Court of Appeal dismisses appeal against robbery sentence, upholding suspended term despite mitigating factors.

THE COURT OF APPEAL

[113/2018]

Birmingham P.

Whelan J.

McCarthy J.

BETWEEN

THE PEOPLE

(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

PAUL O’DRISCOLL

APPELLANT

JUDGMENT (Ex Tempore) of the Court delivered on the 25th day of March 2019 by Mr. Justice McCarthy

1. This is an appeal against severity of sentence. The appellant entered a signed plea of guilty in the District Court, affirmed in the

Circuit Court, to a count of robbery. On the 23rd November, 2017 he was sentenced to 4 years’ imprisonment the final 12 months of

which was suspended.

2. On the 8th July, 2017 the appellant approached the injured party, Mr. Knightly, who, sadly, was begging outside a shop on Bridge

Street, Cork. Mr. Knightly is a resident of a Simon Community hostel. The appellant emptied the contents of a paper cup that Mr.

Knightly was using to collect change. After Mr. Knightly confronted the appellant about this, the appellant rifled through his pockets

and threatened him. Mr. Knightly felt something sharp against his stomach and saw that the appellant was holding a Stanley blade

against him. The appellant took a total of €60 from the injured party and then fled. The incident was reported to the Gardaí and

following an investigation, the appellant was identified from CCTV footage.

3. The appellant was thirty-two years of age at the time of sentencing. He had no fixed address, but is from the Mayfield area of

Cork. He had also been a resident of a Simon Community hostel but was barred from it due to violent behaviour. He had been in

employment for a period and he was said to be a hard worker by his employer. It was pleaded in mitigation that due to alcohol and

drug issues the appellant fell into homelessness and chaotic behaviour. He has made some progress while in prison. He has been in

contact with the Irish Association for the Social Integration of Offenders who will assist him on his release. As a matter of common

sense, however, given his history and the difficulties under which he labours, the judge was of course right when he took the view

that a shorter period of suspension was appropriate lest he fell back into his habits, and they can only be called that, of criminality

notwithstanding any good intentions.

4. The appellant says that the sentencing judge erred;

(1) in failing to have sufficient regard to the mitigating factors associated with the appellant and the offence;

(2) in placing undue emphasis on the aggravating factors associated with the appellant and the offence;

(3) by not giving sufficient weight to the appellant’s signed plea of guilty;

(4) by imposing a sentence that, in all the circumstances, was unduly severe.

We think that these can be dealt with together since they overlap to a significant degree.

5. Some criticism is advanced of the judge by reason of his supposed failure to sufficiently elaborate to the extent to which he was

taking into account factors relevant to the sentence, including the decision to suspend a portion of it. We do not think that this

criticism is well-founded. It has been suggested that the judge failed to give sufficient weight to the fact of the signed plea but we

think that it is perfectly plain that the judge, delivering judgement as he did, after hearing the submissions of counsel and the

evidence and specifically referring to the fact of the plea of guilty (being aware, by definition, that this was a signed plea) made it

clear that he was so taking it into consideration. It is plain also that he had regard to the nature of the offence, rightly describing it

as a nasty one, involving as it did an attack on a man begging on the street with the use of a knife and the unfortunate personal

circumstances of the appellant, including the need for rehabilitation when he suspended the last year of the sentence. Criticism has

also been advanced of his finding that a Stanley knife was used. In particular, it was suggested that a hearing should have taken

place to decide whether or not, as a fact, the appellant had used such a knife in accordance with the well-known decision of R. v.

Newton [1983] 77. Cr. APP. R. 13. No application for such a hearing was made. The proposition was never pursued in cross-

examination that, in fact, a Stanley knife was not used or in the course of submissions on sentence to the judge. Obviously, insofar

as it is sought to be suggested that the judge was wrong to conclude that the appellant had used such a knife and that this court,

on an issue of credibility which, in truth, was never contested, should overrule his finding is an untenable proposition in itself.

6. There was ample evidence for the judge’s conclusion. Needless to say any contention that the prosecution version of events was

not in fact accurate undermines any signed plea. Ultimately, counsel took personal responsibility for pursuing this point on appeal and

we are prepared to accept that it was not thereby intended to so undermine it. In addition, it was submitted that the judge of his

own motion ought to have sought a probation report in circumstances where counsel decided to proceed, on instructions, with the

hearing notwithstanding the fact that the report previously requested was unavailable. Effectively counsel left it to the judge to

decide whether or not such a report was requisite making no submission either way to the court. Counsel was right of course, to say

that it was a matter for the judge in principle, but the responsibility lay upon counsel to seek such a report or apply for an

adjournment so that it could be obtained.

7. Counsel for the appellant accepted that the evidence against him was strong. Obviously any plea of guilty must be weighed in the

context of the strength or otherwise of the prosecution case. However, we do not doubt but that exceptional weight must be

attached to signed pleas of guilty, regardless of the state of the evidence. They also indicate a higher degree of remorse to, say, a

case where an accused person might be sent forward for trial and might, for example, seek extensive disclosure from the prosecution

and only thereafter enter a plea of guilty. It is also true that the victim of crime benefits from knowing at an early stage whether or

not, as in this case, his assailant has accepted responsibility and he will not have to attend court.

8. The accused had a bad previous record; he was dealt with on indictment on three occasions in respect of two offences of burglary

and one pursuant to s.113 of the Road Traffic Act. He has at least 30 previous offences for public order matters, theft, criminal

damage, under the Misuse of Drugs Acts, possession of a knife and road traffic matters. At the time of the present offence he was on

bail; such bail had been granted on the 20th June, 2017 and he was granted bail thereafter on the 23rd June of the same year in

respect of further offences. The offences for which he was bailed on the 20th June were offences under the Public Order Act, for

theft and under the Road Traffic Act. Those upon which he was bailed on the 23rd June were again offences of theft and under the

Public Order Act.

9. It seems to us that in his careful judgement the judge took into account all relevant factors. We note amongst other things that

he had regard to the totality of principle because he was required to make the sentence consecutive on that three months imposed

on the 4th November, 2017. In truth, at bottom, this case resolves itself into the issue of whether or not there was an error in

principle because the sentence was excessive in all the circumstances of the case including, especially, the fact of the signed plea of

guilty.

10. We think that having regard to the nature of the offence and his many previous convictions the judge was within his margin of

discretion when he imposed the prison sentence and suspended the last year.

11. We accordingly do not think that it is a case where this court should intervene and hence we dismiss this appeal.