Court of Appeal dismisses appeal against twelve-month sentence for possession of stolen property, upholding judge's decision based on appellant's extensive prior convictions.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Appeal No.: 67/2015

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Edward O’Sullivan

Appellant

Judgment (ex tempore) of the Court delivered on the 19th day of January 2016 by Mr. Justice Mahon

1. The appellant was originally charged with three offences, being possession of stolen property contrary to s. 18 of the Criminal

Justice (Theft and Fraud Offences) Act 2001, theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, and

a second offence of theft contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001

2. While the respondent was satisfied to have the matter dealt with summarily in the District Court, the appellant elected for trial by

judge and jury in the Circuit Criminal Court. Subsequently, the two s. 4 charges were the subject of nolle prosequi, whereupon the

appellant pleaded guilty to the remaining charge, namely possession of stolen property contrary to s. 18 of the Criminal Justice (Theft

and Fraud Offences) Act 2001. He was sentenced in respect of this charge on 19th February 2015 to a term of imprisonment for

twelve months, such sentence to be served on the legal expiration of a sentence imposed on Bill No. LK/99/12. This is an appeal

against the twelve month sentence.

3. The particulars of the offence were that the appellant on or about 8th September 2013, at or near Erinagh, Clonlara in Co. Clare

possessed stolen property, to wit, a Samsung Galaxy mobile phone, the property of Ms. Gabrielle Flanagan, knowing that the mobile

phone had been stolen, or being reckless as to whether it had been stolen. The mobile phone in question was recovered from the

appellant. It had been stolen shortly before hand when a parked car was broken into to.

4. The appellant maintains that the decision to charge him in respect of the two s. 4 offences prompted him to elect for trial by judge

and jury, and that had he been only charged with the s. 18 offence at the outset, he would have been happy to be tried summarily in

the District Court. The maximum sentence for a s. 18 offence when dealt with summarily in the District Court is twelve months, while

in the Circuit Criminal Court it is five years imprisonment.

5. The appellant’s grounds of appeal in relation to the sentence of twelve months imprisonment can be summarised as follows:-

(i) Had he been tried summarily in the District Court in respect of the s. 18 offence, and which carried a maximum

sentence of twelve months imprisonment, it is unlikely that he would have received the maximum sentence in respect

thereof.

(ii) The sentence imposed was, in part, in reflection of the fact that the appellant had elected to go forward to the

Circuit Criminal Court in respect of all the offences with which he had been charged including, and in particular, the two s.

4 offences which were subsequently dropped by the respondent.

(iii) The learned trial judge sentenced the appellant on the basis that his offence had involved breaking into a car and

stealing the mobile phone, where as, in fact, the appellant had simply been charged with possession of the mobile phone,

and not the theft of same.

(iv) The learned sentencing judge failed to attach sufficient weight to the principle of rehabilitation and the public interest

in achieving that objective.

(v) The learned sentencing judge failed to attach sufficient weight to the appellant’s personal circumstances, including his

dysfunctional background, or the fact that his father had served a lengthy jail sentence and had been released shortly

before the commission of this offence, that the appellant himself had served lengthy prison sentences in the immediate

past, that the appellant’s sister had taken her own life shortly before the commission of this offence, and that he had

issues in relation to alcohol, drug abuse and anger management.

(vi) The learned sentencing judge failed to attach sufficient weight to the appellant’s plea of guilty.

(vii) The learned sentencing judge attached too great a weight to the fact that the appellant had a number of previous

convictions, and that this fact ought to have been treated as the absence of a mitigating factor rather than as an

aggravating factor.

The sentencing judgment

6. In the course of his sentencing judgment, the learned sentencing judge stated:-

“…While, this is, on the face of it, a relatively minor offence which ought to have been dealt with, I suppose, in the

District Court, but because Mr. O’Sullivan decided he wanted a trial by judge and jury here in this court, and that is why

we are here and that exposes him to a much higher penalty and that is a penalty of five years which is the maximum

sentence. Now on the face of it this is a relatively minor offence. It involved breaking into a car and stealing a phone

and while the maximum sentence is five years it seems to me that the appropriate sentence for this is twelve months

before I consider mitigating and aggravating factors.

The plea of guilty is a mitigating factor, I am also taken account of what I might describe as his chaotic social

background and the questions that exist as to mental health, addiction, unresolved grief and anger management issues.”

7. The learned sentencing judge went on to identify as “a serious aggravating factor” the appellant’s extensive history of offending

for a wide variety of offences and suggested that that aggravating factor balanced, if not outweighed, any mitigating factors which

he identified as the plea of guilty, and the appellant’s dysfunctional background and other personal problems. He decided that twelve

months was “a proper and proportionate sentence”. He declined to suspend any portion of this sentence because of the concern

expressed by the Probation and Welfare Service that there was a very high risk of re-offending and because of his concern that there

was little prospect for rehabilitation.

8. It is clear from the sentencing judgment that the learned sentencing judge arrived at the twelve month sentence as being the

appropriate sentence in circumstances where the appellant had opted to have his case decided in the Circuit Criminal Court and

thereby exposed himself to a potential five year prison term. The learned sentencing judge was quite entitled to approach his task of

sentencing the appellant on this basis as the maximum sentence permitted in his jurisdiction was five years. He was in no way bound

to, as it were, step into the shoes of a judge of the District Court in order to arrive at a determination of what was the correct

sentence.

9. The appellant could have pleaded guilty to the s. 18 charge in the District Court but did not do so. Electing to go forward to the

higher court does indeed carry with it the risk of a heavier sentence in circumstances were the higher court has jurisdiction to impose

a significantly greater sentence; in this case five times the maximum available to a District Court judge. It is also the case, as counsel

for the DPP pointed out, the District Court judge may well have, in any event, declined to accept jurisdiction.

10. It is apparent that the learned sentencing judge treated the offence as being “relatively minor”, an observation with which this

court agrees.

11. The learned sentencing judge referred to the offence as involving “breaking into a car and stealing a phone…”. It is submitted by

the appellant that this statement establishes that the learned sentencing judge took a view that the possession of the mobile phone,

contrary to s. 18 of the Criminal Justice (Theft and Fraud Offences) Act 2001 “involved” breaking into a car for the purposes of taking

the phone, and that there was therefore an error principle on his part to the extent that he sentenced the appellant on the basis that

he had been actively involved in the actual stealing of the mobile phone. However, the basis of the offence with which the appellant

was charged was well known to the learned sentencing judge and his reference to the actual theft of the mobile phone was simply a

reference to an event which had immediately occurred prior to the phone being found on the person of the appellant.

12. There are circumstances where previous offending of a serious nature, or of a prolonged nature, can properly be treated as an

aggravating factor. Repeat offending is a matter which a sentencing judge can take into account in a decision to give a higher

sentence than might be the case if the opposite was the case.

13. In this case there was significant previous offending by the appellant. The appellant has one hundred and twenty five previous

convictions of which eleven are s. 4 theft offences, two are burglary offences, six relate to handling stolen property. He also has a

number of road traffic offences. It was stated that the appellant had spent most of his adult life in prison prior to the commission of

these offences, and it is apparent that the appellant had been involved in very serious re-offending and that many of his previous

convictions were particularly relevant to this offence. In those circumstances, the learned sentencing judge was correct in his

decision to treat the previous convictions, and in particular their number and nature, as an aggravating factor.

14. The sentence of twelve months imprisonment was in all the circumstances an appropriate sentence. The appeal is therefore

dismissed.

15. Finally, and because it appears that such was intended by the learned sentencing judge, and on the application of the appellant

without objection from the respondent, the Court will direct that the appellant is entitled to credit for the period of six weeks spent in

custody prior to his receipt of the twelve month sentence.