Court of Appeal dismisses appeal against burglary sentence, upholding trial judge's discretion on mitigating factors.

THE COURT OF APPEAL

[85/2018]

Birmingham P.

Edwards J.

McCarthy J.

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

THOMAS HEALY

APPELLANT

JUDGMENT of the Court (ex tempore) delivered on the 24th day of June 2019 by Mr. Justice Patrick McCarthy

1. The appellant was charged with one count of burglary contrary to section 12 of the Criminal Justice (Theft and Fraud) Offences

Act, 2001 and pleaded guilty on the date of trial. He was sentenced on February 15th 2018 to five years’ imprisonment, the last year

of which was suspended. The judge determined a headline sentence of seven years’ imprisonment, and after considering mitigation,

arrived at sentence of five years’ imprisonment with the final twelve months suspended to incentivise rehabilitation.

2. On Friday July 21st 2017, the appellant and another male entered an apartment the resident of which was not home at the time. A

sum of seventy cents was taken from the premises. The Gardaí identified the appellant from contemporaneous webcam footage

provided by the injured party. The strength of the evidence is, of course, relevant to the weight to be attached to the plea as well

as the time at which it was proffered.

3. While the sum of money taken from the premises was of little value, the sentencing judge made the following remarks: -

“The breaking in to somebody's private home, a place which should be the ultimate source of comfort and privacy for all

citizens, the breaking of that privacy is a horrible and despicable type of crime. Mr Healy, based on his previous

convictions, clearly has no idea or appreciation for the impact it can have on people when they realise, even when it is

unoccupied, that their home has been invaded by strangers. It is noted by the Court that the items removed would

appear to be of quite considerable little value but that is actually not particularly vital when one looks at the impact of

the break in on the victim.”

Grounds of Appeal:

4. The appellant submits that the trial judge: -

(1) Erred in law and in fact in failing to attach appropriate weight to the absence of physical force or criminal damage in

entering the complainant’s premises and furthermore the absence of any violence in committing this offence;

(2) erred in law and in fact in failing to attach the appropriate weight to the applicant’s early plea of guilty;

(3) erred in fact and in law in mischaracterising the nature and extent of the appellant’s previous convictions;

(4) failed to attach adequate or sufficient weight that the plea of guilty was entered at the earliest possible opportunity;

(5) erred in law and in fact in failing to attach sufficient weight to the evidence favourable to the applicant and

concentrated disproportionately on the matter of the offence thereby adopting an unbalanced view of the evidence (all

property was recovered);

(6) erred in law and in fact in failing to take any or any adequate account of the particular mitigating circumstances of

this applicant in the context of this offence;

(7) failed to give adequate weight to the prospect of rehabilitation;

and,

(8) that the sentence was oppressive and represented a substantial departure from what would be regarded as the

appropriate sentence in all of the circumstances of this case.

As the grounds of appeal overlap to a considerable extent, we will deal with them together.

Submissions

5. The appellant submits that the absence of physical force and criminal damage in this case was not adequately taken into account

by the sentencing judge. He submits that the use of threats or violence is an aggravating factor in any offence but that here the

appellant entered an unoccupied premises during the day and did not use any implements or tools that would cause the court to think

that this was anything other than an the facts in DPP v Fitzgerald [2018] IECA 330, the premises was unoccupied at the time of the

commission of the offence, no weapon or violence was used, there was a low monetary value on the property taken and the crime

was fairly characterised as opportunistic.

6. The approach of the sentencing judge, it was further submitted, “seems to have been to apply the principle of general deterrence

into the circumstances of this appellant and makes an example of him in order to send out a general message, while failing to take

the particular factors relevant to the appellant only in to account.”

7. The appellant summarises what he says are the mitigating factors as being the (allegedly) very early plea of guilty (it was not, but

only entered on the date of trial); the lengthy period of time in which the accused did not come to the adverse attention of An Garda

Síochána (this was between the years 2002 and 2010 and can scarcely be considered relevant); the evidence of remorse [as shown]

“through” his (alleged) early plea and the letter addressed to the injured party in the case (such may have been present but as

referred to above, the evidence was overwhelming), that the stolen property was recovered and in any event, was of low monetary

value; that there was no damage done to effect access; the (supposedly) opportunistic approach of this appellant (but obviously the

fact that two persons were involved undermines that proposition); that there was nobody present in the premises when the appellant

entered it; the (supposed- there was no evidence of this) reduction in his dependence on methadone at the time of sentencing;

insight as to the root of his previous offending behaviour (again of which there was no evidence); the appellant’s previous attempt at

rehabilitation (of which, similarly, there was no, and certainly no comprehensive, evidence – merely a reference to contacting an

organisation called ‘St. Francis Farm’); the fact that there was no weapon or violence used; the appellant’s family support with good

influences from his current relationship (of which, again there was no evidence) and the fact that he was not acting alone in the

commission of the offence (although how that does anything but aggravate the seriousness of the matter is difficult to see).

8. It seems to us that the aggravating factors in this case are that the premises entered was a dwelling house, although the resident

was not present at the time, the fact that the appellant was in the company of another man, that when in the premises it was

sought to use socks, the property of the resident, as gloves for the purpose of minimising detection, the numerous previous

convictions, 65 in all, including, and most importantly, two convictions on indictment in respect of offences of burglary, one of s.4

theft simpliciter, and one for handling stolen property. Further, a number of his summary convictions were for burglary and the

offence was committed whilst the appellant was on bail for a similar offence. Since there was no realistic prospect of an acquittal and

the plea was not an early one the appellant does not have available to him mitigation to an extent which will often exist. It is true

that while the accused does not seem to have offended between 2002-2010, we are not dealing here with what one might describe

as a once-off incident of recidivism in the case of a person who, whilst at one time engaged in criminality, for many years been

conviction free.

9. The trial judge was of course entitled to have regard to the necessity of imposing a deterrent sentence both in respect of general

and specific deterrence and there is no basis for saying he gave undue weight to this necessity.

10. It seems to us that the learned trial judge had regard to all relevant factors in his comprehensive judgment. We cannot see any

error in principle, and the sentence imposed was one within his margin of discretion. We accordingly dismiss this appeal.