Director of Public Prosecutions v Wall, Walsh, O'Connor, Tynan [2020] IECA 48 (02 March 2020)

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JUDGMENT of the Court delivered on the 2nd day of March 2020 by Mr. Justice

1. For the avoidance of confusion, this judgment will refer individually by name to Alan Wall,

Barry Walsh, Conor O’Connor & Michael Tynan, respectively, rather than using

designations such as first, second, third and fourth named respondents. However,

collectively the four individuals will be referred to as “the respondents”. The Director of

Public Prosecutions will be referred to throughout as “the applicant”.

2. On 30th of October, 2018 the respondents each entered guilty pleas before Waterford

Circuit Criminal Court to one count of robbery contrary to s. 14 of the Criminal Justice

(Theft and Fraud Offences) Act, 2001 and one count of possession of a firearm with intent

to commit an indictable offence, contrary to s. 27B of the Firearms Act, 1964 as

substituted by s. 60 of the Criminal Justice Act, 2006 as amended by s. 39 of the Criminal

Justice Act, 2007, respectively. They were then sentenced on the 8th of February 2019.

3. In the cases of Alan Wall and Michael Tynan, they each received a sentence of five years

imprisonment with the last eighteen months thereof suspended on conditions for three

years post release (the said conditions including being subject to Probation Service

supervision for two years post release) for the robbery offence; and a concurrent

4. In the cases of Barry Walsh and Conor O’Connor, they each received a sentence of six

years imprisonment with the last twelve months thereof suspended on conditions for

three years post release (the said conditions including being subject to Probation Service

supervision for two years post release) for the robbery offence; and a concurrent

5. All sentences were to date from the 3rd of May 2018, being the date on which all of the

6. The Director of Public Prosecutions now seeks a review of each of the sentences imposed

7. The sentencing court heard evidence from Detective Garda Michelle Burns who outlined

the circumstances of the armed robbery of Cleaboy Post Office, Waterford, by the four

respondents on the 3rd of May 2018. The four respondents travelled to the Post Office in

a red Renault Laguna motor car, registration 06 MO 10313, driven by Mr Tynan. Mr Wall,

Mr Walsh and Mr O’Connor then entered the Post Office premises together, leaving Mr

Tynan outside in the Renault Laguna as the getaway driver. One of the three raiders who

entered the Post Office had a sawn-off shotgun and the other two had hammers. The

raiders were wearing balaclavas and latex gloves to conceal their identities. At the time of

the incident there were two female cashiers working inside the counter of the Post Office

and there were also two female customers present in the public area of the premises, one

of whom had her two children with her, one aged 3 and the other a baby in a pram. The

raider wielding the sawn-off shotgun banged the gun off the Perspex glass partition at the

counter. The Post Office workers behind the counter were threatened that they would be

shot if they did not hand over cash. In the circumstances outlined the staff members were

forced to hand over €42,755.00, US$950.00 and Stg£1,200.00 as well as a quantity of

stamps and Post Office stock. The whole incident lasted a minute and ten seconds and

was captured on CCTV. The CCTV recording shows, inter alia, the clothing worn by the

raiders and the fact that one of them had a red and black Liverpool rucksack. The raiders

then returned to the red Renault Laguna parked outside and, as they did so, the Post

Office staff immediately raised the alarm. The fleeing raiders were observed by witnesses

and on CCTV leaving the Cleaboy area in the Renault Laguna travelling towards the

Waterford Outer Ring Road. Witnesses described the vehicle driving in an erratic manner

8. Subsequently, and within minutes of first receiving a report of the raid, gardaí received a

second report concerning a vehicle on fire in a quiet cul de sac in the Knockhouse area of

Waterford City. A further report was received from a motorist concerning three males he

had seen running across the Waterford Outer Ring Road, from the direction of the burning

vehicle, who then entered and ran across some fields and into a wooded area near the

WIT Arena, which is near the Waterford Greenway. The motorist had turned around

having seen the three men in question, and having done so then observed a fourth man

9. Local gardaí were quickly despatched to the scene. The burning vehicle was found to be

the red Renault Laguna used in the raid and gardaí succeeded in extinguishing the fire

before it was fully burnt out, and managed to preserve it for forensic examination. Certain

items were later found in that vehicle including a sawn-off shotgun and a hammer as well

as two shotgun cartridges. Some gardaí who were first on the scene then attempted to

pursue the suspects on foot, given the inaccessibility of the location and terrain. A large

number of other garda units also responded, and within a short time a large-scale search

10. While this was on-going a witness who was out walking the Greenway happened to

observe three males hiding in a wooded area, and he alerted gardaí. On searching the

location the witness had described, gardaí discovered three men cowering in a hole within

a fallen tree and on closer inspection a fourth man was found hiding on the far side of the

11. The immediate area where the men had been hiding was then searched and a Renault car

key was found, as well as a red McKenzie hoodie, a navy Adidas tracksuit bottoms, a grey

McKenzie tracksuit bottoms, and a red and black Liverpool rucksack. All of those items,

apart from the key, were to be seen on the Post Office’s CCTV recording of the raid as

having being worn or carried by participants in the raid. Subsequently the key was found

to match the partially burnt out Renault Laguna. The red and black Liverpool rucksack

was found to contain the full proceeds of the robbery being the cash and foreign currency

consisting of €42,755.00, US$950.00 and Stg£1,200.00 as well as the stamps and other

items taken from the Post Office, including a TV Licence Book. The four respondents were

12. The Garda investigation and CCTV review established a significant degree of organisation

and pre-planning of the armed robbery. Gardaí established that the robbers had access to

a second vehicle, a black Audi, 02 C 40254, and one of the respondents was observed

moving between the Audi and the red Laguna on the morning of the robbery and to have

done two trial runs from where the vehicle was found parked up to the Post Office prior to

the actual robbery. Mr Tynan and Mr Wall had also entered the Post Office the previous

day and, Mr Wall had done so again just moments before the robbery. All four

respondents were interviewed in garda custody and they were uncooperative in terms of

accounting for their activities. They each answered “no comment” to the questions asked

of them at interviews, including when statutory inference provisions were invoked in

respect of them. It was confirmed at the sentencing hearing that, notwithstanding that all

of the respondents had been acting in concert, the gardaí were not able to establish,

beyond reasonable doubt, which of the three respondents that had entered the Post Office

premises was the one carrying the shotgun in circumstances where all three had taken

13. Victim impact statements were received and read into the record from the two Post Office

staff who were present during the robbery, a Ms Caroline Walsh and a Ms Geraldine

Hayes. Neither of the two customers who were also present, including the lady with small

"There are very few occupations where you face a real threat of armed attack. You

would scarcely think that working in your local post office would pose such a threat.

However, on Thursday the 3rd of May 2018, this is exactly what happened to me.

I was initially reluctant to submit an impact statement as I try not to think about it

to a large extent. I have dealt relatively well with the aftermath of the robbery; I

have not allowed to significantly alter me or how I live my life.

However, it would be incorrect to say that this has not had a huge effect on both

myself and my family when you imagine the absolute terror I felt, or of that of my

husband and children when they were told that the post office where their wife and

mother worked had been held up at gunpoint. I don't think I was ever hugged as

Some nights I lie awake, sleep is as likely as winning the lotto, and it replays again

and again in my head. I can see them entering the post office and then the gun

pointing directly at me. I'm happy to say that this has become less frequent as time

has passed, but I still cannot banish the memory of absolute shock and fear for

both myself and my colleagues and customers. I still scan the door constantly and

am immediately suspicious of anyone entering the post office who might have any

part of their face covered with a scarf or hat pulled down. I am grateful that no one

was physically harmed, but my main wish is that this never happened.

I hope they will reflect on the effect this has had on me, my colleagues, our

customers and the wider community, how totally senseless this robbery was. I hope

they will come to realise the impact it has on someone when you decide to arm

yourself with a gun and attack a defenceless target, as we were that day.

I wish the people who carried out this robbery no personal ill will, I only hope that

none of their mothers, fathers, families or friends experience what we did that day.

The Post Office is not only a place for people to go to pay their bills or send Euro to

family abroad, it is part of the glue in our community and it should be a safe place.

No one should be afraid to go to work for fear of being shot. The same for any

other member of the public who uses the post office. I sincerely hope I will never

15. Ms Geraldine Hayes, in her victim impact statement said the following:

"While working on Thursday the 3rd of May 2018, I have to say the events of that

morning changed my life forever. I have never before experienced events that

happened that day before in my years of working. The fear and terrifying events

will stay with me forever. The worst part of it, despite being threatened with a gun,

was the sheer noise and aggressiveness of the people involved. I actually felt

fearful for my life. For weeks after the robbery, I used to lie awake and relive what

happened, what could have happened and what I would have done differently. In

hindsight, there was nothing I could have done. I am grateful that no one was

physically harmed but it still leaves you wondering what could have happened. It

also upset me badly to see the effect it had on my husband and children. I'm a

mother and a grandmother and would hate to think any one of my family had to

experience what I went through. There are still days while at work that when the

door opens, or someone different comes in, or they are in loud groups, that my

heart actually skips a beat and I feel anxious. This will probably stay with me

forever. I hope that justice is served, and the people involved realise the severity of

what they did and the effect it had on me and my colleagues and the customers in

16. The sentencing court heard that Mr Wall’s date of birth is the 2nd of June, 1980. He has

thirteen previous convictions which break down as follows: four for various offences under

the Criminal Justice (Public Order) Acts 1994-2011; three for unlawful possession of a

controlled drug under s. 3 of the Misuse of Drugs Act, 1977; one was for failure to

appear, contrary to s. 13 of the Criminal Justice Act, 1984; and one, dated the 18th of

June, 2015 and recorded at Waterford District Court, was for the unauthorised possession

of firearm ammunition, contrary to s. 2 of the Firearms Act, 1925 as amended.

17. The probation report on Alan Wall assesses him as being at moderate risk of reoffending

unless he addresses his criminal behaviour and unemployment. It records Mr Wall as

displaying some insight into the distress and trauma caused to the victims by his actions.

The report further indicates that Mr Wall has a reasonably significant past employment

history. He has variously worked as a Boner in a meat processing factory, and in the

storeroom of an adhesive company, as well as in construction. At the time of the offence

Mr Wall was in a long-term relationship, and had fathered two children aged sixteen years

and fourteen years respectively. His partner was pregnant at the time. There were some

tensions between him and his partner at the time of the offence, and he had no fixed

accommodation at that time. The probation report indicates that Mr Wall’s past offending

is related to his use of alcohol and cannabis. He claims to have become involved in the

robbery in order to gain money to pay off a drug debt. He denies any current dependency

issues but the probation officer believes he may be underestimating the extent of his drug

18. The court below received a number of positive testimonials in respect of Mr Wall from

previous employers. A Prison Governor’s report indicated that he is on enhanced privilege

level, that he is engaging with education services in the prison and that he is cooperative

19. The evidence was that Mr Walsh was born on the 6th of January 1989. He had been

educated to Junior Certificate level and was a qualified block layer until 2008 when the

recession hit. He had fifty-five previous convictions. Twenty-two of these were for

offences under the Criminal Justice (Public Order) Acts, 1994-2011; fourteen were for

road traffic offences; three were for failing to appear, contrary to s. 13 of the Criminal

Justice Act, 1984; three were for theft offenses contrary s. 4 of the Criminal Justice (Theft

and Fraud Offences) Act, 2001, two were for burglary contrary to s. 12 of the Criminal

Justice (Theft and Fraud Offences) Act, 2001, one was for handling stolen property,

contrary to s. 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001; one was

for possession in a public place of an article with a blade or which is sharply pointed,

contrary to s. 9(1) of the Firearms and Offensive Weapons Act, 1990; two for obstruction

of a member of the Garda Síochána or a person duly authorised under the Misuse of

Drugs Act, 1977 in the lawful exercise of a power conferred by that Act, contrary to s.

21(4) of the Misuse of Drugs Act, 1977; one for unlawful possession of a controlled drug

for the purposes of sale or supply, contrary to s. 15 of the Misuse of Drugs Act, 1977; one

for violent behaviour in a Garda Station contrary to s. 15 of the Dublin Police Act, 1842;

and one for robbery, contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences)

20. The robbery conviction is a relevant offence in the present context, and the details are

that it was recorded at Cork City Circuit Court on the 8th of November, 2013. Mr Walsh

received a sentence of three years imprisonment for that offence with the final year

suspended. The conviction for possession in a public place of an article with a blade or

which is sharply pointed, related to a bill hook. It was recorded at Cork Circuit Criminal

Court on the 24th of February 2010, and Mr Walsh received a sentence of 150 hours of

community service for this offence. The burglary offence was recorded on the 27th of

May, 2008 at Cork City District Court and the Probation Act was applied. The s. 15 drugs

offence was recorded on the 11th of June, 2012, again at Cork City District Court, and the

sentence imposed was one of four months imprisonment plus 140 hours of community

21. It was accepted by Detective Garda Burns that Mr Walsh had a drug problem and,

although originally from Cork, was living in Dublin at the time that he committed the

present offence. The sentencing court had before it a letter from Merchant’s Quay Ireland

confirming that Barry Walsh had successfully undergone a fourteen week residential

treatment program in late 2014 and early 2015. The court also had a number of

testimonials concerning Mr Walsh’s abilities as a son, partner and father. Mr Walsh

himself also wrote letters of apology to the injured parties and to the court, and these

22. Conor O’Connor was born on the 2nd of June, 1980. He informed the Probation Service

that he has three children, including a nineteen-year-old son residing Cork city and

eleven-year-old daughter residing in County Cork and a two-year-old son residing in

Dublin. The evidence before the court below was that he has one hundred and fifty five

previous convictions. The breakdown of these includes one hundred and twenty three for

Road Traffic offences; eight for public order offences contrary to the Criminal Justice

(Public Order) Acts 1994 to 2011, eight for theft contrary to s. 4 of the Criminal Justice

(Theft and Fraud Offences) Act, 2001; five for burglary, contrary to s. 12 of the Criminal

Justice (Theft and Fraud Offences) Act, 2001; two for handling stolen property contrary to

s. 17 of the Criminal Justice (Theft and Fraud Offences) Act, 2001; two for robbery

contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001; one for

unlawful possession of a controlled drug, contrary to s. 3 of the Misuse of Drugs Act,

1977; one for making a threat to kill, contrary to. 5 of the Non-fatal Offences against the

Person Act, 1997, one for obstruction of a peace officer, contrary to s. 19(3) of the

Criminal Justice (Public Order) Act, 1994, and the remainder comprising sundry minor

23. In terms of Mr O’Connor’s previous convictions for robbery offences he was recently

convicted of this at Cork City Circuit Court on the 24th of November, 2014 and received a

four-year prison sentence with the final year suspended to take effect from the 16th of

July, 2014. The present offence was committed during the period of the suspension of

that final year. In respect of the other robbery conviction this was recorded on the 12th of

February 2009 at Cork City Circuit Court and Mr O’Connor received a sentence of three

24. The investigating Garda accepted that Mr O’Connor, as indeed was the case with all of the

other respondents, had pleaded on the first occasion on which the matter was before the

court. He accepted that Mr O’Connor had a drug habit and a history of drug use. This was

further confirmed in the Probation Report on Mr O’Connor. He had previously attended

Coolmine Drug Free Residential Treatment Center in 2003 for cocaine abuse but

regrettably relapsed in 2006 when his mother was diagnosed with a terminal illness. Mr

O’Connor and started a car balancing business in 2003 in the Cork area but lost this

business in 2007 due to his substance misuse. Mr O’Connor told the probation officer that

he was smoking heroin and taking benzodiazepines on a regular basis prior to committing

25. Mr O’Connor indicated through his counsel that he wished to convey an apology to the

staff and customers of the post office who were present during the robbery, and a letter

26. A probation report on Mr O’Conner placed him at high risk of re-offending in the next 12

months if in the community. The main areas of risk in that regard were substance misuse,

negative associates, and lack of education, training or employment. The probation report

also records that Mr O’Connor has certain mental health issues consequent upon

27. The court heard that Michael Tynan was born on the 24th of February, 1984, and that he

is the father of four children. He is estranged from his former partner. He had ADHD as a

child and left school after doing his junior certificate. He then undertook an apprenticeship

as a cabinetmaker. He worked with his father for some years before starting his own

business as a car valeter. His business failed ultimately due to his substance abuse. He

has attempted to address his addictions on a number of occasions but on each such

occasion he has relapsed. He is involved with psychiatric services in Waterford as he has

suffered from drug-induced mental health difficulties. He has seventy two previous

convictions, broken down as follows: he has three convictions for unlawful possession of

controlled drugs for the purpose of sale or supply, contrary to s. 15 of the Misuse of

Drugs Act, 1977; fourteen convictions for unlawful possession of controlled drugs,

contrary to s. 3 of the Misuse of Drugs Act, 1977; two convictions for offences under the

Firearms and Offensive Weapons Act, 1990, being offences contrary to s. 9(4) (i.e.,

having in a public place a flick-knife or other article made or adapted for use for causing

injury to or incapacitating a person) and s. 9(5) (i.e., having in any public place any

article intended by him unlawfully to cause injury to, incapacitate or intimidate any

person either in a particular eventuality or otherwise), respectively; one conviction for

criminal damage contrary to s. 2 of the Criminal Damage Act, 1991; one for theft contrary

to s. 4 of the Criminal Justice (Theft and Fraud Offenders) Act, 2001; one for possession

of certain articles contrary to s. 15 of the Criminal Justice (Theft and Fraud Offences) Act,

2001 and fifty convictions for offences contrary to the Road Traffic Acts.

28. The sentencing court heard that all three s. 15 drugs convictions were recorded at

Waterford Circuit Court on the 14th of July, 2014. They related to three separate offences

arising in 2011. Mr Tynan received eight months in respect of each matter and the

sentences were made consecutive. However, the sentences were also suspended on

29. The court heard that the conviction recorded under s. 9(4) of the Firearms and Offensive

Weapons Act, 1990 was recorded at Waterford District Court on 29/7/2005 when a fine of

€900 was imposed. The conviction recorded under s. 9(5) of the same Act was taken into

consideration with an offence of possession of certain articles recorded at Waterford

District Court on 07/1/2014, for which Mr Tynan received a suspended sentence of eight

30. A Probation Service report on Mr Tynan concluded that he was also at high risk of

reoffending, with pertinent risk factors being substance abuse, criminal associates,

antisocial attitudes and attitudes towards authority. The report records Mr Tynan’s

rationale for partaking in this robbery as being coercion from individuals to whom he

owed a large drug debt. Mr Tynan is said to have expressed remorse and discussed at

what happened to the victims of the robbery and to have acknowledged the aggressive

31. A number of testimonials were placed before the court below testifying to Mr Tynan’s

abilities as a son and nephew. The court is also provided with a certificate in respect of his

completion of a “Moving beyond Addiction” programme, and the course in personal

decision-making. A positive Governor’s report was also provided confirming that he is

currently on an enhanced regime in the prison and that he poses no problems for staff

32. In sentencing the respondents, the sentencing judge stated:

“This is the sentencing of the offenders in the robbery of the post office at Cleaboy

in Waterford City on the 3rd of May 2018. This robbery was truly a terrific terrifying

traumatic event, it may only have lasted 70 seconds within the actual post office

but it is clear from the victim impact statements it has had a devastating effect, not

only the ladies, both staff and customers within the post office at the time of the

robbery, but also on the whole community around and about Cleaboy who, as one

of the victims stated in remember victim impact statement; "It is part of the glue of

There are a number of aggravating factors in this robbery. The degree of planning

and preparation which included the use of a second car which was used for

reconnoitring the routes and areas around the post office in the immediate days

beforehand. The inspection of the premises whereby two of the gang had entered

the post office prior to the raid, once on the previous day and once earlier on the

morning of the robbery. The organisation of the four participants where each

appeared to have a defined role; one the gun man, two with hammers and the

fourth as the driver waiting in the getaway car outside. They operated on this

occasion as an organised gang. Three; the attempts to avoid detection which

included the wearing of the most frightening of disguises, the balaclava which not

only prevents identification but can in still terror in circumstances such as this. The

wearing of latex gloves to avoid fingerprints. The attempted destruction by fire of

the motor car and the sawn off shotgun to avoid forensic harvesting of clues. Four;

the location of the premises in the centre of a community, a post office where it

must have been anticipated that there may be mean (sic) members of the public

potentially old age pensioners and young mothers collecting payments. Five; the

traumatic effects, not only on the staff but on the customers. The victim impact

statement of Caroline Walsh refers to the absolute terror of the event. Six; the

violence used. Ms Hayes refers to the sheer noise and aggressiveness of the raiders

when told, they were extremely aggressive, banging their hammers on the internal

partition and doors and waving the firearm, a sawn off shotgun, that most lethal of

weapons in a confined space. The threat to use the gun, shouting at the staff to

hand over the money or they would be shot, together with the fact that there was

ammunition found for the gun. Six; the total amount of the money stolen, albeit

recovered, but nonetheless over €46,000, or equivalent currency was stolen. I will

deal with the aggravation of prior relevant convictions on an individual basis.

I place this offence at the upper scale of gravity for a robbery, and the possession

of the firearm in the medium scale. I have not treated the actual possession of the

gun per se as an aggravating factor, just its use, being waved about and banged on

the Perspex glass, under the heading of the violence of the occasion.

For Michael Tynan and Alan Wall, I place the appropriate sentence at seven years'

imprisonment. For Barry Walsh and Conor O'Connor, each of whom have previous

convictions, convictions for robbery, I place the appropriate sentence at eight

I've been addressed on the mitigating factors by counsel and I will now go through

these individually. In relation to Michael Tynan, he has 72 previous convictions, but

they are none of which are of the magnitude of this. There are however three

section 15 Misuse of Drugs Act convictions and 14 convictions for personal use of

drugs. So, this is clearly an indication, this has been pointed out by Mr Sheahan of

a significant drug problem. There is rationale for the participation set out in the

probation report. Mr Sheahan tells me that his client has now obtained insight and

empathy for the victims and that he has feelings for shame, remorse and disgust. I

note however there is a significant risk of reoffending, particularly in view of

extensive history of drug use. He's a 34-year old father with four children with

certain learning difficulties and certain difficulties with his mental health, but

particularly his profound embedded drug use, and the most significant factor is his

In relation to Alan Wall, Mr Cody points to his guilty plea and says that in light of

his previous relatively minor previous convictions, he has 13 in all, none of anything

of this significance. Although, the unauthorised possession of one round of

ammunition, he submits that this is considerably out of character. He has pleaded

guilty which is significant mitigating factor on the earlier occasion. He has

submitted two work references, one for a period working with a pig slaughtering

company in 1997 to 1998, and the other from a building staff solution company

who organise placement on building sites. And I note that Mr Wall may have

travelled to work on a number of project (sic) in Scotland. I'm told he has a

significant work history. That he has had some difficulties with alcohol but he has

no current dependency issues and he described Mr Cody describes Mr Wall's

involvement as a gross error of judgment. Again, I've had the benefit of Ms Burke's

In relation to Mr Barry Walsh, Ms Leader has outlined the mitigating factors and

how he had a good work history until the recession in 2008 when he lost his work

as a block layer and began taking drugs and accumulated significant debt, which

debts caught up with him. She says that he is truly sorry for what he has done and

he has gone and written quite a number of apology letters to each of the individual

persons affected by this and I have considered them and have no difficulty in they

being passed on to the respective persons. I've also read his letter of apology to me

and the other letters that have been submitted on his behalf. I have indicated that I

regard the 55 previous convictions of Mr Walsh has placed him in the significantly

different category, thus I've reflected that in the headline sentence. There is a

previous conviction for robbery which was dealt with at Cork Circuit Court on the

And finally, in relation to Mr Conor O'Connor, who has 155 previous convictions;

eight for theft and five for burglary, two for handling stolen property, one for threat

to kill and two for robbery of establishments. Mr Whelan has set out the mitigating

factors, he points out his apology to his victims. He says that he has insight,

remorse and the most significant is his guilty plea. He points to the traumas of his

life and the pattern of addiction and that he has since most recently gone into

prison on remand successfully completed the Methadone program. The probation

report of Ms O'Neill sets out his personal circumstances and I've taken those into

account and indicates that he is at high risk of reoffending within the next 12

months if in the community. And that he has a positive attitude towards engaging

with all available services while he is in custody. And I have considered the letter

that he has written to me and I have no doubt I have read all of these letters, I

have no doubt as to the sincerity of all of the sentiments expressed by each of the

Taking into account the mitigating factors that have been outlined in each case, I

will reduce the sentence for Michael Tynan and Alan Wall by two years to five years'

imprisonment, and for Barry Walsh and Conor O'Connor, by two years, to six years'

I have then been urged by each of the counsel to consider the benefits towards

rehabilitation of suspending a portion of the sentences, and for Mr Tynan and Mr

Wall, I'm prepared to suspend the last 18 months of the sentence in each case, for

a period of three years, as an encouragement towards rehabilitation. And for Mr

Walsh and Mr O'Connor, I'm prepared to suspend in their cases the final 12 months

of each sentence for a period of three years. In each case, it is a condition of

suspension that each be subject to post release supervision for a period of two

For the firearms offences, I am setting a headline of five years for Mr Tynan and Mr

Wall, which for the reasons outlined for the mitigation that I have identified, I will

reduce in each case to three years. For Mr Walsh and Mr O'Connor, I find the

appropriate headline sentence to be six years, which I will reduce for mitigation to

four years. To give a greater sentence would be unjust in all of the circumstances

and so I am not imposing the presumptive minimum sentence of five years.

In each case, the sentence is to run concurrent so as to not offend against the

33. In her Notice of Application in each case the applicant complains that the sentencing

judge failed to identify appropriate headline sentences. It is acknowledged that the

sentencing judge correctly identified a number of very significant aggravating factors and

that he stated that he was placing the offence “at the upper scale of gravity for a robbery”

and “in the medium scale” for the offensive possession of a firearm. However, the

applicant maintains that the headline sentences actually determined upon, namely seven

years imprisonment in the case of Alan Wall and eight years imprisonment in the case of

Barry Walsh and Conor O’Connor, were simply too light having regard to the gravity of

34. The applicant points to a significant number of aggravating factors that existed in all

(a) The extremely serious and violent nature of the offence committed;

(b) The violence used and threatened against those present in the Post Office;

(f) The traumatic effect this robbery had on the victims of the crime;

(g) The attempted destruction of the sawn off shot gun and the vehicle;

(h) The impact on the wider community, given the fact that the robbery was at a Post

(i) The fact that a firearm was used in the course of the robbery.

Moreover, in the case of Barry Walsh, and Conor O’Connor there were relevant previous

convictions for robbery for which prison sentences had been imposed; and in the case of

Alan Wall there was a relevant previous conviction for a firearms offence, albeit that it

was dealt with summarily and non-custodially. In addition, in the case of Mr O’Connor this

offence was committed during the suspended final year of a four year sentence imposed

35. This court was referred to an extensive quotation from Sentencing Law and Practice (3rd

Ed) by Thomas O’Malley commencing at paragraph 15-36 and running to 15-38 inclusive.

In these passages Mr O’Malley addresses the types of factors that may influence the

assessment of gravity in robbery cases. We have no hesitation in accepting the

correctness and reliability of this material from such a renowned sentencing scholar. The

court was also referred to its own decision in The People (Director of Public Prosecutions)

v O’Sullivan and O’Rourke [2019] IECA 289, a severity appeal in a robbery,

endangerment and possession of drugs case in which aggregate sentences of 12 years

imprisonment with two suspended were upheld, and where the sentence structure had

included a term of nine years for the robbery component, which had involved a Post Office

and which, although by no means are identical, bore many similarities to the present

36. We were also referred in the applicant’s written submissions to the case of The People

(Director of Public Prosecutions) v Noonan, Murphy and Saunders [2019] IECA 112, in

which this court refused to interfere with sentences of ten years with the final two years

suspended for a conspiracy to commit a robbery offence involving a cash in transit van. In

that case the court had remarked that “the sentences imposed were at the outer limits in

terms of leniency. Had more severe sentences been imposed, in the range of nine to ten

years, the court would very likely have upheld such sentences.” The President’s reference

to more severe sentences in the range of nine to ten years was a reference to post

37. At the oral hearing the court’s attention was drawn by counsel for the applicant to its

earlier decision in The People (Director of Public Prosecutions) v Leon Byrne [2018] IECA 120,

a decision handed down on the same day as this court’s guideline decision in The

People (Director of Public Prosecutions) v Casey and Casey relating to cases of burglary

and aggravated burglary. In that case we had noted that the spectrum of penalties in the

case of robbery ranges from noncustodial options up to imprisonment for life. We stated

“On the basis that a life sentence is likely to be reserved for only the very worst

and most egregious offences of this type, the practical reality is that the effective

range of custodial penalties caps out at fifteen years, or thereabouts, for all but the

most exceptional cases. An effective fifteen year range allows for a low range of

zero to five years, a midrange of six to ten years and a higher range of eleven to

38. Moreover, we held that essentially the same approach as now applies to the assessment

of gravity in burglary and aggravated burglary cases should also apply to robbery cases.

In that regard we had said that in Casey and Casey, at paragraph 48 of the judgment:

“If a number of the factors to which reference is made [i.e., aggravating factors]

are present, this will place the offence in the middle range at least, and usually

above the mid-point in that range. The presence of a considerable number of these

factors, or, if individual factors are present in a particularly grave form, will raise

39. In regard to the headline sentences selected for the firearms offence the applicant

complains that these were too low given the aggravating factors that applied in the case

of the firearms offence and the presumptive sentencing regime that applies thereto.

40. Quite apart from complaints about the adequacy of the sentencing judge’s headline

sentences, and his assessments of gravity, it was further contended on behalf of the

applicant that the sentencing judge had had undue regard for mitigating factors in each

41. It was submitted in each case on behalf of the respondents that the sentencing judge had

approached his task carefully and conscientiously and that great weight should be

afforded to the reasons stated by the sentencing judge for his decision. It was suggested

that even if this court was to regard the sentences, both in terms of the headline or

starting point, and the ultimate post mitigation sentences, as being lenient it could not be

42. The law with respect to the conduct of undue leniency appeals is well-settled at this

stage. The jurisdiction to review a sentence on the grounds that it was unduly lenient

derives from s. 2 of the Criminal Justice Act of 1993, as amended, which (to the extent

“2.— (1) If it appears to the Director of Public Prosecutions that a sentence imposed by a

court (in this Act referred to as the “sentencing court”) on conviction of a person on

indictment was unduly lenient, he may apply to the Court of Appeal to review the

(2) An application under this section shall be made, on notice given to the convicted

person, within 28 days, or such longer period not exceeding 56 days as the Court

may, on application to it in that behalf, determine, from the day on which the

(a) quash the sentence and in place of it impose on the convicted person such

sentence as it considers appropriate, being a sentence which could have been

43. In terms of the general principles governing such reviews, the leading authority is The

People (Director of Public Prosecutions) v. Byrne [1995] 1 I.L.R.M. 279. This was a

judgment of the former Court of Criminal Appeal in the first case referred to it under s. 2

of the Act of 1993, and in it, O’Flaherty J. giving judgment for the court, sets out a

number of principles and considerations relevant to the conduct of such reviews. He said:

“In the first place, since the Director of Public Prosecutions brings the appeal the

onus of proof clearly rests on him to show that the sentence called in question was

Secondly, the court should always afford great weight to the trial judge's reasons

for imposing the sentence that is called in question. He is the one who receives the

evidence at first hand; even where the victims chose not to come to court as in this

case — both women were very adamant that they did not want to come to court —

he may detect nuances in the evidence that may not be as readily discernible to an

appellate court. In particular, if the trial judge has kept a balance between the

particular circumstances of the commission of the offence and the relevant personal

circumstances of the person sentenced: what Flood J has termed the ‘constitutional

(see People (DPP) v. W.C. [1994] 1 ILRM 321), his decision should not be

Thirdly, it is in the view of the court unlikely to be of help to ask if there had been

imposed a more severe sentence, would it be upheld on appeal by an appellant as

being right in principle. And that is because, as submitted by Mr Grogan SC, the

test to be applied under the section is not the converse of the enquiry the court

makes where there is an appeal by an appellant. The inquiry the court makes in

this form of appeal is to determine whether the sentence was ‘unduly lenient’.

Finally, it is clear from the wording of the section that, since the finding must be

one of undue leniency, nothing but a substantial departure from what would be

regarded as the appropriate sentence would justify the intervention of this Court.”

44. Since then, the relevant statutory provision has also been considered by the Supreme

Court in The People (Director of Public Prosecutions) v. McCormack [2000] 4 I.R.356. In

“In the view of the court, undue leniency connotes a clear divergence by the court

of trial from the norm and would, save perhaps in exceptional circumstances, have

Each case must depend upon its special circumstances. The appropriate sentence

depends not only upon its own facts but also upon the personal circumstances of

the accused. The sentence to be imposed is not the appropriate sentence for the

crime, but the appropriate sentence for the crime because it has been committed

by that accused. The range of potential penalties is dependent upon those two

factors. It is only when the penalty is below the range as determined on this basis

45. More recently in The People (Director of Public Prosecutions) v Stronge, [2011] IECCA 79,

McKechnie J. distilled the case law on s. 2 applications into the following propositions:

(ii) to establish undue leniency it must be proved that the sentence imposed

constituted a substantial or gross departure from what would be the appropriate

sentence in the circumstances. There must be a clear divergence and discernible

(iii) in the absence of guidelines or specified tariffs for individual offences, such

departure will not be established unless the sentence imposed falls outside the

ambit or scope of sentence which is within the judge's discretion to impose:

sentencing is not capable of mathematical structuring and the trial judge must have

(iv) this task is not enhanced by the application of principles appropriate to an appeal

against severity of sentence. The test under s. 2 is not the converse to the test on

(v) the fact that the appellate court disagrees with the sentence imposed is not

sufficient to justify intervention. Nor is the fact that if such court was the trial court

a more severe sentence would have been imposed. The function of each court is

quite different: on a s. 2 application it is truly one of review and not otherwise;

(vi) it is necessary for the divergence between that imposed and that which ought to

have been imposed to amount to an error of principle, before intervention is

(vii) due and proper regard must be accorded to the trial judge's reasons for the

imposition of sentence, as it is that judge who receives, evaluates and considers at

46. It is appropriate to record that while the applicant does not agree with the headline

sentences or starting points in the case of any of the respondents, she does not quarrel

with the entitlement of the sentencing judge to have differentiated somewhat between

the respondents in circumstances where some of them had worse records than others,

and the offending conduct of some of them was more aggravated than in the case of

others. No issue is taken with either the fact or extent of the differentiation actually

made. However, her case with respect to the assessment of gravity is simply that the

sentencing judge started at too low a point on the spectrum of available sentences in all

47. We agree with the submissions made on behalf of the applicant in that regard. All of the

respondents were parties to a common design and shared in the intrinsic moral culpability

of the basic offending conduct. In addition there were multiple aggravating circumstances

in all cases. However, in some cases there were more aggravating circumstances than in

the case of some of the other participants, justifying a differentiation between participants

at the level determined upon by the sentencing judge. Be that as it may, in our judgment

the starting points or headline sentences were too low in every case. Applying the Leon

Byrne jurisprudence we think these cases straddled the boundary between the high end

of the mid range and the low end of the high range. We consider that the offending

conduct of each of the respondents would, in the case of the robbery offence, have

merited a headline sentence of between nine years imprisonment in the case of those

least culpable and ten and a half years imprisonment in the case of the most culpable.

Accordingly, the headline sentences nominated by the sentencing judge of seven years

and eight years respectively were outside of the norm and represented an error.

48. We also consider that the discounts afforded for mitigation were excessive. While the

personal circumstances of the respondents were not precisely identical, we consider that

the appropriate discount to take account of their respective individual mitigating

circumstances should have been in the 20% to 25% bracket, particularly in circumstances

where they had been effectively caught red handed, and notwithstanding the

respondents’ guilty pleas. Accordingly, we are of the view that the sentencing judge was

in error in the degree to which he discounted for mitigation in the circumstances of the

49. In each case the resultant post mitigation sentence imposed for the robbery offence was

50. It is necessary to turn at this point to the sentencing for the firearms offence. We think

that the sentencing judge got it right in terms of the headline sentences of five years and

six years respectively that he nominated. He then generously discounted from these

figures for mitigation and arrived at post mitigation figures of three years and four years

respectively. It is not necessary for us to express a view on the level of discount afforded

for mitigation save to say that it is difficult to justify in the light of the views we have

expressed concerning the level of mitigation to which the respondents were entitled on

the robbery offence. Be that as it may, the real problem with the sentences imposed for

the firearms offence is that this was an offence which carries with it a presumptive

mandatory minimum sentence of five years imprisonment. It is presumptive because the

legislature has preserved the possibility for a sentencing judge to impose a sentence of

less than the presumptive mandatory minimum where the sentencing judge considers it

to be unjust to impose the presumptive mandatory minimum in the circumstances of the

case. In this case the sentencing judge arrived at that view. The question is was he right

to do so? It seems to us that the circumstances of the case were insufficiently

extenuating to have enabled the sentencing judge to come to the conclusion that it would

be unjust to impose the presumptive mandatory minimum sentence in the case of each of

these respondents. They had certainly pleaded guilty at the first available opportunity, but

there was nothing else exceptional about the case or their circumstances. It seems to us

that the mere fact that they had done so would not per se have rendered it unjust to have

imposed the presumptive minimum. The circumstances of this case were very serious.

The weapon involved was a sawn-off shotgun. While it was not discharged it was used to

frighten and intimidate in the course of an armed robbery. To have possessed such a

weapon with a view to using it in those circumstances was highly culpable and requires to

be marked by significant punishment. Moreover, it is public policy, reflected by the

Oireachtas having made provision in law for a presumptive mandatory minimum

sentence, that such offences should attract a custodial sentence of not less than five

years, save where it would be unjust to impose such a sentence. We think there would

have been nothing unjust about imposing the presumptive mandatory minimum sentence

in each of these cases. In our view the sentences actually imposed for the firearms

offence, being sentences in all cases below the presumptive five year minimum, namely

sentences of four years and three years, respectively,were outside of the norm and were

51. It is necessary in the circumstances to quash the sentences imposed by the court below

52. In the case of Mr Wall we will nominate a headline sentence of nine years imprisonment

for the robbery offence. We will afford him a discount of two years to reflect the

mitigating circumstances in his case, leaving a net sentence of seven years imprisonment

on the robbery offence. In addition, we will impose the presumptive mandatory minimum

sentence of five years for the firearms offence to run concurrently with the sentence for

53. In the case of Mr Walsh we will nominate a headline sentence of ten years imprisonment

for the robbery offence. We will afford him a discount of two and a half years to reflect

the mitigating circumstances in his case, leaving a net sentence of seven and a half years

imprisonment on the robbery offence. In addition, we will impose the presumptive

mandatory minimum sentence of five years for the firearms offence to run concurrently

54. In the case of Mr O’Connor we will nominate a headline sentence of ten and a half years

imprisonment to take account of his particularly bad previous record which includes two

relevant offences, and the fact that this offence was committed during the currency of the

suspended portion of an earlier sentence. We will afford him a discount of two and a half

years to reflect the mitigating circumstances in his case, leaving a net sentence of eight

years imprisonment on the robbery offence. In addition, we will impose the presumptive

mandatory minimum sentence of five years for the firearms offence to run concurrently

55. Finally, in the case of Mr Tynan we will nominate a headline sentence of nine years

imprisonment for the robbery offence and we will afford him a discount of one year and

nine months to reflect the mitigating circumstances in his case, leaving a net sentence of

seven years and three months imprisonment on the robbery offence. In addition, we will

impose the presumptive mandatory minimum sentence of five years for the firearms

offence to run concurrently with the sentence for the robbery offence.

Result: Allow and Vary

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Wall, Walsh, O'Connor, Tynan [2020] IECA 48 (02 March 2020) URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA48.html Cite as: [2020] IECA 48

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