Court of Appeal allows partial appeal by suspending consecutive sentence term to incentivize rehabilitation.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

136/14

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Philip Daly

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 24th day of June 2016 by

Mr. Justice Sheehan

1. This is an appeal against sentence.

2. The appellant was sentenced to a total of seven years imprisonment on the 28th day of May, 2014, at the Dublin Circuit Criminal

Court in respect of offences arising out of two separate incidents.

3. In the first case the appellant pleaded guilty to the robbery of a supermarket in Balbriggan, which he had entered on the 23rd June,

2012, while armed with a small black imitation hand gun and a knife. He was disguised at the time. He shouted at the staff and asked

them to open the till. A member of the staff did so and he left with €400. The second case involved the burglary of a café in

Balbriggan a week later at 4.25 am in which €400 approximately was also stolen. The appellant was seen running from these premises

and was subsequently arrested. He denied having anything to do with this offence and was convicted following a four day jury trial.

4. The appellant received a sentence of five years imprisonment in respect of the robbery and a sentence of two years imprisonment

consecutive to that sentence was imposed on him in respect of the burglary which he had committed a week after the robbery. He

challenges his conviction on the following grounds.

1. That the learned sentencing judge erred in law and in fact in imposing a disproportionate sentence in all the

circumstances.

2. The learned sentencing judge erred in law and in fact in the exercise of his discretion to impose a consecutive

sentence in the appellant’s case.

3. The learned sentencing judge erred in law and in fact in failing to have appropriate regard to the principle of totality in

determining his sentence.

5. In order to consider these grounds of appeal, it is necessary to consider in addition to the background already outlined, the

personal circumstances of the appellant and the sentencing judge’s remarks.

The personal circumstances of the appellant and the sentencing judge’s remarks.

6. The court was told that the appellant was a retired fisherman aged 45 years, who had 53 previous convictions including a

significant number for burglary. The court was also told that he was the father of six children.

7. He left school when he was aged 13 years old as a result of his parents having separated and difficulties in the family home.

Although he had been addicted to heroin for twelve years this was the first occasion on which he had committed a robbery as serious

as this and the first occasion on which he had been returned for trial to the Circuit Court. The victims had fortunately recovered and

did not wish to make victim impact statements. It was acknowledged that they had been comforted by the plea of guilty even though

it had come at a very late stage in the proceedings.

8. The court noted that his plea of guilty was late in respect of the robbery charge and the trial judge noted that he was identified in

CCTV footage. When his house was searched, distinctive clothing and a bag were recovered. He was not prepared to admit to

ownership of the bag or of the clothing and as a result of this, DNA was then employed to connect him with them. He had put the

State to full proof and only took good advice on the morning of the trial.

9. The sentencing judge stated in the course of his remarks prior to imposing sentence:-

“It is unfortunate that the accused man is in the position he is in at the age of 45 years. He has now carried the horrid

addiction of heroin for close on twelve years. I have read from the probation report he is the father of six children by

three different relationships and the children range in ages from 21 to 7 years. What an example to of those children. He

has now been in custody for some time on remand. I hear mention of a warrant being issued. It may well be for that

reason, I don’t know, but he has been in custody and despite the fact that he has pleaded guilty to the offence of

robbery and knew he was coming to this day, he has persisted in his drug abuse within prison. That is evident from the

fact that he refuses to give samples.

Mr. Daly is in a very sad position, I can do little but to protect the community from him. He is a persistent offender who

will continue to be so until he resolves to change his ways. The offence of robbery with a firearm, be it imitation or

otherwise, is a very serious matter and the presentation of that together with a knife to young staff closing up the

premises is something the court has to take a serious view of and I impose a sentence of five years imprisonment. I will

date it from the day he went into custody. In respect of the burglary offence, a sentence of two years imprisonment

which will run consecutive to the sentence imposed in respect of the robbery offence. There is nothing more the court

can do for Mr. Daly at this stage in view of his approach to these matters. He has as I say put the State to full proofs,

taken good advice very late in the day in respect of one count and impossible to understand why he persisted in his

attitude in respect of the other.”

10. When the sentence had been imposed counsel asked would the court consider suspending a portion of the sentence and then

went on to point out and quite properly in this Court’s view that it was unusual to impose a consecutive sentence in light of the well

known jurisprudence to which the learned trial judge responded:-

“Yes it is very rare I have to say, I don’t believe I have ever done it before in the long number of years I have been here,

but this is a case deserving of it and I am satisfied that I am correct to do it.”

11. In considering whether or not the sentence was disproportionate, we must in the first instance consider the five year sentence

imposed for the robbery. Counsel for the appellant submits that insufficient weight was given to the plea of guilty or to the evidence

that this plea had given comfort to the victims. Counsel also submits that it was only when the appellant had received clear stills from

the CCTV footage on the morning of his trial that he realised the strength of the prosecution case and then decided to plead guilty.

This is advanced by way of explanation for the late plea.

12. Counsel for the respondent on the other hand submits that there was ample evidence against the appellant and that it is much

more likely that the appellant decided to plead guilty when he saw that all prosecution witnesses were present in court.

13. Counsel for the respondent has also furnished us with a helpful book of comparative authorities including, comparative sentences,

a number of which are sentencing judgments of this Court. They demonstrate that the five year sentence imposed for this robbery is

not out of line with similar type cases. It is unfortunate that we are unable to discern what allowance if any, was made for the plea

of guilty, but in our view this is not fatal, as we find that the overall sentence of five years imprisonment was proportionate. Indeed it

has to said in fairness to counsel for the appellant that the arguments in respect of this sentence were limited in a sense, to pointing

out that certain matters had not been factored adequately into the sentence.

14. Counsel opened her oral submissions before this Court by focusing on the second sentence and relied on the judgment of the

Court of Criminal Appeal delivered by Geoghegan J. in DPP v G.McC. [2003] 3 I.R. 609 as follows:-

“It is of course true and always has been true that where there have been a number of offences relating to different

victims and especially if they are unconnected, there is a discretion on the sentencing judge as to whether he or she

makes the respective sentences concurrent or consecutive. In such a case, it is not the discretion that creates the

problem but the exercise of it. It has long been the sentencing practice in this jurisdiction that a discretion in favour of

consecutive sentences is exercised sparingly.”

15. While counsel for the respondent seeks to uphold in full the two year consecutive sentence imposed, we are of the view that

when it came to imposing a consecutive sentence, the sentencing judge ought to have given some consideration to suspending part

of the second sentence given that it was unusual in the first instance, to impose a discretionary consecutive sentence. Also in view

of the fact that the particular type of burglary namely, that of an unoccupied premises was one that is normally dealt with in the

District Court. Accordingly and to this very limited extent, we find an error of principle. There is some evidence before us that the

appellant is now finally making progress in prison and also evidence that he has re-engaged with some of his children. Accordingly in

order to further incentivise his rehabilitation, the court will suspend the final twelve months of the two year sentence that was

imposed consecutive to the one of five years. Accordingly we uphold the sentence of five years imprisonment on the robbery charge,

but vary the sentence on the burglary charge by suspending the final twelve months of the two year sentence originally imposed and

which remains to be served consecutive to the sentence of five years imprisonment.