Court of Appeal dismisses appeal against nine-year burglary sentence, upholding proportionality despite suspended term.

APPROVED

THE COURT OF APPEAL

Rec. No. 117/24

Neutral Citation Number [2024] IECA 326

The President

Ní Raifeartaigh J. MacGrath J.

BETWEEN/

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

RESPONDENT

-AND-

CLIVE DIXON

APPELLANT

Judgment of the Court delivered by Mr Justice MacGrath on the 28th day of July, 2024

1. This is an appeal against severity of sentence. The sentence under appeal is one of nine years’ imprisonment, the final four years of the sentence suspended, imposed in respect of eight counts of burglary contrary to s. 12 of the Theft and Fraud Offences Act 2001, as amended, contained on six different bills.

Background to the Offences

2. The facts for each individual bill, starting with the first in time, are as follows:

Bill 113/21

3. This Bill is comprised of three counts of burglary of three separate residential premises and three counts of theft which were taken into consideration. The first burglary in time occurred in the area of Dublin 9 on the 24th August 2020. On this occasion, the dwellers of the residence arrived home and found it ransacked. Both of their purses had been taken and several transactions, relatively minor in nature, had been made or attempted using contactless payment cards taken in the burglary. The second burglary in time occurred at an address in Dublin 3 on the 29th August 2020. The injured party arrived home to find the front door unlocked, items strewn around his bedroom and a PlayStation, along with other items, taken. From another dweller of the residence, a necklace to the value of €250, a pendant worth €60, an old iPhone worth €70, and bottles of wine and spirits were taken. The third burglary occurred on the 1st September 2020 also in Dublin 9. The appellant entered through a window which was open. A laptop, tablet, two mobile phones and two bottles of wine were stolen. On the 8th September, the appellant was arrested and interviewed, during which he identified himself on the CCTV footage and made a number of admissions in relation to the second and third burglary, but not the first.

Bill 289/23

4. This related to one count of burglary that occurred on the 10th August 2020 at an address in Dublin 11. The appellant entered the dwelling between the hours of 9am and 5pm, while the occupiers were out at work, by breaking a window. The attic and bedroom had been ransacked, a handbag had been looked through and bank cards taken out, drawers downstairs had been pulled out, the front room was a mess and three laptops to the value of approximately €3,100 were stolen, along with an X-Box.

Bill 856/23

5. This Bill involved one count of burglary that occurred on the 28th April 2022 at an address in Dublin 7. The injured parties were husband and wife who had returned from a book club to find that their back patio door had been smashed and their house ransacked. Property was taken and other property damaged, amounting to the sum of €9,793. Two of the stolen laptops were recovered four days after the burglary. The appellant was arrested and detained on the 7th December 2022 and, when interviewed, he identified himself on the CCTV. He pleaded guilty, sought to apologise for his actions and attended voluntarily for the purposes of being charged. This offence was committed on the 28th April 2022, while the appellant was on bail.

Bill 940/23

6. This Bill contained a count of burglary along with two other counts of theft which were taken into consideration. The burglary occurred on the 5th September 2020, in a flat in Dublin

1. The injured party had left home to go to work at 10am. Upon his return at 6:30pm, he noticed two broken glasses on the floor, that the window was wide open, his clothes had been thrown on the floor and a number of items, including a PlayStation worth approximately €350 and a speaker valued at €700, had been stolen, and an attempt was also made to use the injured parties bank card. The appellant was detained for interview. He could not remember the events that had occurred, but he did identify himself on the CCTV footage and made full admissions.

Bill 941/23

7. This Bill relates to a sole count of burglary committed on the 12th March 2022 in the Dublin 1 area. In this instance, the injured party had gone out with his flat mates and returned at 11pm. They noticed the basement window was pushed in and property to the value of €1,900 had been taken. Swabs of blood taken at the scene matched the DNA profile of the appellant. The appellant attended the Gardai station by arrangement, and effectively accepted, as he could not fully remember, that he had committed the offence. Again, this was committed while the appellant was on bail.

Bill 1376/23

8. This Bill involved a count of burglary which occurred on the 29th July 2021 in the Dublin 8 area. The injured party came back around 3:30pm to find his clothes all over the floor, blood on the ground, as well as a cloth and a black glove. Items to the value of €500 were stolen, along with €1,100 in cash. Once more, the blood found matched the appellant’s DNA profile. He was arrested and detained a year later, as he was in hospital being treated for sepsis at the time. As with certain previous occasions, he commented that he had no recollection of it and was struggling with drug addiction at the time but accepted that he had committed the burglary.

9. A common thread among the counts was that the accused/appellant would knock on the door before he went into the house to ensure that no one was present. The sentencing judge remarked on the similarities in all cases of the defendant breaking into unoccupied houses, ransacking some of them and cutting himself in the course of offending. She observed that “while this might have been traumatic for the accused, the victims were faced with finding his blood throughout their homes, having to clean this and deal with the associated fear of same”. She also noted that the accused had said that he had little memory of the individual burglaries that he had pleaded guilty in early course and, as a result, saved court time and the upset which would inevitably flow from victims having been called to give evidence. She commented that the prosecution evidence had been substantial, including as it did DNA and CCTV evidence.

Appellant’s Background and Personal Circumstances

10. The appellant was 49 years of age at the time of the sentence hearing. He has 104 previous convictions, 67 of which are for burglary. At the time of the offending outlined on Bill 113/23, he was serving the suspended portion of a sentence of three years’ imprisonment with one year suspended, which had been imposed on the 30th October 2019.

11. The appellant has spent around 25 years of his life in custody. The sentencing judge was told that the appellant had a turbulent upbringing; at the age of 12 he was sent to a residential home and experienced significant trauma there. He then moved to London where he lived on the streets, and upon arriving back to Ireland he began to abuse heroin and subsequently became addicted. It was against this backdrop that the offending occurred. This was supported by the report of Mr Brian Glanville, a consulting clinical psychologist.

12. The sentencing court was told that the appellant had attempted to engage in rehabilitation previously but had relapsed. However, in 2022, the appellant contracted sepsis and this marked a significant turning point in his life to date. The appellant engaged with Turas training, as regularly as four times a week, and secured a contract of employment in a trainee position with the organisation. He was a resident in the Step Up, Step Down programme (which forms part of the Simon Community), and his commitment to this secured him a place on the Simon Community Recovery Programme, and stated that should he be released, the organisation would make every effort to ensure a bed was available for him. A letter from Mr Paul Merrigan was put before the Court and confirmed that the appellant had obtained high threshold supported accommodation with the Peter McVerry Trust. The appellant has also sought to use his past experiences of substance misuse to help and support others who are struggling through the Recovery Academy Ireland Programme. Further, the appellant graduated from Dublin City University and now helps to facilitate college courses for those suffering with addiction issues, including those within the Irish prison system. Since then, the appellant has been drug-free. This has been objectively verified by testing. An up-to-date probation report was provided to the sentencing judge which confirmed that the appellant had co-operated and engaged fully with the probation service. In the report, it was commented that the appellant’s abstinence from drugs has significantly reduced his chances of re-offending. The appellant has also re-established a relationship with his estranged daughter, who has lent her voice in support of his plea.

13. The appellant’s history was recognised by the sentencing judge; that the appellant spent

26 years in custody and has had significant addiction to drugs since a teenager. He had attempted to detox in a number of facilities on various occasions but had been unable to maintain sobriety for any significant period of time. He had relapsed, resulting in his engaging in offending to obtain funds to feed his drug habit.

The Sentencing Hearing

14. On the 29th March 2023, the first occasion that the matter was before the Court, evidence was heard in relation to Bill 113/21 (Sergeant Coyne) and Bill 289/23 (Garda Darragh O’Connor). Mr Chris O’Donnell, a mental health and addiction practitioner specialising in homelessness with Safety Net Primary Care was called in evidence by counsel for the appellant. The Court decided to adjourn the case to the 21st April 2023, on which occasion the Court gave the appellant an opportunity to produce further evidence in mitigation. On that occasion, evidence was received from Mr. Paul Merrigan, an addiction specific case manager with Inclusion Health, St James Hospital. Mr Merrigan works as part of an interdisciplinary team under Professor Ní Cheallaigh, who also provided a report to the court. The appellant gave evidence and expressed remorse for his offending.

15. On the basis of Professor Ní Cheallaigh’s report, the sentencing judge afforded the appellant an opportunity to provide further mitigation; and in what she described as an exceptional measure, admitted him to bail. He was placed on nine months’ probation supervision. On the 8th December 2023, evidence relating to offences contained on the other four Bills was given (856/23, Garda Brennan), (940/23, Garda Tynan), (941/23, Sergeant Doyle) (1376/23 Garda Carroll). Letters which outlined progress since the last sentence date were submitted. These provided evidence that the appellant was free of illicit drugs and alcohol, was subject to frequent breathalysing and urinalysis to vouch this, and that he had engaged in a recovery-based day programme. He was also linking in with Turas Training and completed facilitator training with the Recovery College and was using his experience to assist those with drug addiction issues. The probation services recommended a further period of adjournment of four months to allow the appellant to continue his engagement with support services. The case was adjourned to the 8th April 2024 at which point sentencing was finalised. The sentencing judge was made aware that the appellant had been on bail for Bill Number 113/21 at the time that the offences comprising Bill Numbers 856/23, 941/23 and 1376/23 were committed.

16. On the 8th April 2024, further letters in support were submitted, as was an up-to-date probation report which described the appellant’s progress in positive terms and recorded that he had significantly reduced his risk of reoffending as a result of abstaining from drugs. Further proposals for supervision and monitoring were made.

17. In her ruling, the sentencing judge outlined the aggravating factors in the case. These were that the appellant was on bail in respect of the offending contained in Bill Number 113/21 when he committed the offences contained in Bill Numbers 856/23, 941/23, 1376/23. She referred to his 67 relevant previous convictions for burglary, the fact that residential properties were involved, the economic and sentimental value of the goods stolen and the psychological impact on the victims of the offences. In terms of mitigating factors, the Court gave weight to the early plea of guilty (albeit these were against a backdrop of both DNA and CCTV evidence), co-operation with Gardai, the fact that the appellant had remained drug-free for over 12 months, his apology and the remorse expressed, which the Court accepted as genuine, and that he had not come to Garda attention since. In assessing the gravity of the offending, the sentencing judge referred to the guideline judgment of DPP v Casey [2018] IECA 121 and put the offending as a whole in the upper level of the mid-range of Casey. The Court then considered each Bill in turn and imposed the following sentence: Bill 289/23: Headline sentence of six years, reduced to four years. Bill 113/21: Headline sentence of six years, reduced to four on all three counts, to run concurrently with one another and to Bill 289/13. Bill 856/23: Headline sentence of seven years, reduced to five years, to run consecutively to Bill 113/21 as the appellant was on bail at the time. Bill 940/23: Headline sentence of six years, reduced to four years, concurrent to Bill 289/23. Bill 941/23: Headline sentence of six years, reduced to four years, to run consecutively to Bill 113/21 as the appellant was on bail at the time, but concurrent to Bill 856/23. Bill 1376/23: Headline sentence of seven years, reduced to five years, to run consecutively to Bill 113/21 as the appellant was on bail at the time, but concurrent to Bill 856/23 and 941/23.

18. Having arrived at a post mitigation sentence of nine years, the sentencing judge then engaged in a proportionality test. She concluded that the sentence did not require to be reduced. The Court then proceeded to consider the appellant’s efforts at rehabilitation. The “very real steps” the appellant was taking were acknowledged. In her ruling, the judge referred to the letters of Ms Shauna Kearney of the Simon Community and Mr Liam McGowan of Dublin City University. The Court requested that, as soon as possible, the appellant be placed in a drugfree unit and that counselling be made available to him. In seeking to balance the efforts made by the appellant against the significant harm caused by his actions, the sentencing judge suspended the final four years of the sentence and backdated the sentence by nine months for time spent in custody. The structure of the sentence provides that, following his release, the appellant is to come under the supervision of the probation service for a period of three years.

The Appeal

19. The appellant has submitted six grounds of appeal, but counsel distils them down to three key arguments. Counsel identifies the “primary complaint” as the failure by the sentencing judge to suspend a further proportion of the sentence in light of the exceptional circumstances present, those being the appellant’s impressive efforts at rehabilitation. Secondly, counsel takes issue with the deduction from the headline for mitigation being between 28% - 33%, given the early guilty plea and the appellant’s personal circumstances. Finally, counsel takes exception with the failure by the sentencing judge to reduce the overall sentence by reference to the totality principle.

20. In particular it is contended that the significant feature of the cases is that in August 2022, at the age of 49, and after suffering major health consequences as a result of his drug use, the appellant finally arrived at a turning point and took major steps to rehabilitate himself by availing of assistance from various individuals and services and that since that time he has been drug-free, has engaged with various support bodies and indeed has involved himself proactively in assisting others. It is also contended that when the matter first came before the sentencing judge on the 29th March 2023, he had been progressing well in his rehabilitation, something that was taken into consideration by the trial judge, who remanded him on bail. At that time the trial judge had been informed that further matters would be coming before the court.

21. With regard to the headline sentence, while the trial judge was bound to have regard to the principles of totality when she approached sentencing on what is effectively a global basis, it is argued that insufficient reduction was made from the headline sentence in each individual case, amounting to a reduction of somewhere between 28% and 33%. The contention is that reduction for mitigation should have been greater given the appellant’s expression of remorse, his early plea of guilty and his rehabilitation efforts. Emphasis is placed on him being in a significantly different position than that in which he found himself when he committed the offences. The appellant also points to co-operation with Gardai and the making of early admissions. It is submitted that the reduction allowed for mitigating factors was too low given that the appellant… a. has remained drug-free for over a year and half, b. has not involved himself in any further unlawful activity, c. has engaged with support services, d. has been residing in semi-independent accommodation, e. has re-established relations with his estranged daughter, and f. was using his past experiences in a proactive way in facilitating drug rehabilitation for others, and, in effect was equivalent or less than to that which would be afforded to a guilty plea alone. It is particularly contended that mitigation took into account rehabilitation efforts to date, and on that basis the reduction allowed for all mitigating factors was too low. Further, it is argued that the suspension of portion of the sentence was directed at mitigation efforts to date; and that an additional period of suspension ought to have been allowed to encourage rehabilitation into the future.

Discussion and Conclusion

22. It is true that efforts at rehabilitation to date may be rewarded and future efforts incentivised by reduction in the headline sentence (DPP v Shannon [2018] IECA 182). While rehabilitation is an important goal of sentencing principles, so too are punishment and deterrence. The appellant’s offending, when viewed globally, was serious. These burglaries involved the violation of the dwelling. The importance of the protection of the inviolability of the dwelling is specifically recognised in the Constitution.

23. It does not appear to the court that the appellant’s offending is properly to be considered as a crime spree, as it might have been had the offending occurred over a limited number of hours or perhaps days. Offending took place in August and September 2020. The appellant was on remand between September 2020 and April 2021. He was admitted to bail in April 2021. On his release, he relapsed. Further offending occurred on the 29th July 2021, the 12th March 2022, the 22nd April 2022 and the 28th April 2022. The court is satisfied, nevertheless, that while the appellant seeks to distinguish DPP v Casey, the sentencing judge’s approach was not inconsistent with the underlying tenet and principles of Casey.

24. Addressing the rehabilitative steps taken by the appellant in the context of mitigation, the sentencing judge observed: “While the court has taken his rehabilitative steps into account in mitigation, the Court believes that it is in the interests of society that Mr Dixon is encouraged to continue to rehabilitate while in custody and thereafter. While I cannot direct it, I would ask that the accused is placed in a drug-free unit as soon as possible and obviously, he will have available to him counselling should he wish to continue it”.

25. A principal criticism by the appellant is that, in considering mitigating factors, the sentencing judge took into account the rehabilitative efforts taken by the appellant but this was not fairly reflected in her determination of reduction for mitigation from the headline sentence and she thereby fell into error.

26. It must be recalled that, at the time of his conviction in respect of these offences, the appellant had 104 previous convictions, including 64 for burglary. The record of past convictions was required to be taken into consideration as an aggravating factor. Three of the offences were committed while the appellant was on bail. The requirement for consecutive sentencing arose in respect of these offences. This is a factor which cannot be overlooked in the assessment of the sentencing judge’s overall approach to the headline sentence.

27. A more general consideration of the imposition of consecutive sentencing was alluded to by the sentencing judge. When addressing the appellant’s efforts of rehabilitation in the context of the assessment of the appropriate headline sentence, the sentencing judge stated that “because of the steps taken by Mr Dixon while in the community, the court has imposed concurrent sentences other than those where it had to impose consecutive sentence, where it was open to it to impose consecutive sentences because of the nature and the number of the offences involved”.

28. While consecutive sentences were not imposed except where mandated, it is nevertheless the case that the sentencing judge was mindful of the potential for consecutive sentencing. This is reflected in her stated awareness that it was open to her to consider the imposition of consecutive sentencing, but because of the steps taken by the appellant while in the community, she did not proceed to further address sentencing on the basis of consecutive sentences.

29. Standing back and looking at the matter on a global basis, and in light of all the factors addressed, this court is not satisfied that any error of principle has been identified in the assessment of the headline sentence. It is evident that in assessing the overall global headline sentence, some credit was expressly given by the sentencing judge for efforts made by the appellant while in the community and up to the time of his sentencing in April 2024.

30. The court has considered the detailed written and oral submissions admirably presented by counsel on behalf of the appellant. The court, however, is inclined to the view that the appellant’s approach is correctly summarised by counsel for the DPP. In her submissions, counsel for the respondent described it as being based on an “overly close reading” of the judge’s sentencing remarks as to how rehabilitation was to be reflected.

31. The rehabilitation efforts made by the appellant to date, and those intended to be undertaken in the future, were considered by the trial judge in three contexts:

1. In the assessment of the headline sentence. The trial judge decided not to approach the assessment of the headline sentence as one which merited consideration of consecutive sentencing other than where mandated, and;

2. In mitigation. The sentencing judge observed, inter alia, that “the court has taken his rehabilitative steps into account in mitigation”, and;

3. In determining the portion of the sentence to be suspended.

32. This court is satisfied that, as submitted by the prosecution, the sentencing judge was acutely aware of the need to consider all relevant factors in the construction of a proportionate sentence, including rehabilitation to date and in the future. If one were to accept the submission of the appellant that mitigation due to past rehabilitation efforts ought to have been reflected by a greater reduction from the headline sentence (and before it arose for consideration in the context of suspension) then, it appears to this Court that when considering proportionality, the length of the current suspended portion of the sentence would arise for re-consideration. As matters stand, 44% of the sentence imposed has been suspended. It is difficult to see how that level of percentage suspension could remain if the post-mitigation sentence was to be further reduced.

33. In the circumstances, this court accepts the submission made on behalf of the DPP that the reduction of a period of two years from the headline sentences assessed must properly be viewed in the context of the overall sentencing structure adopted by the sentencing judge and, when so viewed, it is not inadequate.

34. Regarding the contention that the length of the suspended portion of the sentence was inadequate, and that the sentencing court ought to have considered “going the extra mile”, or to have regard to the “last chance principle”; Edwards J observed in DPP v Fagan [2020] IECA

290 that, “even where there is a basis for showing considerable leniency in furtherance of those objectives, there may be normative limits on the extent to which that can be done, having regard to the crimes involved” (para. 94). In view of the gravity and multiplicity of the appellant’s offending, his culpability, the harm caused and his past record, this case cannot be regarded as falling into the category of cases where a fully suspended sentence might be permissible. The threshold for a custodial sentence, despite the very significant rehabilitation efforts made by the appellant, and for which he is to be commended, has been well surpassed. The appellant’s efforts at rehabilitation and that he was permitted to remain in the community to further his attempts at rehabilitation while awaiting finalisation of his sentence was recognised and factored into the trial judge’s decision when she observed:- “[T]he need for regard to be had to rehabilitation is evidenced by the Court’s allowing the accused on bail to progress that bail so that further mitigation could be placed before this court when considering the appropriate sentence to impose. Had it not been for the testimony received and the efforts made by the accused on remand, the accused would not now have that further mitigation to offer. This is to his benefit, but also to the benefit of society.”

35. While it may be argued that the sentence might have been constructed differently, this Court is satisfied that the sentence imposed by the trial judge, in global and total terms, was proportionate, and that no error of principle arises such as to warrant the intervention of this Court.

36. The appeal must therefore be dismissed.