Court of Appeal sets aside sentence for theft due to error of principle regarding victim presence.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Appeal No.: 0021/2016

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Moise Rostas

Appellant

Judgment (ex tempore) of the Court delivered on the 26th day of May 2016 by Mr. Justice Mahon

1. The appellant pleaded guilty and was convicted on 12th January 2016 at Monaghan Circuit Criminal court of stealing jewellery to

the value of €20,000, the property of Mr. Donal McGuigan, contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act

2001. The appellant was sentenced on 19th January 2016 to a term of imprisonment of three years, to date from 4th June 2015. This

is the appellant’s appeal against sentence.

2. The appellant was one of four individuals involved in the theft of jewellery from McGuigans Jewellers on Main Street, Castleblaney in

Co. Monaghan on 28th December 2012. The value of the stolen jewellery was €20,000.

3. CCTV footage revealed that four individuals, including the appellant, another man and two females, entered the jewellers shop. One

female employee in the shop was in a back room, while one customer was in the shop itself. One of the female intruders distracted

the customer while the other gang members took jewellery from a display cabinet. Neither the staff member or the customer were

immediately aware of the theft.

4. The four individuals, including the appellant, then left in a car heading in the direction of Monaghan. Details of the vehicle were

relayed to the gardaí by a local person who became suspicious. The vehicle was later stopped near Lucan in Co. Dublin by gardaí.

Gda. Dillon, who had viewed the CCTV footage, on arrival from Castleblaney, recognised the two men from the car to be two of the

gang who had entered the jewellers shop. They were arrested and interviewed.

5. The appellant initially denied any knowledge of the incident. The stolen property was never recovered. The appellant was released

on bail but left the jurisdiction before returning voluntarily on foot of a European arrest warrant on 1st October 2015 from Scotland.

6. The appellant was twenty two years old at the time of the incident and is now aged twenty five. He was one of two individuals

prosecuted in relation to the theft. He has no previous convictions and is married with two young children.

7. The appellant and his co accused were sentenced by the same judge. The co-accused’s sentence was one of two years

imprisonment. On appeal, that sentence was reduced to one year, with one year suspended. The co accused was younger than the

appellant and his involvement was very much influenced by the appellant, his brother-in-law, hence their different sentences.

8. It is submitted on behalf of the appellant that the learned sentencing judge failed to have sufficient regard to the following:-

(i) The guilty plea;

(ii) the absence of previous convictions;

(iii) the imposition of a suspended or other non custodial sentence;

(iv) other mitigating factors, and .

(v) that he erred in principle in sentencing the appellant on the basis that the shop owner and a staff member were

present, and witnessed the theft as it was being carried out.

9. The learned sentencing judge’s sentencing judgment was comprehensive. He concluded that judgment as follows:-

“... In the circumstances therefore and bearing in mind that I should leave light at the end of the tunnel for him to

reform but by reason of the serious nature of the offence and the serious amount of property that was stolen and his

knowledge, and he must have had knowledge of what was involved, and no information as to where this jewellery went,

or indeed where the money that was got for it went. I have little option but to sentence him to a serious period of

imprisonment, and I am sentencing him to a period of three years imprisonment for this offence, backdated to 1st

October 2015.”

10. When asked by the appellant’s counsel to consider suspending a portion of the sentence, he declined to do so.

11. In the course of his judgment, the learned sentencing judge attached considerable weight to the extent of the adverse effect the

theft had had on the jeweller, Mr. McGuigan. He noted that following the crime, and at least partly as a consequence of it, Mr.

McGuigan wound down his business and left the jurisdiction.

12. The learned sentencing judge specifically referred to Mr. McGuigan and his staff as having been “terrified”, and did so in a manner

which suggested that it was his understanding Mr. McGuigan and a member of his staff were present while the incident was in

progress, that they had witnessed it, and were conscious that it was underway. Had they indeed been present and aware of the

crime while it was being committed, the learned sentencing judge’s use of the word terrifying to describe their experience would

certainly have been apt. However, the fact is that Mr. McGuigan was not actually present inside the shop while the incident was in

progress and was unaware of it until after the event. No member of staff was inside the shop at the time. A sole customer inside the

shop remained unaware of the incident during its progress because one of the gang had distracted her.

13. It appears to be the case that the learned sentencing judge arrived at a sentence of three years, having first discounted for the

relevant mitigating factors, on the basis that Mr. McGuigan and a member of his staff had been physically present in the shop and had

witnessed the crime been committed, and had been terrorised by that experience. Had that been the case, that fact alone would

have been a significant aggravating factor and would undoubtedly have justified a sentence of three years or more.

14. It should of course be acknowledged that the experience of having being robbed, albeit while not present for the event, is itself a

frightening one and an experience well capable of leaving an individual fearful and apprehensive of it being repeated. It, surely, at a

minimum, undermined Mr. McGuigan’s confidence in his ability to run his business and may well have contributed to his decision to

close his business. The €20,000 was uninsured because of an earlier claim arising from a previous robbery.

15. The court is satisfied that the basis upon which the sentence was imposed – namely, that Mr. McGuigan and a staff member were

present during the event – is an error of principle. Had the sentence been imposed on the basis of what actually occurred – namely,

that the theft was committed in the absence of Mr. McGuigan or any staff – it may well have been more lenient than a custodial term

of three years. Even if the learned sentencing judge did not intend to convey that Mr. McGuigan and a staff member were physically

present in the shop at the relevant time, and had imposed sentence on that basis, the appellant was left with the assumption that he

had been sentenced on the basis that the incident had been witnessed in this manner.

16. It is necessary, therefore, in the circumstances, for this court to set aside the sentence imposed and to re-sentence the

appellant. The offence committed by the appellant was a serious crime by any measure. It was a clearly planned theft from a

business premises undertaken in broad daylight, and involved a very substantial financial loss to Mr. McGuigan. The appellant initially

denied any involvement in the crime. When released on bail, he absconded to Scotland before later returning to this country on foot

of a European Arrest Warrant. His plea of guilty, while welcome, and deserving of recognition, must be viewed in circumstances where

his involvement in the crime was relatively easily established. Perhaps the most compelling mitigating factor is the appellant’s

complete lack of previous convictions. Account must also be taken of the extent that the appellant’s rehabilitation is underway. This

is evident from his enhanced prisoner status. There is therefore good reason to believe that that rehabilitation will continue and may

well be further enhanced with the prospect of an earlier release from prison than might otherwise be the case.

17. The sentence this count will now impose is one of three years, with the final nine months suspended for a period of two years

post release on condition that compensation of €5,000 (which has been offered by the appellant) be paid to the State for onward

transmission to Mr. McGuigan, and that he enter into a bond in the sum of €100 to keep the peace and to be of good behaviour.