Court of Appeal allows DPP appeal, increasing sentence from 6 years to 9.5 years for armed robbery.

THE COURT OF APPEAL

Approved

No Redaction Needed

Neutral Citation: [2025] IECA 181

Record No: 264CJA/2023

Edwards J. Kennedy J. O’Moore J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE

CRIMINAL JUSTICE ACT 1993

Between/

THE PEOPLE (AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS)

Applicant

V

PAUL CLARKE

Respondent

JUDGMENT of the Court delivered by Mr. Justice O’Moore on the 6th day of February, 2025.

Introduction

1. Before this Court is an appeal brought by the Director of Public Prosecutions (i.e., “the applicant” or “the Director”) pursuant to s. 2 of the Criminal Justice Act 1993 (“the Act of 1993”) for review of the sentence imposed on Paul Clarke (i.e., “the respondent”) by the Circuit Criminal Court, Dublin on grounds that it was unduly lenient.

2. On the 20th of October 2023, the Court below sentenced the respondent in respect of two counts: robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and carrying a firearm with criminal intent contrary to s. 27B of the Firearm Act 1964. A further charge of reckless discharge of a firearm was taken into consideration.

3. The respondent was arraigned and pleaded guilty to the above offences on the 16th of October 2023.

4. On the 20th of October 2023, a sentence of 6 years imprisonment was imposed on the robbery charge. A concurrent sentence of 5 years imprisonment was imposed on the s. 27B charge. These sentences were ordered to commence on the 20th of October 2023.

Factual Background

5. At the sentencing hearing on the 16th of October 2023, Detective Garda Jason Flynn gave evidence in relation to the factual background to the respondents’ offending.

6. On the 13th of November 2019, at approximately 19:13 pm, the respondent entered a Lidl store on the Malahide Road in the Dublin 17 area and almost immediately discharged a handgun into the ceiling. Shortly after, a mother and child walked past trying to escape from the store; however, as it was an entrance door, they could not exit.

7. CCTV footage which was played before the Court below showed the entrance to the Lidl shop, where a person wearing a blue jacket (identified as the respondent) could be seen entering the store and discharging a firearm.

8. There were a number of tills in the store, but only two were in operation at the time. The respondent made a demand that all of the tills be opened. However, evidence was given that a till is only operational in Lidl if there is someone operating the cash register. A Mr. Byrne, the store manager, explained to the respondent that he did not have the capacity to open any of the other tills. The respondent requested “Notes” when the cash register drawer was opened. CCTV footage showed the tray inserts being taken out of the two operational tills and placed into the bag that the respondent had with him. The respondent took approximately €1,000 in cash and coins.

9. The respondent then made a further request for access to the drop boxes, which are the areas where larger amount of cash are kept in secure storage. Again, Mr. Byrne had to explain to the respondent that he did not have access to those boxes.

10. The respondent had difficulty leaving the premises and was agitated in the area of the door trying to leave because he could not get out. Mr. Byrne went over and opened the door for him with the code that he had to allow him to exit.

11. The incident lasted approximately two minutes.

12. The gardaí arrived “relatively promptly” onto the scene and spoke immediately with Mr. Byrne, who described what happened as was seen on the CCTV evidence. He also gave “further flavour” that was not captured on the CCTV, such as that the gun was produced to him and he was threatened with it.

13. Mr. Byrne declined to make a victim impact statement and at the end of his statement to the gardaí he described how he felt calm in all of this, that it could have just been the adrenaline, but at the same time, he was aware of the dangers that were presented to: “the public, the staff and me,” and “commendably” places himself last in that register of interest.

14. A forensic examination of the Lidl premises disclosed the presence of a shell casing showing that a gun had in fact been discharged. There was a hole in the ceiling and a shell casing on the floor.

15. CCTV footage was also obtained from a McDonalds and a Texaco which are immediately adjacent to the Lidl store, and they showed the respondent, Mr. Clarke, getting into a Peugeot 407 vehicle.

16. The respondent’s co-accused, a Mr. Dylan Andrews was the driver of that vehicle. Mr. Andrews received a sentence of 2 ½ years’ imprisonment post-mitigation.

17. Later that evening, Detective Garda Flynn was on patrol with a Garda Cassidy in the Darndale area when they came upon a vehicle. Due to suspicious activity taking place outside the vehicle, the two gardaí approached it and witnessed drug paraphernalia within the vehicle. Detective Garda Flynn immediately recognised both the respondent and Mr. Andrews as being the occupants of the vehicle.

18. Both individuals were searched for the presence of drugs and found quite an amount of drugs including tablets, zopiclone tablets, and an amount of cash. There was €315 in notes and €125 in coins found in the respondents’ possession. Both men were arrested.

19. At this stage, information came to light that suggested certain garments may be found in a premises in Darndale, to which a search warrant was obtained and a blue jacket similar to the jacket seen on the CCTV footage was recovered.

20. The respondent was swabbed forensically for the presence of gunshot residue, and ultimately, gunshot residue was obtained from the respondent, from the jacket and from the passenger side of the Peugeot 407.

21. The respondent was interviewed on two occasions, once immediately following his arrest, and second when the gunshot residue results came back from the forensic science laboratory. On the first occasion, the respondent made a number of helpful comments in terms of placing himself in the company of Mr. Andrews in terms of where he was during the day but denied having anything to do with the robbery and said, “he had never been in the shop before”. On the second occasion, he again denied any participation in this particular robbery, but did converse with Detective Garda Flynn about his involvement in other matters.

Personal Circumstances of the Respondent

22. The respondent was 41 years of age at the time of the sentencing hearing. He has a childhood that was “marred” by drugs, homelessness, neglect, and crime. He had to steal food and other basics to look after his siblings. His father died in tragic circumstances.

23. The respondent suffers from addiction problems, and the related criminal and antisocial behaviour that seems to flow with addiction in so many cases.

24. He has little formal education and no work record.

25. The respondent has 115 previous convictions. Of particular relevance, the respondent is currently serving a sentence of five years imprisonment imposed by the Circuit Criminal Court. The commission of that offence post-dates the commission of this offence (offence of attempted robbery with a firearm) in October of 2021; the incident case involves robbery with a firearm in 2019.

26. On the 7th of July 2010, the respondent was also involved in a robbery in a northside post office where a shotgun was discharged, where a sentence of 8 years imprisonment was imposed on him.

27. In relation to the latest charge before the Court, which is an offence committed in 2021, the respondent was on bail for this robbery when that robbery was committed.

28. Three of the respondents’ previous convictions relate to offences of carrying a firearm with criminal intent; two relate to false imprisonment offences; two convictions relate to threatening to kill or cause serious harm; and then a number of other convictions which are serious but are not on the same calibre as the matters which have the respondent before this Court today.

29. A Governor’s report notes that he is a good prisoner, and he is enhanced. He has done Alternative to Violence, and he is signed up for a Red Cross course.

Sentencing Judge’s Remarks

30. On the 20th of November 2023, the judge in the court below passed sentence on the respondent. The sentencing judge noted the factual background of the case as described by Detective Garda Flynn.

31. The sentencing judge then identified the relevant aggravating factors at play in this case as follows: “The aggravating factors are the amount of previous convictions involved here, including for robbery, multiple for robbery and for carrying firearms with criminal intent. The further aggravating factors; bringing a live weapon into a shop and then discharging it in a shop with people of all ages in public at the time. The undoubted impact upon everybody who was there, one could see from the CCTV footage that people were frozen to the spot with what was going on. And of course, he has previous for section 27(b) of the Firearms and Offensive Weapons Act, and I'll have to take that into account.”

32. In relation to mitigation, the sentencing judge made the following remarks: “In mitigation; he did plead, albeit at a late stage. He is doing courses in custody. He's an enhanced prisoner. He has offered his apology in relation to it. … He himself has had an addiction, and criminal and antisocial behaviour that seems to flow with addiction in so many cases. He has little formal education and no work record. In terms of his conviction, I note, and the point was made, that he had a spate of convictions in late 2003, 2004, then again in 2010, and now is serving a five-year sentence. I'm told he's done well in prison. There is a Governor's report that says he is a good prisoner and he's enhanced. He's done Alternatives to Violence. He's signed up for a Red Cross course, and I take into account what his mother-in-law has said in relation to him. She has known him a long time and she speaks to the good in him notwithstanding the offending that he has perpetrated. I also note that he has had a significant event in terms of him becoming a grandparent and he has been attending church, it would appear. From what I'm told, just before this happened, he started to attend the church and has been on a journey to seek God and has been baptised since, and he has the spiritual assistance from his church in relation to all of these things.”

33. The sentencing judge identified a headline sentence of 8 years’ imprisonment in respect of count no 1, the robbery offence, and reduced this by 2 years in light of the respondents personal and mitigating circumstances. In relation to count no. 2 concerning the offence of carrying a firearm with criminal intent, the sentencing judge identified a headline sentence of

7 years’ imprisonment and reduced this by 2 years also. Thereby, the respondent received a term of 6 years imprisonment for the robbery offence and a term of 5 years imprisonment for the offence of carrying a firearm with criminal intent, both sentences to run concurrently from the 20th of October 2023. A further charge of reckless discharge of a firearm was taken into consideration by the sentencing judge.

Grounds of Application

34. The basis on which the Director brings her present application is set out in her grounds of application contained in the Notice of Application to Review of Sentence dated the 14th of November 2023. Those grounds provide:

1. “The learned Trial judge erred in nominating a headline sentence of 8 years imprisonment for the robbery offence where the aggravating factors warranted placing the offence in the higher range of offending;

2. Without prejudice to the generality of ground 1, the Applicant relies on the following aggravating features of the offence:

2.1 The discharge of a firearm in an enclosed space in close proximity to members of the public including children;

2.2 The giving of repeated directions, emphasised with a firearm, in relation to emptying tills and accessing drop safes as captured on the CCTV shown to the learned Trial Judge;

2.3 The fact that the robbery was found to be planned and not opportunistic;

3. That where a headline sentence was nominated and the ultimate sentence imposed it one of six years imprisonment, it is submitted that undue weight was given to mitigating factors. In that regard, the Applicant pleads:

3.1 Insufficient recognition was given to the fact that the Applicant had a record of conviction which included multiple robbery offences, including offences in which firearms were discharged;

3.2 Insufficient weight was given to the fact that subsequent to committing this offence and while on bail for this offence, the Respondent committed a further attempted robbery offence and was serving a sentence of imprisonment for the attempted robbery offence when convicted of this offence and that there is a degree of overlap between the two sentences;

3.3 Insufficient recognition was given to the fact that the Respondent did not plead guilty at the earliest opportunity (while recognising that the plea came a number of months in advance of the trial date and was of assistance)

3.4 Excess weight was given to the guilty plea entered by the Respondent given the nature and quality of the evidence available.”

Submissions on Appeal

Applicant’s Submissions

35. The applicant submits that this offending contained many of the aggravating factors identified by Professor O’Malley in his book ‘Sentencing Law and Practice 3rd edn.’ including:

(i) Actual or threatened force, weapon (loaded firearm);

(ii) Offence committed in the company of others;

(iii) Offender played a leading role in planning and commission of the offence;

(iv) Planning and premeditation;

(v) Offence committed without regard to public safety;

(vi) Offence committed for financial gain;

(vii) Offender has previous convictions for similar offences, and serious offences committed in the fairly recent past;

(viii) Concealing or disposing of evidence.

36. The applicant refers the Court to the cases of People (DPP) v. Crosbie [2020] IECA 143; and People (DPP) v. Wall, Walsh, O’Connor and Tynan [2020] IECA 48.

37. Ultimately, the applicant submits that given the seriousness of the offending and the multiplicity of aggravating factors, including the fact that the respondent was already serving a sentence for an offence committed while on bail for the offence the subject of this review, the imposition of a sentence of 6 years imprisonment is simply unduly lenient in light of all the circumstances.

Respondent’s Submissions

38. By imposing these sentences to run from the date of sentencing, rather than consecutively the applicant submitted that the sentencing judge effectively reduced the period of detention by over 19 months. However, the respondent submits that the Court acknowledged the mandatory minimum provisions and the law in relation to the offences and applied its discretion taking into account the mitigating and aggravating factors which are described as “considerable”.

39. The respondent submits that the applicant has failed to identify sufficient grounds for an appeal with the legal principles as set out in People (DPP) v. Derrick Stronge [2011] IECA

79. It is submitted that the respondent has failed to establish a gross departure from what would be an appropriate sentence. It is further submitted that the sentence imposed does not fall outside the scope of what the sentencing judge could reasonably impose. As such, it is submitted that there is no sufficient error in principle established, in order to justify the intervention.

40. The respondent submits that the applicant’s submissions give insufficient consideration to the reasoning adopted by the sentencing judge. It is further submitted that the applicant places over reliance on the aggravating factors in the case, which while identified by the sentencing judge must be weighed against the mitigating factors in arriving at a sentence that is just in all the circumstances of the case.

41. The respondent refers to the case of People (DPP) v. McCormack [2000] 4 IR 356 and submits that in the instant case, this is “precisely” the approach that was adopted by the sentencing judge.

42. The respondent submits that the sentence imposed by the sentencing judge reflects a measured approach considering the complexities of the respondent’s background.

43. It is further submitted that the instant case can be distinguished from cases such as Wall, Walsh, O’Connor and Tynan where multiple assailants and a high degree of violence were present. While it is acknowledged that the actions of the respondent were extremely serious, it is submitted that in causing panic and fear these actions were less severe than in, for instance, causing severe injury, which afforded the sentencing judge a greater degree of discretion to impose a less severe sentence.

44. It is submitted that in structuring the sentence, the sentencing judge arrived at a sentence that, taking into account the circumstances of the respondent were fair, reasonable, proportionate, just in all the circumstances of the case and not unduly lenient.

45. At the hearing of the appeal, in admirably concise submissions, counsel for the appellant put the Director’s case in this way. While the eight year sentence was not in itself objectionable, it was submitted that having that sentence run concurrently with the last 19 months of the earlier sentence constituted an error of principle. In equally concise submissions, counsel for the respondent argued that the sentence was an appropriate one, that the mitigating factors might have attracted a greater discount on the headline sentence, and that had the sentence run from the expiry of the earlier sentence this could have raised questions about compliance with the principle of totality. While both counsel raised other peripheral matters, the central issue before the court is one which turns on the fact that the term of imprisonment imposed in this case ran from the date of sentence.

Court’s Analysis & Decision

46. Having decided that a sentence of 8 years’ imprisonment was appropriate, the sentencing judge did not explain why she had effectively reduced that period by about a fifth as a result of the date from which the custodial term was to run. It may well be that the judge had concerns about the totality principle, but these were not expressed and it is therefore difficult to know how well founded such concerns were (if they existed at all). The actual reduction in the headline sentence is a very significant one that is out of kilter with the sentencing judge’s own analysis. In those circumstances, the effective reduction in sentence resulting from the decision to have it run from the date it was imposed rendered the sentence unduly lenient and thus constituted an error of principle on the part of the sentencing judge. The sentence imposed on the respondent therefore cannot stand, and we will set it aside and resentence the respondent de novo. In doing so, we will calculate the appropriate sentence to run from the date of the original sentencing hearing of the 20th of October 2023.

Re-Sentence

47. We have received limited further information about the circumstances of the respondent. We are told by his counsel that he is currently drug free. We have also been given certificates to the effect that the respondent has successfully completed a Second Level Workshop provided by the Alternatives to Violence Project, a Male Awareness Workshop provided by the same body and the Literacy Ambassador programme of the National Literacy Agency. The respondent has also been recognised by the Irish Red Cross for his contribution to and completion of the Overdose Prevention Programme. All of these reflect well on the respondent, in particular his successful efforts to address his dependence on drugs.

48. As the sentencing judge observed, there are a large number of aggravating factors in this case. These include the number of previous convictions, in particular those relating to carrying firearms with criminal intent. He brought a real firearm into a supermarket, deliberately discharged it into the ceiling, terrified members of the public (as we saw in considering the CCTV footage) and did so in the context of a planned criminal enterprise. In this regard, we are not taken with two specific submissions made by his counsel. The first of these is that the whole episode took only two minutes; a great deal of life changing damage can be done in that time. The second is that the driver of the getaway car received a much shorter sentence; however, the nature of that person’s involvement in the robbery was different to that of the respondent.

49. Of great importance, in our view, is that among the respondent’s previous convictions is one for a robbery in a Dublin post office in which a shotgun was fired. The current case is therefore the second in which the respondent has committed a robbery in a retail outlet and discharged a firearm in doing so.

50. We therefore believe that a headline sentence of nine and a half years is appropriate, taking into account the fact that nineteen months of that sentence is a period for which the respondent would in any event be incarcerated. We agree with the sentencing judge that (in the light of the mitigating factors advanced before her) the headline sentence should be reduced by two years. At the time of that sentence, the respondent was “still using illegal and unprescribed drugs while serving a sentence, but there is hope for him.” As the respondent has now made progress in dealing with his drug addiction, we will suspend nine months of the effective sentence in order to encourage him to continue to avoid illegal drug use.

51. We will therefore nominate a headline sentence of nine and a half years, reduced by two years to reflect the mitigating circumstances in this case, with the final five months suspended for a period of four years. The sentence is to run from the 20th of October 2023.