Court of Appeal quashes unduly lenient suspended sentence for attempted robbery and imposes two and a half years imprisonment.

THE COURT OF APPEAL Record Number: 142CJA/19 Edwards J. McGovern J. Kennedy J.

BETWEEN/ THE DIRECTOR OF PUBLIC PROSECUTIONS APPLICANT

- AND - MICHAEL CUMMINS RESPONDENT

JUDGMENT of the Court delivered (ex tempore) on the 24th day of February 2020 by Ms. Justice Kennedy.

1. This is an application brought by the Director of Public Prosecutions pursuant to the provisions of section 2 of the Criminal Justice Act 1993, seeking a review on grounds of undue leniency of a sentence imposed on the respondent on the 5th June 2019. The respondent pleaded guilty to a count of attempted robbery contrary to Common Law in Dundalk Circuit Criminal Court. The respondent received a sentence of twelve months’ imprisonment with the final five months suspended on terms.

Background

2. This appeal relates to events occurring on the 4th March 2019 at Clanbrassil Street, Dundalk. The injured party was lodging money into an ATM at 12:50 am when he noticed the respondent, accompanied by a male and female, pointing at him. The injured party proceeded to walk towards Market Square and the three assailants ran over to him. The respondent punched him to the face from behind and demanded money. When it became clear that the injured party had no money on him the assailants shouted at him to go back to the ATM and withdraw money or he would be “sliced”. There were further threats made to the effect that the injured party would be kneecapped and beaten within an inch of his life. The injured party continued to refuse to go to the ATM and the Gardaí, who had seen the events unfold on the Dundalk town camera, arrived at this point. The respondent was arrested and brought to Dundalk Garda Station. He was not interviewed that night as he was found to be intoxicated.

3. The matter was sent forward to the Circuit Court on the 28th May 2019 and on that date the respondent pleaded guilty. The sentence hearing took place on the 5th June 2019 and the respondent indicated that he was anxious that the matter proceed expediently without a probation and welfare report.

Personal circumstances of the respondent

4. At the time of sentencing the respondent was 22 years of age. He ordinarily resides with his mother in Dundalk. He has seven previous convictions with the most serious of those being a conviction for false imprisonment for which he received a sentence of eight years’ imprisonment with the final four years suspended in November 2015. In the plea in mitigation the Court heard that the respondent has substance abuse issues but that he had made tentative steps towards recovery whilst in custody. There was no probation report offered to the Court.

The sentence

5. In imposing sentence, the judge acknowledged the requirement to impose a proportionate sentence, she then sentenced the respondent as follows:-

“In fairness to Mr Cummins he has pleaded guilty at the very first opportunity and he has offered an apology …He has taken tentative steps I am told about rehab but I don't have the details. He doesn't want a probation report and so I have to proceed ahead as I can. And there is one charge and it seems to me that this warrants 12 months but I will suspend some of that because of his early plea, and it was a very early plea. So, I will suspend five months of that 12 months which reduces the sentence to seven months but it is in fact a 12 month sentence.”

Grounds of appeal

6. The appellant puts forward 11 grounds of appeal, which, in short form, state that the judge failed to attach the appropriate weight to the aggravating factors and gave undue weight to the mitigating factors. Moreover, it is stated that the judge failed to apply the optimum method of sentence and that the global sentence approach led to a sentence which is unduly lenient.

Submissions of the parties Difficulties with the process leading to the imposition of penalties

7. The appellant submits that the sentencing process adopted by the sentencing judge was inadequate in that she failed to, inter alia, identify a headline sentence with regard to the aggravating factors and then proceed to consider the mitigating factors in order to reach an appropriate penalty. It is submitted that as a result, the penalty imposed was unduly lenient.

8. The respondent accepts that the sentencing judge did not follow the approach endorsed in The People (DPP) v. M [1994] 3 IR 306 but it is submitted that a sentencing judge is not obliged to follow this formula and the process employed by the Court nonetheless involved a clear balancing of the justice demanded by the offender, the community and the victim.

Excessive regard to mitigation

9. The appellant submits that the trial judge gave excessive regard to mitigation in circumstances where, aside from the early guilty plea and the apology offered, there was limited mitigation. The appellant submits that the plea in mitigation referred to the respondent’s struggle with alcohol and drugs and focused on his attempts at rehabilitation but these submissions would have more weight if they had been evidenced by reports.

10. The respondent submits that the plea of guilty was exceptionally early in this case and allowed the sentencing process to be expedited and as a result, the respondent should receive an appropriate reward. It is further submitted that the apology offered by the respondent is strengthened by his early plea of guilty.

Inadequate regard to aggravating matters

11. The appellant submits that the trial judge did not adequately consider the factors listed in ground two above; namely the aggravating circumstances of the offence i.e. multiple assailants, over a period of time with violence and threats of severe violence, and previous convictions of the respondent and his unresponsiveness to previous attempts at rehabilitation and deterrence.

12. The respondent submits that the aggravating circumstances adverted to by the appellant were not properly put before the Court: there was no timeframe given of the length of offending, or evidence offered of previous planning by the assailants.

13. In relation to the previous convictions of the respondent, it is submitted that the appellant is seeking to have the respondent punished partly for his record rather than solely for the offence at hand. The respondent emphasises that proportionality is a key requirement of punishment and punishment should not be associated with vengeance.

The sentence imposed

14. The appellant submits that the pattern of offending of the respondent indicates that previous sentences imposed on the respondent accomplished little in the way of rehabilitation. It in turn follows that the function of the suspended element enjoyed - or indeed any potential suspended element - is unclear, there being nothing specific ordered by way of terms or conditions imposed to which the respondent could address himself, other than the basic requirement to behave and not to offend and to engage with the Probation Service. This may have transpired as nothing at all objective was to hand to assist the judge in requiring general or specific rehabilitative steps, whether by way of suspension on terms or a reduced penalty in and of itself. There was nothing objective in the case to suggest how the Probation Service might proceed. No offer of a sum by way of an expression of remorse, let alone an offer of compensation, was in the case such as might offer the accused or indeed the victim a road to betterment.

15. It is submitted that such element of deterrence employed in sentencing the respondent in the past had been somewhat ineffectual and that the instant case merited the incorporation of a significant element of deterrence. It is submitted that the sentencing judge, while appearing to have express regard for this as an element of sentencing, erred in principle in failing to have proper adequate regard to how this might be appropriately reflected in the sentence she imposed. Again, while deterrence in society was referenced, it is respectfully submitted that this sentence does not accomplish this goal.

16. The respondent submits that a partly suspended sentence is an effective method of promoting rehabilitation and deterrence where that is a realistic prospect. The respondent submits that the threat of activation of the suspended portion of the sentence was a real deterrent and punishment.

17. Furthermore, it is submitted that the respondent was in fact subject to rather onerous terms in respect of his suspended sentence as outlined by the sentencing judge. In support of the above submissions the Court of Appeal in The People (DPP) v. Harte [2015] IECA 121 viewed that a part-suspended sentence is not unduly lenient in circumstances of the onerous conditions attached to the sanction. In addition, The People (DPP) v. Stronge [2011] IECCA 79 held that the length of the operational period forms part of the punishment and the longer the operational period the more onerous it for the offender that is subject to it.

Discussion

18. The jurisprudence relating to undue leniency appeals is well settled at this point. This Court will not intervene in the sentence imposed unless it is demonstrated that the sentence was a substantial departure from the appropriate sentence.

19. There were many aggravating features present in this case. It involved the three persons, including the respondent, availing of an opportunity that appeared to present itself on the night in question, the victim was assaulted by the respondent, he was threatened in a most unpleasant manner, demands were made for money, the victim was restrained by his attackers and all served to affect him considerably. The respondent has seven previous convictions; including two offences regarding the possession of weapons and an eight year sentence for the offence of false imprisonment, with the final four years suspended. It seems that the present offence was committed while the respondent was on temporary release.

20. It is undoubtedly so, that the plea of guilty came at a very early stage in the proceedings.

The respondent offered an apology to the victim on the sentence date. Counsel for the respondent submitted at the hearing that he had been informed by the respondent that he was drug free for a period of six weeks, but there was no material to support this contention.

21. Rehabilitation is an important objective in the sentencing process, however, as stated by Edwards J. in The People (DPP) v. Coughlan [2019] IECA 173, there must be a sound evidential basis in order to justify a court permitting of a further reduction in sentence or suspending a portion of a sentence. In this case, there was no such material made available to the sentencing judge. This may well be because the respondent was anxious to proceed, but the situation remains that there was no material.

Conclusion

22. While the judge failed to apply the optimum approach to sentencing, this of course, will not necessarily result in an error in principle, once the manner of sentencing is sufficiently transparent. A global approach may serve to achieve a proportionate sentence. However, in the present case, we are satisfied that the sentence imposed by the judge was significantly outside the norm for such an offence.

23. The sentence of twelve months imposed with the final five years suspended on terms is a substantial departure from the appropriate sentence for an offence of this nature. The sentence of twelve months is in itself inadequate but furthermore, there was no evidential basis upon which to suspend the final five months of that sentence.

24. In those circumstances, we are satisfied that the sentence is unduly lenient and so quash the sentence and impose in its stead a sentence of two and a half years’ imprisonment.

In coming to that sentence, we identify a headline sentence of four years’ imprisonment, but we allow eighteen months reduction of that sentence to take account of the mitigating factors and in acknowledgment of the disappointment factor for the respondent in now serving a sentence, having been at large for some six months.