Court of Criminal Appeal refuses leave to appeal sentence for robbery front-seat passenger with prior record.

THE COURT OF CRIMINAL APPEAL

Keane C.J.

O’Neill J.

de Valera J.

142/03

BETWEEN

DEREK TIGHE

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court delivered the 19th day of February, 2004 by Keane C.J.

This is an appeal from the refusal of the Dublin Circuit Criminal Court (His Honour Judge Michael White) to grant leave to

appeal against a sentence of three years’ imprisonment imposed on the applicant in respect of an offence of robbery at the

Dundrum Shopping Centre branch of the Ulster Bank on the 19th June, 2002, to which the applicant had pleaded guilty.

The court has already given judgment today on an application by the Director of Public Prosecutions pursuant to s. 2(1) of

the Criminal Justice Act, 1993 in respect of another person concerned in this robbery, Mark Doyle.

The evidence in that case and in the present case indicated that, while the actual robbery was carried out by Mark Doyle,

the applicant was a front seat passenger in the car in which the former travelled to the scene of the crime. As Gardaí

approached the car, the applicant jumped out of it and tried to escape. He was arrested by Gardaí after a struggle on the

forecourt of a nearby garage. The Gardaí having arrested him and placed him in the back of their patrol car, he was

observed reaching his right hand into his jacket pocket and taking out some notes of money crumpled in his hand which he

allowed to be dropped on the seat between him and the other person who was a prisoner in the back of the car. He gave no

assistance to the Gardaí during the course of their further investigations.

At the trial, evidence was given that the applicant is now thirty four years old and has two children aged twelve and four. He

had twenty four previous convictions, some for burglary and larceny offences, some for drug related offences and some for

road traffic offences.

The evidence of the investigating Garda was that the driver of the car on the occasion in question was a well-known armed

robber whom the Gardaí regarded as being in charge of the operation. The investigating Garda also said that, although the

applicant remained outside the bank while the robbery was being committed, he appeared to have a twofold role, i.e. as a

lookout for the Gardaí and to ensure that Mark Doyle did not make off with the proceeds of the crime himself.

The trial judge was informed of the sentences imposed by His Honour Judge Hogan on Mark Doyle which were the subject

of the application by the Director of Public Prosecutions in respect of which judgment has been given today. He was also

informed that the driver of the motor car on the occasion in question, was also sentenced by His Honour Judge Hogan and

received a sentence of two years imprisonment, in respect of which the final eighteen months were suspended. Counsel for

the Director of Public Prosecutions asked the trial judge to defer sentencing in the present case until he had obtained

instructions in respect of the other two accused. On the resumed hearing, he informed the trial judge that the Director of

Public Prosecutions was applying in both those cases to this court for review on the ground that the sentences imposed were

unduly lenient. Counsel on behalf of the applicant submitted that the view of the Director as to whether the sentences were

unduly lenient was not relevant. She had at an earlier stage urged that the court should take into account the sentences

imposed on the other two persons concerned.

While the transcript of the remarks of the trial judge in giving sentence is very difficult to follow, it seems obvious that he

was aware, not simply of the sentences imposed on the other persons concerned, but also that they were the subject of an

application for a review by this court on the ground of undue leniency. In those circumstances, this court is satisfied that the

trial judge adopted the correct course in imposing sentence on the applicant without regard to the sentences imposed on the

other persons concerned. Had he taken them into account, then, depending on the outcome of the Director’s application to

this court, an unjustifiable discrepancy might have resulted between the sentence imposed on the applicant and those other

persons.

Having regard to the serious nature of the offence, the relevantly significant role played by the applicant and his previous

record, this court cannot detect any error in principle in the manner in which he was dealt with by the trial judge. It will,

accordingly, refuse the application for leave to appeal.