Court of Appeal reduces burglary sentence from eight to six years due to excessive starting point despite serious circumstances.

THE COURT OF APPEAL

The President

Birmingham J.

Sheehan J.

152/13

The People at the Suit of the Director of Public Prosecutions

V

Martin Reilly

Appellant

Judgment of the Court (ex tempore) delivered on the 6th day of February 2015 by

Mr. Justice Birmingham

1. On the 3rd May, 2013, the appellant was convicted of the offence of burglary and he was subsequently sentenced to eight years

imprisonment with the final two years suspended. The burglary in question occurred at a private residence on Cashel Road in Clonmel

on the 27th June, 2011, where the sum of €30,000 and St£3,745 was taken.

2. The grounds of appeal that are put forward are (i) that the prosecution failed to make full disclosure (ii) that the prosecution – the

reference really here is to the gardaí – failed to investigate properly or at all the involvement of another person where that person

indicated that he had committed the offence and acted alone and (iii) that the prosecutor, and here the reference it is to prosecution

counsel, informed the jury that the appellant was arrested while signing on. In fact the ground of appeal stated “while signing as part

of the bail conditions.” A further ground relates to the fact that the judge in his charge referred to the doctrine of common design.

3. It seems necessary to put those grounds of appeal in context and to say a little about the facts of the case. The essential facts

were that on the day of the burglary, the 27th June, 2011, the injured party who was a restaurateur left his home and went off to

spend the day working in his restaurant, returning to his home shortly after 6.00 pm in the evening. He had difficulty putting his key

into the front door and in those circumstances he went around to the back and he found something amiss in that he had not left a

window open, but now there was a window open. He went in to the house through the window and he found that the house had been

burgled and it was very clear that there had been a disturbance and that the house had been upended and tossed to a significant

extent. A significant amount of money was stolen, the amount I have already mentioned, which represented his life savings.

4. As it happened, in or around the same time, within minutes of this, two gardaí were patrolling in a garda car in the area. It was

their evidence at trial that they saw the accused man coming over a ditch on to the road and that he was holding a bag or, as one

described it, a pillow case. When the accused saw the garda car, he turned and ran away. The garda who was in the passenger seat

got out and went after the accused man. The accused man got away, but in doing so dropped the bag or pillowcase that he was

holding into an area of waste ground, nettles and undergrowth. The gardaí returned to the nettles and undergrowth and recovered

the bag and there was the sum of money that had been stolen shortly before.

5. One matter that should be mentioned is that when the gardaí were pursuing the person they contend was Mr. Reilly who was in

possession of the pillow case, there was another slimmer, younger male in the vicinity and the garda evidence was that they saw Mr.

Reilly shout something to this youth, which caused him to run and indeed it appears that at that stage the garda in pursuit focused

his primary attention on this other person. Presumably this was in a situation where he was contending that he knew Mr. Reilly, but he

did not know the other individual and therefore catching him became the priority. However, that effort was unsuccessful.

6. Returning then to the grounds of appeal, the first ground deals with the non disclosure. The allegation here is that the prosecution

failed to disclose relevant DNA evidence and finger print evidence and also failed to disclose the fact that there had been confession

by a third party, a minor saying that he had acted alone. At first sight it is hard to imagine anything more dramatic than the alleged

non disclosure. But in fact if one looks at the matter in a little bit more detail, it very quickly becomes apparent that all is not as it

seems.

7. So far as the failure to disclose the fact that another person had admitted a crime is concerned, the position is that on the 24th

April, 2012, which was just some days before the trial, a youth named in court, who was barely sixteen at the time, called to the

garda station to confess and was told to come back with his parents. But what is significant is that he called to the garda station in

the company of the partner of the then accused man, in the company of the mother of the children of the accused man. It also

emerged that, some time before going to the garda station, this youth had gone to the solicitor for the accused in this case and in

those circumstances a question of disclosure scarcely arises. There is no reality to disclosing something that manifestly was already

known and fully known. The point in relation to the DNA and fingerprints arises in these circumstances. Some months before trial the

State Solicitor had written what might be described as the usual disclosure letter and had not referred to the question of the

submission and material for forensic analysis. It was only on the day of the trial that this had emerged. What emerged was that the

DNA trace was found on the pillowcase, the DNA was not that of the appellant and there was also a fingerprint.

8. However, the question is how significant is that? The first point is that the pillowcase came from the home of the injured party and

the fact that either DNA or a fingerprint of some occupant of the home would be on it would not be surprising. Equally it was clearly

the prosecution case that more than one individual was involved in this and it was for that reason that the garda was referring to the

fact that the appellant, as he says it, was the person that he had first seen, had shouted at the slimmer younger person who took off

in response to the shout. In those circumstances it is hard to see how the information about the DNA evidence and fingerprints could

have been of any significance and it is hard to see what use could conceivably have been made of them by the defence. In those

circumstances, the point in relation to disclosure and the related ground in relation to failing to follow up the possible involvement of

another individual fails.

9. The next ground is that the prosecution counsel told the jury in his opening that the appellant was known to the gardaí and that

they knew him from signing on. This was actually dealt with in the statement of grounds in these terms: counsel for the prosecution

had informed the jury that the accused had been arrested while signing on to meet his bail conditions and thus informing the jury that

the accused had been charged with at least one other offence. However, what actually happened was that prosecution counsel in

the course of his opening said the following:

“So, the case really depends on the two guards who had seen the accused. It is fair to say that they know the accused,

just they know him from around Tipperary, because they had been in Tipperary a long time and they know him. I think he

may sign on and they see him signing on.”

10. When the opening statement was concluded, defence counsel interjected as follows:

“Just one matter arising from my friend’s opening. It is not a discharging of the jury application or anything like that, but

towards the end of it, he said that there was going to be evidence that they knew him from signing on. . . .”

11. He goes on to say that that is something that he was not aware of in the book of evidence and the statements in relation to it.

Prosecution counsel said:

“PC: Well judge I understand that the guards, they know him from around the town, so I had to be careful what I was

going to say there and I understand that the accused man, I think does sign on and the guards have seen him sign on.

Judge: Yes

PC: And that is why I leave that evidence.

Judge: That is signing on for social welfare?

PC: Yes

Judge: Yes it might be best to clarify that just before we restart in the afternoon then.”

12. In fact that invitation to clarify was not followed up on and it has to be said that that is perhaps unfortunate. There are a couple

of points to be made. The first is that the phrase “signing on” is one that would be familiar to any juror, it is a phrase that is in daily

use across the country and it is used to refer to the position of people who are on the unemployment register and who sign on in a

local employment exchange or elsewhere for the purpose of establishing their entitlement to their statutory social welfare benefits. It

seems to the Court that it is in that context that any juror would have understood the remark about signing on and the phrase

“signing on” as a condition of bail is clearly a lawyer’s interpretation. Contrary to what was said in the notice of the grounds of

appeal, there was no reference by prosecution counsel to signing on for bail purposes.

13. The significance of this point also has to be seen in the context of the defence strategy. The defence strategy at trial was to

suggest that the gardaí in Tipperary, as it was put, had it in for the accused man and wanted him out of town. So to that extent the

defence involved indicating that this was somebody who was not popular with the gardaí and implicitly not popular with the gardaí for

good reason. In fact that was made more explicit because a further limb of the defence was to adduce evidence that he had a

number of previous convictions and that his practice, when charged in the past, was to plead guilty and that was contrasted with the

fact that he had decided to contest this case. In those circumstances the point does not seem to be one of substance and it too

fails.

14. The remaining point then relates to the fact that the judge referred to the issue of common design. Again the reality is that there

was an element of common design in this case at all stages and this clearly emerges from the evidence of the prosecuting garda

which is as follows:

“Judge as I got to the top at this stage I could see Martin Reilly still in possession of the pillowcase with the flowers on it,

running across what is effectively waste ground, strewn with stones, holes etc.and further on from him there was another

slimmer younger male. I saw Martin Reilly shout something to this youth which made him run. Now at that point I was

giving chase as pretty much as fast as I could.

15. So it was clearly the prosecution case that Mr. Reilly did not act alone, or certainly may not have acted alone, therefore the

reference by the judge is entirely unobjectionable. In those circumstances, that ground too fails and that being so, the appeal against

conviction fails. The Court therefore turns to the question of sentence and the sentence imposed, as you will recall, was one of eight

years imprisonment with the final two years suspended.

16. The judge indicated that he was placing the case in the mid range, but towards the top of the midrange. By any standards this

was a serious offence. Any burglary of a dwelling has to be regarded as serious. In this case the amount that was taken was very

substantial and it appears represented the life savings of an individual. The trauma that he was subjected to was increased by reason

of the fact that the house was significantly tossed and disturbed in the process. Therefore a serious offence it undoubtedly was and

the appellant had a significant previous record. There was some debate whether there were nine or ten previous offences and there

was a question as to how some of those were counted. But some of them could not have been regarded as trivial. The prior record

included an unauthorised taking of a mechanically propelled vehicle, a s. 3 Misuse of Drugs Act offence and offences under s. 3 and s.

2 of the Non Fatal Offence Against the Person Act and, perhaps most significantly, an offence of burglary and an offence of robbery.

17. However it is of some significance that all of the offences to date, that is all the offences that were referred to in the transcript,

were dealt with in the District Court and in those circumstances it appears that in finding himself before the court following conviction

for this serious offence, that Mr. Reilly had, as it were, moved into a different league. The Court is of the view that the judge was

right to regard this as a serious offence, but takes the view that taking as a starting point eight years was unduly high in all the

circumstances.

18. The Court is of the opinion that the starting point should have been not eight, but rather six years and will maintain the position in

relation to suspending the final two years. Therefore the sentence will be varied from one of eight years with two suspended to one

of six years with two suspended. The sentence is to date from the date that the original sentence was imposed.