Court of Criminal Appeal quashes unduly lenient suspended sentence for robbery and assault, ordering immediate imprisonment.

THE COURT OF CRIMINAL APPEAL

[C.C.A. No: 101CJA/06]

Denham J.

deValera J.

McGovern J.

In the matter of s.2 of the Criminal Justice Act, 1993

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/APPLICANT

AND

DOMINIC DWYER

RESPONDENT

Judgment of the Court delivered by Denham J. on the 2nd day of February, 2007

1. This is an application by the Director of Public Prosecutions, pursuant to s. 2 of the Criminal Justice Act, 1993, for an order

reviewing the sentences imposed on Dominic Dwyer, the respondent, hereinafter referred to as "the respondent", by His Honour Judge

Con Murphy, a judge of the Circuit Court, at Ennis Circuit Criminal Court, on the 3rd day of May, 2006. The sentences imposed are

two sentences of two years imprisonment, to run concurrently, and to be suspended for two years on bond, compensations of €5,000

having been handed over.

2. The respondent was before the Circuit Criminal Court on 3rd May, 2006 charged on indictment. He pleaded guilty to Counts No. 3

and No. 4. These counts stated:

"Count No. 3.

STATEMENT OF OFFENCE

Assault contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997.

PARTICULARS OF OFFENCE

That you, Dominic Dwyer, on the 12th day of March 2004 at a laneway at the side of Dunne's Stores, off O'Donnell

Street, Ennis in the County of Clare, assaulted Steve Pond causing him harm.

Count No. 4

STATEMENT OF OFFENCE

Theft contrary to 14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001

PARTICULARS OF OFFENCE

That you, Dominic Dwyer, on the 12th day of March 2004 at a laneway at the side of Dunne's Stores, off O'Connell

Street, Ennis in the County of Clare, robbed Steve Pond of Nokia mobile telephone, value £200.00"

3. The Circuit Criminal Court sentenced the respondent in the following words:

"Obviously this is a difficult case in that it was effectively a barefaced robbery of Mr. Pond and he is entitled to the

protection of the courts if he comes here from England attending to his business. The accused, by his early admission to

the Gardai once he was arrested and his early plea, both together have undoubtedly saved a lot of at least time and the

general ups and downs of a jury trial. The testimonials show that the accused is trusted as a builder and is essential for

the continuing education of his young children and is regarded in good light by a local boy's soccer club in Letterkenny. It

is definitely a most serious offence to seriously assault and rob a person of their money phone and, generally speaking,

would merit a custodial sentence. In this case, because of his early admission and his plea, the testimonials which show

that he is held in high regard in his native town of Letterkenny and in particular the fact that his wife is obviously

dependant on him and his four young children aged from 10 to two are obviously dependant on him, he will just escape

going to jail now. Where is the €5,000?"

The court then addressed the issue of compensation.

MR. CONNOLLY: My Solicitor has it in court, my lord.

JUDGE: The €5,000 should be paid today by way of a gesture of remorse to Mr. Pond who undoubtedly suffered severe

injuries and I think the €5,000 is by no means. . .

MR. COUGHLAN: My lord, I was taken quite by surprise and forgive me for interrupting you but in relation to the question

of compensation, I was completely unaware of it. Another person was injured on this particular night, my lord, and I just

want to take instructions in relations to the possible division of the money. I know the €5,000 is intended to be disposed

of in a certain way, my lord.

MR. CONNOLLY: With respect to Mr. Coughlan and to keep us all right it is really a matter between Mr. Pond and any

other party. Insofar as it was intended for the victim of the offence and any division meritorious as it may be or otherwise

is a matter for the injured party in this case, Mr. Pond, as opposed to your lordship.

MR. COUGHLAN: My lord, there is also the question of recognition of the injuries the other man received, my lord. I know

there are no charges in respect of that, my lord, but this creates a certain difficulty and I won't go beyond saying that,

my lord.

JUDGE: What are my alternatives?

MR. COUGHLAN: I think, my lord, it is open to you to make a compensation order but you can suggest for the purpose of

the record that the compensation might be shared.

JUDGE: Mr. Pond, are you listening?

MR. POND: Could you explain it a bit more to me please?

JUDGE: I am directing that a compensation order of €5,000 be paid to you but I am making a strong recommendation that

you might share that €5,000 with another person who was injured on the night that you know. Do you know him?

MR. POND: Do I know him?

JUDGE: Do you know him?

MR. POND: Yes.

JUDGE: And I am recommending strongly that it be shared between ye but since you are the only person to whom this

man has pleaded guilty to the €5,000 paid . . .

MR. POND: I will share it with Kenny.

JUDGE: So it will be shared between ye.

MR. POND: Yes.

JUDGE: I think that solves that Mr. Coughlan, doesn’t it.

MR. COUGHLAN: Yes, my lord.

JUDGE: he will be sentenced to two years imprisonment on the basis that he enters into a bond of €100 to be of good

behaviour and keep the peace for a period of two years as and from today's date.

MR. COUGHLAN: On which count, my lord?

JUDGE: On both counts. The two years on each count to run concurrently. So he is sentenced to two years imprisonment

for the Section 3 assault and for theft contrary to Section 14 of the Criminal Justice Theft Act 2001, the two sentences

to run concurrently, both suspended on the basis that you enter a bond of €100 to be of good behaviour and keep the

peace for a period of two years from today's date.

REGISTRAR: Dominic Dwyer, do you acknowledge yourself bound to the People of Ireland in the sum of €100 on condition

that you keep the peace and be of good behaviour towards all citizens of Ireland for a period of two years from today's

date.

MR. DWYER: Yes."

4. The Director of Public Prosecutions contends that the sentence was unduly lenient for the following reasons:

"1. The said learned trial judge erred in principle in imposing the said sentences on the respondent in that he imposed

sentences in respect of the said offences which were unduly lenient in all the circumstances of the case.

2. The said learned trial Judge erred in principle in failing to take any or any adequate account of the entire nature,

circumstances, gravity and combination of offences to which the said respondents had pleaded guilty.

3. The said learned trial Judge erred in principle in failing to impose a custodial sentence when sentencing the respondents

and in giving undue weight to the payment of and acceptance by the said injured party of the said compensation

payment.

4. The said learned trial Judge erred in principle in failing to take any or any adequate or proper account of the

aggravating factors applicable, in particular, that the respondent planned and orchestrated the events by luring the

injured party into a laneway with the intention of assaulting and robbing him.

5. The said learned trial Judge erred in principle in failing to take any or any adequate or proper account of the

aggravating factors applicable in the case, namely that the respondent having lured the injured party into a laneway

kicked the body and head of the injured in the course of robbing him.

6. The said learned trial Judge erred in principle in failing to take any or any adequate or proper account of the nature and

extent of the previous convictions of the second named respondent, including the said first named respondent ought not

to be subjected to a custodial sentence.

7. The said learned trial Judge erred in principle in failing to take any or any adequate or proper account of the nature and

extent of the previous convictions of the respondent.

8. The said learned trial Judge erred in principle in determining that having regard to the making of the compensation order

the respondent ought not to be subjected to a custodial sentence."

5. The relevant law is to be found in s. 2 of the Criminal Justice Act, 1993, which provides:

"2.—(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as

the "sentencing court") on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal

Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the day

on which the sentence was imposed.

(3) On such an application, the Court may either—

( a ) quash the sentence and in place of it impose on the convicted person such sentence as it considers

appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or

( b ) refuse the application.

(4) . . . "

It appearing to the Director of Public Prosecutions that the sentence imposed by the Court was unduly lenient, and the Director of

Public Prosecutions having applied to the Court, this Court is required to consider whether the sentence was unduly lenient. If the

Court considers the sentence to be unduly lenient it has then jurisdiction to quash the sentence and in its place impose the sentence

it considers appropriate, being a sentence the trial court could have imposed, or, the Court has jurisdiction to refuse the application.

6. These offences arose out of the events on the night of 11th/12th March, 2004, in the early hours of the 12th, after a night club

had closed. When Steve Pond and another left the night club there was some banter. The respondent, the two victims, and others,

were walking down the street. The respondent assaulted Steve Pond and injured him on his head, face, neck and thigh. There was a

degree of gratuitous violence. During the course of the assault a mobile phone valued at £200 sterling was taken from Steve Pond,

who was left on the ground. There appears to have been a number of people involved in the assault, but the respondent was the only

person before the trial court. Another man who was with Steve Pond (Mr. Larkin) was also assaulted and robbed, but no charges in

relation to that were before the trial court. The prosecution arose because, as a result of enquiries, a house was searched on 23rd

March, 2004 and during the course of the search Steve Pond's mobile phone was found. The respondent admitted and pleaded guilty

to the offences of assaulting Steve Pond and stealing his mobile phone.

7. The respondent works as a labourer on a building site, he is married and has four children. The information as to his previous

convictions, which was before the trial court, was as follows:

(i) On 4th July, 2000, on an offence under s. 33 of the Larceny Act he was ordered to pay the sum of €250 or 90 days in

default;

(ii) On 10th November, 2000, a charge under s. 3 of the Misuse of Drugs Act was taken into account with other charges

before the court;

(iii) On 15th November, 2001, on a s. 15 charge under the Misuse of Drugs Act the respondent was convicted and ordered

to be imprisoned and the imprisonment was suspended on the basis that he be of good behaviour;

(iv) At Letterkenny District Court on 9th February, 2002 the respondent was convicted of an offence under s. 3 of the

Non-Fatal Offences Against the Person Act, and ordered to pay €300 fine or 28 days in default;

(v) At Letterkenny District Court on the 23rd October, 2004 a s. 19 Criminal Justice (Public Order) Act matter was taken

into consideration with other charges;

(vi) On the 23rd October, 2004 he was charged and convicted under s. 8 of the Criminal Justice (Public Order) Act, and

fined €300.

(vii) On 23rd October, 2004 at Letterkenny District Court he was fined €300 or 90 days in default under s. 2 and s. 3 of

the Non-Fatal Offences Against the Person Act;

(viii) At Letterkenny District Court on 3rd October, 2004, charges, under s. 6 of the Criminal Justice (Public Order) Act,

were adjourned and taken into consideration with other charges which were before the court;

(ix) On 23rd October, 2004 an offence under s. 4 of the Criminal Justice (Public Order) Act was withdrawn before the

court.

The learned trial judge stated that the convictions of the 23rd October, 2004 were after the offences in issue, which took place in

March, 2004, and that they could be effectively ignored.

8. The case raises both aggravating and mitigating factors.

Aggravating factors

The aggravating factors include:

(i) There was a ploy to lure one of the persons injured down a laneway off the main street.

(ii) There were serious injuries to the head and face of the victim, who was also kicked when he was on the ground.

(iii) The victim was robbed during the attack.

Mitigating factors

The mitigating factors include:

(i) The respondent pleaded guilty when arrested.

(ii) The plea of guilty of the theft has to be considered in light of the fact that the phone was found on him. The plea of

guilty of the assault has to be considered in light of the fact that the victim did not identify the respondent - though the

fact that he had the mobile phone is relevant.

(iii) There were a number of individuals involved in the incident when the 2 victims were assaulted and robbed. Four

individuals were arrested and the respondent was the only one to make an admission.

(iv) Counsel for the respondent apologised to Mr. Pond on behalf of the respondent.

(v) This was the third time the case was listed. The respondent was in Letterkenny with his family. On each occasion he

travelled from Donegal. At the time of the events he was working locally.

(vi) Testimonials were before the trial judge.

The respondent has four children at home. His wife does not drive. The respondent is the family provider as his wife is a full time

mother. They live in a Council house. Counsel for the respondent stressed that imprisonment of the respondent would be a penalty for

him, his wife and his four young children, aged between 2 and 10 years. The respondent brought €5,000 to court as a gesture of his

remorse, as compensation for Steve Pond and the other victim.

9. Decision of the Circuit Court

The sentences in issue are two years imprisonment, on both Count 3 and Count 4, to run concurrently, suspended for two years on

bond. €5,000 was handed over to Steve Pond to be divided between him and another victim.

10. Submissions

It was submitted on behalf of the Director of Public Prosecutions that while a sentence of two years would not be unduly lenient, the

suspension of the sentence was unduly lenient; that the learned trial judge had erred in principle in not taking into account the

previous convictions. Further, it was submitted that the judge gave undue consideration to the compensation.

11. Decision

The onus rests upon the Director of Public Prosecutions to establish that the sentence is unduly lenient. In considering the sentences

it is appropriate to apply the principles stated in Director of Public Prosecutions v. Byrne [1995] 1 I.L.R.M. 279, being that:

1. The onus of proof clearly rests on the D.P.P. to show that the sentence was unduly lenient.

2. Great weight should be afforded to the trial judge's reasons for imposing the sentence. If the judge has kept a balance

between the circumstances of the offence and those of the offender in accordance with the principle of proportionality,

his decision should not be disturbed.

3. It is unlikely to be of help to ask if a more severe sentence than that imposed would be upheld on an appeal by the

convicted person. The question is whether the sentence was unduly lenient.

4. It is clear from the wording of section 3 of the Act of 1993 that "nothing but a substantial departure from what would

be regarded as the appropriate sentence" should justify the appellate intervention.

In this case there is no doubt that the sentence is lenient. What has to be considered is whether it is "unduly lenient", and whether

the learned trial judge has made a substantial departure from what could be regarded as the appropriate sentence.

The trial judge gave a considered judgment in sentencing and great weight should be afforded to his reasoning. The essence of the

appeal relates to the trial judge's treatment of the previous convictions. The Court refers to the eight previous convictions of the

respondent, set out earlier in the judgment. The Court has come to the conclusion that the learned sentencing judge erred in relation

to his consideration of the previous convictions.

First, in referring to the previous convictions the trial judge stated that "they are not of great moment". This was an error. As may be

seen from the list they are of some significance. Secondly, in relation to the convictions of the 23rd October, 2004 , the trial judge

said that "they can be effectively ignored". The Court is satisfied that this was also an error in principle. For, while these latter

sentences occurred after the crimes in issue, that sentencing occurred before the trial of the crimes in issue. In such a situation such

sentences may be referred to and considered, especially if they illustrate a propensity, or where they relate to similar crimes.

The Court is satisfied that the failure to take into account the previous convictions and their nature was an error in principle by the

learned sentencing judge.

Taking into account the mitigating and aggravating factors in relation to this unprovoked and vicious assault and robbery, the Court

determines that a suspended sentence of two years is unduly lenient. Consequently, the Court would order that the sentences be

quashed. In their place the Court imposes the sentences which it considers appropriate, being two years imprisonment on each count,

to run concurrently, and to date from 3rd May, 2006. The Court is aware that the respondent has not been in custody, but in the

circumstances of the case, and in the interests of justice, would order that the sentence run from the 3rd May, 2006. The Court

would hear counsel as to any necessary ancillary order.