Court of Appeal quashes unduly lenient suspended sentence for burglary and false imprisonment, ordering three years imprisonment.

THE COURT OF APPEAL

[235CJA/17]

The President

Edwards J.

McGovern J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT

AND

MICHAEL LYNCH

RESPONDENT

JUDGMENT (Ex tempore) of the Court delivered on the 21st day of January 2019 by Birmingham P.

1. This is an application brought by the DPP seeking to review a sentence on grounds of undue leniency. The sentence sought to be

reviewed was imposed on 6th October 2017 in the Dublin Circuit Criminal Court and was one of three years imprisonment with 18

months of that sentence suspended, which was backdated to 27th February 2017. The sentence was imposed in respect of an

offence of burglary and a count of false imprisonment which was on the indictment was taken into consideration.

2. The background to the sentence hearing was to be found in events that occurred in Newbridge Avenue, Dublin 4 on 26th February

2017. The location of the burglary was a domestic dwelling, the basement of which was used as a medical surgery, with the doctor

and his wife, who is the injured party in the case, living overheard. On the occasion, the injured party was having a rest on the top

floor in her bedroom, around 5pm, when she heard a noise. The respondent, Mr. Lynch, then entered her bedroom and said “where’s

the money?” He picked up her handbag and rummaged through it. She ran from the bedroom down the stairs to the front door and

managed to open it. However, Mr. Lynch pushed it shut, thus keeping her in the house and giving rise to the false imprisonment

charge. The respondent then left the house through a side door. He was pursued from the house by the householder, Dr. C. The

pursuer made contact with Gardaí, as he ran in pursuit, and Gardaí succeeded in intercepting the respondent. He had been seen to

discard an object as he ran, and when the location where the discard had taken place was examined, a blue wallet that had been

taken from a table top in the surgery was located. The respondent also had foreign currency in his hand when arrested which was

identified as having come from the house that had been burgled.

3. In terms of the background and personal circumstances of the respondent, he was thirty-three years of age and came from a

settled Traveller background. He had one hundred and twenty-one previous convictions of which sixteen were for burglary, seven for

theft, two for robbery, one for assault and there were also fifty-six road traffic matters and fourteen public order matters. Five of his

previous convictions had been dealt with at Circuit Court level. The Court was told that he had received a diagnosis of prostate

cancer in the recent past and the Court also heard that in the period leading up to the deferred sentence hearing, the sentence

hearing having been put back to obtain a probation report, that his family had been the subject of an arson attack while he was

detained in custody, as a result of which a number of members of his family were hospitalised. The Court was told that there was a

long-standing heroin addiction issue. The probation report that was before the Court referred to him as being at high risk of

reoffending.

4. There is no real dispute between the parties as to the legal principles applicable to undue leniency reviews and these principles

have not been the subject of controversy since the first such case, that of the DPP v. Byrne. It is clear at this stage that the onus is

firmly on the Director, who moves the application, and also clear that only a substantial departure from the norm will see an

intervention by the appellate Court. In this case, the Director says that a sentence of three years, if that was to be seen as the

headline sentence, represented a substantial departure from the norm and a substantial departure from what would have been the

appropriate sentence. On behalf of the respondent, it is not really disputed that the sentence was lenient, but it said it was not so

lenient as to require or justify intervention.

5. Since this matter was dealt with in the Circuit Court, this Court has sought to offer some guidance to sentencing in burglary cases.

It did so in the case of DPP v. Casey and also in the case of DPP v. Byrne where judgment was given on the same day as DPP v.

Casey. In DPP v. Casey, we identified a number of aggravating factors and indicated that if a number of those were present, that

would see the case placed in the mid-range. It is undoubtedly the case that a number of those factors that we identified as

aggravating are present in this case. It was, first of all, a burglary of a domestic dwelling. There was a confrontation, albeit not a

violent confrontation, but a confrontation, nonetheless, with the householder. Then, the householder’s liberty was restricted and the

offence was committed by someone with a poor prior record and someone with a directly relevant prior record in that there were a

significant number of previous convictions for burglary.

6. In the Court’s view, this called for a headline or pre-mitigation sentence of the order of five years. There were, it is true, mitigating

factors present, principally, the plea. There was also the fact of the very difficult circumstances of the respondent and those difficult

circumstances had been brought into particularly stark relief at the time of the deferred sentence hearing. This, undoubtedly,

provided a basis for downward movement from the headline or pre-mitigation sentence. But the sentence ultimately arrived at, three

years with 18 months suspended, in our view, represented a substantial departure from what would have been expected for an

offence of this seriousness committed by someone with a very bad prior record, including, as we have already indicated, directly

relevant previous convictions for burglary.

7. Given the prior record and given the view of the Probation Service that the respondent was at high risk of reoffending, he was

probably not an ideal candidate for a sentence with a significant suspended sentence. In the Court’s view, had a sentence of three

years simpliciter been imposed, that would have been appropriate and could not have been regarded as a severe sentence, still less,

as a harsh one. The respondent has now served the custodial element of the sentence from the Circuit Court and the Court has been

told that quite a number of further convictions have been recorded, though these apparently are subject to appeal. The concerns and

worries of the Probation Service would appear to have been vindicated.

8. In a situation where we are of the view that the sentence imposed was unduly lenient and where we so find, we will deal with the

matter by quashing the sentence of three years with eighteen months suspended that was imposed in the Circuit Court and we will

impose instead a sentence of three years simpliciter. The respondent is to have credit for all the time served up to the date of his

release from custody on foot of the Circuit Court order and he is also to have credit for any period in custody since the issue of a

bench warrant in respect of him by this Court.