THE COURT OF APPEAL
Birmingham J.
Edwards J.
Hedigan J.331 /16
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court delivered on the 27th day of November 2017 by
Mr. Justice Hedigan
Introduction
1. This is an appeal against severity of sentence. On the 6th December, 2016, his first appearance before the Circuit Court, the appellant entered a guilty plea to the offence of escaping from lawful custody contrary to common law. He was sentenced on the 15th December, 2016, in Wicklow Circuit Criminal Court, to three years imprisonment. This sentence was backdated to the 19th July, 2016. He is currently detained in Wheatfield Prison.
The circumstances of the offence
2. The appellant had been in lawful custody in Shelton Abbey, since the 13th September, 2015, when he escaped. On the 4th March, 2016, following a check of rooms and extensive search of the lands and premises the appellant could not be found. This was shortly before he was due before the parole board in respect of a sentence he was then serving. In February, 1994 the appellant was convicted of murder in the United Kingdom and sentenced to life with a tariff of 12 years. The offence occurred during a burglary and there were two other co-accused. One was convicted of murder and the other of manslaughter. Being an Irish citizen he was transferred to this jurisdiction on the 12th March, 1998. The co-accused remained in the United Kingdom and had already been released at the time that this offence was committed.
3. The appellant was discovered in the United Kingdom living with his daughter, at an address known to the authorities. He was apprehended on foot of a European Arrest Warrant on the 19th July, 2016. He consented to his surrender back to this jurisdiction.
The appellant’s personal circumstances
4. The appellant was born in 1964. He left school at a young age. He had some experience of scrap dealing and doing other odd jobs. He had some problems with alcohol and drugs.
5. He has an ex-wife, two daughters in their twenties, a granddaughter and a sister in England. His sister was in hospital and this was given as the reason for his absconding. He had sought release to visit but was denied. He had previously been granted three periods of escorted temporary release and complied with the conditions of that release.
6. He had 25 previous convictions including the one for murder. 24 were committed in Ireland between 1981 and 1991. There were nine for burglary, four for theft, four road traffic offences, two bail offences, two trespass and two criminal damage and one escape from custody which was from Shelton Abbey in 1987. A sentence of one month was imposed for that escape.
7. He had been transferred from Wheatfield to Shelton Abbey which was a positive sign in terms of ultimate release. His parole hearing was set for September, 2016. This process of seeking release on licence will now start over from the beginning. Two references were given to the sentencing judge. He was working towards release on licence and having periodic reviews before the parole board.
Sentencing
8. The mitigating factors were his guilty plea, his consent to the European Arrest Warrant execution, his working in the Wheatfield laundry and the governor’s report that he was behaving well in Wheatfield. The aggravating factors were the serious nature of the offence, there was trust between the appellant and management in Shelton Abbey which was abused, the respect and authority situation of being in prison was abused, there was a degree of planning and his previous convictions but they were mostly historical. Regard was also had to the appellant’s personal circumstances.
9. The sentencing judge noted the maximum penalty was life imprisonment and that he was satisfied that this offence was in the middle range. The headline sentence was noted as being five to six years. Considering mitigation and the appellant’s personal circumstances a sentence of three years was imposed to run from the 19th July, 2016.
Appellant’s submissions
10. It is submitted that it was accepted that prior to this offence the appellant’s release on licence would have been in the “relative to near future”. This offence has set back his potential release date on the murder conviction.
11. It is submitted that the sentencing judge erred in law and fact in placing excessive weight on the aggravating factors and in determining the seriousness of the offence to be an aggravating factor. The judge assessed the aggravating factors after it was determined that the offence was in the middle range. In The People (DPP) v. Kelly [2016] IECA 204, in relation to the seriousness of the offence being an aggravating factor, Edwards J. held, at para. 38, that “[t]he mere existence of an ingredient of an offence cannot be regarded as an aggravating factor”. The Court then went on to find that trespass could not be an aggravating factor in the offence of burglary as it was “an express ingredient of the offence”. The Court referred to this as an error of principle. The appellant submits that the sentencing judge erred in considering the offence in and of itself to be an aggravating factor.
12. It is submitted that the sentencing judge erred in fact and law in determining the headline as five or six years before considering mitigation. It is accepted that the approach taken of fixing a headline and then reducing for mitigation was correct. The headline of five to six years was inappropriate for the offence.
13. There are helpful United Kingdom authorities on this to which the Court is referred. In R v. Clarke (1994) 15 Cr. App. R. (S.) 825 the appellant was serving a five year sentence for causing grievous bodily harm when he walked out of prison by pretending to be a visitor. He claimed to have wanted to discuss the custody arrangements for his young son and that he intended to return. He was given a 12 month consecutive sentence which was reduced to six months consecutive on appeal. The Court noted that he had been trusted with visits outside prison, there was no violence or property damage involved and the escape was not premeditated.
14. In R v. Bentley (1996) 1 Cr. App. R. (S.) 88 the appellant was sentenced to 15 months for a pre-planned escape. He maintained that he was being bullied by fellow prisoners and he transfer request had been refused. On appeal the sentence was reduced to nine months. The Court found that it had been too long in light of all the circumstances and his peripheral role.
15. In Attorney General’s Reference No. 4 of 1995 (1996) 1 Cr. App. R. (S.) 356 the Court of Appeal held that the appropriate sentence would have been 15 months consecutive where the offender escaped while in hospital for an operation, remained at large for six months and committed a number of offences during that time.
16. In R v. Coughtrey (1997) 2 Cr, App. R. (S.) 269 the Court held that breaking out of prison is a very serious offence for which a substantial sentence of imprisonment is always to be expected. The appellant and another person burned through a fence then scaled an outer wall. The appellant was serving a life sentence for murder. It was held that it should be a concurrent sentence and of a length as would have been appropriate had the original sentence been determinate. The factors to be taken into account included the nature and circumstances of the crime for which he was in prison, conduct while in prison, method of escape, was there violence used, extensive planning or outside assistance, if and how he surrendered himself and if there was a guilty plea. The Court found seven years to be excessive and substituted it for a sentence of four years.
17. It is submitted that the more recent authorities from that jurisdiction have distinguished between planned escaped and absconding from an open prison. In R v. Purchase [2007] EWCA Crim 1740 nine months consecutive was appropriate where the appellant was serving two years and had been moved to an open prison. He walked out before his release date following the refusal of a request for transfer to be closer to his family. He came to no adverse attention while at large. Calvert-Smith J. held that where a prisoner on his own decides to escape due to personal pressure the sentence should be measured in months. However, where it is a more professional escape with assistance from inside or outside the sentence will be measured in years. That case was determined to be in the former category. The appellant submits that Coughtrey fell into the latter category.
18. In R v. Davies [2004] EWCA Crim 521 the Court determined a consecutive sentence of ten months to be correct. The appellant was serving three and a half years for robbery. He had progressed to an open prison. He simply walked out.
19. In R v. Banks-Nash [2006] EWCA Crim 1211 the appellant walked out of an open prison 11 days before his earliest parole hearing. He was serving five years for conspiracy to supply controlled drugs. It was 188 days before he was returned. He was arrested for shoplifting offences. He received a 12 month consecutive sentence. The Court reduced his sentence to nine months. It was noted that the range on a guilty plea seemed to be six months or a year or substantially more with serious aggravating factors. This case did not involve violence, premeditation, planning or outside help, however, these were not needed as it was an open prison run on trust which was abused. He was originally sentenced on the basis of his fear that he was under threat from the drug gang he was previously associated with. It was held that this was mitigating as it meant the escape was not cynical or opportunistic. However, not too much weight should attach as escape was not the best option. This offence fell into the lower range but was not at the very bottom. He did not take steps to surrender and resumed drug taking.
20. In R v. Brockway [2007] EWCA Crim 2997 the appellant received a sentence of two years consecutive to his 12 year sentence for aggravated burglary imposed in 2000. He left the open prison in January, 2005. He was arrested in September, 2006. His parole and application for transfer closer to his family was rejected. His daughter was in and out of hospital. He was unwell. The sentence was reduced to 12 months. It was held that this met the gravity of the offence. Doubts were expressed about the value of the reasons for the escape as mitigation especially when it concerned the offender’s or a family member’s health.
21. In R v. Powter [2014] EWCA Crim 2360, which was similar to the instant case, 18 months was found to be excessive. The appellant had been sentenced to an indeterminate imprisonment for causing grievous bodily harm with intent. There was a minimum term of two years. He was twice released on licence and recalled for breach. Having been transferred to an open prison he escaped and surrendered after two weeks. He was not eligible for parole then for a considerable time. The Court held the headline should have been nine months with mitigation reducing the sentence to six months. He plead at the earliest opportunity. The Court particularly relied on Purchase.
22. The appellant submits that this is not a professional type escape as per the categories in Purchase. The English authorities make it clear that the appropriate sentence was considerably less than the headline arrived at by the sentencing judge. Those authorities also consider the aggravating factors present in the instant case, namely the breach of trust. In the present case, a plea was entered on the first occasion in the Circuit Court and an early sentencing date was sought.
23. The sentencing judge erred in fact and law in failing to take into account the circumstance in which the fact of conviction meant that the possibility of future release on licence was delayed. The judge also failed to have sufficient or any regard to the extensive efforts made by the appellant to rehabilitate and failed to have regard to the objective of rehabilitation in sentencing. The appellant works in the prison laundry and is behaving well. It was put forward that he would have to start again with the parole process. This is a significant factor, along with his efforts while in custody, which should have been considered when determining the appropriate sentence.
24. It is submitted that the sentence was excessive and oppressive in all the circumstances. The judge failed to have proper and adequate regard to the mitigating factors. The sentencing judge failed to apply the general principles and policies which govern proportionate sentences. In The People (DPP) v. Kelly [2005] 2 IR 321 Hardiman J. stated that “sentences must be proportionate not only to the crime but to the individual offender”. In The People (Attorney General) v. O’Driscoll (1972) 1 Frewen 351 it was held that sentencing is not just to deter from committing a particular crime but also to encourage offenders to turn away from crime. The sentence should be appropriate to the particular crime and criminal. In The People (DPP) v. M [1994] 3 I.R. 306 Denham J. remarked that in sentencing conflicting principles must be considered as part of the overall situation. The offender’s personal circumstances must be considered and this is the “essence of the discretionary nature of sentencing”.
25. In The People (DPP) v. McCormack [2000] 4 I.R. 356 at 359 it was held that cases depend on their special circumstances. The appropriate sentence is one for the crime committed by that criminal. In O’Malley, “Sentencing Law and Practice”, 2nd Ed., (Dublin, 2006) the author notes that credit must be given for mitigation irrespective of the gravity of the offence. In The People (DPP) v. Kelly [2016] IECA 204 this Court held that a sentence should be appropriate for the crime committed by that criminal. To be proportionate the offender’s personal circumstances must be taken into account and given proper weight. Care should be taken to avoid double counting.
Respondent’s submissions
26. It is submitted that in relation to the seriousness of the offence it is important to consider exactly what the sentencing judge said. In Kelly, the Court specifically references breach of trust as an aggravating factor. None of the English authorities referenced by the appellant were opened to the sentencing judge. Coughtrey was the only cited case involving a life sentence for murder and the appellant was ultimately sentenced to four years.
27. The judge addressed all the relevant points and was particularly concerned with the breach of trust. There is no identifiable error of principle and in all the circumstances the sentence is not excessive.
Decision
28. In this case the appellant was sentenced in Leeds Crown Court in February 1994 to life imprisonment for murder committed during a burglary. He was sentenced along with two co-accused. In accordance with sentencing policy in the United Kingdom, a tariff of twelve years was fixed by the sentencing judge. No such tariff policy exists in Ireland. In March 1998 he was transferred to Ireland to serve the balance of his sentence. During the course of 2015 he was transferred to the open prison of Shelton Abbey. On the 4th of March 2016 it was discovered that the appellant had escaped. He was located at his daughter's address and arrested on the 19th of July 2016. A European Arrest Warrant had been issued and he was returned to Ireland. On the 6th of December 2016 he pleaded guilty before His Honour Judge Michael O'Shea in the Circuit Criminal Court in Bray. The learned trial judge took the view that this was a serious offence compounded by the breach of trust involved in escaping from an open prison. He fixed a headline sentence in the region of five to six years. Having regard to the mitigating factors involved he imposed a sentence of three years in prison dating from the 19th of July when he was taken into custody in the United Kingdom.
29. There are no Irish authorities of assistance in ascertaining headline sentences in escape cases. The judge was guided only by the maximum sentence of life imprisonment and he worked down from that to what he regarded as the middle range. There are however decisions of persuasive authority to be found in the case law of the United Kingdom that would have been of great assistance had they been brought to the attention of the learned sentencing judge. They are now brought to the attention of this court. It is most unfortunate that the judge was not given the assistance in this regard to which he was entitled. A range of these have been referred to above. We find the two cases of R v Coughtrey (1997) 2 Cr. App. R.(S) 269 and R v Purchase [2007] EWCA Crim 1740 521 to be directly in point and thus of considerable assistance in determining length of sentencing in prison escape cases in Ireland.
30. In Caughtrey the Court of Appeal of England and Wales dealt with a case where the appellant had escaped from prison by burning through a perimeter fence using oxyacetylene equipment and scaled an outer wall. Delivering the judgment of the court, McCowan L.J. stated as follows page 270;
“What has to be said, in general terms, is that breaking prison is a very serious offence, for which a substantial sentence of imprisonment is always to be expected because of the fear and apprehension it generates, the disruption to prison life, the violence and disorder that it may lead to, and the need to deter both the culprit and others.
If the offender is serving a determinate sentence, a consecutive sentence should almost invariably be imposed. Obviously if he is serving a life sentence the sentence for breaking prison will have to be served concurrently. But the length of it should usually be the same as it would have been had he been serving a determinate sentence.
The factors to be taken into account, in determining the length of sentence, will include (i) the nature and the circumstances of the crime for which he was in prison; (ii) his conduct while in prison; (iii) the methods employed in effecting escape and in particular, whether any violence was involved and whether there was extensive planning and outside assistance; (iv) whether he surrendered himself and how soon and (v) a plea of guilty.”
The court reduced the sentence of seven years to one of four to be served concurrently.
31. In Purchase, the Court of Appeal of England and Wales dealt with a case, the facts of which, are very similar to the case herein. The appellant was nearing the end of his sentence and had been transferred to an open prison. It was discovered shortly after that he had escaped. He walked out he said because it was his sons fifth birthday. An application to serve his sentence closer to his home had been recently turned down. He was arrested having been absent from prison for fifteen days. Before Bournemouth Crown Court he was sentenced to nine months imprisonment consecutive to his then current sentence. Calvert-Smith J delivering the judgment of the court stated as follows;
32. We find these decisions to be of great assistance in determining the appropriate sentence herein. The appellant appears to have escaped with some degree of planning as found by the learned sentencing judge. There was no outside or even inside assistance. No violence or damage was caused. There were personal reasons for his escape. He did not surrender but could hardly be considered as hiding from the authorities because, although he left the jurisdiction, he travelled to and stayed at his daughter's address which was known to the authorities. He was at large for three and a half months. While at large, he did not engage in any criminal or reprehensible behaviour. This was an offence that should have attracted a sentence measured in months rather than years. The above factors should have been taken into account in determining how many months. We thus find an error in principle in the sentencing herein and will proceed to resentence. We consider that a sentence of ten months to run concurrently with the life sentence he continues to serve is the appropriate sentence. The appellant has served one year and four months in Wheatfield Prison since the operative date of the sentence in respect of his escape and thus the sentence imposed hereby may be considered as having been served.
