THE COURT OF APPEAL
Sheehan J.
Mahon J.
Edwards J.
CCA 187/14
Bill No. KE 53/2011
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court (ex tempore) delivered on the 9th day of February 2016 by Mr. Justice Sheehan
1. This is an appeal against the severity of a five year prison sentence imposed on the appellant, Christopher Dunne, at Naas Circuit Court on the 25th July, 2014, in respect of a burglary offence to which the appellant had pleaded guilty. The final year of the sentence was suspended on the usual terms.
2. The appellant seeks to appeal the sentence on the following grounds:-
1. That the learned trial judge erred in principle in failing to give sufficient weight to the mitigating factors.
2. That the learned trial judge erred in principle in failing to place sufficient weight upon the appellant’s personal and family circumstances.
3. The sentence imposed by the learned trial judge was excessive and disproportionate having regard to the all the circumstances of the case.
4. That the learned trial judge erred in principle in failing to allow the applicant any or any adequate credit for his plea of guilty.
5. The learned trial judge erred in principle in failing to have any or any adequate regard to the issue of rehabilitation and in particular to the status of the applicant in that context.
3. In order to consider these grounds of appeal it is necessary to consider the background to the offence, the personal circumstances of the offender and the sentencing judge’s remarks.
Background
4. The offence was committed on the 15th March, 2011, when gardaí were alerted to an ongoing burglary at a house in a cul de sac at Oldchapel Wood, Naas, Co. Kildare, at about 3.40 am in the morning when a resident saw a sliver car parked out side that house and also saw two men carrying torches get out of the car and make their way to the side passage of that house.
5. The gardaí arrived within a short period of time and Sergeant Bowe the prosecuting officer made his way around the side passage whereupon the two men came running out. One was armed with a baseball bat which he swung violently at Sergeant Bowe and shouted that “if he didn’t fuck off that he’d kill him”. The raider also threatened to behead Sergeant Bowe if he did not move out of the way. This person was the appellant recognised by and known to Sergeant Bowe by his nickname “Gitso”. Sergeant Bowe saw the applicant go towards the silver car where his colleague Garda Butler was located. He saw the appellant swing the baseball bat at Garda Butler and pull her back as he attempted to get into the car. The car then drove off at which stage Sergeant Bowe realised he was bleeding from his left hand. The wound to his hand was glued at hospital and he received a tetanus injection. He was extremely traumatised by the events as was his colleague.
6. There was evidence that the owners of the property were unaware of what was happening until towards the end of the offence, but they noted that the lock to their conservatory door had been broken. Access into the main part of the house had not been achieved.
7. The appellant was arrested on the 25th March, 2011 and the matter was subsequently returned for trial to Naas Circuit Criminal Court. Evidence was given at the hearing there that the appellant had 125 previous convictions, 97 of which predated the present offence. These included 8 Circuit Court convictions. These convictions included 2 for burglary, 2 for endangerment, 1 for possession of knives, 1 for criminal damage, 1 for a conviction under the Misuse of Drugs Act, 1 for assault causing harm, 1 for failure to appear contrary to s. 13 of the Criminal Justice Act 1984 and a conviction for the unauthorised taking of a vehicle. The remaining convictions were for offences contrary to the Road Traffic Act.
Personal circumstances of the appellant
8. The appellant was 27 years of age at the date of sentencing and the father of three young children aged 9, 7 and 3. He lived with his partner who was supportive of him. He was addicted to heroin at the time the offence was committed. He had been in prison for some time prior to sentence and it was noted that he had begun to take responsibility for his addiction to heroin and that at the time of sentencing he was drug free. It was also noted that he had attended various rehabilitative courses in the prison and that he intended to participate in future education programmes. At the time of sentence he was on an enhanced regime.
9. His family background including the death of his father in 2012, and his own early departure from school at the age of 15 were taken into consideration as was a favourable Governor’s report which was handed in to the court. There was also a letter from the appellant expressing remorse for what he had done.
10. In the course of his sentencing remarks the sentencing judge stated the following:
“These two men have pleaded guilty to the offence of burglary and I have listened to what has been said at length and repetitively by both their counsel so I am aware of their personal circumstances which must be taken into account in the sentencing. They have pleaded guilty and they are entitled to a discount for that. Had they been convicted by a jury for this offence I think a sentence of eight years would be merited, but they are entitled to a deduction because of the plea, but this is a very grievous offence of burglary in which during the course of this burglary, they armed themselves with implements either baseball bats or screwdrivers or other implements vice grips. And then they in the course of the burglary when they were coming out of the back of the house having seen the gardaí they set about them as strenuously as they could to effect their escape which of course they were successful in. So it was a very audacious brazen burglary without any regard for the householder or property. They stopped on a street under lights, went to the back of the house, came out, got their equipment so that they could break in and continued. Now this marauding type of offence causes extreme anxiety to citizens and they are entitled to be protected from this type of behaviour. I acknowledge that there was no property taken and the householder in this case was not confronted by either of the defendants. But it is a serious matter and it is as I say aggravated by the amount of violence and also then the efforts they made to escape and to effect their escape.
These men are recidivist criminals. There is very little to be said on their behalf. They have sad personal stories, but that does not excuse their commitment to crime. Mr. Dunne in particular is doing well in prison, he is behaving himself and he seeks to rehabilitate himself in the future. The other man who is even a bit younger and he is serving a long sentence so to a large extent what I do with him today is a bit academic, because I don’t see that I have the power to make any sentence I impose in any way consecutive on the sentence he is serving so it appears that this sentence will meld with the other sentences. I regard both of them in relation to this offence as being equally guilty, they were fully involved in all aspects of it and they pleaded guilty at probably the last moment convenient to themselves, when a jury had in fact been sworn and there was a delay . . . . However, it didn’t delay the trial. I think the appropriate sentence in respect of Mr. Dunne is one of five years imprisonment.”
11. The judge later went on following a request from counsel on behalf of Mr. Dunne to suspend the final twelve months of that five year sentence. During the oral hearing this morning counsel on behalf of the appellant submitted that it was unclear from the sentencing judge’s remarks as to where on the scale of penalties available the sentencing judge located this particular burglary.
12. Counsel referred us to this Court’s recent judgment in The People (Director of Public Prosecutions) v. Davin Flynn, [2015] 12 JIC 405, in which this Court suggested what was best practice with regard to sentencing and counsel submitted that the failure to follow this practice resulted in a lack of clarity as to what the sentencing judge had actually allowed for the plea of guilty and what he had actually allowed for the other mitigating factors in the case, especially rehabilitation.
13. Counsel submitted that this amounted to an error of principle. We are unable to agree with this submission and hold that the sentencing judge did identify the seriousness of the offending when he stated that he would have imposed an eight year sentence following a jury conviction. The maximum sentence for burglary is a sentence of fourteen years imprisonment, a fact that would have been well known to this experienced Circuit Court judge.
14. The offence in this case is aggravated by three facts:-
1. The appellant entered the home of the injured party at a time when he and his family were present.
2. The appellant was armed with a baseball bat at the time of entering the injured party’s home and his co-accused was also armed with a weapon,
3. On being confronted by unarmed gardaí as they left the home of the injured party, they violently attacked the gardaí and made good their escape. The gardaí were necessarily traumatised by the ferociousness of the attack on them.
15. The plea of guilty in this case came at a very late stage and while a plea is always of benefit, the appellant notwithstanding the lateness of the plea appears to have been given substantial credit for same.
16. It has been advanced on behalf of the appellant that at the time of the offence he was addicted to heroin. This is not an excuse for committing a crime. This Court does however note as did the sentencing judge that Mr. Dunne had begun to take personal responsibility for his addiction to heroin since going to prison and he is to be commended for that. If his efforts at rehabilitation had not received sufficient credit in the five year sentence imposed on him they were undoubtedly adequately reflected in the suspending of the final twelve months of the five year sentence.
17. While efforts have been made to mitigate the appellant’s record, it needs to be said that extensive Road Traffic Act convictions are serious matters which the court is entitled to take into account in the course of sentencing. This is to say nothing of the more serious previous convictions which have already been outlined in the course of this judgment. It is clear from the sentencing judge’s remarks that he took into consideration the appellant’s personal and family circumstances and in our view, he gave these matters sufficient weight in the sentence that he imposed. The other mitigating factors were also sufficiently reflected in the sentence and the sentencing judge by suspending the final year of the sentence sought to further incentivise the ongoing rehabilitation of the appellant.
18. We consider that the sentence arrived at by the judge followed a consideration by him of all relevant matters and we hold that he imposed a sentence that was proportionate and just. Accordingly this appeal against sentence is dismissed.
