Court of Appeal dismisses appeal against theft sentence due to overwhelming history of prior convictions.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

Record No.: 61/2016

Between/

The Director of Public Prosecutions

Respondent

- and–

Terence McDonagh

Appellant

Judgment (ex tempore) of the Court delivered on 3rd November 2016 by Mr. Justice Mahon

1. The appellant pleaded guilty at Trim Circuit Criminal Court on 11th February 2015 to a single count of theft contrary to s. 4 of the

Criminal Justice (Theft and Fraud Offences) Act 2001. He was sentenced on 16th February 2016 to imprisonment for a period of two

years and six months from that date.

2. On 16th August 2013, the appellant entered the premises of Annes Florist, in Ludlow Street, Navan, Co. Meath. The proprietor of

the shop, Mr. Francis Gibney, emerged from a back room in the premises to find the till drawer open and two men fleeing the shop. Mr.

Gibney gave chase, and confronted both men on Market Square and demanded the return of his money. A scuffle ensued, and Mr.

Gibney succeeded in recovering €150, being one third of the total stolen from his till, namely €450. Both men than fled on foot. The

appellant was arrested on 4th September 2013 when he made full admissions and apologised for his actions.

3. The appellant has approximately one hundred previous convictions. They are for a variety of offences, including public order, road

traffic, criminal damage, breach of the peace, assault, unlawful escape from custody, endangerment, producing an article during the

course of an argument. Five previous convictions relate to burglary, and five are for theft and they are particularly relevant to this

offence. He received prison sentences on previous occasions, and at the time of the sentence in relation to this offence, he was

already serving a ten months prison sentence at Midlands Prison. It has been suggested that had the appellant’s been dealt with on

an earlier date, as it possibly should have been, the appellant might have faced the prospect of an imposition of a consecutive

sentence. To this extent he has been fortunate.

4. The learned sentencing judge set the offence as being in the “middle to slightly higher range” in terms of its gravity. He also

mentioned the appellant’s history of alcohol and substance abuse. He identified the relevant aggravating factors as including the

following:-

(i) The opportunistic manner in which the offence was carried out, namely, the entering into the shop premises and

removing money from a till behind the counter;

(ii) the very significant number of previous convictions, but particularly those involving theft.

5. The learned sentencing judge identified the mitigating factors as including the following:-

(i) The plea of guilty and the admissions made by the appellant;

(ii) the question of remorse;

(iii) the positive steps at rehabilitation.

6. The grounds on which the appellant seeks to have his sentence reviewed are that the learned sentencing judge:-

(i) failed to give weight to the mitigating factors;

(ii) gave excessive weight to the aggravating factors, and

(iii) imposed a sentence which was excessive in all the circumstances.

7. The learned sentencing judge is criticised for placing the offence at the “middle to slightly higher range”. In any event, what is

clear from the sentence as actually imposed is that it did not reflect a mid range offence. Quite correctly, the learned sentencing

judge considered the offence to have been a serious one.

8. The real difficulty facing any judge in arriving at an appropriate sentence in this case, given the fact that the offending may have

fallen short of the mid range in terms of gravity, was the enormous number of previous convictions, numbering some one hundred in

total. Many of them are particularly relevant, and they cannot but be treated as, as suggested by the learned sentencing judge, to

be an “exceptional substantial factor”. In these circumstances the learned sentencing judge had little option but to impose a

significant custodial term.

9. It is noteworthy that, as has been confirmed to the Court by counsel for both sides, the practical effect of the sentence imposed

on the appellant is that his incarceration has been extended by a relatively short period because of the fact that he was already

serving a sentence in relation to an unrelated matter. He has, therefore, in practical terms, received very little additional punishment

for this offence. The sentence imposed was, at two and a half years imprisonment, certainly far from lenient, but in the

circumstances, it was within the range of sentences available to the learned sentencing judge. No error of principle has been

established, and the appeal must therefore be dismissed.