THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
205/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (ex tempore) delivered on the 22nd day of January 2016 by
Mr. Justice Birmingham
1. This is an appeal against severity of sentence, the sentence under appeal being one of 32 months imprisonment imposed in the Dublin Circuit Criminal Court on the 27th July, 2015, in respect of the offence of possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act.
2. The background facts may be briefly stated. On the morning of the 23rd March, 2013, a robbery of a cash box occurred at McDonalds in Donaghmede Shopping Centre. During the incident what was believed to be a firearm was produced and approximately €10,000 in cash was stolen. A tracking device was used in order to locate the cash box which was recovered in or around lunchtime that day in a field at Kinsealy, Co. Dublin. An individual who can loosely be described as a co-accused was found at the location and it is of note that the cash box had by that stage been emptied.
3. Some three days later on the 26th March, 2013, the appellant was noticed by gardaí in the Belcamp Gardens, Darndale area. He was seen to put a package into the letter box of a particular house. That was a house with which he had no connection and it appears to have been an attempt to evade the attention and interest of gardaí. The package in question was recovered and it contained the sum of €3,420 in cash which was covered in blue dye. It was established that the money in the package had come from the cash box that had been taken from McDonalds in Donaghmede and subsequently the appellant went on to plead guilty to possession of that sum.
4. In terms then of the accused’s now appellant’s background and personal circumstances and his previous record, he is 31 years of age. The Circuit Court was told that he had 125 previous convictions, of which 114 had been dealt with in the District Court, the large majority relating to Road Traffic Act offences. The appellant had three previous convictions for offences under the Criminal Justice (Theft and Fraud Offences) Act 2001, two of which were for the same offences that as being dealt with on this occasion, an offence under s. 18, one dated from 2005 and one from 2015, which was dealt by the imposition of a sixteen month sentence of imprisonment. So far as this latter offence is concerned that sentence was imposed on the 24th April, 2015 and related to an offence that occurred on the 17th May, 2012. One of the points that the appellant makes is that had the sixteen months sentence and the matter now under consideration being dealt with together that would have or certainly might have inured to the benefit of the accused.
5. Again the point is made that the divergence between sixteen months for one s. 18 offence and 32 months for the offence that is being considered today was too great. Just looking for a moment at the previous convictions in somewhat greater detail, the large majority were as stated dealt with in the District Court. 71 were for offences under the Road Traffic Act, 21 of which were offences for no insurance. In April 2005, he received a sentence of two years imprisonment for the offence of possession of stolen property, but also endangerment. Again in terms of his previous record, the appellant has been subject to a five year sentence in respect of a s. 15A Misuse of Drugs Act, and there is a also a conviction for s. 15 of the Misuse of Drugs Act. There are also six offences in respect of s. 112 of the Road Traffic Act. The previous record is a significant warning.
Grounds of appeal.
6. In terms of the grounds of appeal that are advanced, essentially, two grounds are relied on. First it is said that the trial judge erred in his assessment of the gravity of offence, that he placed the offence at too high a point on the scale and it said that is established if one has regard to other cases where the courts have been called on to sentence in respect of s. 18 offences and secondly it is said that he paid too much attention to the previous convictions which led the judge to pay inadequate attention to the factors in favour of the accused being his guilty plea, his family circumstances and the progress that he was making while in custody. As far as the gravity point is concerned, the appellant points to the fact that another individual who had been involved pleaded guilty to two robberies, the robbery that was in the background here and a separate robbery. He was dealt with by way of a sentence of three years imprisonment for one robbery and four years for the second robbery, with the final eighteen months of the aggregate sentence suspended. There seems to be some element of uncertainty as to which robbery attracted the three years and which attracted the four years. It may be that it was in fact this robbery that attracted the three years, but what can be said is that it is clear that the sentence that was imposed for the robbery which ultimately led to the possession of stolen property charge was certainly not to any significant extent higher than the sentence that was imposed on this possession charge.
7. The appellant says that too much attention was paid to the circumstances of the robbery to the extent that might be seen that the appellant was in effect being sentenced for the robbery notwithstanding that his plea of guilty was to possession of stolen goods.
8. That argument is made notwithstanding the fact that the trial judge during the course of his sentencing remarks commented:-
“It seems the guards may have their suspicions about Mr. Lawlor, but Mr. Lawlor has pleaded guilty to the offence that he has pleaded guilty to and the State has accepted that plea. So, this Court must sentence him solely on the basis of the plea at count No. 4.”
9. This was a case where by specific agreement between the parties, the judge was told that the sentence hearing was proceeding on a full facts basis. It seems to this Court that the background circumstances as to how the property came to be taken is a matter of relevance and is a matter to which a court is entitled to have regard while at the same time of course being careful to sentence for the offence in respect of which a plea was entered, rather than as it were the triggering substantive offence.
10. Again just to complete in terms of the personal circumstances, he is as already stated a 31 year old man, he is in a stable relationship with dependent children and again as already mentioned the court was told that he was doing well in custody at that stage and that he was on an enhanced regime at the time of the sentence hearing.
11. In this case the matter of substance that was in favour of the accused, now appellant was the fact that a plea of guilty was entered. It is not clear from the sentencing remarks just what degree of credit was being given for that plea, though it is very clear that credit was given but the extent remains somewhat uncertain. The prosecution has indicated that in their view this was a case at the mid upper range of offending under s. 18, if that is so, and given that the sentence ultimately arrived at was one of 32 months, it would appear that the starting point must have been very much up towards the upper limit of the sentence that was available to the court.
12. In this case the court does not have the advantage of knowing precisely what credit was given for the plea, though as indicated that the court is fully satisfied that there was indeed credit. There is also the fact that the case was dealt with at a point in time separate to the other s. 18 which had been committed in or around the same time and the court sees some substance in the point that had the two cases been dealt with together that the total sentence may have been less than what was ultimately imposed. Again the court sees some limited substance in the point that is made that the divergence between the sixteen months for the sentence that was dealt with in April 2015, involving a stolen Ford Focus motor car and the matter now under consideration was too great, that the divergence was too wide.
13. Again the court has regard to the argument that is made that the co-accused, that is to say the person who pleaded guilty to the involvement in the robbery as robber, received a sentence which was certainly not significantly more severe, if more severe at all.
14. By reference to those factors and to the comparators that have been referred to, the court is of the view that there some limited intervention on the part of this court is called for.
15. The sentencing court was told that Mr. Lawlor was keen to rehabilitate himself and had taken steps in that direction. The court will have regard to that and having regard to that proposes to restructure the sentence imposed in the Circuit Court.
16. What the court will do in the first instance, is it impose a sentence of 36 months imprisonment. However given the stated desire to rehabilitate and the indication by reference to how he was faring in custody that there may have been some efforts of substance being made in that regard, the court will suspend the final twelve months of the 36 months on his entering into a bond to keep the peace and be of good behaviour for a period of twelve months post his release from custody. The effect of that is that following his release, he will still be subject to a suspended sentence and there will to that extent be a real incentive for him to carry through on his stated intention to reform. The court will set aside the sentence imposed in the Circuit Court and substitute a sentence of 36 months, but with the final twelve months suspended.
