Director of Public Prosecutions -v- Cunningham [2015] IECCA 2 (27 March 2015)

Judgment

Title:

Director of Public Prosecutions -v- Cunningham

Neutral Citation:

[2015] IECCA 2

Court of Criminal Appeal Record Number:

265/12

Date of Delivery:

27/03/2015

Court:

Court of Criminal Appeal

Composition of Court:

Clarke J., Moriarty J., Barr J.

Judgment by:

Clarke J.

Status:

Approved


Judgments by	Link to Judgment	Result
Clarke J.	Link	Other (see notes)

Notes on Memo: Dismiss appeal against conviction for Section 112 offence

___________________________________________________________________________

COURT OF CRIMINAL APPEAL

[Record No: 265/2012]

Clarke J.
Moriarty J.
Barr J.

Between/

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

Francis Cunningham

Accused/Appellant

Judgment of the Court delivered by Mr. Justice Clarke on the 27th March, 2015.

1. Introduction
1.1 This judgment follows on from a previous judgment of this Court on this appeal (D.P.P. v. Cunningham [2014] IECCA 40) (“the previous judgment”). In that judgment, and for the reasons set out therein, the Court dismissed the appeal of the accused/appellant ("Mr. Cunningham") against his conviction of an alternative offence of theft. As noted in the final sentence of that judgment, the Court proposed hearing counsel further on "whether there are any remaining aspects of this appeal which require to be heard".

1.2 In substance, potentially three further issues were identified. They are:-

(i) Mr. Cunningham's appeal against the sentence imposed in respect of the conviction for theft which was upheld in the previous judgment of this Court;

(ii) Mr. Cunningham's appeal against a separate conviction in relation to the unlawful use of a vehicle; and

(iii) Mr. Cunningham's appeal against a suspension from driving imposed as a result of the conviction referred to at (ii). Obviously, this aspect of the appeal only arises in the event that his appeal against the relevant conviction is dismissed.

1.3 Further written submissions were filed directed towards those issues. An oral hearing ensued. Having taken some time to consider the principal issue, which concerned the sentence imposed on Mr. Cunningham in relation to his conviction for theft, the Court indicated that it would allow his appeal against sentence and substitute a sentence of five years imprisonment with two years suspended for the sentence of seven years imprisonment with two years suspended which had been imposed by the trial judge. The Court indicated that it would give its reasons for coming to that view in due course and that, in the same judgment as would contain those reasons, the Court would also deal with the other issues raised. The purpose of this judgment is to set out those reasons and to deal with the other issues. The basic underlying facts are set out in the previous judgment and it is unnecessary to repeat them here. The Court, therefore, turns first to the appeal against sentence on the theft charge.

2. The Sentence for Theft
2.1 As already noted, the sentence imposed by the trial judge was one of seven years imprisonment with two years suspended. The main point made on this appeal on behalf of Mr. Cunningham was to suggest that the sentence imposed on him was disproportionate to that which had been imposed on an Aaron O'Driscoll, who had pleaded guilty to robbery arising out of the same incident. Mr. O'Driscoll was sentenced to four years imprisonment with two and a half years suspended. In that context, it was suggested that the offence of theft, of which Mr. Cunningham was ultimately convicted, was a lesser offence than the offence of robbery to which Mr. O'Driscoll pleaded guilty. It must be recalled that the conviction by the jury of Mr. Cunningham for theft was on the basis of theft being an alternative offence of which it was possible to convict Mr. Cunningham even though no count of theft appeared on the indictment.

2.2 It must also be recalled that the circumstances in which Mr. Cunningham came to be convicted of theft arose from an aspect of the case made at trial on behalf of Mr. Cunningham which, as this Court pointed out in the previous judgment, "centred on the suggestion that a Mr. O'Toole and a Mr. Postol were complicit in the events on the occasion in question". As the Court pointed out there were at least three possibilities.

"First, the jury might have accepted the evidence of Mr. O'Toole and Mr. Postol and rejected the evidence of Mr. Cunningham and thus accepted that there was a robbery in which Mr. Cunningham played a part. The jury obviously did not come to that conclusion for they did not find Mr. Cunningham guilty of robbery.

Second, the jury might have concluded that Mr. Cunningham's explanation for his presence on the occasion in question as being entirely innocent was either accepted or created a sufficient doubt to prevent it being established to the criminal standard that Mr. Cunningham was involved with whatever wrongdoing occurred. In such an eventuality Mr. Cunningham would have to have been entitled to be acquitted in respect of all the offences concerning the incidents relating to the cigarettes. It might, of course, in respect of some or all of those matters, have been the case that some but not a sufficient number of the jury were convinced beyond reasonable doubt thus leading to a disagreement.

However, there remained a third possibility in which the jury were persuaded beyond reasonable doubt that Mr. Cunningham was involved in the unlawful enterprise but also were persuaded that Mr. O'Toole and Mr. Postol were not innocent victims but were complicit. In those circumstances it is possible to see how a jury might have come to the view that Mr. Cunningham was involved in stealing or theft but, because of the complicity of Mr. O'Toole and Mr. Postol, had not used violence or a threat of violence and, thus, could not be convicted of robbery." (See paras. 5.9 - 5.11)

2.3 As the Court then observed, the clear inference to be drawn from the finding of guilty by the jury in respect of an offence of theft and the other verdicts returned was that the jury was satisfied beyond reasonable doubt as to the third possibility noted above. The Court did not understand counsel for either the D.P.P. or for Mr. Cunningham to disagree with that analysis. In those circumstances, the offence for which Mr. Cunningham was to be sentenced was one in which he was found to be actively involved in a criminal enterprise but where, owing to the fact that those, in whose possession the relevant cigarettes were at the time in question, were themselves potentially complicit in the illegal enterprise (or, perhaps, more rigorously, where the jury was not satisfied beyond reasonable doubt that they were not so complicit), a finding of guilt in respect of robbery was not made.

2.4 There is no doubt but that, at least in general terms, an offence of robbery, involving as it does violence or the threat of violence, is potentially more serious than an offence of theft. However, it does not, of course, necessarily follow that all offences of robbery are more serious than all offences of theft. It is possible to envisage an offence of robbery at the lower end of the scale where there is, perhaps, some threat of violence but where that threat is minimal. Furthermore, the individual role of an accused in offences of, respectively, robbery and theft, may vary considerably. One person may be a relatively minor player in a robbery. A second person may be a significant figure in a theft. For all of those reasons, the Court is not satisfied that the fact that theft can be described as a lesser offence than robbery necessarily, and without more, carries with it a requirement that a conviction for theft might not, quite properly, even when arising out of the same broad circumstances, give rise to a more severe sentence than one for robbery, even where all else is equal. However, that being said, the Court is also satisfied that the fact that the jury was not persuaded beyond reasonable doubt that Mr. Cunningham used violence or the threat of violence is a factor which was required to be properly reflected in any sentence imposed.

2.5 There were differentiating factors between Mr. O'Driscoll's case and that of Mr. Cunningham. Mr. O'Driscoll pleaded guilty. It was said on behalf of Mr. Cunningham that he could not have pleaded guilty to the offence of which he was ultimately found guilty, for that offence was not on the indictment. That much is true, and it is also true that Mr. Cunningham was acquitted of the offence of robbery, which did appear on the indictment. However, there was no suggestion that Mr. Cunningham had offered a plea to theft. While far from decisive, it is also relevant to note that the original charges proffered against Mr. Cunningham when the case was before the District Court included a charge of theft, although, in fairness, as pointed out in the previous judgment, that charge was withdrawn by the D.P.P. and replaced with the robbery charge which ultimately went to the jury. In all of those circumstances, there is no doubt but that the sentencing judge was entitled to have regard to the way in which Mr. O'Driscoll met the case against him as differentiating him, in a material respect, from Mr. Cunningham. It is not, of course, the case that Mr. Cunningham is to be punished for failing to plead guilty. Rather, it is that the Court was entitled to regard the way in which the two parties had respectively met the cases against them as being a factor which would justify a difference of approach in sentencing.

2.6 In addition, the Court was entitled to have regard to the respective roles played by Mr. O'Driscoll and Mr. Cunningham in the enterprise as a whole. On the basis of the finding of guilt in respect of theft, the jury must have been satisfied that Mr. Cunningham was involved in a pre-planned criminal enterprise of some significance.

2.7. In that context, the sentencing judge described the criminal enterprise in the following terms:

“Each element of this was isolated from every other element; isolated by the use of multiple phones, isolated in the acquiring of the white van -- neither Mr Howard nor Mr Lawless; there's nothing to connect them with this, but the white van was undoubtedly taken by whatever means, we don't know. So, it was compartmentalised by someone. I'm not saying that it was compartmentalised by this accused, but somebody did an extremely good job of compartmentalising. On the day that it actually took place, Mr Cunningham left his home and came to the area to meet up with the gentleman in respect of a development in relation to some property in Bray. I find it difficult to believe that it was pure serendipity that created this particular meeting; I think it is part of a plan, I think it was part of a plan to create an innocent reason for Mr Cunningham being there should things go wrong. I cannot see that it could be otherwise. Unfortunately, the whole gang - because there were undoubtedly more than Francis Cunningham and Aaron O'Driscoll involved in this - have not been made amenable to the law. Mr Cunningham is entitled to challenge any charges laid against him, and he successfully challenged the robbery charge which was laid against him in this case, in that the jury found him -- they disagreed on that, but substituted theft.”

2.8. Thereafter, in comparing the position of Mr. Cunningham with that of Mr. O’Driscoll, the sentencing judge said the following:

“He was leading Mr O'Driscoll, and there is no doubt in my mind that he was leading Mr O'Driscoll to what he perceived was a safe area. I take this whole idea of going to a meeting in a hotel with a grain of salt, with a very large grain of salt. I don't believe it, quite frankly. I have no doubt that Mr Cunningham was up to his eyes, up to his eyes in this whole operation, cleverly planned, cleverly designed so that he would distance himself from it as much as he could, until extremely good garda work led to the apprehension and arrest of Mr Cunningham and Mr O'Driscoll. Mr O'Driscoll, I think it is fair to say, in the course of seven interviews, dissembled, is probably the best one can say for what he did. He was certainly of no assistance to the gardaí. Much has been made of the fact that the stolen goods were recovered. Well, one is not entitled to credit because the goods that one stole were recovered because of the good offices and the good operation carried out by the gardaí. Mr O'Driscoll, at an early stage, pleaded guilty and got a four-year sentence - two and a half years of that four-year sentence suspended - but the reality of the situation is that he got a four-year sentence. It seems to me that, in this case, the credit which would normally be given to somebody such as Mr O'Driscoll for an early plea cannot apply to this accused.”

2.9. It is also clear that the sentencing judge had regard to Mr. Cunningham’s previous record, which he described in the following terms:

“He knows what prison is about; he knows the consequences of criminal behaviour. He has 13 previous convictions; he has in the past received two five-year sentences, so he knows the realities of crime and criminal behaviour, and yet he took the risk. While one can have sympathy with his partner and with his daughter, one can do no more than have sympathy for them, but he should have had foresight, knowing prison was a risk, that he should not have engaged in this behaviour. However, nevertheless, he went ahead, he took the risk, and he got caught.”

2.10. In summary, the views of the sentencing judge can be encapsulated in the following passage:

“Proportionality, yes, obviously has to come into this. The maximum sentence for this is 10 years. It would be invidious to impose a 10-year sentence; this does not fall at that serious end of the scale, so to speak, but I do think that it is in the upper half. It seems to me that the correct sentence to impose in this case is a seven-year sentence of imprisonment, with the last two years suspended for a period of five years.”

2.11. As the sentencing judge pointed out, the maximum sentence for a conviction of theft is ten years imprisonment. There can be little doubt but that the sentencing judge was entitled to regard this particular offence as being serious, though not at the upper end of the range. However, similar considerations, as to the seriousness of the enterprise as a whole, applied equally to Mr. O’Driscoll. Furthermore, the sentencing judge did not conclude that Mr. Cunningham was, necessarily, the principal mover or planner of the enterprise.

2.12. It was in those circumstances that the Court came to the view that the overall sentence imposed was too severe and that a sentence of five years imprisonment, with two years suspended, would have been more appropriate. As already pointed out, it does not necessarily follow that a conviction for robbery necessarily amounts to a conviction for a more serious offence, on the facts of any particular case or cases, compared with an offence of theft. Nonetheless, given that both Mr. Cunningham and Mr. O’Driscoll were involved in the same enterprise, and given that the sentencing judge did not seek to place any particular weight on the different roles which they might have played in that enterprise, the Court was satisfied that there was an unacceptable disparity between the sentences imposed in both cases.

2.13 The sentencing judge was, of course, entitled to have regard to the fact that Mr. O’Driscoll had pleaded guilty. It is difficult, however, to justify the level of disparity between the two sentences on that ground alone. While it does not, of course, necessarily follow that an unjustified disparity between the sentences imposed on two persons, sentenced in respect of closely connected offences, must always give rise to a successful appeal (just because one person may obtain a sentence which may be very lenient does not necessarily give a right to another person to obtain an equally lenient sentence), nonetheless, any unexplained or unjustified disparity is a matter which this Court must consider. (See The People (Attorney General) v. Poyning [1972] I.R. 402).

2.14 While there are factors which would undoubtedly have justified the sentencing judge in imposing a more severe sentence on Mr. Cunningham than that which pertained in the case of Mr. O’Driscoll, this Court was not satisfied that the disparity between the two sentences, on the facts of this case, could be justified. Furthermore, the Court was satisfied that the degree of disparity was such as would warrant intervention unless this Court felt that, by so intervening, it would be imposing a sentence on Mr. Cunningham which was unduly lenient. The Court was not, however, satisfied that a sentence of five years with two years suspended would have been unduly lenient in all of the circumstances, and the Court was persuaded, therefore, that it would be appropriate to allow the appeal on sentence on the theft offence and to substitute such a sentence.

2.15 Finally, the Court should express its view that the proper approach in a case such as this, where the sole or main ground of appeal is based on an alleged disparity of sentencing, is for the Court to first consider whether there is any such disparity or whether, alternatively, any differentiation between the respective sentences can be justified by reference to legitimate sentencing considerations. If it should appear to the Court that there is an unjustified disparity, then the Court should attempt to adjust the sentence imposed on the appellant in a way which either removes any disparity or reduces the difference in sentences to a level which can be justified on the basis of appropriate sentencing principles. However, there is a limit to the extent to which the Court can make such an adjustment.

2.16 It is true that there is a range of sentences which may be open to a sentencing judge to impose in the circumstances of a particular case. The well established jurisprudence of this Court, and of other appellate courts, makes clear that the Court will only interfere where there is a sufficient error in sentencing to render the sentence either so severe or so lenient that the Court must intervene to correct an error in principle. Between those two points, a sentencing judge must be accorded a significant margin of appreciation. However, an appellate court, in adjusting a sentence to attempt to remove what it has found to be an unjustified disparity, cannot alter the sentence imposed on the appellant to such an extent that the new sentence would itself meet the criteria for undue leniency. To take such a course of action would be to displace one potentially unjustified approach with another equally unjustified sentence. The Court has sought to apply those principles in this case.

2.17 It is next necessary to turn to the question of the conviction of Mr. Cunningham in respect of the road traffic offence.

3. The Road Traffic Conviction
3.1 The offence of which Mr. Cunningham was convicted was unauthorised use of a mechanically propelled vehicle, contrary to s.112 of the Road Traffic Act 1961, ("the 1961 Act") as amended by s.65 of the Road Traffic Act 1968, and by s.18 of the Road Traffic Act 2006. In his Notice of Appeal, Mr. Cunningham suggested that “there was no evidence to sustain any such charge”. As will become apparent, a somewhat different approach was taken on his behalf at the hearing.

3.2 In substance, the D.P.P. argues that the jury was entitled to consider that Mr. Cunningham was part of a common design which involved the unauthorised use of a vehicle. There was no evidence at the trial which suggested that Mr. Cunningham was ever physically on, or in, the vehicle in question. Indeed, the trial judge, in charging the jury, made that clear. However, it is argued on behalf of the D.P.P. that there was clear evidence, first, that the vehicle in question was being used as part of the criminal enterprise to which reference has been made, and further, that it had been taken and was being so used without the consent of its owner. In those circumstances, it is said that the jury was entitled to consider that Mr. Cunningham was part of a joint enterprise involving that use.

3.3 In the written submissions filed on behalf of Mr. Cunningham, the trial judge’s charge is criticised on the basis of a suggestion that the trial judge inappropriately focused on the fact that the vehicle in question was being used for the purposes of transporting material to which Mr. Cunningham was a party. In this Court’s view, there was nothing inappropriate about the trial judge’s charge in that regard. A vehicle can be used for many purposes. It may be used simply as means of transporting its driver from one place to another. However, it may also be used for the purposes of transporting other persons or goods. Doubtless, indeed, although not particularly relevant on the facts of this case, a vehicle may be used in ways which do not involve transport at all. But what is clear is that the transport of goods is one possible use of a vehicle. If a vehicle is being used without the consent of its owner for the purposes of transporting goods, then clearly an offence under s.112 of the 1961 Act can arise. The fact that a person may be part of a joint enterprise involving the transporting of the relevant goods permits, therefore, such a person to be potentially found guilty of the offence of unauthorised use by means of being connected, by virtue of the joint enterprise concerned, with the transport of the goods in question, and thus with the unauthorised use of the relevant vehicle.

3.4 On that basis, the Court is not satisfied that there was any error in the trial judge’s charge in that regard.

3.5 A second point is made which suggests that the trial judge, as it were, entered into the arena by informing the jury that “there is no doubt that Mr. O’Driscoll was unlawfully using the vehicle”. However, that one phrase needs to be seen in the context of the remainder of the charge which the trial judge gave on this question.

3.6 After the matter had been the subject of legal debate, following a break in the judge’s charge, the trial judge said the following:

“So, now in this instance, it's common case I think that Mr Cunningham did not take possession of the vehicle in the sense that he was not on board, he wasn't driving, but he's not charged with taking possession, he's charged with use, that is, unauthorised use and, as I said to you before lunch, I can use a vehicle even though I never step into it, I get it from somebody else to do something and I have no authority, no lawful authority, for having that vehicle. I am just as much a user as the person who steps into the vehicle and drives it. Section 112, subsection 5 says that, "Where a person is charged with an offence under this section, it shall be a good defence to the charge for him to show that when he did the act alleged to constitute the offence he believed and had reasonable grounds for believing that he had lawful authority for doing that act" and that's important in this instance because Mr Cunningham says that, a, he wasn't using it but his function was-- his belief was that what he was doing, i.e., leading this vehicle cross country so that it could go down to Dangan in County Offaly, that was his belief, and it says that it shall be a good defence for him to show that he did -- that when he did the act alleged to constitute the offence he believed and had reasonable grounds for believing that he had lawful authority for doing that act.”

3.7 It follows that it was made clear to the jury that Mr. Cunningham could only be convicted on the unauthorised use charge if the jury was satisfied that he did not have reasonable grounds for believing that there was lawful authority for the use of the vehicle concerned. The jury was, therefore, in this Court’s view, properly directed, and was entitled to come to the conclusion that it did not accept Mr. Cunningham’s account in that regard.

3.8 For those reasons, the Court is not satisfied either that there was no evidence on which the jury could properly convict, or that the jury was not properly directed. The appeal against conviction for the offence of unauthorised use of a mechanically propelled vehicle is, therefore, rejected.

3.9 It follows that it is necessary to turn to the disqualification imposed on Mr. Cunningham.

4. The Disqualification
4.1 Section 27(1)(a) of the 1961 Act provides as follows:-

"Where a person is convicted of an offence under this Act or otherwise in relation to a mechanically propelled vehicle or the driving of any such vehicle (other than an offence in relation to which section 26 of this Act applies) or of a crime or offence in the commission of which a mechanically propelled vehicle was used, the court may, without prejudice to the infliction of any other punishment authorised by law, make an order (in this Act referred to as an ancillary disqualification order) declaring the person convicted to be disqualified for holding a driving licence."

4.2 There is no doubt that s. 27 of the 1961 Act confers jurisdiction on a court to impose a disqualification in appropriate circumstances. However, placing reliance on The People (Attorney General) v. Poyning, Conroy v. Attorney General [1965] I.R. 411 and D.P.P. v. Sweeney [2014] IECA 5, it is argued for Mr. Cunningham that a disqualification for ten years in the circumstances of this case is inconsistent with appropriate principles for the imposition of such disqualifications.

4.3 The Supreme Court, in Conroy, held that such disqualifications are not primarily to be seen as punishments, and should not be so regarded by trial judges. Indeed, as the Court of Appeal pointed out in Sweeney, it was on that very basis that the constitutionality of s.49 of the1961 Act was upheld in Conroy.

4.4 It follows that a disqualification under s.27 of the 1961 Act cannot, likewise, be regarded as primarily a punishment, but rather requires a judicial determination of unfitness to drive which would warrant the disqualification in question.

4.5 There were, of course, other provisions of s.112 of the 1961 Act which could have been invoked by the trial judge to impose an appropriate punishment on Mr. Cunningham in respect of the offence under that section of which he had been convicted. However, it does not seem to this Court that, in circumstances where a court, in imposing a disqualification, is required to focus primarily on fitness to drive, where the offence on the facts did not itself involve driving at all and where there did not appear to have been a separate inquiry by the sentencing judge relating to any specific issue arising from the facts of the case which might touch on whether Mr. Cunningham was a fit person to hold a driving licence, the disqualification in question can stand. To that extent the Court will, therefore, allow Mr. Cunningham's appeal in respect of that disqualification.

5. Conclusions
5.1 In summary, therefore, the Court sets out the reasons why it came to the view that it was appropriate to allow Mr. Cunningham's appeal in respect of the sentence imposed on him in relation to the offence of theft and substitute, for the sentence of seven years imprisonment with two years suspended, a sentence of five years imprisonment with two years suspended.

5.2 For the reasons addressed in this judgment, the Court does not agree that there was no evidence on which Mr. Cunningham could properly have been convicted of the offence of unauthorised use of a mechanically propelled vehicle. Likewise, the Court is not satisfied that the charge to the jury by the trial judge in relation to that offence was deficient. On that basis, the Court dismisses Mr. Cunningham's appeal against his conviction under s.112 of the 1961 Act.

5.3 Finally, again for the reasons set out earlier in this judgment, the Court is not persuaded that, in the circumstances of this case, it was appropriate to impose a disqualification from driving. The Court will, therefore, allow Mr. Cunningham's appeal insofar as it is directed towards that disqualification order.

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