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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. Claxton & Anor [2008] IECCA 104 (25 July 2008) URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_104.html Cite as: [2008] IECCA 104 |
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Neutral Citation: [2008] IECCA 104
COURT OF CRIMINAL APPEAL
Application for leave to appeal against sentence
Fennelly J.
Budd J.
O'Higgins
78/07 135/07
The People at the Suit of the Director of Public Prosecutions
V
Gerard Claxton & Noel Boylan
Applicants
Judgment of the Court (ex tempore) delivered on the 25th day of July 2008 by Fennelly J.
We have before us two applications for leave to appeal against the severity of sentences imposed by His Honour Judge White in the Dublin Circuit Criminal Court on 22nd March, 2007. The relevant convictions and sentences were in relation to a count in each case of attempted robbery and possession of a firearm. For practical purposes one can ignore the third count in relation to allowing one's self to be carried in a mechanically propelled vehicle. There was a sentence of two years in that case, whereas the sentences of eight years imposed in respect of the attempted robbery is the real focus of the submissions and in the case of the applicant Claxton a sentence of eight years for possession of a firearm.
The facts of the case can be very briefly stated. It is apparent that the Gardai placed a surveillance operation in place on Easter Monday of 2006, the day of the Fairyhouse Races, and Mr. Carthy who was the intended victim of the planned robbery was a bookmaker who had premises at Deansgrange and also a pitch at the races. For reasons, which obviously do not have to be gone into, the Gardai decided to accompany Mr. Carthy from the races with the money, the takings or part of the takings of his business of that day, to his bookmakers shop. Contemporaneously the two applicants and others who are not before the court today were engaged in planning a robbery of Mr. Carthy and the takings. All of the evidence in respect of
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that is very clear because there is a stolen car involved. There were weapons or imitation weapons in the possession of the two applicants, there were ties, there was a pepper canister, there was all the paraphernalia and all of the indicia of a very carefully planned intended robbery. The intention was presumably and it is the natural inference of tying up Mr. Carthy and robbing the takings. Of course, unbeknown to the applicants, and very fortunately the Gardai had put in place this very well planned surveillance operation and Detective Garda Tully was in the back of Mr. Carthy's car. When the car arrived at Mr. Carthy's bookmakers premises at Deansgrange, Mr. Carthy went in to open up and to remove the takings into the shop when the two applicants here and one other emerged and made an approach and demanded money and then of course the entire enterprise was revealed. Detective Garda Tully who had hidden in the back of the car and who was armed emerged and he told the first named applicant, Mr. Claxton, to put down his gun, as it very apparently looked like a gun to everybody involved. It looked like a revolver. In fact it was a starting pistol and from the point of view of those who did not know that it had all the appearances of a firearm. It was a very frightening incident so far as Mr. Carthy and Detective Garda Tully were concerned. It has to be said that Detective Garda Tully exhibited both bravery and resourcefulness in a high degree, because faced with what he perceived to be a threat obviously to his life, if not to the life of Mr. Carthy as well, instead of using his firearm he very bravely tackled Mr. Claxton, knocked him to the ground and got rid of the weapon. In those circumstances then the two applicants were apprehended. Not much more about the offence needs to be said except that the offences were possession of a firearm and the attempted robbery and the sentence imposed was eight years.
Judge White engaged in a very careful operation. He set out the personal circumstances of each of the applicants in detail and I will come back to that in a few movements. He then crucially engaged in a balancing operation in which he decided ultimately that there should be no differentiation of sentence on the main offence as to eight years and he did this in the following way, that he regarded Mr. Claxton as having aggravated his offending by the way in which he held on to his apparent weapon having been repeatedly told to put it down in a way which was a frightening and threatening so far as Detective Garda Tully was concerned. As against that Mr. Claxton had no previous convictions but Mr. Boylan had some. At the date of the
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sentencing hearing he had a total of nine offences. None of them were as Mr. O'Higgins has pointed out major offences; they were all summary offences; they were matters such as petty theft and offences against the Road Traffic Acts. It was the balance of those matters one against the other that persuaded Judge White that he should treat the two accused persons in the same way and this court is quite satisfied that that was a perfectly legitimate and correct balancing operation and would not interfere with the matter in anyway.
It is necessary to go on to say that in different ways the two applicants put forward evidence of addiction: in the case of Mr. Claxton that he was heavily addicted to the use of the cocaine that he had been spending up to €300 or €400 a day on his habit; in the case of Mr. Boy Ian that, after an exemplary career up to the age of 28 years as a bus driver, he had an accident and he became addicted subsequently to prescription drugs. That's the excuse effectively involved for the spate of offending he then subsequently engaged in. There was evidence before the trial court in relation to each of the applicants to the effect that they had rehabilitated. In Mr. Claxton's case for example and this is matched by evidence in Mr. Boylan's case that he engaged in programmes of treatment which were the subject matter of a number of reports and of viva voche evidence placed before the trial court and that there was strong evidence of actual steps of rehabilitation. The court has ultimately come to the conclusion that, while the learned judge was quite correct both in the quantum of the sentence he imposed and in not making any difference between the two offenders, that he should have allowed some light at the end of the tunnel and what the court has decided to do is to affirm the sentences of eight years, three sentence of eight years, but to suspend the last two years of each sentences of eight years on condition that each of the applicants for that period keep the peace and be of good behaviour towards the people of Ireland on their own bond of €100 bond and in addition on condition that they submit to the supervision of the Probation Service especially any recommendations of the Probation Service with regard to maintaining themselves free from the use of drugs and submitting in particular if required by the Probation Service to such urine analysis tests as the Probation Service prescribes. So to that extent the sentences will be varied and that means only the sentences of eight years, the other sentences will be affirmed.
