condition that he keep the peace and be of good behaviour for a period of eighteen months following

his release from prison and that he be subject to the Probation Service for that period.

14. We identify four years imprisonment as the headline sentence for the unauthorised taking. In view of the mitigation, we reduce

that sentence to three years imprisonment. Both sentences to run concurrently and be backdated to the date identified by the Circuit

Court judge as the appropriate starting point.