Court of Criminal Appeal quashes unduly lenient sentence for attempted robbery while on bail, imposing three years imprisonment.

THE COURT OF CRIMINAL APPEAL

Keane C.J.

O’Neill J.

de Valera J.

CJA 117/03

IN THE MATTER OF THE CRIMINAL JUSTICE ACT, 1993, SECTION 2

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPELLANT

AND

MARK DOYLE

RESPONDENT

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

This is an application on behalf of the appellant for a review on the ground of undue leniency, pursuant to s. 2 of the

Criminal Justice Act, 1993, of sentences imposed by the Dublin Circuit Criminal Court (His Honour Judge Hogan) in respect

of counts of attempted robbery, robbery and possession of an imitation firearm. The respondent had pleaded guilty to four

counts arising out of four separate incidents.

The respondent was charged with the attempted robbery of Ms. Angela O’Connor on the 3rd June, 2002 at Malahide Road

(Bill DU1005/02). On that occasion, Ms. O’Connor was driving her car with her children, a nine year old girl and a four

year old boy, sitting in the back. She was stopped at traffic lights on the Malahide Road, when the passenger door was

opened and the respondent jumped into the car and began shouting at her. He said a number of times “drive the fucking

car, I have a knife, drive the fucking car”. The driver’s window was open and Ms. O’Connor saw a young couple crossing

the road and shouted to them for help. They kept walking by her and, at that point, she opened the door of her car and

started screaming for help. She was afraid of getting out of the car, because the children were in the back. The man had a

knife with a chunky handle and a blade that was approximately four to five inches long. When she opened the door and

started screaming, the respondent got out of the car and walked in the direction of an industrial estate. Ms. O’Connor was

crying at that stage and a number of people came over to assist her. Another driver stopped his car and followed the

respondent into the industrial estate and saw him take off his top and hide it in the bushes. The Gardaí subsequently found

the respondent’s fingerprints in the car, arrested him pursuant to s. 4 of the Criminal Justice Act, 1984 and interviewed him.

The respondent admitted that he was the person involved in the incident, although he said it was a syringe rather than a

knife that he had produced.

The respondent was further charged with, and pleaded guilty to, a robbery at the Northside branch of the Educational

Building Society on the 1st August, 2002 and of being in possession of an imitation firearm on the same occasion (Bills

DU163/03 and DU164/03). These two offences were committed while the respondent was on bail in respect of the charge

of attempted robbery of Ms. O’Connor. On that morning, he approached a till at which Ms. Denise Murphy was working

and produced a grey gun which subsequently turned out to be an imitation firearm. He told her to give him the money or

words to that effect and was seen by a Garda, who had responded to a panic button being pressed, running from the

premises with what appeared to be a handgun and a plastic bag. He was arrested after a struggle and found to have

€2,225.00 in cash in the white plastic bag.

He was further charged in Bill DU1008/02 with a robbery at the Dundrum branch of the Educational Building Society on

the 27th May, 2002 (Bill DU1008/02). On that occasion, Mrs. Deirdre Doran was working as a bank teller in the branch

when the respondent came in, put a mask over his face, and pulled out a gun. He shouted “give me the money” and took a

sum of approximately €6,180.00. He then left the scene and was not apprehended on that occasion. He was charged in the

same bill with a robbery committed shortly afterwards on the 19th June, 2002 at the Ulster Bank in Dundrum. On that

occasion one of the staff, Ms. Fiona McBride, saw a man standing in front of her at the till, shouting at her to empty the till.

He was holding a grey coloured gun which he was pointing at her. The respondent fled on foot, but was subsequently found

by members of the Gardaí on patrol sitting in the back of a car, there being two other persons in the front seats. They

escaped from the car, but the respondent was subsequently found hiding in a garden where he pointed out a bag of money

to the Gardaí. In all, €16,352.00, representing the proceeds of the robbery, was found by the Gardaí. Again, the respondent

admitted to the Gardaí his involvement in this offence and the earlier robbery at the EBS branch in Dundrum.

The offences in Bills 163/03 and 164/03, as already noted, were committed while the respondent was on bail in respect of

the charge in Bill DU1005/02, as was the robbery at the Ulster Bank in Dundrum (DU1008/02). Any sentence imposed by

the trial judge of the offences committed while he was on bail in respect of the charge in Bill DU1005/02 was required to be

consecutive to any sentence imposed in respect of that charge.

In respect of these offences, the trial judge on the 5th June, 2003 imposed the following sentences. In respect of the

attempted robbery of Ms. O’Connor while driving her car, he imposed a sentence of one year’s imprisonment to date from

the 2nd August, 2002, the respondent having been in custody since that date. In respect of the robbery at the Ulster Bank,

Dundrum, on the 19th June, 2002 he imposed a sentence of one year’s imprisonment to take effect on the lawful

termination of the sentence of one year in respect of the attempted robbery of Ms. O’Connor and said that he was taking

into account the remaining counts in that Bill, including the robbery carried out at the Dundrum branch of the EBS on the

27th May, 2002. In respect of the counts of robbery at the Northside branch of the EBS on the 1st August, 2002 and of

being in possession of an imitation firearm on the same date, he imposed two sentences of two years imprisonment, both to

take effect from the lawful termination of the sentence of one year’s imprisonment imposed in respect of the attempted

robbery of Ms. O’Connor. In the case of the sentences imposed in respect of Bills 163/03 and 164/03 he suspended the last

year of the sentence on condition that the respondent entered into a bond in the sum of €500.00 to keep the peace for a

period of three years, to attend a drug treatment course under the supervision of the probation service and to comply with all

the requirements of such treatment course or any post-treatment course. The result was that the trial judge, in effect,

imposed a sentence of one year’s imprisonment, conditional on the respondent observing those requirements during the

three years period of suspension, in respect of all four counts of which he had been convicted and, in so doing, took into

consideration the counts relating to the robbery at the EBS in Dundrum.

The investigating Gardaí gave evidence at the trial that the respondent, in committing the robberies at the Northside and

Dundrum branches of the EBS and the Ulster Bank, had acted under the influence of another person who had effectively

organised the three robberies and who, although prosecuted and convicted in respect of his part in those robberies, was not

before the court on that occasion. The Gardaí also said that the respondent had co-operated fully with them. There was also

evidence that the respondent, apart from one conviction for being drunk and disorderly, had no other previous convictions,

but was addicted to heroin. It was not, however, suggested that he had committed the attempted robbery of Ms. O’Connor

while in her motor car under the influence of any other person.

The trial judge explained his approach to imposing the sentences as follows:

“In relation to the offence committed on Bill No. 1005 of ’02 [the attempted robbery of Ms. O’Connor while

driving her motor car], I will impose a three year sentence. I am obliged to impose sentences by way of

consecutive sentence in relation to the other Bill. However, when imposing sentence by way of consecutive

sentence I do not intend to impose a greater sentence than three years. So I intend to structure it this way …”

He then went on to impose the other sentences as already indicated. He added:

“Now in relation to that, he is making an effort to deal with his drug problem. I will leave him with some light

at the end of the tunnel so I will suspend the last twelve months of the sentences referred to in Bill Nos. 163

and 164 of ’03. So that is twelve months suspended. The conditions of the suspension are as follows. On the

expiration of the lawful terms of imprisonment imposed in relation to the sentences not suspended, that he will

undertake a drug course treatment under the auspices of the probation service and that he will comply with the

requirements of such treatment and such period of supervision for his treatment as necessary. I will give the

probation service liberty to re-enter should there be non-compliance. The period of suspension is for a period

of three years. He is to enter into a bond to that effect in the sum of €500.00, which I do not require to be

paid.”

The offence of attempted robbery of Ms. O’Connor while she was in her motor car (DU1005/02) was of a serious nature. It

was a terrifying experience for the driver who was acutely conscious, not only of the danger to herself, but to her two young

children. In the view of the court, this required a custodial sentence of from three to five years imprisonment. Only the

presence of mitigating factors – the respondent’s co-operation with the Gardaí, his plea of guilty and, before he embarked

on this sequence of offences, his comparatively unblemished record and character – could have justified a sentence at the

lower end of this range, i.e. three years. It was also, of course, of considerable significance that, in this case, unlike the other

cases, there was no question of the respondent having been, at the relevant time, under the influence of another more

dominant person in the enterprises concerned.

The trial judge indeed acknowledged this, since he indicated that in his view the appropriate sentence was one of three

years. As he then proceeded to impose a significantly lower sentence of only one year, there is plainly no answer to the

application on behalf of the D.P.P. for a review of the sentence on the ground that it was unduly lenient.

There is also another factor present which causes the court concern. Section 11(1) of the Criminal Justice Act, 1984

provides that

“Any sentence of imprisonment passed on a person for an offence committed after the commencement of this

section while he was on bail shall be consecutive on any sentence passed on him for a previous offence or, if

he is sentenced in respect of two or more previous offences, on the sentence last due to expire …”

In this case, the trial judge reduced the sentence he considered appropriate in respect of this offence to a sentence of one

year’s imprisonment in order to ensure that the consequences of this section in the present case – which would mean a total

sentence of at least five years – were avoided. It is entirely inappropriate, in the view of the court, for a trial judge to seek to

eliminate the consequences which the legislature require should follow in a case of offences committed while on bail by

imposing what is effectively acknowledged by him to be an unduly lenient sentence.

Counsel on behalf of the D.P.P. did not take issue with the sentence of two years’ imprisonment in respect of the robbery at

the Northside branch of the EBS and possession of an imitation firearm on that occasion. Nor was there any criticism of the

decision of the trial judge to suspend the final twelve months of those two sentences subject to the conditions already

mentioned.

The court will, accordingly, grant the application for review of the sentence in respect of the attempted robbery of Ms.

O’Connor (DU1005/02), will quash the sentence imposed by the trial judge and will impose a sentence of three years’

imprisonment to date from the 2nd August, 2002. The remaining sentences imposed by the trial judge will take effect on the

lawful termination of that sentence, with the final twelve months thereof suspended on the conditions prescribed by the trial

judge.