Court of Appeal quashes disproportionate theft sentence and re-sentences appellant to 3 years total imprisonment.

APPROVED JUDGMENT

THE COURT OF APPEAL

Neutral Citation: [2025] IECA 242

Record Number: 0342/2024

Charleton J. Kennedy J. Butler J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT/

- AND -

Thomas Ward.

APPELLANT

JUDGMENT of the Court delivered (ex tempore) on the 10th day of

November 2025 by Ms. Justice Isobel Kennedy.

1. This is an appeal against sentence. On the 4th of December 2024, the appellant was sentenced in respect of two bill numbers.

2. On bill number 47/23, the appellant pleaded guilty to theft contrary to s.4 of the Criminal Justice (Theft and Fraud Offences) Act 2001 (count 1) and unlawful interference with a vehicle contrary to s. 113 of the Road Traffic Act 1961 (count 3). The appellant was sentenced to 1 ½ years imprisonment in respect of count 1, with count 3 taken into consideration.

3. In respect of bill number 53/23, the appellant pleaded guilty to burglary contrary to s.12 of the Criminal Justice (Theft and Fraud Offences) Act 2001 and was sentenced to 2 ½ years imprisonment (count 2), with counts 1 and 3 on the indictment taken into consideration. Count 1 concerned a burglary and count 3 a trespass.

4. The sentence imposed on bill 53/23 is consecutive to the sentence imposed on bill 47/23. The appellant was on bail at the time of the commission of the second series of offences. The total sentence is therefore one of 4 years imprisonment.

Background

Bill No. 47/23

5. In respect of count 1, on the 15th of October 2022, the appellant entered Murphy’s Centra in Tuam, County Galway and took three cigarette lighters (with a value of €6), two packets of Donegal Natural Nuts (with a value of €4.40) and an unknown amount of petty cash taken from a charity box for the Irish Cancer Society. The appellant left the shop without paying and stole the petty cash. The offending was captured on CCTV and the owner of the shop made a statement of complaint to the Gardaí.

6. Count 3 occurred on the evening of that same day. The appellant was captured on CCTV approaching a parked car, opening an unlocked door and partially entering the vehicle. After approximately one minute, the appellant closed the door and walked away from the area. The owner of the vehicle made a statement of complainant to the Gardaí. There was no damage to the car and no theft occurred.

Bill No. 53/23

7. On the 24th of October 2022 in Woodquay Hostel in County Galway, the appellant entered the property and made his way firstly into the luggage room and stole some items there to a value of €1422.00. The items stolen included a laptop, personal card documentation, and Oakley sunglasses. He then left this room and entered a hostel bedroom where he stole a laptop, a charger, a box containing silver and gold rings, and an expensive hearing aid. The total value of the items was €6,600. CCTV was obtained, from which the appellant was identified. He was arrested later that evening and during interview the following morning, he admitted to the offending and fully assisted the Gardaí in recovering the stolen items.

8. Later that day, Gardaí responded to a call at the Western Hotel on Prospect Hill, County Galway, where the appellant had been attempting to break into rooms in the hotel. Gardaí arrested the appellant on suspicion of trespass and brought him to the Garda North Western Region Headquarters in Galway city, where he was subsequently arrested on suspicion of the burglary offences in Woodquay Hostel.

Personal Circumstances of the Appellant

9. The appellant was 46 years of age at the time of sentencing. He suffered with addiction for most of his life and was born into a household where addiction was rife. He had previously been imprisoned in Castlerea Prison and counsel for the appellant told the court that he was working as a cleaner during his time in prison.

10. The appellant told members of the Gardaí that he had been under the influence of drugs during the offending, having taken tablets of some kind he had bought earlier that day. The court also heard that the appellant was engaging with a drug addiction counsellor and was receiving treatment in the form of methadone for his addiction.

11. The appellant was granted station bail on the 19th of October 2022, in respect of the offending comprised in bill number 47/23 and was on bail when he committed the offences on bill number 53/23 on the 24th of October 2022.

12. The appellant had 148 previous convictions at the time of sentencing, 53 of which relating to offences contrary to the Criminal Justice (Theft and Fraud) Offences Act 2001.

Sentencing Remarks

13. In relation to the previous convictions of the appellant, the sentencing judge remarked;- “He's entirely out of control. And it seems to me his appalling history here, with 148 previous and there are 53 offences of a similar nature to this. All the rest of them are criminal damage, drugs and RTA, probably a pretty minor one from that. The serious ones, we're not taking those directly into account. Fifty three previous; burglary, theft, fraud is sufficient for me to realise that there's a significant aggravating factor.

He's no control under that amount of drugs.“

14. The judge was of the view that the appellant was a “social menace” and found of particular concern regarding the first bill of indictment that the appellant had stolen from a charity box.

15. The judge noted regarding the second bill of indictment, that it occurred 9 days later and that the appellant was on bail, that while the premises was not a domestic setting, it was a hostel. He paid particular note that one of the items stolen was a valuable hearing aid which somebody would have relied upon. Later that same night, he was trespassing in a hotel, a count which the judge took into consideration in determining the sentence.

16. In terms of mitigation, the sentencing judge considered the guilty pleas of the appellant, the guilt, shame and remorse he displayed for his behaviour, and the effect that his addiction has had on his life. The judge noted that all the items stolen were recovered and returned to the victims with the assistance of the appellant. The judge also remarked that the appellant had a good prison record and that he is a “decent type of person when he is sober and in a routine and working”.

17. However, the sentencing judge also stated he had no hesitation in believing that the appellant would have been found guilty had he fought the charges and that while the guilty plea was of assistance, it was “not of the value when compared to aggravating factors that it may have”.

18. In respect of bill number 47/23, the sentencing judge nominated a headline sentence of 2 years imprisonment and reduced the sentence to one of 1 ½ years. In respect of bill number 53/23, the sentencing judge nominated a headline sentence of 3 ½ years imprisonment and reduced the sentence to one of 2 ½ years, to be served consecutively, resulting in a total sentence of 4 years imprisonment, to be backdated to the 1st of November 2024.

Grounds of Appeal

19. Although the appellant originally put forward 7 grounds of appeal, the appellant has condensed his appeal to contending that the headline sentence nominated in each instance is excessive. Counsel for the appellant succinctly argues in respect of the first bill of indictment that the judge ought to have treated the theft offence as summary in nature and sentenced accordingly.

Submissions of the Appellant

20. The appellant submits that the offences in respect of bill number 47/23 were before the Circuit Court solely by virtue of count 2 on the indictment on which a nolle prosequi was entered. As a result, the two remaining minor offences were not disposed of more expeditiously or by way of summary proceedings.

21. It is further submitted that the sentencing judge erred in failing to treat the theft offence as a minor matter, to be sentenced in accordance with the principles applicable to a comparable summary offence before the District Court. Counsel acknowledged that the Circuit Court judge was not legally obliged to do so but contends that he should have utilised the maximum penalty available in the District Court as guidance. It is argued that the headline nominated was too high due to the low value of the items taken, the absence of aggravating factors, the minimal impact upon the victim, as well as the opportunistic nature of the offence.

22. It is argued that the headline sentence nominated in respect of bill number 53/23 was disproportionate where the only aggravating factors were the appellant’s previous convictions and that these offences were committed whilst the appellant was on bail. The appellant refers to the case of The People (DPP) v Doherty [2017] IECA 60. It is submitted that serious aggravating factors (such as injury, threat, damage and premeditation) were absent.

Credit for time served

23. The appellant argues the judge erred by refusing to give credit to the appellant for time spent on remand.

Submissions of the Respondent

24. The respondent submits that the sentencing judge gave due consideration and appropriate weight to all relevant circumstances of the case.

25. Regarding bill number 47/23, the court accepted that this was a minor theft and accordingly nominated a headline sentence of 2 years imprisonment, reducing this to 1 ½ years imprisonment in light of the mitigating factors, thus reflecting a 25% allowance for mitigation.

26. The respondent submits that the sentencing judge had proper regard to sentencing principles of proportionality.

27. Finally, the respondent submits that the court afforded the appellant as much credit for time served as was permissible in circumstances where the appellant had already received such credit in an unrelated matter.

Discussion and Conclusion

28. The theft offence on the first bill of indictment constitutes minor offending, and while the maximum penalty on indictment is one of 10 years imprisonment, there can be little doubt but that this offence falls within the low end of the range of available sentences. It is clear that the judge was also of that opinion, but we believe that the nomination of a notional sentence of 2 years imprisonment for this offence is simply too high. Understandably, the judge was influenced by the number of previous convictions and the fact that the appellant stole from a charity box, but the result was a sentence which was disproportionately high. It was in essence a summary matter and would have been dealt with in the District Court absent the second theft offence, on which a nolle prosequi was entered.

29. On the second bill, this was offending which involved the intrusion into a hostel, where one would expect people to be present, going first to an area where guests stored their luggage and where valuable items were stolen, these are aggravating factors in accordance with the jurisprudence (Ref; The People (DPP) v Casey and Casey [2018] 2 IR 337). The appellant then proceeded to a bedroom and stole more high value items. The judge was quite right to acknowledge the value of the hearing aid in terms of monetary value but more significantly the worth to the individual needing such aid and nominated a headline sentence of 3 ½ years imprisonment. The judge took into consideration the second burglary offence which resulted in the elevation of the notional sentence. We can see no error in the headline sentence nominated of 3 ½ years.

Re-Sentence

30. As we have found an error in principle in the nomination of the headline sentence on count 1 on bill 47/23, we will quash the sentences imposed and proceed to re-sentence de novo. In that respect, we have considered the materials available to us and consider that the appropriate headline sentence is that of 1 year on count 1. Taking account of the mitigating factors, we reduce that sentence to one of 8 months imprisonment with count 3 taken into consideration, to be backdated to the 1/11/2024.

31. Having considered the nature of the offending on the second bill, and the mitigating factors including the present position, we are of the view that the 3 ½ years headline sentence is appropriate and that the ultimate sentence of 2 ½ years is proportionate. That sentence is imposed on count 2 with counts 1 and 3 taken into consideration and is imposed consecutive to the sentence on count 1 on the first bill. We look now to totality to ensure a proportionate sentence and to do so, we reduce the sentence of 8 months on bill 47/23 to 6 months. Thus, the total sentence is 3 years imprisonment.