Court of Appeal dismisses appeal against six-year concurrent sentences for robbery and aggravated burglary. The court finds the sentence within judicial discretion despite serious offences. Mitigating factors were adequately considered by the trial judge.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Butler J.

Appeal No.: 249/2014

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

- and -

Jonathan O’Neill

Appellant

Judgment (ex tempore) of the Court delivered on 22nd February 2016 by Mr. Justice Mahon

1. The appellant pleaded guilty to a number of offences at Trim Circuit Criminal Court on 4th February, 2014. They were:-

• Robbery contrary to s. 14 of The Criminal Justice (Theft and Fraud Offences) Act, 2001, and

• Aggravated Burglary contrary to s. 13(1) and (3) of The Criminal Justice (Theft and Fraud Offences) Act, 2001

2. The appellant was sentenced on 13th November 2014 to concurrent sentences of six years in relation to these offences, and he

has appealed against the sentences.

3. On 21st November 2012, at about 9.45 a.m., two men, being the appellant and his co-accused, entered Clonalvy Post Office in Co.

Meath, armed with knives and wearing balaclavas. They manhandled Miss Mary Creed, an An Post employee, and a lady in her late

eighties or early nineties, and demanded money. They specifically referred to a cash delivery known by them to have been made

earlier that morning to the Post Office. Ms. Creed was threatened with the knives, and cash was demanded from the post office safe.

As the appellant and his co-accused left the Post Office with stolen money they were confronted by a local man whereupon they

dropped the money and attempted to flee in their car which failed to start. They then fled on foot.

4. The second offence relates to a house in the vicinity of the post office and which the appellant and his co-accused forcibly

entered by smashing the glass on the front door. Again, armed with knives, they demanded the car keys from the occupant of the

house, a Polish man in his eighties. The keys were handed over and the car was stolen, but was crashed some short distance away,

whereupon the appellant and his co-accused proceeded to make good their escape on foot.

5. The raid on the post office was deeply traumatising for Miss Creed, and understandably so. Through a garda witness, she informed

the court that she felt herself unlikely to ever recover from the experience and that she had not returned to her work in the post

office, having worked there previously for fifteen years. Clearly the overall effect on Miss Creed was very substantial. The occupant

of the house was a polish man who has since returned to Poland. Again, through a garda witness, the court was informed that this

man was traumatised and terrified with what had occurred.

6. The appellant has one previous conviction for the unlawful possession of drugs in 2010 in respect of which he was fined €150. He

has a history of drug addiction and mental health issues in respect of which he had attended a consultant psychiatrist.

7. The sentences are criticised by the appellant on the basis that the learned sentencing judge failed to take sufficient or adequate

account of a number of mitigating factors. In particular, it is contended that insufficient weight was afforded to attempts at

rehabilitation, and the prospects of further rehabilitation, and the fact that the appellant’s previous offence was not of a similar

nature to those with which the court was concerned. The appellant also maintained that insufficient weight was afforded to his

contention that his role in the offence was the lesser of the two men involved, and that it had arisen as a result of threats being

made to him and his family relating to a drugs debt.

8. In the course of his sentencing judgment, the learned sentencing judge referred to the mitigating factors which he took into

account, including the appellant’s plea of guilty and his co-operation with the investigation, as well as his expression of remorse as

evidenced by his letter of apology to the victim of the post office raid. The learned sentencing judge noted that he had attempted

positive rehabilitative steps in respect of his drug addiction.

9. The learned sentencing judge proceeded to impose six year sentences in respect of both counts, and directed that the sentences

should run concurrently. He specifically stated that:-

“... I do not propose to reduce any portion of the sentences. I could have given and I was entitled and it was open for

me to give a higher sentence and suspend a portion, but I am simply dealing with it as a straight sentence in respect of

each count.”

10. In approaching sentencing in this matter it is apparent that the sentence contemplated by the learned sentencing judge prior to

the application of an appropriate discount for the mitigating factors which were clearly identified by him, was a sentence in excess of

that actually imposed. While ideally the learned sentencing trial judge might have identified that headline sentence, the fact that he

did not do so in the circumstances does not of itself constitute an error of principle.

11. In the course of his judgment in DPP v. Fitzgibbon [2014] IECCA 12, Clarke J. commented:-

“…It is, however, important that this Court, when asked to review a sentence, is not left to guess or infer, to any

impermissible extent, what the reasoning of the sentencing judge was.”

12. That said, this is not a case where it can reasonably be stated that the relevant mitigating factors were not considered and

provided for by the learned sentencing judge.

13. Both the offences in question carry as a maximum term, a term of life imprisonment. The offences as actually committed in this

case were particularly serious; they involve the use of weapons and threats in very terrifying circumstances. It is difficult to imagine

that a headline sentence, prior to any discounting for mitigating factors, could reasonably be less than eight, or possibly nine, years,

so that six years as a net term is not unreasonable. It is certainly well within the proper exercise of the learned sentencing judge’s

discretion as to the appropriate custodial term to impose in this case.

14. The criticism as to the imbalance of the sentences imposed on the appellant and his co-accused may not be entirely

unreasonable, but in the Court’s view, this is so only to the following limited extent.

15. The co-accused’s previous conviction record is clearly worse than that of the appellant. However such doe not per se warrant a

lesser sentence for the appellant than that imposed on his co-accused. The appellant’s sentence must be considered on its own

relevant facts. In comparing the sentences in this case, it may well be that that the co-accused sentence was lenient in the

circumstances, rather than it being a case of the appellant’s sentence having been unduly harsh. That fact however, does not

warrant a reduced sentence in the case of the appellant.

16. The Court is satisfied that the learned sentencing judge in arriving at a net term of six years for both offences adequately

provided for the relevant and mitigating factors including rehabilitation, and will therefore dismiss the appeal.