Court of Appeal allows appeal against excessive robbery sentence due to sentencing judge's failure to receive accurate criminal record summary.

THE COURT OF APPEAL

Sheehan J.

Mahon J.

Edwards J.

49/15

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Anthony O'Sullivan

Appellant

Judgment of the Court (ex tempore) delivered on the 21st day of April 2016, by

Mr. Justice Sheehan

1. On the 30th January, 2014, the appellant Anthony O'Sullivan entered Gill Abbey Stores in Cork City, shortly before 9.00 in the

evening. He carried a wheel brace and his face was covered with a scarf. He approached the till area in the shop, brandishing the

wheel brace and shouted at the shop assistant to give him the money. She refused whereupon he grabbed a purse and phone from

Ellen Murphy a student who happened to be standing nearby. The total value of the property taken from her including the value of her

mobile phone was €322.

2. On the 23rd February, 2015, the appellant pleaded guilty to robbing this property from Ellen Murphy and to a charge to attempting

to rob the shop assistant and was sentenced to two concurrent terms of five years imprisonment with the final year suspended

provided that he remain under the supervision of the Probation Service for that period of time.

3. The student who lost her property did not wish to make a victim impact statement, but the shop assistant stated that she had

been very frightened by the event and now felt obliged to carry a panic button with her as she went about her business in the shop.

4. The personal circumstances of the appellant are that he is a 28 year old man who at the time of sentence was living at home with

his father in the family home, his mother having died six years ago and his two sisters living elsewhere in Cork. The court was told

that he was addicted to heroin and also that he is the father of a young child and continues to be in a relationship with the child’s

mother.

5. The garda evidence was that he had 423 previous convictions with 366 of these being for road traffic matters. The appellant has a

number of previous convictions under the Theft Act including some for burglary and one for robbery.

6. The position of the parties before this Court is essentially the following. Counsel for the appellant contends that the learned trial

judge erred in principle in imposing a sentence that was excessive in light of the mitigating factors and also contends that a further

error occurred as a result of errors being communicated to the sentencing judge about the appellant’s criminal record.

7. Counsel for the respondent submits that while an error did occur in respect of the appellant’s record, this error was insignificant

particularly given that the trial judge did not focus on the appellant’s record in the course of his sentencing remarks. Counsel for the

respondent further submitted that while the trial judge may have taken a short circuit to the sentence he deemed to be appropriate

he nevertheless in so doing arrived at a sentence that was just and proportionate and this Court should not interfere with that

sentence.

8. We find that there are two problems that arise when we come to review the sentence imposed by the learned sentencing judge.

The first and principle difficulty we have is in ascertaining where on the scale of offending the learned sentencing judge located this

particular offence. Counsel for the Director of Public Prosecutions says that in view of the fact that the maximum sentence is life

imprisonment, we can take it that the starting point was either six or seven years imprisonment or thereabouts and effectively that

proper allowances for mitigation and rehabilitation can be seen to have been factored into the sentence that was ultimately arrived

at.

9. In our view that approach is unsatisfactory. We should not be obliged to speculate when we are engaged in a review of sentence.

10. There is also a problem in this case about the evidence that was presented to the sentencing judge in respect of the appellant’s

criminal record. Unless there is some special difficulty which this Court is unaware of we would have thought that the old practice of

providing the defence legal team with a copy of the criminal record of the offender in advance of the sentence hearing be it in the

Circuit Criminal Court or the Central Criminal Court was a good practice. Had that happened at the time in this case a number of the

grounds of appeal which relate to this aspect of the case would not have arisen.

11. While the sentencing judge expressed the view that he did not want to be told about these matters, prosecution counsel wisely

sought to make some headway when it came to putting before the court the appellant’s previous convictions. However, even today

because of the failure of the sentencing judge to receive a proper and accurate summary of the appellant’s record we do not even

know whether or not the appellant has ever been tried on indictment. If he has not, then bad and all as the appellant’s criminal record

is, it means that all his previous convictions comprise convictions for summary offences or those which attract the description “minor

offences”. This is a factor that is relevant to proper sentencing.

12. In these circumstances we hold that the sentencing judge erred in principle on two grounds. The principle error being the one

which leaves us in a position where we have to speculate what allowance he made for mitigation and rehabilitation. The second one

being his failure to receive proper evidence or at least a proper summary of the appellant’s criminal record.

13. In light of these findings we proceed to a fresh sentence hearing.

14. Counsel on behalf of the appellant has furnished us with two important documents. The first shows that the appellant while in the

Midlands Prison participated well in a counselling programme. The second document is provided by the Prison Education Service and

advises that he has attended a Relapse Prevention Course and is also engaging with a number of other educational programmes.

15. The robbery and attempted robbery which occurred over a very short period of time were of course serious offences. At the time

of sentence the learned sentencing judge was entitled to hold as he did in light of the probation report that no weight be attached to

the appellant’s expression of remorse. While neither of the injured parties suffered physical injury, the brave shop assistant who

refused to hand over any money was nevertheless traumatised by the event and now requires to have a panic button in her

possession when going about her daily work.

16. That said the appellant in this case, when he was taken to Anglesea garda station cooperated with Garda O’Leary and made a

number of admissions. That alongside the plea of guilty constitutes serious mitigation. According to the probation report, the appellant

was addicted to heroin at the time of these offences and is a person who unfortunately has been abusing drugs since he was

thirteen.

17. Taking these matters into account and noting that the appellant has begun to take some personal responsibility for his addiction

since the commencement of his sentence and also bearing in mind that he has a young daughter and partner, this Court believes that

it is just to reduce the custody aspect of his sentence by 25%. Accordingly the court will allow the appeal against sentence, set

aside the sentence of five years imprisonment and impose in its place a sentence of four years imprisonment with the final year

suspended provided the appellant keeps the peace and is of good behaviour for a year following his release from prison.