Court of Appeal removes suspended sentence element due to relapse but retains mitigation for rehabilitation progress.

THE COURT OF APPEAL

Birmingham J

Mahon J.

Edwards J.

Record No: 110/2016

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

AND IN THE MATTER OF AN APPLICATION BY

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

JOSEPH SHANNON

Respondent

JUDGMENT of the Court delivered 30th of May 2018 by Mr. Justice Edwards.

Background

1. In this case the respondent was before the Dublin Circuit Criminal Court on the 4th of December 2015 for sentencing on eight

counts charged on three bills of indictment, i.e., Bill No: 1058/2014, Bill No: 0049/2015 and Bill No: 0090/2015, respectively. He had

pleaded guilty at an early stage to Counts Nos: 1 and 3, respectively, on Bill No: 1058/2014; to Counts Nos: 10, 11, 12, 13 & 14 on

Bill No: 0049/2015; and to Count No 1 on Bill No: 0090/2015, all of which were counts charging burglary, contrary to s.12 of the

Criminal Justice (Theft and Fraud Offences) Act, 2001.

2. Evidence of the circumstances in which the offences were committed, and also concerning the criminal antecedents and personal

circumstances of the respondent, was heard on the 4th of December 2015.

3. This included evidence from the respondent himself to the effect that he was committed to addressing a serious substance abuse

problem, that he had previously engaged with Merchant’s Quay Ireland, Homeless and Drugs Services (MQI) and had partially

completed a residential treatment program which he wished to re-engage with whenever he might be released from prison and

afforded the opportunity to do so. Supporting documentation provided by Mr Noel Dowling, a Counsellor with MQI, confirmed the

previous engagement and the fact that the respondent had in fact reached week 13 of a 16 week residential course, from the

23/01/14 until 14/04/14, before relapsing. It confirmed MQI’s belief in the genuineness of his commitment to try again, and their

willingness to assist him further.

4. The respondent had further stated in his evidence that he was down to 40mls of Methodone a day from 120 mls a day previously.

The Court was also told that he had recently completed a seven month sentence but that his present status was that he remained in

custody on remand in respect of the matters for which he now faced sentencing. The evidence was that he was using his time well in

prison, and had completed four modules of a seven module programme that assists in preparing prisoners for their return to the

community, a programme that included modules such as “moving beyond addiction”, “community based health”, “promotion of a

culture of non-violence”, and “first aid”. He felt these would greatly benefit him in any re-engagement with MQI following his release.

He asked, through his counsel, that he be allowed remain on remand until he had completed the full seven modules of this programme

before any finalisation of the cases then before the court, because if he were to be sentenced straight away he would be immediately

transferred to another prison for sentenced prisoners, rather than his present one which was for remand prisoners only, and he would

have to start the seven module programme all over again.

5. The sentencing judge was sufficiently impressed with the evidence concerning the respondent’s efforts at rehabilitation that she

agreed to adjourn finalisation of the matter until the 11th of April 2016 to enable him to conclude the remaining three modules of the

seven module programme.

6. The matter was finalised on the 11th of April 2016, and the sentencing judge imposed the following sentences:

Bill No 1058/2014

A sentence of three years imprisonment on Count No 1 on the indictment, to date from 02/01/2016 (in effect giving the respondent

credit for the time he had served on remand), with the balance suspended in full upon conditions that he would enter into his own

bond in the sum of €100 to keep the peace and be of good behaviour, and further engage with rehabilitation services, for a period of

two years from date of sentencing, with Count No 3 being taken into consideration.

Bill No 0049/2015

A sentence of three years imprisonment on Count No 10 on the indictment, to date from 02/01/2016 (in effect giving the respondent

credit for the time he had served on remand), with the balance suspended in full upon conditions that he would enter into his own

bond in the sum of €100 to keep the peace and be of good behaviour, and further engage with rehabilitation services, for a period of

two years from date of sentencing, with Counts No’s 11, 12, 13 and 14 being taken into consideration.

Bill No 0090/2015

A sentence of three years imprisonment on Count No 1 on, to date from 02/01/2016 (in effect giving the respondent credit for the

time he had served on remand), with the balance suspended in full upon conditions that he would enter into his own bond in the sum

of €100 to keep the peace and be of good behaviour, and further engage with rehabilitation services, for a period of two years from

date of sentencing.

7. The applicant subsequently sought a review of the said sentences on the grounds of undue leniency, invoking the jurisdiction

provided for under s.3 of the Criminal Justice Act 1993. The application in that regard was heard before a differently constituted Court

of Appeal (Birmingham J, Sheehan J & Mahon J) on the 23rd of January 2017, which, giving brief judgment ex-tempore, found that the

said sentences were unduly lenient.

8. The Court’s reasons for doing so were that the sentences imposed was clearly outside the norm having regard to :

the number of offences involved;

the nature of those offences including the fact that they had involved violations of dwellings; the fact that in several

instances the dwellings had been occupied at the time that he entered them, and that in other instances the occupiers

had arrived home while he was present on the premises; and the fact that in several instances there had been a direct or

indirect confrontation with the occupier, one of which direct confrontations was particularly serious involving as it did the

intimidation of, and theft of property from, a woman in a situation of particular vulnerability;

the range of penalties available;

the culpability of the offender (aggravated by his numerous previous convictions for similar type offending, and

somewhat mitigated by his addiction issues);

the harm done, including the inevitable sense of violation on the part of all occupiers, and the psychological trauma on

the part of the occupiers involved in the confrontations, which this Court was prepared to infer from the circumstances,

as well as material losses suffered in terms of stolen property not recovered;.

the need to adequately give effect to the penal objective of deterrence, both general and specific, in this type of

case;

the fact that, notwithstanding that the accused had made previous unsuccessful efforts at rehabilitation, and

appeared motivated towards engaging in a renewed effort in that regard, and that the provision of some incentive

towards incentivising such efforts by means of a partial suspension of the sentences imposed would have been justified in

pursuance of the penal objective of rehabilitation, the suspension of the entirety of the balances of sentences imposed

(after due allowance for 14 weeks in custody as a remand prisoner) was excessive, unjustified, and represented an error

of principle in the overall circumstances of the case; and,

the manner in which the sentences were structured, and in particular the taking into consideration of Count No 3 on Bill

No 1058/49, and of Counts No’s 11, 12, 13 & 14 on Bill No 0049/2015, and the failure to impose separate sentences on

each of those counts.

9. However, in circumstances where the Court was satisfied that the respondent was continuing to make real progress towards his

rehabilitation, it indicated that it was minded to put the matter back for twelve months before re-sentencing to see if that progress

could and would be maintained. The Court stated that:

“… if the progress that has been made is maintained the Court would then hope to deal with the matter non-custodially,

notwithstanding its view that the original sentencing was unduly lenient.”

10. It was further indicated to the parties that, in the event of a deferred re-sentencing, any such re-sentencing would have to be

by a differently constituted panel of the Court, as one member of the existing panel would have retired before the adjourned date.

Any new panel, however, would have the benefit of a full transcript of the previous proceedings. The parties were each asked if they

had any objection to that proposed course, and they indicated through counsel that they did not. Accordingly, the Court proceeded

as it had suggested it might, and adjourned the matter for a year. In doing so, the Court remarked to counsel for the respondent:

“Now, clearly Mr Shannon must realise that his situation is highly precarious, that if progress is not maintained then the

Court really is likely to have very little option indeed but if the progress can be maintained, well, there will be powerful

arguments that you’ll be in a position to make then.”

11. The matter therefore comes back before us today so that the respondent may now be re-sentenced.

The circumstances of the offences

12. The court below heard evidence concerning the circumstances of the relevant offences. The first in time was a single burglary

committed on the 22nd of April 2014. This was the subject of Bill No 0090/2015. In this case the court heard evidence from Garda

Robert Sheridan to the effect that on the date in question, at 12.45pm, the respondent entered the rear garden of a dwellinghouse at

42 Dalcassian Downs, Glasnevin, Dublin, before climbing up onto an extension roof and entering the dwelling through a bathroom

window. The house was occupied by a lady who was in bed in a bedroom next to the bathroom. She was not asleep at the time but

rather had the duvet pulled up quite close to her face and was engaged in texting on her mobile phone. The respondent entered her

bedroom, and she was startled and frightened by this and pulled the duvet up over her head. The respondent having seen the lady

then confronted her. He approached her as she was in the bed and pulled down the duvet and tried unsuccessfully to pull the mobile

phone from her. The respondent then pushed her back on the bed and demanded money from her. At this point the lady, who had

wrapped herself in the duvet to protect herself, handed out her mobile phone to him. The respondent then searched her room and her

handbag for cash and items of value. When he did not find any, he demanded of the lady that she should provide him with more. He

again approached her in the bed, this time pushing her, and taking a purse The purse contained car keys, credit cards, cash and a

second mobile phone. Once he had taken these items, the respondent left the house.

13. The Gardai were called by the occupier and during a follow up search they located a mobile phone in the rear garden of the

dwelling. Following a forensic examination of this mobile phone the respondent was identified as a suspect. He was arrested on the

14th of May 2014 and was taken to a Garda station where he was detained and interviewed. In the course of being interviewed he

admitted to the burglary, and was apologetic for his actions, and for distressing the occupier, and stated that he had committed the

crime due to his addiction and because he needed money for drugs.

14. The second and third incidents in respect of which evidence was heard were committed on the 27th of April 2014, and on the

10th of July 2014. These were Counts No’s 3 and 1, respectively, on Bill No 1058/2014.

15. The court below was told by Garda Karl O’Neill that on the 27th of April 2014, a 69 year old gentleman was in the back garden of

his house known as Drumahill on Kilmacud Road in Co Dublin. He had left his front door unlocked. When the gentleman went back

inside he encountered a man in his sitting room. The gentleman challenged the man in question and demanded to know what he was

doing there. The man proffered a preposterous excuse, whereupon the gentleman took him by the elbow and marched him off the

premises. The occupier subsequently discovered that his car keys were missing, and these were never recovered. The incident was

reported to An Garda Siochána and in the subsequent investigation the intruder was found to have left fingerprints at the scene, and

fingerprint lifts were recovered in a scene of crime examination.

16. Garda O’Neill went on to testify that on the 10th of July 2014, shortly before 5pm, another dwellinghouse at 25 Drummartin Park,

Goatstown, Co Dublin was also burgled. On this occasion the householder arrived home, accompanied by his young daughter, and as

they were entering the house he noticed that the window of their bathroom was broken, and he could hear noises upstairs. He called

out to whoever was upstairs, and a male voice replied. The householder then ran out of the house, carrying his daughter as he ran,

and sought assistance from a neighbour. As he was doing so, he went into the neighbour’s back garden and from there was in a

position to look in through a back window in his own house. He could see that there was a man inside who had no authority to be

there. The householder then returned to the front of the premises and, as he emerged, observed the man in question hopping over a

garden wall and running away through an adjacent park. In the meantime Gardai had been summoned by the householder’s neighbour

and they arrived on the scene just as the man was attempting to make his getaway. Following a short pursuit the man was arrested

and detained, and his identity was later established. It was the respondent.

17. Just before his arrest, and during the pursuit, the respondent was observed trying to discard items that he had stolen from 25

Drummartin Park. These included a laptop and several items of jewellery, and these were recovered.

18. The respondent was co-operative when interviewed and admitted to having burgled 25 Drummartin Park on the occasion in

question. While he was detained fingerprints were taken from the respondent, and these were found to match the fingerprint lifts

taken from the scene of the earlier burglary at Drumahill, Kilmacud Road. When subsequently questioned about that crime the

respondent also admitted his involvement in that matter. The respondent expressed regret to Gardai in the course of being

interviewed for his having been involved in both of these burglaries. He stated that his reason for entering both houses was that he

was addicted to heroin and benzodiazepines and that he routinely committed crimes to feed his habit.

19. The next matters in respect of which evidence was heard concerned a series of burglaries, one of which was committed on the

12th of June 2014, one of which was committed on the 24th of June 2014 and three of which were committed on the 31st of August

2014. These were Counts No’s 10, 11, 12, 13 & 14 respectively, on Bill No 49/2015.

20. Detective Garda Darragh Phelan told the court below that on the 12th of June 2014 a dwelling at 57 Clonard Drive, Sandyford,

Dublin 6 was burgled in the absence of the occupier. Upon his return at 4pm on the date in question the occupier attempted to enter

by means of his front door but discovered that he could not do so, as a security chain had been engaged from inside the premises by

an unknown person. The occupier gained entry to the rear of his property through a garage, and then discovered that the back door,

which he had locked earlier that day, was open. On checking the house he then discovered that it had been burgled, and that the

following items of property were missing, i.e., an iPod worth €250 approximately, an iPad worth €600 approximately, a MacBook laptop

worth €750 approximately, and US$600.

21. D/Gda Phelan also gave evidence that on the 24th of June the female occupier of No 46 Woodford, Brewery Road, Stillorgan was

at home in her bed. Also present in the house was her three year daughter, and two visiting cousins aged 12yrs and 14 yrs

respectively. As the lady in question was lying in bed she became conscious of the bedroom door opening, and that there was a

person there. Thinking it was one of cousins, she called out “ Is that you, James?”, but there was no reply and the person outside the

door did not enter the room. It was later discovered that the house had been burgled, and that a laptop worth $600 or €400

approximately, and a Nexus Tablet worth €300 approximately had been stolen.

22. D/Gda Phelan also gave evidence that on the 31st of August 2014 three dwellings, two of which were adjacent to each other,

and third of which was nearby the other two, were burgled in a spree of burglaries. The first two burglaries were to No’s 13 and 14

Rathsallagh Grove, Shankill. On the occasion in question the occupiers of both dwellings were outside. At a certain point the occupier

of No 14 walked back into his house where he noticed that some money was missing. He then went upstairs and disturbed a male

present there who was not known to him, and who had no authority to be there, and who had some money in his hand. The intruder

handed back €25 cash but then escaped by getting out through a window. Approximately €100 in cash was later ascertained to be

missing, and some jewellery. Subsequently, on learning what had happened, the occupier of No 13 proceeded to check his house and

it was discovered that it had also been burgled and that €100 in cash was missing from that premises.

23. Later again on the same date it was discovered that a nearby house at 179 Shanganagh Cliffs had also been burgled. In this

instance entry had been gained via a dog flap in the back door and €300 in cash, a black iPad touch worth €250, and an eBook

notebook worth €30 had been stolen. None of this was recovered.

24. The three burglaries were reported to An Garda Siochana, who attended at each scene and conducted scenes of crime

examinations. Gardai located a jacket at the rear of the Rathsallagh Grove properties containing €115 in cash, a mobile phone and a

quantity of prescription drugs in a container bearing the name Joseph Shannon. In this way the respondent was identified as a

suspect.

25. The intruder was also found to have left fingerprints, at two of the addresses and lifts were taken of these which were later

matched to fingerprint samples taken from the respondent.

26. When arrested and interviewed while in detention the respondent was again co-operative. Once again, he made admissions, and

once again he apologised for his involvement while offering the explanation that he was only doing it to obtain money to feed his drug

addiction.

27. Amongst the admissions made by the respondent was that his modus operandi was to use both the DART and the LUAS public

transport systems to reconnoitre and “case” suitable premises to be burgled, before later returning and committing the actual

burglaries.

Evidence in relation to the respondent’s personal circumstances

28. The respondent was born on the 9th of August 1971. The court below heard that the respondent is a chronic drug addict whose

life was in complete chaos. He was described by one Garda as an “old-school type of offender”, by which it was explained he meant

that he was not violent, antagonistic or hostile. He tended to co-operate fully whenever he was caught and to apologise while

blaming his offending on his addiction.

29. In so far as his family circumstances were concerned, relatively little was known about these, save that he has a number of

children, now in their 20’s, some of whom are doing extremely well, having achieved impressive third level qualifications.

30. The court heard that the respondent had a great number of previous convictions, being seventy four in total including thirty eight

for burglary, three for robbery, twelve for theft, two for false imprisonment, one for unlawful seizure of a vehicle, one for assault,

three for criminal damage and miscellaneous others.

31. His most recent conviction was for five burglaries on the 29/06/2015 at the Dublin Circuit Criminal Court for which he received six

month’s imprisonment on each, to run concurrently. Other terms of imprisonment imposed on him in the past included a seven month

sentence for two burglaries and a failure to appear imposed in February 2015, and a sentence of one month’s imprisonment on each of

eight burglaries, and on an unlawful taking, to be served concurrently, imposed on him by a court in Roscommon in 2013. On the

26/03/2010 he received a sentence of three year’s imprisonment, with one year suspended, from the Dublin Circuit Criminal Court, for

criminal damage, dangerous driving, unlawful seizure, burglary and theft offences.

32. The court below received a positive report from the Governor of Cloverhill Prison as well as the previously mentioned

correspondence from Mr Dowling of MQI. Mr Dowling’s correspondence has since been updated for the benefit of this Court’s re-

sentencing of the respondent. In that regard we are in receipt of a letter dated 18th of January 2017 from Ms Daphna Cuddy and Ms

Eleanor Butler on behalf of MQI confirming that the respondent was linked to their service at that point and was a Drug Rehabilitation

Participant on a Community Employment Stabilisation day programme. The letter confirmed that his attendance and participation was

of a high standard and that he was putting great effort into becoming drug free.

Re-sentencing

33. Since this matter was before the court below, this Court has delivered a number of significant judgments in burglary cases

including our judgments in The People (Director of Public Prosecutions) v O’Brien [2018] IECA 2 and The People (Director of Public

Prosecutions) v Casey [2018] IECA 121, amongst others.

34. The first case mentioned, involving a burglary, had much in common with the present case in as much as it dealt with a chronic

recidivist, but for the most part a non-violent, offender whose numerous past crimes included many burglaries, and whose crimes were

motivated by the need to feed a drug habit. In that case, as in this one, the offender had taken significant steps towards addressing

his underlying substance abuse issues, and had achieved some progress in that regard. In the O’Brien case, as in this one, the

sentencing judge had nominated a three year headline sentence. However, in that case the sentencing judge suspended the final two

years of the three year headline sentence that she had nominated in order to reflect mitigation and to incentivise continued

rehabilitation. The Director of Public Prosecutions then sought a review of that sentence on the grounds that it was unduly lenient.

This Court refused the application, stating:

“47. The sentencing judge in this case had abundant evidence to justify her decision to afford a high priority to the penal

objective of rehabilitation. In our view she ought not to be criticised for doing so. She took the view that there required

to be some custodial element to the sentence, but suspended the greater part of it both to reflect the mitigating

circumstances in the case, which were substantial, and to incentivise rehabilitation on a last chance basis in

circumstances where she was persuaded of the genuineness of the respondent’s commitment to changing his life. She had

solid evidence to justify giving him that chance, and we are therefore satisfied that what she did was within the

legitimate margin of appreciation available to her. In the particular circumstances of this case, the suspension of the final

two years of the three year headline sentence was not so far outside the norm as to be regarded as unduly lenient.”

35. In terms of it’s different outcome compared to the present case, the O’Brien case can be distinguished from the present case in

that the level of discount afforded, albeit that it gave rise to a very lenient sentence, was within the judge’s margin of appreciation.

Though very lenient, it was not unduly lenient because it still required the offender to serve a significant period in custody, namely a

third of the headline sentence which involved one year of actual imprisonment. In the present case, the amount of actual custody

that the respondent was required to serve was not sufficiently significant, amounting as it did to just 14 weeks of the three year

headline sentence nominated. Moreover, a further significant difference is that the respondent in the present case was being

sentenced for multiple offences, whereas Mr O’Brien was being sentenced for just one offence.

36. The O’Brien case is nonetheless of importance as illustrating that in an appropriate case progress towards rehabilitation may

legitimately be rewarded, and genuine resolve to continue along that road may legitimately be incentivised, by a very substantial

discount from what would otherwise be the appropriate headline sentence.

37. In the second case mentioned, namely The People (Director of Public Prosecutions) v Casey we endeavoured to provide some

broad guidance for judges involved in sentencing in burglary cases involving domestic dwellings, and particularly in cases involving

multiple offences committed in the course of a planned and premeditated spree of burglaries of such dwellings.

38. We identified a number of potentially aggravating factors, a number of which are relevant in at least some of the cases with

which we are presently concerned, including that the property was occupied at the time, confrontation with an occupier, and the

commission of offences as part of a spree of similar type offending.

We suggested that the spectrum of penalties available for ordinary burglaries prosecuted on indictment, running as it does from non-

custodial options to imprisonment for up to fourteen years, may usefully be divided into three parts, namely a low range, a medium

range and a high range. We went on to say:

“47. A confrontation with an occupant of a dwelling will be an aggravating factor. The more aggressive the

confrontation, the greater the aggravation. Evidence that an intruder equipped himself with a weapon while in the

dwelling will be a serious aggravating factor. This will be particularly so if the item availed of has the obvious potential to

be a lethal weapon, such as a carving knife or a meat cleaver.

48. If a number of the factors to which reference is made 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 the offences to the highest category. Cases in this

category will attract sentences, pre-application of mitigation, above the midpoint of the available scale, i.e. above seven

years imprisonment and often significantly above the midpoint. In considering the significance of a particular aggravating

factor identified as present, it is necessary to view the significance of that matter in the context of the particular case.

To take but one example, it has long been recognised that an offence is aggravated if property of significant monetary

value or major sentimental value is taken. However, that is not to be seen in purely nominal or monetary terms. Taking

what in absolute terms might be thought to be a fairly modest sum of cash becomes a matter of very great significance

indeed, if the amount is taken from someone living alone who is entirely dependent on a State pension.

49. Against the background of those comments the Court would suggest that mid-range offences would merit pre-

mitigation sentences in the range of four to nine years and cases in the highest range nine to 14 years. The Court

recognises that the circumstances surrounding individual offences can vary greatly, and that that is so even before one

comes to consider the circumstances of the individual offender. While a consistency of approach to sentencing is highly

desirable, it is not to be expected that there will be a uniformity in terms of the actual sentences that are imposed.

There are just too many variables in terms of the circumstances of individual offences, but even more so in terms of

the circumstances of individual offenders, for that to happen. Again, the Court recognises that there is no clear blue

water between the ranges. Often the most that can be said is that an offence falls in the upper mid-range / lower

higher range. In many cases whether an offence is to be labelled as being at the high end of the mid-range or at the low

end of the high range for an offence is often a fine call. The judge’s legitimate margin of appreciation may well straddle

both. In that event, how it is labelled may in fact not impact greatly on the sentence that will ultimately be imposed.”

39. Although in the present case, there was confrontation in some instances, there no aggression displayed at all in some of those

incidents, and even in the most serious incident involving the intimidation of, and theft of property from, a woman in a situation of

particular vulnerability in the course of the burglary committed on the 22nd of April 2014 which is the subject matter of the single

count on Bill No 0090/2015, no weapon was produced or used and the level of aggression displayed was relatively low.

40. Although there was a degree of planning and premeditation, certainly with respect to the offences the subject matter of Bill No

0049/2015, and the three burglaries committed on the 31st of August 2014 could be characterised as a spree, it is clear that the

level of planning and premeditation was relatively slight. It is also the case that the respondent acted alone. Moreover, in other

instances the offences appear to have been committed opportunistically. Additionally, there was manifest ineptitude in the execution

of these burglaries, such as the leaving behind of fingerprints (something that could have been easily avoided by the single expedient

of wearing gloves) and a jacket containing a phone and a bottle of labelled medication leading to the ready identification of the

perpetrator. Overall, one is left with the impression that, unlike in the Casey case, this was not a professional operation. Rather it had

all the hallmarks of a series of nuisance type burglaries committed by a chronic recidivist drug addicted offender. In so characterising

it this Court does not for a moment underestimate the trauma, inconvenience and distress caused to the householders involved. The

respondent’s conduct was inexcusable and it is neither acceptable nor tolerable. However, the somewhat chaotic and unprofessional

nature of the burglaries, and the fact that they were committed by an offender acting under the chemical compulsion of addiction

does serve to reduce the offender’s culpability somewhat.

41. No issue was taken by the DPP in argument before us concerning the headline sentences of three years imposed in respect of

each offence on which the sentencing judge imposed a sentence. We consider that while there was scope for somewhat higher

starting sentences in the case of some of the offences, a three-year headline sentence for each of those offences was within the

sentencing judge’ legitimate margin of appreciation.

42. However, a matter which concerns us is the judge’s decision to take the other five counts into consideration. Her jurisdiction to

do so was questionable. As we pointed in the Casey case s.8 of the Criminal Justice Act 1951, which provides the power to take

offences into consideration, was intended solely to allow defendants to ask for uncharged offences to be taken into account in order

to forestall the possibility of a later prosecution for those offences. The offences taken into consideration in this case were not

uncharged. They were on the indictment and the respondent had pleaded guilty to them. In our view a separate sentence should

have been imposed on all counts

43. In resentencing the respondent, we will nominate a headline sentence of three years’ imprisonment on all counts. Although there

was some variation in the seriousness of the different offences this figure is within the acceptable range for all of them. It may be

lenient in some cases, and tending towards the severe in other cases, but in no case is it disproportionately severe.

44. The real battle ground on this review concerned the sentencing judge’s decision to suspend all but the 14 weeks of those

sentences that had been served on remand. As previously mentioned in an appropriate case progress towards rehabilitation may

legitimately be rewarded, and genuine resolve to continue along that road may legitimately be incentivised, by a very substantial

discount from what would otherwise be the appropriate headline sentence. The respondent’s progress towards rehabilitation was

impressive and deserved to be rewarded. However, some significant custodial element was required in the circumstances of this case.

If we had been called upon to sentence at first instance, we would have required him to serve eighteen months in the circumstances

of this case.

45. However, time has moved on. The respondent has been at liberty since the date of his sentencing in the court below and he was

allowed to maintain that status so as to facilitate his progress towards rehabilitation and to see how he got on. The Court has now

been informed that while progress was maintained for some months, and the respondent was getting on sufficiently well to have been

granted an employment placement in a hotel, he unfortunately relapsed yet again and in February of this year he was arrested for

having committed yet another similar type of burglary to those for which he faces re-sentencing by this Court. When the matter was

last before us on 14/5/2018 we were informed that he had been charged, and had pleaded guilty to this new matter and was due to

be sentenced on the following day, 15/05/18.

46. This Court expressed a desire to obtain full details in respect of the respondent’s progress before relapsing, the nature and extent

of the relapse, and the circumstances in which it occurred. To that end we were disposed to request a report from the Probation

Service. However, the respondent asked through his counsel that we would not do so, and finalise the matter.

47. In the circumstances we provisionally indicated a disposition to remove the suspended element of the sentences imposed by the

court below, the net effect of which being that the respondent would receive a three-year sentence on each matter with credit for

the fourteen weeks spent in custody exclusively on these matters. We further indicated that we would give reasons for our decision

in a written judgment to be delivered on today’s date.

48. We are now in a position to give our reasons and to make formal orders in this matter. Our reasons are these. Although we

indicated to the respondent on the 23rd of January 2017 that if progress towards rehabilitation was maintained we were likely to deal

with the matter non-custodially, we no longer consider that we are in a position to do so in circumstances where the respondent has

regrettably relapsed yet again. We consider that a significant period in custody to be actually served is now called for. Both this

Court and the court below have stretched the line beyond breaking point in furtherance of the penal objective of rehabilitation in this

man’s case. He has not taken the numerous chances he has been given, and regrettably we consider that a period in custody is now

required in the interests of appropriate retribution and deterrence (both specific and general).

49. In terms of formal orders, we should state that we are disposed to modify the proposed sentences as provisionally indicated,

because although the respondent has relapsed, he did make some progress towards rehabilitation which requires to recognised, and

he is also entitled to some discount in mitigation to reflect his pleas of guilty, his co-operation and his personal circumstances

including his addiction issues. Accordingly, we will nominate a headline sentence of three years in respect of each offence, including

on the five counts originally taken into consideration. We will suspend the last nine months of each sentence to reflect the progress

made towards rehabilitation, the pleas of guilty, the respondent’s co-operation and his personal circumstances. All sentences are to

run concurrently and are to be backdated to the 21st of February 2018 (a period of 14 weeks to reflect the time he spent on

remand).