Court of Appeal quashes sentence for burglary, reducing term to 18 months with 6-month suspension for rehabilitation.

THE COURT OF APPEAL

Birmingham P.

Edwards J.

Hunt J.

Record No: 11/2018

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

WILLIAM FITZGERALD

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 22nd day of October 2018 by Mr. Justice Edwards .

1. On the 28th of November 2017, the appellant was arraigned and pleaded guilty in Kilkenny Circuit Criminal Court to one count of

burglary contrary to section 12(1)(b) of the Criminal Justice (Theft and Fraud) Offences Act 2001 (“the Act of 2001”).

2. On the 13th of December 2017, he was sentenced to a term of four years’ imprisonment with the final year suspended on the

following conditions – that he keep the peace and be of good behaviour while in custody for three years post release; that he come

under the supervision of the Probation Service post-release, and; that he remain drug and alcohol free during this period.

3. The appellant now appeals against the severity of said sentence.

Background facts

4. Sergeant Cormac O’ Connell gave evidence at the sentence hearing that Gardaí received a report from a Ms. Helen Power that a

burglary had taken place, at her premises – a coffee shop called the “Flaky Tart” - at 34 Rose Street Inn, Co. Kilkenny. Ms Power

reported, on the 20th of June 2017, that on the previous evening the shop had been entered into by a trespasser and approximately

€300 had been stolen from the cash register. Upon taking a statement from Ms. Power, Gardaí initiated an investigation into the

matter. Detective Garda Leech, upon viewing CCTV footage from a premises nearby, recognised the appellant. Later that evening

Detective Garda Leech encountered the appellant at Hebron Park, Kilkenny and arrested him at 23.10 on suspicion of having

committed the offence of burglary. The appellant was brought to Kilkenny Garda Station where he was detained for the proper

investigation of the offence for which he was arrested and was interviewed in the course of that detention. He made full admissions in

respect of the burglary. These admissions were adduced in evidence at the sentence hearing in the following terms: “I bumped into

Adam outside the pizza place. I had to meet someone to get something. We went back to the pizza place. He ordered his pizza. I

went and I did what I had to do. I went back and ate the pizza in the street. Basically, we were just walking down the street and I

saw the window. I jumped into the window, grabbed the till, brought it into the middle of the shop and took the money. I got back

out the window and went our separate ways. I got on the bus the following morning to give someone money and I'm not willing to

say."

5. The appellant was sent forward for trial, was arraigned, pleaded guilty and was ultimately sentenced in the terms outlined at the

outset of this judgment.

The Impact on the Victim

6. The evidence at the sentence hearing was that Ms. Power was informed of her right to give a victim impact statement to the

sentencing court. However, it appears that she opted not to do so.

Appellant’s personal circumstances

7. The sentencing court did not have the benefit of a Probation Report in respect of the appellant. However, from the defence

counsel’s plea in mitigation, the following picture emerges as to the appellant’s personal circumstances. The appellant was born on the

1st of January 1989. He left school after fifth class. His counsel’s instructions were to the effect that he was taken into HSE care

from the age of three. He has been intermittently in and out of emergency homeless accommodation, both in Kilkenny and in Dublin.

The court was informed that the appellant was in Merchant’s Quay Hostel accommodation at the time of the present offence.

8. Under cross-examination, Sergeant O’ Connell accepted that the appellant is “well known to the gardaí as a drug user and carries

out those offences for the purpose of feeding a drug habit”. His counsel submitted to the sentencing court that the appellant was

introduced to drugs at the age of eight and has continued using drugs throughout his life.

9. The appellant has an extensive list of previous convictions – 109 in total, largely convictions for robbery, theft, criminal damage,

drug offences and for possession of knives. He first entered the courts’ system and received a detention order at the age of 12. At

the time of sentencing, the appellant was currently in custody on foot of a six-month prison sentence for threatening to kill or cause

serious harm contrary to s. 5 of the Non-Fatal Offences against the Person Act 1997. The appellant has five previous convictions for

offences contrary to s. 3 of the Misuse of Drugs Act 1977. In terms of relevance to the present offence, the appellant has a number

of previous convictions for theft and burglary. He has six previous convictions for theft contrary to s. 4 of the Act of 2001 and 13

previous convictions for burglary contrary to s. 12 of the Act of 2001.

Sentencing Judge’s Remarks

10. In imposing sentence upon the appellant, the sentencing judge made the following remarks:

“There was no name that the Court can put to the Flaky Tart, but I hope that lady is well. I note that she did not wish

to become involved in giving a victim impact statement and that is totally understood by the Court. Not an uncommon,

but a very understandable reaction from many people in her situation. The less association she has, no doubt, with the

offender, as far as she is concerned, the better. Nonetheless, be it -- in spite of the fact that it is a non-residential

premises it is quite likely that the offender, the accused, Mr Fitzgerald, had no idea whether or not he was going to

meet anybody on the premises. He could never be sure of that. Even in spite of the fact that she did not reside there, it

is still nonetheless an invasion on that lady's privacy, on that lady's property and on that lady's peace of mind when she

arrived at her premises the following morning to find evidence of the break-in and she had to involve An Garda Síochána

and bring them to the premises and all that followed therefrom. The Court hopes that she has recovered from the

horrible, horrible experience of having one's space and peace of mind invaded by a stranger for criminal activity.

The Court is obliged to consider not only those matters, but must also consider the personal circumstances of the

accused, and any sentence that is imposed must be proportionate both to the crime committed and to the personal

circumstances of you, Mr Fitzgerald. And for that purpose the Court must go on to consider those personal

circumstances; any aggravating or mitigating factors; any -- consider any remorse shown by you, or any appreciation

of your wrongdoing; must consider your past record and the likelihood of you reoffending; and the consequences of this

crime and the impact thereof, not only on society but on the lady whose premises you broke into; what was the level of

cooperation, if any, with An Garda Síochána. In addition, the Court must -- in addition to proportionality, the Court must

also have in mind matters of mitigation, matters in relation to rehabilitation and, most particularly, matters relating to

deterrence. The Courts have, again only recently, particularly in relation to residential burglaries, set out the obligation

on sentencing Courts to deal with these matters not just on other principles, but also from a deterrence point of view,

so that these type of offences are put to a stop by the Courts. In particular, the Court refers, in that regard, to the

decision DPP v. Collins v. Byrne, I beg your pardon.

Having said that, the Court hears what Mr Downey, counsel on behalf of Mr Fitzgerald, says in relation to his personal

circumstances. There is no evidence before this Court regarding Mr Fitzgerald's upbringing, his addiction to any

particular substance, nor is there any evidence before this Court of any efforts being taken by him, or any efforts or

steps being taken by him to rehabilitate, or to address these problems. While imposing a sentence, being under the

voluntary influence of alcohol or drugs is not a factor the Court should take into account. Any accused who suffers from

a persistent problem of addiction or substance abuse should have that factor taken into account, especially if steps are

being taken to deal with their problem, which problem could be said to stem from a particularly difficult upbringing and

the offence was committed while you were young, and whether there's a realistic chance of rehabilitation. The Court

has no evidence regarding such a realistic chance before it today, nor is there any evidence as to what steps, if any,

have been taken by the offender to address his addiction problems. The Court accepts what Mr Downey says, that he's

had time, clearly, in emergency accommodation. That's acknowledged by the sergeant, that when he was arrested for

this matter, he gave his address as being Merchant's Quay. There is some suggestion that he has had problems with

detention since he was approximately 12 years of age. However, beyond what is said by counsel, which is based on

instructions, there is no further evidence before the Court upon which it can act.

The range of penalties available to this Court are non-custodial with fine and/or bond, to a maximum custodial sentence

of 14 years. The Court must, first and foremost, look at the position of deciding whether a custodial sentence is

appropriate or not. In all the circumstance, the Court is of the view that it is obliged to give a custodial sentence in this

case, bearing in mind all the circumstances. Accordingly, the Court proceeds to determine what, in its view, is the

appropriate headline sentence to apply in this case. Whereas the amount is not particularly high, bearing in mind the

many cases that come within the court system, it was a high amount as far as that lady was concerned. That was her

cash in her till, that was the amount of money that kept her business going on a daily basis. That €300 cash was very

important to her. Accordingly, as regards the gravity of this offence, which is already discussed, the impact on the

victim, the amount involved. There is no suggestion whatsoever as to why the accused entered these premises except

that he did. His culpability for this offence is extremely high. Whether it was drug-fuelled or not, that may be the case

and the Court will give him the doubt in that regard and assume it was. But, having considered that, the Court must look

at what aggravating circumstances exist. Previous convictions indicate this man to be nothing more and nothing less

than a prolific burglar and thief. He says he does so, he instructs his counsel he does it because he needs to fuel his

addiction. I repeat, there is no evidence to suggest that he's addressing that problem. The Court is not impressed with

any expression of remorse. There was no weapon used - that's acknowledged and noted, and there's no injury to the

proprietor, thankfully. There was, however, a use of violence. This was a violent offence and it is a serious offence.

Further aggravating factors: this man was in breach of a bond that he had entered into to be of good behaviour and to

keep the peace for a period of two years as and from the 1st of November 2016, which bond he entered into in this

court, in this courtroom, on the 1st of November, and which he was in breach of when he committed this offence. Not

only that, but when committing this offence, he did so while he was on bail for three other offences. The Court assumes

that there was no impact with regard to the business, and the business continues in operation. His failure to return the

stolen property, €300 in cash, no mention of any attempt to even consider returning it. I'm assuming his excuse is

because he's in prison. The offence was committed at night, thankfully, in a non-residential premises. In mitigation --

they are, in effect, the aggravating factors as far as this Court is concerned, and arising from that the Court fixes the

headline offence, or the headline sentence of six years.

Having done so, the Court must look at what mitigating factors there are in his favour. Yes, he has a drug addiction

problem, he says, so he instructs his counsel. But there is no evidence to say to this Court that he is seeking treatment.

However, the Court will acknowledge that, based on what the sergeant has said, that he was in Merchant's Quay at the

time of his arrest, that indicates that he was having difficulties and that he was being challenged with addiction,

homelessness or emergency housing requirements. It appears this incident took place on the spur of the moment. He

had an opportunity, as he saw it, and he took it. The Court acknowledges that, obviously, he has some difficult personal

circumstances. Yes, he's given a fulsome admission in interview to An Garda Síochána, which was followed up with an

early guilty plea. That, however, has to be tempered with the fact that he was caught red-handed by CCTV. It regrets

to note that the stolen property was not returned.

Having considered those mitigating factors, the Court reduces the headline offence to an offence of four years. That is a

one-third reduction, which is given in spite of the fact that his plea was on foot of being caught red-handed, but does, in

fairness, avoid further injury being caused to that lady by having to attend court and give evidence. And that is

important, and it does and did save the State some work, time and expense. The Court, furthermore, gives recognition -

insofar as it can at this juncture - to what was said by counsel regarding his personal circumstances and upbringing. Can

there be any concession given for rehabilitation? There is no evidence before the Court of any effort or any steps being

taken by the accused, by the offender, regarding the facing up to his issues. This Court will be imposing a custodial

sentence to commence on the legal termination of the sentences he's presently serving. So, conscious of that, the

Court will suspend the final 12 months of the four years to give him some light at the end of the tunnel, if he wants to

take it up. And purely for the purpose of incentivising rehabilitation, those 12 months will be suspended, even though

there is no evidence before the Court to, quite frankly, support that decision, but it has been done also on the totality of

matters. The Court is obliged to look at the totality of the fact that he will remain in custody until May of next year and

that this sentence will commence at the legal termination of that sentence, or his release, prior to his release.”

Grounds of Appeal

11. In challenging the severity of the above sentence, the appellant seeks to rely on the following grounds of appeal:

i. The sentencing judge failed to have any or adequate regard to the personal circumstances of the appellant.

ii. The sentencing judge erred in principle and in law in imposing a four-year sentence in all of the circumstances of the

case

iii. The sentencing judge took matters into account which were not before the court in evidence.

iv. The sentencing judge erred in principle and in law in failing to have sufficient regard to the mitigating circumstances of

the case, in particular the early guilty plea entered by the appellant

v. The sentencing erred in principle and in law in imposing a sentence of such severity in all of the circumstances of the

case.

vi. Such other and further grounds as may be advanced prior to or at the hearing of the appeal.

Appellant’s submissions

12. The appellant’s written submissions focus largely on the decision of the sentencing judge to locate the headline sentence for this

offence at six years; as well as the purported failure to give adequate weight to the mitigating factors in the case. In respect of the

fixing of the headline sentence, counsel for the appellant submits that the sentencing judge over-assessed the gravity of the offence,

having regard to the fact that; that this was the burglary of an unoccupied shop premises at night where the window was left ajar; it

was not a residential unoccupied premises; there was no forced entry; there was no weapon/violence used; the amount taken was of

low monetary value i.e. €300, and; it was an opportunistic crime. Thus, it is submitted, whilst the offence of burglary may be

characterised as a “serious offence”, the particular facts of the case place the offence at the low range of offending. In this respect,

and related to ground of appeal no. (iii), the appellant submits that the sentencing judge erroneously stated that this was a violent

offence, and also engaged in speculation as to the effect that the offence had on the injured party, in circumstances where Ms.

Power did not make a Victim Impact Statement. The appellant submits that the sentencing judge placed significant emphasis on this

aspect of the harm caused when assessing the headline sentence.

13. Counsel for the appellant also submits that the sentencing judge erred in treating the appellant’s previous convictions as an

aggravating factor when assessing the gravity of the offence.

14. Further, counsel for the appellant submits that the sentencing judge’s reduction of two years from the headline sentence failed to

reflect all of the mitigating factors in the case, namely his; guilty plea; difficult personal circumstances; drug addiction, and; remorse.

In respect of the guilty plea, the appellant argues that the sentencing judge was in error in stating that the discount to be afforded

to the appellant by virtue of his early guilty plea was somewhat negated by the fact that he was caught red-handed on CCTV,

asserting that the appellant volunteered information to the Gardaí indicating his guilt, despite the fact that there was no other

evidence beyond the CCTV footage linking him to the crime.

15. Counsel for the appellant also submits that the sentencing judge was in error in suspending a portion of the sentence on account

of mitigation and the totality principle. The sentencing judge, it is submitted, ought to have reduced the term of imprisonment so as

to reflect mitigation.

Respondent’s submissions

16. In response to the appellant’s submission that the sentencing judge was in error in holding that the offence was a violent one, the

respondent submits that the offence of burglary has always been seen as a violent offence even in circumstances where the offence

is committed at a business premises, citing the dicta of the Supreme Court (per Hardiman) in People (Director of Public Prosecutions)

v. Barnes [2007] 3 IR 130 at 147, that “[t]he offence of burglary committed in a dwelling house is in every instance an act of

aggression, an attack on the personal rights of the citizen as well as a public crime and is a violation of him or her.” Further, the

respondent points out that the appellant committed the offence at night and did not know that the premises was unoccupied, and, in

this respect, cites the dicta of Birmingham J (as he then was) in People (Director of Public Prosecutions) v Casey & anor [2018] IECA

121 at para 32 that “the fact that properties are temporarily unoccupied offers little mitigation”. Further, the respondent submits

that the sentencing judge may also have been referring to violence against the property of the victim in this case.

17. In respect of the complaint that the sentencing judge engaged in speculation as to the harm caused to the victim, the

respondent submits that the sentencing judge did not place significant emphasis on the effect of the victim in anchoring the offence

on the scale of gravity. Further, the respondent argues that the court took into account all relevant factors when assessing the

gravity of the offence.

18. Further, the respondent disputes the appellant’s assertion that the sentencing judge erred in holding that the respondent was

caught “red-handed”. It is submitted that the court correctly dealt with this issue, in that CCTV footage was obtained and a male

was seen entering into the building through a small window and then exiting through the same window. The appellant was identified

moments later as the same person, in that the appellant was well known to the Gardaí and, thus, in the circumstances he was caught

“red-handed”. Further, the sentencing judge, it is submitted, was completely entitled to take into account the circumstances in which

the guilty plea was entered into; People (Director of Public Prosecutions) v Kenny [2011] IECCA 16).

19. The respondent also points to the sentencing judgment, in which, it is argued, the sentencing judge took into account all of the

relevant mitigating factors in the case, as outlined above. The respondent also argues that the sentencing judge properly took into

account the fact that the appellant had several relevant previous convictions, in accordance with the principle laid down by our

predecessor (per Macken J) in People (Director of Public Prosecutions) v Ulrich [2011] IECCA 30.

20. More generally, the respondent relies on various authorities as support for his contention that the sentencing judge properly

applied relevant sentencing principles, including: The People (Director of Public Prosecutions) v Dillon (unreported, Court of Criminal

Appeal, Dec 17, 2003); People (Director of Public Prosecutions) v Hawkins [2014] IECCA 38; People (Director of Public Prosecutions)

v. Leon Byrne [2018] IECA 120.

21. Finally, by way of a comparator, the respondent has referred us to a decision of this Court, i.e. that in The People (Director of

Public Prosecutions) v Alan Judge [2017] IECA 148. In that case the appellant committed the offence of burglary on two premises that

were unoccupied and both were business premises. The appellant was seen on CCTV committing the offences. There was damage

done to the properties valued at just under €2,000.00 but no money was taken from either premises. The appellant had forty previous

convictions, of which approximately thirty were convictions for burglary and related theft type offences. He was a drug addict. It was

accepted by the Gardaí that he was cooperative with the Garda investigation. The Court, in deciding on the appeal against the

severity of the sentence, took into consideration a number of comparators to which we had been referred by counsel, whilst also

stating that “[e]very case is of course different, and comparators are therefore only of limited help”. On the circumstances of the

case, we found that the sentence of four years’ imprisonment was excessive. Upon re-sentencing, the Court nominated a headline

sentence of five years, and reduced it by one year to reflect mitigation and suspended a further year so as to incentivise

rehabilitation.

Discussion and Decision

22. In the course of the oral hearing, counsel for the appellant sought to focus on just two points. His first was that the headline

sentence was simply too high, having regard to the gravity of the offending behaviour. His second point was that the sentencing

judge took insufficient account of the fact that the appellant is said to be seeking treatment for his underlying drug problem, that he

now acknowledges that he has a problem and is willing to do what is necessary to address it. It is said that in the circumstances the

sentencing judge erred in failing to structure his sentence so as to sufficiently incentivise the appellant’s rehabilitation.

23. With respect to the first point, we agree that the headline sentence of six years’ imprisonment was too high. A six-year headline

sentence represents a point just below the middle of the mid-range, and it is said that the offending conduct in this case was never

mid-range offending. It has been submitted to us that this case involved offending conduct that was in the low range, and that

indeed, but for the appellant’s previous convictions, it was one that would very likely have been prosecuted in the District Court

rather than on indictment. Moreover, if it had been a first offence the court would have been obliged to consider non-custodial

disposal.

24. While we accept that this is probably so, it was suggested to counsel from the bench, and in fairness accepted by counsel for the

appellant, that, having regard to (i) the appellant’s large number of previous convictions for the same type of offending, or broadly

similar types of offending; (ii) the appellant’s limited co-operation (he refused to name the third party to whom he had given the

money); and (iii) the fact that no restitution was made; this was nonetheless a case where a custodial sentence was inevitable.

25. We think that this was a case properly to be located in the low range and that to have located it in the mid-range was indeed an

error of principle. Having regard to the aggravating factors in the case, we consider that the offending conduct here would have

merited a headline sentence of three years rather than six years.

26. Counsel for the appellant was asked if, notwithstanding the grounds of appeal filed, he was in fact pressing any complaint with

respect to the reduction of one third that had been applied to the headline sentence in the court below to reflect mitigation, and he

conceded that he was not. However, he still maintained that it was an appropriate case for the suspension of a substantial portion of

the sentence in order to incentivise rehabilitation, and contended that the sentencing judge had had insufficient regard to the

possibility of rehabilitation.

27. We are not persuaded that this is the case. The trial judge specifically referenced rehabilitation in his sentencing remarks, and

asked rhetorically: “Can there be any concession given for rehabilitation? There is no evidence before the Court of any effort or any

steps being taken by the accused, by the offender, regarding the facing up to his issues. This Court will be imposing a custodial

sentence to commence on the legal termination of the sentences he's presently serving. So, conscious of that, the Court will

suspend the final 12 months of the four years to give him some light at the end of the tunnel, if he wants to take it up. And purely

for the purpose of incentivising rehabilitation, those 12 months will be suspended, even though there is no evidence before the Court

to, quite frankly, support that decision, but it has been done also on the totality of matters.”

28. We agree with the trial judge that there was not in fact much of a basis in the evidence for incentivising rehabilitation in the

circumstances of this case. Nevertheless, he was prepared to stretch to a point in that respect and suspend twelve months of the

final four years both to incentivise rehabilitation and in order to take account of totality in circumstances where the sentence he was

imposing would be made consecutive to another sentence. We find no error of principle with respect to discounting for mitigation or in

his approach to the incentivisation of rehabilitation.

29. In circumstances where we have identified an error of principle with respect to the headline sentence, we will quash the sentence

imposed by the court below and proceed to a re-sentencing of the appellant. In doing so, we take account of the additional material

produced today, namely a letter from Merchant’s Quay Ireland dated the 19th of October 2018, indicating that the appellant is

undergoing addiction counselling while in prison, and is engaging well having already attended ten counselling sessions, and also that

he is making good use of his time in prison by engaging in the education program that is available to him there.

30. We will nominate a headline sentence of three years’ imprisonment, and discount from that by one third to reflect mitigation. In

addition, we will suspend the final six months of the resultant two year sentence to incentivise the appellant’s continuation of work

towards his eventual rehabilitation, subject to the conditions (i) that he enters into a bond in the sum of €100 to keep the peace and

be of good behaviour for a period of three years following his release, (ii) that he remains drug and alcohol free during that three year

period and (iii) that he submits to the supervision of, and engages with, the Probation Service during that three year period and

complies with all of their directions and instructions.

31. Therefore, the net sentence to be actually served (assuming compliance with the conditions on which part of the sentence is to

be suspended) is one of eighteen months’ imprisonment. The sentence is to date from the same date as the sentence imposed in the

court below, i.e., the expiration of the last of any sentences that he was already serving on the date of his sentencing by the court

below.