Court of Appeal quashes full sentence suspension for robbery due to undue leniency and passes custody threshold.

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 165

Record Number: 283/2024

Kennedy J. Burns J. MacGrath J.

IN THE MATTER OF SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

APPLICANT/

- AND -

Susan McGovern.

RESPONDENT

JUDGMENT of the Court delivered on the 16th day of May 2025 by

Ms. Justice Isobel Kennedy.

1. This is an application brought by the Director of Public Prosecutions (“the Director”) pursuant to the provisions of s.2 of the Criminal Justice Act, 1993, seeking a review on grounds of undue leniency of a sentence of 4 ½ years fully suspended, imposed for 1 count of robbery, contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, with 1 count of s.3 assault taken into consideration.

Factual Background

2. This application relates to an incident which occurred during the early hours of the morning of the 21st of May 2022. The respondent, Ms. Susan McGovern, and the victim met outside of a nightclub and returned to the respondent’s apartment together.

3. Once there, the respondent changed her clothes and began kissing the victim, before placing herself between him and the door, preventing him from leaving. The respondent demanded money, and placed phone calls to an unidentified third party. As the victim went to leave, she armed herself with what was said to be a carving knife and he gave her €28. He then rang 999.

4. A portion of a recording of the call was played in the court below where the victim attempted to inform gardaí of his location and need for assistance, while simultaneously pleading with Ms. McGovern to put the knife down. It also features an allegation by Ms. McGovern that the victim attempted to rape her – an allegation which was totally unfounded and ultimately accepted by the respondent at the sentence hearing as being false. The victim was struck with a knife on the cheek causing an injury requiring stitches. In his statement to gardaí, he said that he was in fear for his life during the ordeal.

5. Gardaí arrived at the apartment and arrested the respondent. In interviews she alleged that the victim had attacked her, claiming she had acted in self-defence. She also claimed that his wounds were caused by her ring as she struck him with her hand, and not the knife.

6. The respondent entered a plea of guilty to the robbery count on a full facts basis.

Personal Circumstances of the Respondent

7. The respondent was 43 years old at the time of sentence and had 19 previous convictions. Her convictions include theft offences, possession of knives and other articles, trespass, child abduction, Misuse of Drugs Act offences, road traffic offences, and public order offences. A 6 month suspended sentence was imposed on the respondent on the 4th of October 2022 for damaging property belonging to another.

8. The respondent has suffered from serious drug addiction issues and has a difficult background. The probation report states that she has continued to use drugs, though has been free from diamorphine for some time, and is engaging in methadone treatment. The respondent continued to dispute the victim’s account of events in her interview with the Probation Service.

Sentencing Remarks

9. The sentencing judge identified the aggravating features as including the production of a knife, the slashing of the victim’s cheek, the invitation into her home proceeding the offending, and her relevant previous conviction for possession of knives and other articles.

10. He nominated a 6 year notional sentence and reduced this to 4 ½ years for mitigation which included, an early guilty plea, the fact that she hasn’t come to adverse attention since this incident, her difficult life circumstances, and her drug addiction.

11. It is clear that the sentencing judge was influenced by the fact that the probation officer was one whom he knew to be very experienced and proceeded to follow the proposal of the probation officer that a community based sanction be considered. The judge considered the probation report and wholly suspended the sentence on certain conditions.

Grounds of Application

12. The Director takes issue with the nomination of the notional sentence, the reduction afforded for mitigation and focuses on the fact that the judge wholly suspended the sentence. She argues that a custodial sentence should have been imposed in that the custody threshold had been reached, that undue reliance was placed on the recommendation in the probation report, and that the need for specific and general deterrence.

Submissions of the Director

13. The Director submits that a 4 ½ year sentence suspended entirely for

4 ½ years was unduly lenient in all of the circumstances of the case, that the custody threshold was passed and that the sentence failed to reflect the need for general and specific deterrence. Reliance is placed upon People (DPP) v Leon Byrne [2018] IECA 120; People (DPP) v James McDonagh [2020] IECA 323; People (DPP) v D’OS [2019] IECA 307 and People (DPP) v Crotty [2025] IECA 33.

14. She contends that the 6 year notional sentence was, in itself, unduly lenient.

15. The Director sets out extracts from the decision of McCarthy J in DPP v James McDonagh [2020] IECA 323 and Edwards J in DPP v D’OS [2019] IECA 307 in relation to the proposition that the seriousness of offending and the circumstances of a case can require a custodial sentence be imposed due to crossing of the “custodial threshold”.

16. The Director notes that the respondent maintained an untrue account of the events concerned in her interview with the Probation Service. She submits that the probation report did not provide a legitimate basis for the “extraordinary” full suspension of the sentence imposed – notwithstanding the recommendation therein to impose a community sanction. It is said that, while there was a requirement on the court to consider rehabilitation, the full suspension here was wholly unjustified.

Submissions of the Respondent

17. The respondent submits that the court correctly identified the seriousness of the offending and correctly placed the headline in the midrange at 6 years, citing Leon Byrne, para. 59-64. It is said that the sentence imposed was within the margin of appreciation afforded to a sentencing judge, and the notional sentence nominated was not unduly lenient. It is further submitted that the reduction of the headline by 18 months was not unduly lenient in light of the available mitigation, and that the full suspension was supported by evidence available to the sentencing court.

18. The applicant argues that while the respondent maintained a

contradictory account of events there was still significant mitigation available; her drug addiction issues which it is said motivated the offending, her attempts to overcome her addiction, her difficult background and early life, the guilty plea which it is accepted was of comfort to the victim, and the fact that the respondent has not come to adverse attention since the within offending.

19. In relation to the full suspension of the sentence, it is said that the sentencing judge averted to the fact that the full term of 4 ½ years would have been imposed, but for the recommendation of probation officer whom he knew to be an experienced officer.

20. The respondent places reliance upon People (DPP) v Joseph O’Leary [2015] IECA 128, People (DPP) v Stephen Walsh [2017] IECA 111, and People (DPP) v Daniel Smith [2019] IECA 1.

21. Finally, reliance is placed upon the case of People (DPP) v Byrne [1995]

1 ILRM 279, in support for the proposition that great weight should be afforded to the trial judge’s view of the probation report, as nuances may have been more apparent to him than to this court on a plain reading, in light of his experience reviewing reports by the probation officer in question.

Discussion

22. There can be no doubt but that this offence was rendered more serious by virtue of, not simply the production of a knife in the course of a robbery, but the use of the knife which caused injury to the victim’s face. The photographs of the injury sustained were furnished to the court below and to this Court and the victim is indeed fortunate, as is the respondent, that the injury was not more severe.

23. The sentencing judge properly observed that this is an extremely serious offence and noted the aggravating factors which led him to this

conclusion. The respondent invited the victim to her home, produced and used the carving knife and then sought to minimise her involvement by making a totally unfounded allegation of a sexual nature in relation to the victim, which can only have served to exacerbate the impact of the incident upon him.

24. She then maintained this position during her interviews with the gardaí and during her engagement with the probation officer, where she not only continued to blame the unfortunate victim, but also stated that she acted in self defence in grabbing the knife and that the money “fell” from his pockets.

25. She is a person with 19 previous convictions, with relevant convictions for theft and possession of knives or other articles. There can be no question but that the notional sentence of 6 years as identified by the judge was one which was entirely merited and could in fact have been placed at the upper end of the mid-range. Nor do we disagree with the reduction afforded for mitigation.

26. The crux of this application in truth rests with the suspension of the entire sentence. The sentencing judge certainly had an evidential basis for suspending some of that sentence with the laudable objective of seeking to incentivise her rehabilitation which was influenced by the contents of the probation report. However, we believe that the judge’s initial view was the correct one which was that the respondent should serve most of her sentence.

27. The judge stated his reasons for suspending the entirely of the sentence, but we are satisfied that the custody threshold was passed in this case. The plea of guilty was entered on a full facts basis, the assault count was taken into consideration, the offence was of a serious nature, in particular due to the use of the weapon, and the respondent sought to minimise her involvement which undermined her remorse.

Decision

28. Accordingly, we find the director has discharged the onus on her and that the sentence is unduly lenient. Suspending the sentence in full, led to a sentence which was a substantial departure from the norm and so, we will proceed to quash the sentence and re-sentence as of today’s date.

Re-Sentence

29. We have considered the evidence adduced in the court below and as no further material was furnished to this Court, we proceed to re-sentence on that basis.

30. We do not demur from the headline sentence nominated by the judge and nor do we disagree with the reduction afforded for mitigation, we are satisfied that whilst the headline nominated could have been greater and the reduction for mitigation was generous, the sentence of 4 ½ years was within the margin of appreciation afforded to a sentencing judge.

31. However, as we have said, the custody threshold was passed. A sentence must address the gravity of the offence and the personal circumstances of the offender and should, in this instance, include a period in custody so as to reflect the principle of deterrence.

32. Accordingly, we impose a sentence of 4 ½ years. As we have noted above, the sentencing judge had an evidential basis for suspending a portion of the sentence and we are satisfied that, in the circumstances and to incentivise her rehabilitation, we will suspend the final 18 months of the sentence on the same terms as in the court below.