Court of Appeal dismisses appeal against sentence for possession of stolen property, upholding judge's discretion on suspended term.

APPROVED

THE COURT OF APPEAL

Record Number: CCA030138/2024

Bill Number: LKDP0018/2022

Edwards J. Kennedy J. MacGrath J.

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS)

RESPONDENT

-AND-

AMANDA HAYES

APPELLANT

Judgment of the Court delivered by Mr Justice MacGrath on the 6th day of March, 2025

1. The appellant, Ms Amanda Hayes, was born on the 6th July 1987. This is her appeal against the severity of sentence imposed on her in the Circuit Criminal Limerick on the 12th April 2024. She was sentenced to a cumulative three years’ imprisonment in respect of the offending on the indictment, with the final six months suspended.

2. The offences for which she was charged and to which she entered a guilty plea, on a full facts basis, on the 3rd October 2022, are as follows:

(4) Possession of stolen property contrary to s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

(5) Possession of stolen property contrary to s.18 of the Criminal Justice (Theft and Fraud Offences) Act 2001.

(6) Possession of certain articles contrary of s.15(1) and (5) of the Criminal Justice (Theft and Fraud Offences) Act 2001 as amended by s.47(a) of the Criminal Justice Act 2007.

3. The appellant was sentenced to three years’ imprisonment on counts 4 and 5 with the final six months of the sentence to be suspended, both sentences to run concurrently and count 6 to be taken into consideration.

Grounds of Appeal

4. The appeal is advanced on the ground that the trial judge erred in fact and in principle in inadequately balancing aggravating and mitigating factors, resulting in a sentence which was disproportionate and excessive in the circumstances.

5. In submissions, it is contended that:-

(a) The sentencing judge failed to attach sufficient weight to the public interest in rehabilitation.

(b) The sentencing judge erred in that he passed a sentence which was, in all of the circumstances, disproportionate to the offences and failed to take into adequate account various mitigating factors in the case.

6. The circumstances of the offending were outlined by Detective Garda Gerry O’Sullivan. The offending occurred on the 6th May 2021 at Barry’s Shop car park in Ardnacrusha, County Clare. The appellant and a co-accused, Mr William Woodland (Mr Woodland was charged and dealt with separately), were present there in a car. The gardaí were suspicious that there were drugs in the car and searched the vehicle. In the course of the search they found a large quantity of property in the back seat and in the boot of the vehicle.

7. Count 4 relates to the possession of sunglasses, makeup brushes, a hover board, a nurses fob watch with engraving, hotel vouchers, a GHD hair straightener, a handbag, a heart shaped silver earrings, a silver bracelet chain, two silver necklace chains, two bracelet charms, two leather strap watches, two silver watches, one broach, a single earring, a white Xbox, a white Deco wi-fi booster, a Garmin innovative analogue watch, an axe with a blue handle, two sets of keys to a Ford Focus (registration 11CE3825), an iPhone 6 and a hairstyling kit, all of which were the proceeds of burglaries.

8. Burglaries took place at the family home of the Storan family in Ballyea, Rathkeale County Limerick. The appellant is not charged with burglary but with possession of stolen property, that being the items taken from the Storan House which form part of the items which are the subject matter of the charges. The Xbox is valued at €300, the hairstyling kit €80, watch valued at €199, the booster valued at €120, the iPhone valued at €100 and the blue handled axe valued at €60, the Ford Focus car keys valued at €50, all of which had been taken from the Storan family premises. At the time of the burglaries, the victim had been on a school run with an older child asleep upstairs in the house. This property was returned to the Storans.

9. The home of the Madigan family in Adare was also burgled. Numerous items were taken, including the hover board valued at €200, the engraved nurses fob watch valued at €150, the hotel vouchers valued at €65, make up brushes valued at €50, sunglasses valued at €40, the hair straightener valued at €150, the handbag valued at €80 and various other items of jewellery valued at €1,750. These items are the subject of count 4.

10. One of the items, a ring, was seen being worn by the appellant when she was at Kilmallock District Court on the 8th May 2021. This is the property of Ms Rosaline Madigan and is the subject of count 5.

11. Det. Garda. O’ Sullivan stated that the appellant had come to court wearing a ring that had been taken in one of the burglaries which was the subject of a different count. Not all property which was taken from the Madigan household was recovered, including a wedding ring valued at €600. Det. Garda O’Sullivan, in his evidence to the sentencing judge, stated that Ms Hayes cooperated. The sentencing judge was quite clear in his remarks that Ms Hayes could not be responsible for items that were burgled, as she was not charged with burglary of these items. It seems that a third party may also have been involved.

12. Count 6 concerned the possession of certain articles at the same time and in the same place, namely an axe, a jimmy bar and a balaclava, which were recovered from the back of the car.

13. Ms Hayes has 113 previous convictions, which include 58 theft offences, nine of which were dealt with in the Circuit Court, two robbery offences dealt with in the District Court, two burglary offences, fifteen public order offences, two criminal damage offences, all of which were dealt with in the District Court, six dangerous driving offences dealt with in the Circuit Court, seven offences for failing to appear, two offences for making a false report, one count of endangerment under s.13 (Circuit Court), one count of trespass, 15 road traffic offences, six of which were dealt with the Circuit Court, one possession simpliciter and one escape from lawful custody. In total, therefore, 23 of the convictions were recorded in the Circuit Court. On the 9th December 2021, nine counts of theft came before Limerick Circuit Court and Ms Hayes received a sentence of two years and six months with 12 months thereof suspended from the 8th May 2021. She has been in custody since that date.

14. The Madigan and Storan families prepared victim impact statements. They outline their fears, apprehensions and feeling of invasion as a result of the burglaries to their homes. This has resulted in stress, anxiety and a feeling of violation.

15. In cross examination, Det. Garda O’Sullivan accepted that the appellant had serious addiction issues. The evidence is that having pleaded guilty in October 2022, she was released from custody and had been on placement on St Frances’ Farm in Carlow (a centre where she underwent a detoxification programme) in March 2023. Sentencing was adjourned from time to time because she was involved in that programme.

16. The appellant’s eldest son had a craniotomy when he was 12 years of age. Ms Hayes left St Frances’ Farm to be with him at Temple Street as she was required to be on-site to make decisions regarding his care. He is now 15 years of age and suffers from speech and language difficulties. They live with the appellant’s uncle.

17. Evidence was also given before the sentencing judge regarding a letter which had been received from a key worker at Ana Liffey, regarding the residential treatment centre.

18. In a plea in mitigation, the following factors were advanced on her behalf.

(1) Her addiction.

(2) That she has two children (the eldest of whom had undergone an intercranial operation and was still recovering from this).

(3) The contents of a probation report.

(4) That she has engaged with a methadone programme.

(5) Her expression of remorse and feeling of guilt for the injured parties.

(6) Emphasis was placed on residential treatment options that may be available to Ms Hayes.

The Sentencing Judge’s Remarks

19. The sentencing judge set the headline sentence at four years in respect of each of the offences to which the appellant pleaded guilty. He reduced this to three years to take into account mitigation and remarked as follows:

“In my view, given the accused’s previous convictions and given the proximity and time to the burglary and given the extent that the stolen property which was in that car and for which the accused accepts responsibility, the headline sentence for this matter is one of four years. But I will take into account the fact that she has entered a plea, it is a worthwhile plea. It may be that she could have argued that it was nothing to do with her and that she could have blamed her co-accused; she did not do that, she accepted her responsibility for this which is creditable and she did give at least a partial admission which must have been significant for the prosecution in dealing with this matter, and she did all of this while she was a drug addict and I would have regard to that.”

20. The sentencing judge regarded the counts as arising in respect of the same offending and imposed concurrent sentences.

21. The sentencing judge then considered a probation report which had been prepared on the appellant’s behalf and noted that she had made some efforts to engage with the Probation Service but that she had not been consistent. He also noted that her interaction with the Probation Service was not successful because she ultimately took a bench warrant on these charges. He acknowledged her intent to reform herself, which he took into account in suspending the last six months of each sentence on condition. The sentence was backdated to the 27th March 2024, when the appellant first went into custody on these charges.

Appellant’s Submissions

22. The appellant submits that it has been accepted as a general principle that a sentence should incorporate a rehabilitative element. This is often achieved by suspension of the final part of a sentence. It is submitted that the offending behaviour of the appellant is directly connected with drug and alcohol addiction issues and consequently a significant part of the sentence imposed by the sentencing judge ought to have been suspended to encourage the appellant to take responsibility for her addiction issues and to take active steps to address her addiction issues while in prison.

23. The appellant had previously engaged and attended a placement in a detox programme at St Francis Farm, Residential Rehabilitation Programme in Carlow under the auspices of Merchants Quay Ireland, Homeless and Addiction Services. It is pointed out that her placement in that programme was cut short because of health difficulties which her son had experienced.

24. Reliance is placed on dicta of Edwards J in DPP v Fagan [2020] IECA 290 regarding the importance of rehabilitation and reform as a penal objective in general, and to the effect that the prioritization of those objectives may be justified in the appropriate case but not every case. Edwards J spoke of going the extra mile in showing leniency to an offender in the interest of promoting rehabilitation and reform. He also stated that what was required in practice was evidence both as to a genuine desire and rehabilitate and a track record showing concrete steps already taken in that regard. It is therefore submitted that there is an evidential foundation in this case which would have allowed the sentencing judge to show considerable lenience in furtherance of the objective for promoting and incentivising rehabilitation and reform. It is further submitted that there was a failure by the sentencing judge to recognise genuine efforts of the appellant in dealing with her addiction and other problems which contributed to the commission of her crimes. It is therefore submitted that the sentencing judge erred in principle by suspending only three months of the sentence and that a greater portion of the sentence was warranted.

25. The appellant refers to an extract from Thomas O’Malley’s Sentencing Law and Practice (3rd edn, Round Hall 2016) at para. 2-20. It is submitted that the rehabilitation of the appellant is a goal which should be encouraged by the court. A part suspension of the term of imprisonment is an effective means of promoting or encouraging rehabilitation where that is a realistic prospect, even in circumstances where the nature of the offence, the offender’s record, or both, make some element of immediate custody inevitable. In this regard, reliance is place on dicta of Hogan J in DPP v O’Reilly [2015] IECA 21 where he noted that if the offender could remain drug free, the likelihood of reoffending would be substantially reduced and therefore it followed that the sentencing judge was entitled to consider that the public interest would be better served by a sentence lower than a presumptive statutory minimum (in that case) if the sentence could be structured in such a manner as to address the defendant’s chronic addiction problems in that case.

26. It is therefore submitted that the public interest in encouraging an offender to rehabilitate, which reduces the risk of reoffending, justifies the adoption of certain measures, such as part suspension, where there is “a realistic possibility that they will provide an incentive to offenders to abstain from future crime”. It is submitted that in this case, the most important sentencing principle ought to have been rehabilitation, given the evidence of the appellant’s rehabilitative efforts and her addiction being the catalyst for the offending.

27. In essence, it is submitted on behalf of the appellant that her drug addiction was the predominant motivating factor for criminality, and that if she could remain drug free the likelihood of reoffending would be substantially diminished. It is therefore contended that the suspension of a small portion of a long custodial term could have little rehabilitative impact and therefore an error of principle arises.

28. The second issue raised is the headline sentence of four years’ imprisonment. It is submitted that this was too high and amounted to an error in principle, given that the maximum sentence for an offence of possession of stolen property contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 is one of five years imprisonment. Of significance in this case is the absence of the aggravating factor of having committed the offence out of circumstances of greed or economic benefit. Rather, it was committed by a person labouring under an addiction, in order to feed that addiction. An analogy is drawn between the instant case and the approach adopted in DPP v Sarsfield [2019] IECA 260, wherein it was stated that “the absence of financial gain and the fact that the offence achieved nothing more for the offender than being provided with a small quantity of drugs for immediate personal use would tend to reduce culpability”. Similarly, reliance is placed on DPP v McCormack [2000] 4 IR 356. It is submitted that the sentencing judge attached excessive weight to the fact that the appellant had a number of previous convictions, and that this ought to have been treated as the absence of a mitigating factor rather than as an aggravating factor. It is also submitted that he did not adequately account for other relevant mitigating factors which included admissions made at interview, difficult family circumstances, addiction issues, rehabilitative attempts made by the appellant and that most of the stolen property was capable of being returned to the victims, thereby reducing the economic harm. At para. 14 of the written submissions it is stated:

“The sentencing judge set a headline sentence of four years and it is submitted that when mitigating factors are taken into account this should have been reduced in the post mitigation sentence of three years imprisonment further and that the failure to do so amounts to an error of principle.”

29. Emphasis is placed on the impact which the imposition of a custodial sentence will have on those who are dependent upon the appellant. It is submitted that the sentencing judge failed to take into account the likely impact of a prison sentence on family members, including those who were suffering from ill health. In the circumstances and also relying on DPP v Jervis and Doyle [2014] IECCA and DPP v M [1994] 3 IR 306, it was submitted that the sentencing judge failed to afford sufficient weight to the public interest in rehabilitating the appellant and in taking the above factors into consideration.

Analysis and Conclusion

30. When nominating the headline sentence, the sentencing judge remarked as follows:

“In my view, given the accused’s previous convictions and given the proximity in time to the burglary and given that the extent of the stolen property which was in that car and for which the accused accepts responsibility, that the headline sentence for this matter is one of 4 years.”

31. It was submitted in written submissions that the sentencing judge erred in the determination of the headline sentence by reason of his consideration of the aggravating factors to which he referred and the level of culpability of the appellant due to drug addiction. Counsel for the appellant, Ms Simons BL, correctly in our view, did not advance this at hearing. A headline sentence of four years was well within the margin of appreciation which this court must afford to the sentencing judge and no error of principle arises.

32. With regard to mitigation, while it may have been considered that the circumstances of the detection amounted to Ms Hayes being caught redhanded, nevertheless a plea of guilty at an early stage of proceedings is valuable, and the sentencing judge viewed considered it to be a worthwhile plea because it was open to the appellant to argue that what was found in the car had nothing to do with her, or that she might have blamed her coaccused. Her acceptance of responsibility was emphasised by the sentencing judge, as were her personal admissions. Indeed, the sentencing judge remarked that she did all of this while being a drug addict, to which he would have regard, and this was a factor which he took into consideration. It is also evident that the sentencing judge was aware of Ms Hayes’ domestic situation, and the fact that she had a child with a significant medical condition.

33. Ultimately, the headline sentence was reduced by 25% for mitigation. We have considered the arguments which have been advanced on behalf of the appellant and we are not satisfied that any error of principle has been identified in the assessment and consideration of mitigating factors by the sentencing judge. This court, and any sentencing court, is concerned with proportionality and totality. The sentences imposed were directed to run concurrently. We are not satisfied that the post-mitigation sentence of three years was disproportionate or such as to warrant this court’s intervention on appeal.

34. Regarding suspension of the final six months of the sentence, which it is submitted was inadequate, the sentencing judge took all probation reports into consideration. One of the reports which was before him was dated the 14th March 2024, and recorded that while the appellant had shown some pro-social decisions, she had also come to the negative attention of the gardai whilst subject to probation supervision. Ultimately, the probation officer was of the opinion that it was unwise to recommend the appellant for further supervision at that time. A letter authored by Ms Lawlor of Ana Liffey Drug Project was also before the sentencing judge. He described this letter as showing to him that the appellant’s determination to take steps to rehabilitate herself was manifest. The sentencing judge also remarked that the appellant had made some efforts to engage with the probation services but that she had not been consistent. He concluded that it would appear that interaction with the Probation Services was not successful, because the appellant ultimately took a bench warrant on these matters. He stated that this did not mean that the Probation Service would not act for her in the future and he acknowledged her intent to reform herself. The sentencing judge therefore suspended the last six months of the sentence on conditions.

35. We have read and considered the probation reports, the letter from Ms Lawlor and the sentencing judge’s remarks and observations. We find it difficult to disagree with the submissions advanced on behalf of the respondent that the “[a]ppellant was afforded every opportunity to engage with the Probation Services and was afforded every humanity and patience from the court from the date of her guilty plea on the 3rd of October 2022 until she took a bench warrant on a sentence date of the 20th of March 2024 and was remanded in custody on the 27th of March 2024 and sentenced on the 12th of April 2024”. It is also difficult to disagree with the respondent’s submission that the sentencing court did “go the extra mile” by suspending a portion of the sentence in all of the circumstances.

36. A sentencing judge enjoys a wide discretion in determining whether all or part of a sentence ought to be suspended. Rehabilitation and incentivisation to reform are important goals. We believe that the sentencing judge afforded due consideration to the appellant’s intention to reform herself. Despite the very able arguments advanced by Ms Simons BL on behalf of the appellant, we are not satisfied that it has been established that the sentencing judge exceeded the discretion available in the suspension of the final six months of the sentence; or that he erred in not suspending a greater portion of the sentence. No error of principle has been identified on this, or any, aspect of the structure of the sentence so as to warrant the intervention of this Court.

37. In the circumstances, we must dismiss the appeal.