Court of Appeal dismisses appeals against sentences for burglary and assault, finding no error in principle regarding severity.

THE COURT OF APPEAL

Birmingham P.

McCarthy J.

Kennedy J.

BETWEEN/

Record Number 213/2017

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

GERARD MOREY

APPELLANT

Record Number 212/2017

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

DECLAN PRICE

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on the 26th day of November 2018 by Ms. Justice Kennedy

1. This is an appeal against severity of sentence. The sentences under appeal concern, in the instance of Gerard Morey, a sentence

of eight years’ imprisonment for the offence of burglary, three years’ imprisonment for the offence of assault causing harm and four

months’ imprisonment for the offence of assault contrary to s. 2 of the Non Fatal Offences Against the Person Act. 1997. The

sentences were ordered to run concurrently and with the final three years of the sentence suspended.

2. Declan Price received a sentence of ten years’ imprisonment on the burglary count, three years in respect of assault causing harm

and three years in respect of the offence of production of an article contrary to s. 11 of the Firearms and Offensive Weapons Act

1990, the sentences to run concurrently and again with the final three years of his sentence suspended. The sentences in both

instances of each appellant were imposed after conviction by a jury and were backdated to the 8th December 2016.

3. The facts in relation to these offences are that the first appellant; Declan Price, on the 23rd May 2015, at around 1pm, entered a

dwelling house in Tipperary town. The occupants of the house were present. The development in question is a small one, made up of

four houses, one of which was occupied by the second appellant; Gerard Morey. On the evening in question one of the occupants

was upstairs with her small child when Declan Price entered the house through an open window, and while in the utility room was seen

by this woman who alerted her housemates who came to her assistance. The gardaí were contacted. The woman’s partner, a Mr

Wang, arrived back to the house and attempted to restrain Mr Price. Another friend arrived and tried to assist Mr Wang. Mr Wang was

then assaulted by Mr Price who punched and kicked him and also picked up a hammer. At this point the second appellant arrived and

climbed in the window to assist his friend, Mr Price. A struggle ensued with Mr Price and Mr Morey kicking and punching Mr. Wang

before walking out of the house. The gardaí arrived and whilst Mr Morey was being conveyed to the Garda station he spat at one of

the gardaí, which is the subject of the offence of assault contrary to s. 2 of the 1997 Act.

4. Mr Wang, who was assaulted by both men, was taken to hospital for his injuries. He suffered a fracture to his upper jaw, swelling

to the head and a bleeding nose. No Victim Impact Reports were before the court. Both men were convicted after a trial. However, on

the date of sentence probation reports were available for the judge’s consideration and both men accepted responsibility for their

actions. It was submitted on Mr Morey’s behalf that he had not previously grasped the elements of burglary but had come to

understand the nature of the offence and at the time of sentencing accepted his guilt. Mr Price also, in the period between

conviction and sentence, accepted his guilt.

5. Mr Price is a man with forty nine previous convictions; three for the offence of burglary, four for possession of knives and one

conviction for the offence of production of an article contrary to s.11 of the Firearms and Offensive Weapons Act. Mr Morey is a man

with twenty three previous convictions; including two for assault contrary to s. 2 of the Non Fatal Offences Against the Person Act

1997.

6. Letters of apology were furnished to the injured party who found such difficult to accept and a letter was sent by Mr Morey to

Garda Bohan which Garda Bohan said he fully accepted and believed such apology to be genuine.

7. In cross examination, Garda Bohan accepted that the offences were not premeditated and that as such were opportunistic. It was

accepted that Mr Price, who was twenty nine years of age at the time of sentence, had a long history of substance abuse, was

intoxicated at the time of the offences and was attending Merchants Quay personnel whilst on remand pending sentence.

8. As regards Mr Morey, Garda Bohan accepted that his involvement was of a lesser nature than his co-accused, that he was

involved in his community, that he is a member of a football club and had been in employment.

9. As far as Mr Morey’s personal circumstances are concerned, it was submitted that he had a difficult upbringing and a letter was

furnished to the Circuit Court in this respect. However, he also, it was said, had the support of his grandmother. He trained as a

barber and worked in that capacity prior to his incarceration. He also trained as a plasterer and worked in Australia for a while and has

a young child. When this relationship came to an end, the appellant turned to alcohol and drugs. He and his new partner of 5 years by

the date of sentence had moved residence and so no longer reside beside the injured party. References were furnished to the court

attesting to his character and offering employment to him. He also attended Merchants Quay whilst incarcerated and a care plan was

in train for him. He attended to his education whilst in custody and finally, Mr Morey offered the sum of €1,000 by way of

compensation to the victim.

10. As regards Mr Price’s personal circumstances at the time of sentence, it was submitted that he had a long standing history of

substance abuse and that he was under the influence at the time of the offences. He also engaged with Merchants Quay whilst in

prison and attended counselling. Documentation was furnished regarding his progress whilst in prison and also from his partner. The

appellant’s family circumstances were outlined to the Circuit Court and a sum of €1,000 was also offered on his behalf. Probation and

welfare service reports were furnished regarding both men.

Grounds of appeal

11. So far as the Grounds of Appeal are concerned, a number of criticisms are advanced of the sentencing process. As regards Mr

Price, the grounds include that the sentence is excessive and the judge failed to have regard to the principle of proportionality. In the

instance of both appellants, the grounds include that the judge erred in determining that the gravity of the offences was within the

highest range and that the judge failed to attach sufficient weight to the mitigating factors and efforts of rehabilitation. As regards

Mr Morey, the grounds of appeal include that the judge erred in assessing gravity by reference to his size and that he erred in

considering the facts of the assault on the Guard in his assessment of the gravity of the assault on Mr Wang and the incident in

question.

12. Often said by this Court is that before the Court will intervene, an error in principle must be identified. So far as the offences that

the Circuit Court was dealing with and which are now the subject of this appeal, by any standards these were serious offences. In

particular, the burglary of a dwelling house is a most serious offence. It is a violation of the personal and psychological integrity of a

victim and a violation of an individual’s home which is a place where a person is entitled to feel safe and secure. That sense of a

home being a sanctuary is lost once a person is a victim of a burglary. Therefore, such crimes are considered to be very grave indeed

by the courts. A weapon was produced in the course of this incident, albeit one found at the scene. One of the residents of the

house was injured and required to be taken by ambulance to hospital. The offences were committed, in the instance of Mr Price, by a

person with previous convictions for the offence of burglary and the production of a weapon. The issue for this court is fundamentally

in the first instance, as to whether the judge fell into error in assessing that the gravity of the offences placed the offences in the

upper range of permissible sentences.

13. We consider, firstly, Mr Price. In the view of this court, the judge correctly identified the aggravating factors, to include the fact

of Mr Prices’ previous convictions, specifically those which we have referred to above in accordance with the jurisprudence of this

court. The gravity of the offence was correctly assessed by the judge as within the upper range. Whilst he did not specifically

identify a headline figure, he found that on the scale of gravity, the gravity of the offence was such that it was within the higher

range of permissible sentences for this category of offence and he considered the appropriate sentence to be one of ten years’

imprisonment. In light of the circumstances of the burglary, the invasion of the victim’s home, the use of a weapon and the injury

caused, the penalty was within the range the judge identified. The same can be said for sentences imposed for the assault offence

and for the offence of the production of an article under s. 11 of the Firearms and Offences Weapons Act 1990. The assault on Mr

Wang was a serious one requiring he be taken to hospital by ambulance for treatment. In considering, what this court views to be the

limited mitigation urged on his behalf, the judge gave Mr Price credit for his expression of remorse, albeit at the stage after conviction

and, in suspending the final three years of the sentence, also factored the efforts made by the appellant to rehabilitate himself and to

address his substance abuse. Indeed, in the instance of both appellants, the judge acknowledged that each had developed insight

into their conduct and he accepted the apologies offered by both were genuine. It cannot be said that the learned judge gave

insufficient weight to the matters offered in mitigation and we are satisfied that no error in principle can be identified.

14. In the instance of Mr Morey, much of the same analysis equally applies to him. It is submitted on his behalf that the judge fell into

error in considering that his culpability was of a high order given his build and further failed to take into account that his culpability

was of a lesser calibre than that of his co-accused.

15. In the first instance, we are satisfied that the judge was entitled to take into account Mr Morey’s physical size in assessing his

moral culpability, bearing in mind that he entered the house whilst Mr Price, his friend, was there, not with the intention of assisting

the residents but with the intention of assisting his friend. He then does precisely that, and assaulted Mr Wang by punching and

kicking him. The judge was careful to distinguish between Mr Price and Mr Morey and in consequence assessed the appropriate

sentence in Mr Morey’s case, as being one of eight years’ imprisonment. We are satisfied this is within the range of permissible

sentences and find no error in principle. Again we find no error in the assessment of the sentence of three years on the assault

count, there being no basis to distinguish between the two men in the assessment of gravity on this offence bearing in mind both men

punched and kicked Mr Wang and that Mr Morey has convictions for assault, albeit assault contrary to s. 2 of the Act. We find no

error in the sentence imposed either for the s. 2 assault count and are satisfied that the court was entitled to take into account that

Mr Morey’s response to the gardaí was not to his credit

16. The judge considered all matters in mitigation in respect of this man and we can find no error in this respect.

17. Overall, this court is in no doubt that the sentences decided upon by the sentencing judge were ones which were available to him

and ones which fell very firmly within the available range of sentences.

18. In those circumstances, this Court will dismiss the appeal in both instances.