Court of Appeal quashed disproportionate theft sentence, ordering partial suspension for appellant with prior record.

THE COURT OF APPEAL

Birmingham P.

Edwards J.

Hedigan J.

66/2018

Between

The People (at the suit of the Director of Public Prosecutions)

Respondent

V

Martin Stokes

Appellant

JUDGMENT of the Court delivered on the 28th day of June, 2018 by

Mr. Justice Hedigan

1. The appellant appeared for sentence in Dublin Circuit Criminal Court on the 11th January 2018 with his co-accused Eddie Stokes,

Joseph Stokes and Tom McDonagh. The appellant and his co-accused were each charged with two counts on the indictment which

were charges of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and also possession of articles

contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001. The appellant and his co-accused pleaded

guilty to an offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and an offence of

possession of articles contrary to s. 15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001 was taken into

consideration. All four received a sentence of 21 months. The others had the entirety of their sentences suspended, the appellant

had no part of his sentence suspended.

The background

2. The theft offence occurred on the 7th October 2016 at Phoenix Park, Racecourse Apartments, on the Navan Road, Dublin 7. There

was construction ongoing in that complex at the time. A local resident was in her apartment and went out onto her balcony to use

her phone. Her apartment overlooks the building site and she saw a vehicle drive into the site. It was described as a Hyundai people-

carrier which was blue in colour. The occupants of the car had bolt cutters and the lock of the gate was cut off with them. The car

was then driven into the complex and she saw three males get out of the car. There were approximately 15-20 containers within the

complex and some of these are used by the owners of the site and others are used by subcontractors to store tools and equipment.

The residents saw the containers being opened and the men load up their car with general building tools. When they were finished

taking the tools, they drove out of the site and she noticed the driver of the vehicle was wearing a high visibility jacket. She then

contacted the gardaí and at that stage the vehicle returned again and drove back into the enclosure and one of the men got out and

opened the second container. They then left and went towards Castleknock village. The resident rang the gardaí a second time and

she stayed on the phone giving instructions as to where the car was going. Garda Tara Burn was on duty with her colleague Garda

Damien Greene and they responded to the call. While driving along Castleknock Road they saw a Hyundai Trajet motor vehicle which

matched the description given to the gardaí. The vehicle was being driven by a man wearing a high visibility jacket. Garda Burn

observed that the driver of the vehicle was the appellant Martin Stokes. The vehicle was stopped and a large amount of power tools

was found in the back of the car. The occupants of the car were arrested and taken to Blancardstown and Finglas Garda Stations. All

the power tools and building tools were recovered by Gardaí.

The personal circumstances of the appellant

3. The appellant had 15 previous convictions. 14 in the District Court and one in the Circuit Court. In the District Court there were 10

convictions for road traffic offences, two convictions under the Firearms and Offensive Weapons Act and two convictions under the

Criminal Justice (Theft and Fraud Offences) Act. The Circuit Court conviction was on the 16th May 2013 at Dublin Circuit Criminal

Court. It was a conviction for violent disorder whereby the appellant received a sentence of two and a half years imprisonment which

was suspended in its entirety.

The appeal

4. The appellant appeals the severity of the sentence imposed. The grounds of appeal are as follows:

(i) The learned trial judge erred in not allowing a reduction from the headline sentence to take account of the mitigating

factors which were apparent on the evidence.

(ii) The learned trial judge erred in inappropriately differentiating between the sentence imposed on the applicant as

against his three co-accused upon whom wholly suspended sentences were imposed.

The submissions of the appellant

Failure to depart from the headline sentence to account for mitigating factors.

5. The learned sentencing judge took insufficient or no account of the appellant’s personal mitigation. The court did not identify with

any precision or indeed at all the extent to which the mitigating factors were taken into account. The learned sentencing judge did

not follow the “best practice” as enunciated by the Supreme Court but rather indicated what he perceived to be the appropriate

sentence in the overall circumstances of the case. It is submitted that it is not appropriate to simply identify a figure and impose that

as the sentence. It is submitted that the present case is not one in which the Court of Appeal can infer by a process of “reverse

engineering” that all of the important factors were adequately or correctly considered and weighed.

Parity in sentencing of co-accused

6. On the evidence before the Court there was no differentiation between the appellant and his co-accused in their relative

culpability, involvement or responsibility in the commission of the offence. All of the co-accused and the appellant seem to have been

over the age of majority and under the age of 23 when the theft was committed. The stark differentiation between the sentence

imposed on the co-accused and the appellant was not justified on the basis of the entirety of the evidence before the sentencing

court. There is a significant disparity in comparison with the suspended sentences of the appellant’s co-accused. Nothing in the

evidence justified such a differentiation.

No consideration of mitigating personal circumstances

7. The sentence was not proportionate to the circumstances of the appellant. The structure of the appellant’s sentence fails to echo

the fundamental basis of sentencing principles as set out in People (DPP) v. McCormack [2000] IR 356.

The submissions of the respondent

8. The learned sentencing judge did not err in either principle or in law in his sentencing of the appellant. He delivered a carefully

measured judgment setting out the aggravating factors and the pertinent mitigating circumstances. The sentence imposed reflected

the seriousness and nature of the offence and took into account all of the relevant mitigating factors particular to the case and the

appellant’s personal circumstances. The learned sentencing judge was not bound to follow a mechanical formula in constructing a

sentence. Regard has to be had to the substance of the sentencing judge’s ruling. He clearly set out his reasons for the sentence

which he imposed. He identified 21 months as the appropriate headline sentence for the offence of theft committed by the appellant

and his co-accused. He directed his mind to the relevant mitigating factors. These were reflected in the sentence imposed. He was

entitled to operate within a certain margin of discretion in deciding the precise weight to be given to the relevant mitigating factors.

The appellant’s three co-accused had the sentences suspended in their entirety by reason of their good records. The appellant

however had a reasonably serious record of conviction including a two and a half year sentence for violent disorder where he received

a considerable chance from the court.

Inappropriate differentiation between sentences

9. The respondent submits that the learned sentencing judge properly differentiated between the appellant and his co-accused when

sentencing the appellant. It is accepted that co-offenders should receive the same or very similar offences unless there is some

appreciable difference in their level of culpability or personal circumstances. The court was referred to R. v. Lowe [1980] 4154 CLR

606 at p. 609 Gibbs C.J. of the High Court of Australia:

“It is obviously desirable that persons who have been parties to the commission of the same offence should, if other

things are equal, receive the same sentence, but other things are not always equal, and such matters as the age,

background, previous criminal history and general character of the offender, and the part which he or she played in the

commission of the offence have to be taken into account.”

In the present case not all things were equal. The appellant had a considerably worse record than the co-accused. The learned

sentencing judge was entitled to take this into consideration when imposing sentence. In practice, two or more participants in the

same offence will seldom be so similarly situated as to merit identical sentences. The question for an appeal court will typically be

whether the degree of difference between the sentences imposed at first instance was objectively justified. A defendant can seldom

claim to have a justifiable sense of grievance if he or she received a proportionate sentence irrespective of the penalties imposed on

co-defendants. It is submitted on behalf of the respondent that it is clear from the sentencing judge’s comments that he considered

all options and requests made on behalf of the appellant. Given the serious nature of the offence, the maximum sentence the offence

carries and the previous convictions of the appellant, the respondent submits that the sentence imposed on the appellant is

appropriate and proportionate to the gravity of the offence and reflects all of the mitigating factors outlined at the sentence hearing.

The decision of the court.

10. It was submitted that the learned sentencing judge having fixed a headline sentence of 21 months did not subsequently make any

allowance for the only real mitigating factor present in the appellant’s case which was his guilty plea. However, it may be inferred that

the learned sentencing judge who is a highly experienced one included in what he described as the headline sentence an allowance

for the plea of guilty. The Judge suspended in full the sentences of the co-accused. He did this, he said, on the basis of their good

records. The appellant did not have such a record and the learned sentencing judge expressed that as the only ground for suspending

no part of his sentence. Whilst there was good reason to differentiate between the appellant and his co-accused in sentencing, there

appears to be some disproportionality involved in their comparative sentences. The divergence between a sentence suspended in its

entirety and one to be served in its entirety seems too great.

11. For this reason we will quash the sentence of 21 months imposed. We will therefore proceed to resentence. We agree that a 21

month sentence was merited in this case after allowance was made for the mitigation pleaded. We have considered the medical report

of Our Lady’s Children’s Hospital and the Jobpath Report together with the job offer of Serve Electric. It is clear therefrom that there

is some light at the end of the tunnel for the appellant in terms of turning his life around. It is greatly to be hoped that he will

continue to pursue his personal progression plan and to that end, in order to encourage the appellant to move forward from the

criminal way of life that he has been pursuing to date, we will suspend seven months of the 21 months for a period of one year on

condition of his being on good behaviour during the rest of his time in prison and for one year thereafter. He must enter a bond of

€100.