Court of Appeal quashes robbery sentence for insufficient mitigation discount and re-sentences with partial suspension.

THE COURT OF APPEAL

Birmingham J

Sheehan J.

Edwards J.

Record No: 85/2015

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

–V–

JOSEPH CRAWFORD

APPELLANT

Judgment of the Court (ex tempore) delivered on the 25th of February, 2016 by

Mr. Justice Edwards

Introduction

1. This is a case in which a term of seven years imprisonment, with the last two years thereof suspended for two years, was imposed

on the appellant by Galway Circuit Criminal Court on the 20th of March 2015 following the appellant’s plea of guilty to a count of

robbery contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act, 2001.

2. The appellant now appeals against the severity of his sentence.

The facts of the case

3. On the 9th February 2010 the appellant entered a Subway sandwich bar, on the Old Séamus Quirke Road, Galway. He ordered a

sandwich off a female member of staff who was behind the deli counter and she prepared the sandwich and then afterwards went to

the till. At this stage the appellant grabbed the staff member by the left arm and produced a knife. The female staff member said in

her statement that the knife was 12 inches long, while the male staff member, who was initially in the back room of the store, said in

his statement that it appeared to be either five or six inches long. In any event the appellant demanded money from the till. The male

member of staff came out of the back room in the store and placed the contents of the till, €240 approximately, in a paper Subway

bag that was on the counter. The appellant then took the bag of money and left the shop, whilst saying to the two staff members, “if

you call the guards, you will see what will happen to you.” He then ran up the Old Séamus Quirke Road.

4. The appellant did not have his face covered, nor did he attempt to conceal it, during the course of the incident. There was a CCTV

recording system within the shop which was operating at the time and which captured the raid. As the appellant’s face was

uncovered he was readily identifiable. The appellant became aware from Facebook that an Garda Síochána were looking for him and,

by arrangement, on the 13th February, he attended Galway Garda Station, where he was arrested on suspicion of robbery.

5. The appellant was detained for the proper investigation of the offence in respect of which he had been arrested and was

interviewed on one occasion and made admissions. He stated that he has a drink problem, that he had fallen into company with a

person he described as being “a wino” and that he had consumed a cocktail of sleeping tablets and whiskey in Eyre Square prior to

the incident. He also apologised and offered to pay back the €240 that he had stolen.

6. The appellant was subsequently charged with the offence of robbery contrary to s.14 of the Criminal Justice (Theft and Fraud

Offences) Act, 2001 to which he later pleaded guilty. The plea was entered on the first available mention date before the Circuit

Criminal Court.

The impact on the victims

7. The female staff member made a victim impact statement, which read at the sentencing hearing, and in which she stated:

"After the 9th of February 2014 Subway shop robbery incident, I found myself completely shocked and frightened. All of

my nerves are shaking. Can't even talk and react with others. My mind and body was not proper circulation as I felt

uneasy from that time. I find it hard to carry on with my daily routine at home, especially at work where I can be easily

startled and frightened whenever a customer enters the shop. When working alone, by myself, I tend to become

paranoid. I also had nightmares and flashbacks after the incident. It flashes back everything in my thoughts and, as a

result, I have trouble in sleeping. I was completely traumatised as I felt stressed whenever it reminded me of what I've

went through but I need to move on with my life. I have two children to think about who are dependent on me."

8. The male staff member also made a victim impact statement, which again was read into the record by the prosecuting Garda, and

in which he stated:

"It has been very scary sometimes after the robbery in the shop when it's dark and I am working just by myself. I only

fear if he comes after me, or follows me to my house after work. Sometimes when it flashes back in memory, it gives

me the shivers and shakes. I feel very afraid after the incident and some nights I can't sleep thinking about it."

The appellant’s personal circumstances

9. The appellant was born on the 25th of August 1985. He is from Galway City and is the second eldest of seven siblings, comprising

four boys and three girls. He was in a relationship with a Limerick girl with whom he has a child who was two years old when the

evidence was given i.e., on the 4th of December 2014. He wasa living in Limerick at the time, but had travelled up to Galway on the

day of the incident.

10. The sentencing court was told that the appellant has 70 previous convictions, two of which were for robbery, nine of which were

for burglary, one of which was for handling stolen property, two of which were for assaults, one involving harm, one for s.3 possession

of drugs under the Misuse of Drugs Act, two for failing to appear, several for public order offences and the remainder for road traffic

matters. All matters were dealt with summarily. The appellant has received numerous prison sentences in respect of his offending,

typically terms of single digit months.

11. In respect of the previous robbery convictions the sentencing court was told that they were recorded on the 10th of March 2004

and they were in respect of offences committed on the 13th of February 2003. No details of the circumstances were given. However,

the Court was told that the appellant received four months imprisonment in respect of both from Galway District Court.

12. At the initial sentencing hearing on the 4th of December 2014 the court was told that the appellant had a complex medical, and in

particular psychiatric, history. After hearing an initial outline of the appellant’s problems in that regard, and following a consideration

of a number of medical reports that were handed in, comprising two reports from the appellant’s general practitioner, and a report of a

psychiatric assessment carried out on the appellant by a psychiatrist from the Central Mental Hospital in 2007, the sentencing judge

adjourned the case to a subsequent date to enable a more up to date psychiatric report to be produced.

13. The matter came on for further hearing on the 20th of March 2015 when the sentencing court was provided with an up to date

psychiatric report. The psychiatrist, a Dr Jacob, stated in the “Opinion and Recommendations” section of his report that:

Opinion and Recommendations

1. Mr Crawford has a mild learning disability. With support from his parents and partner he is generally able to live without

depending on staff or services.

2. When incarcerated, his deficits become more obvious and he has struggled at times to navigate the complex prison

environment.

3. Mr Crawford has ADHD but is no longer on treatment. On Ritalin he is reported to have been less restless and to have

been more attentive. Whilst previously only prescribed for children it is now frequently prescribed for adults.

4. Mr Crawford’s depression is generally well treated by his GP but anxiety about further lengthy incarceration is affecting

his mood at present.

5. Ritalin, anxiety medication such as Clonazepam and hypnotics such as Zopidem have a potential to be misused and

therefore should be prescribed with caution.

6. I respectfully recommend that a copy of this report is made available to Dr O’Callaghan in order to consider

aforementioned medication issues. 7. Mr Crawford needs to be better occupied when in the community. This would help

with his mood and has the potential to reduce his offending. Training services such as the National Learning Network and

Rehab Care have bases in Limerick and would provide suitable courses for Mr Crawford to prepare him for future

employment.

8. If Mr Crawford is incarcerated there are potential risks to his health and well being particularly in overcrowded

environments. These include Mr Crawford being bullied by more able inmates, his mood deteriorating and him re-

experiencing previous trauma of being attacked. I would therefore respectfully request that if incarcerated some

consideration needs to be given to where Mr Crawford serves his sentence.”

14. It was also apparent from the medical evidence that the appellant had had a particularly bad experience during a previous

incarceration in St Patrick’s Institution in 2006 when he was attacked and stabbed by other inmates simply because he had refused to

do something unlawful that he was being prevailed upon to do. The evidence was that following this attack the appellant developed

anxiety and depression and had attempted suicide by hanging.

The plea in mitigation

15. In presenting a plea in mitigation on behalf of the appellant, his counsel highlighted the following factors and urged the sentencing

judge to take them into account:

The appellant’s conduct in the case; he made himself available to the guards, had attended at the garda station and

had made full and comprehensive admissions, which also involved an apology to the victims.

The appellant was born in 1985 and had been in various custodial institutions since he was a teenager. His first

incarceration had been for a term of detention in St Patrick’s Institution and he had been in a number of penal institutions

and/or prisons since.

The fact that the appellant has a complex medical history including having a mild learning disability, ADHD and suffering

from depression.

The fact that the appellant had consumed whiskey and sleeping tablets and that this had created some reaction,

resulting in him not being able to recall the incident, although he was prepared to accept when the allegations were put

to him that it was him.

The fact that the appellant had pleaded guilty at the first available opportunity on the 6th November 2014 and,

unusually, requested to be put into custody and was in custody from that date until the 16th of January 2015.

The fact that whilst on bail he had followed all bail conditions, had not come to the attention of the authorities in any

adverse way and had resided in Limerick with his partner and son.

The fact that the appellant was a young man of very limited education;

The fact that the guilty plea had been of benefit to the injured parties in that they weren’t required to sit through a

trial and give evidence.

The sentencing judge’s remarks

16. In sentencing the appellant the sentencing judge sought in the first instance to assess the seriousness of the offence, and in

that regard said the following:

“Well the first thing that I've got to do is place this on the appropriate point in the scale for offences of a similar nature.

Robbery is one of the most serious crimes on the statute books; it carries a maximum sentence of life imprisonment. So

where does this particular robbery, where somebody goes into a shop with a knife, threatens them, and puts people in

fear, and they're genuinely afraid and probably for very good reason? It's a most serious offence; to my mind it's at the

high/mid end of the range and before I consider factors that mitigate or aggravate it, I believe this warrants an eight

year sentence. Aggravating factors: The use of a weapon, people don't normally go shopping with a bread knife in their

possession, so it was premeditated; the impact it had on the victim, it speaks for itself, …”

“I don't think that anybody would be surprised that the impact a violent frightening assault like this would have on

anybody. And his previous record of offending, which can only described as atrocious.”

17. The sentencing judge then went on to consider mitigation and said:

“Mitigating factors. Well, a plea of guilty; his, I suppose, relatively complicated social and psychological history; and while

it's suggested to me that youth is a factor, he's 30 years of age, that's not young. It may be young by my standard but

I don't it could be considered young to the extent that it would attract particular recognition in terms of mitigation. And

while he may have spent a considerable period of that time in the criminal justice system, one might think that that

alone might have a salutary effect on him, but it doesn't appear to have.”

18. Moving then to consider how he should in fact deal with the appellant, having regard to the options open to him, the sentencing

judge concluded:

“It's been suggested to me that there's some -- there might be some light in the tunnel for this man. I'm not certain

that I can really identify any factors that suggest to me that there are. Looking at the sentence in the round, it seems

to me that the aggravating factors, they probably outweigh the mitigating factors, but I suppose, trying to be as fair as

I can to Mr Crawford, I'll give him some credit for -- for mitigation that outweighs the aggravating factors, so I'm going

to sentence him to seven years imprisonment. Now, I'm going to suspend the final two years of that, for two years, and

he can enter into a bond to remain in good behaviour during that period. I'm going to ask that all the medical and

associated reports be passed on to wherever he ends up in custody and request that he be facilitated in terms of

medication, assessment and such treatment as he needs.”

The grounds of appeal

19. Counsel for the appellant has submitted that the sentencing judge’s approach falls to criticized in four main respects. He contends

that:

i. The sentencing judge erred in law in failing to give proper weight to the manner in which the appellant met the case

and, in particular, his cooperation with gardaí. The sentencing judge erred in law and in fact in failing adequately to give

the appellant due credit for his plea of guilty and the stage at which that plea was entered, i.e. at the earliest possible

stage.

ii. The sentencing judge erred in law and in fact in determining that the robbery was in the “high/mid end of the range” for

sentencing purposes.

iii. The sentencing judge erred in law in not attaching enough weight/failing adequately or at all to take into account any

of the mitigating factors save for a brief reference to the appellant’s complicated social and psychological history.

iv. The sentencing judge erred in law in imposing a sentence which in all the circumstances was excessive and

disproportionate.

20. In truth these complaints boil down to two main assertions; namely, that in assessing the seriousness of the offence the

sentencing judge fixed on a headline sentence that was too far along the range or spectrum of available penalties; and that, having

done so, he then also made insufficient allowance for, or gave insufficient credit for, the many mitigating factors in the case.

21. Counsel for the respondent has submitted in reply that the sentencing judge properly rated the seriousness of the offence in fixing

a headline sentence of seven years imprisonment, and made appropriate allowance for mitigating factors in suspending the final two

years of that seven year term.

Discussion and Analysis

22. The sentencing judge was obliged in the first instance to assess the seriousness of the offending conduct in terms of the

appellant’s culpability and the harm done, taking into account aggravating factors in doing so, but ignoring for the moment mitigating

factors, and to fix it on the spectrum of available penalties as meriting a particular headline sentence. In this case the spectrum ran

from wholly non-custodial options up to a sentence of imprisonment for life. It is fair to say, however, that a life sentence for a

robbery would only be contemplated in the most egregious of cases and that the effective range of penalties in the overwhelming

majority of cases would most probably be from zero to something in the order of twelve or fourteen years, with the upper half of the

scale being in general reserved for those species of robberies that constitute “armed robberies” of varying degrees of seriousness.

23. The offending conduct in this case constituted an armed robbery in that the appellant was armed with a bread knife. Moreover, it

was not a knife that he had picked up in an opportunistic way at the scene. On the contrary, he had brought it with him, a fact

which was indicative of at least some degree of premeditation or advance preparation. In addition, the appellant had previous

convictions for robbery and other convictions for both crimes of violence and crimes of dishonesty, although committed quite some

time ago. In terms of the harm done, two young persons engaged in their work in the sandwich bar in question were terrorised by the

appellant’s actions. They were directly threatened with harm, and suffered a significant traumatic reaction after the event. Moreover,

it was an outrage to society that persons engaged in going about work in the service sector, as these victims were, should be

subjected to, and have to endure, such an ordeal. In addition, the owners of the sandwich bar had a modest sum of money stolen

from them. By any standards this was a serious offence and deserving of a headline sentence falling within the upper half of the

indicated effective range. Allowing for the margin of appreciation that the sentencing judge would have had in assessing seriousness

it would have been open to him to fix a headine sentence of between six and eight years.

24. The sentencing judge initially felt that a headline sentence of eight years would have been merited, but after further reflection

settled on a headline figure of seven years. We find no error of principle in this.

25. Turning then to the question of mitigation, there were some significant mitigating factors in the case. The appellant had pleaded

guilty and it was accepted that he is genuinely remorseful. He had also been co-operative, in presenting himself for arrest by

arrangement, in making admissions and in identifying himself on the CCTV footage which was shown to him.

26. He was also a young man with a complex medical and psychiatric history, which makes clear that he has particular vulnerabilities.

He has mild learning disability, ADHD and suffers from anxiety and depression. Moreover, he has problems with substance abuse and

alcohol. His very vulnerability has led to him being abused by fellow inmates while incarcerated in the past, and he was traumatized by

the stabbing incident that occurred in 2007 to such an extent as to engage in a serious suicide attempt.

27. The question for this court is whether the sentencing judge adequately reflected the available mitigation, both in terms of the

amount of allowance made and the manner in which the sentence was structured. The Court is particularly concerned in the

circumstances of this particular case that the sentencing judge chose to reflect mitigation, and possibly also to incentivize

rehabilitation (given his remarks about leaving light at the end of the tunnel) by suspending the last two years of the headline

sentence simpliciter. Given this accused’s vulnerabilities, and his previous record, it must inevitably be inferred that he is at high risk

of re-offending. If available mitigation is only to be reflected by a partially suspended sentence there is a real risk that the offender

will, in effect, lose completely all allowance made for mitigation if he falls by the wayside during the period of the suspension of his

sentence. In terms of structuring the sentence it would have been preferable in the circumstances of this case to address separately

the giving of discount for actual mitigation and the creation of an incentive to rehabilitation.

28. Also, given that the suspension of the final two years was intended to reflect both mitigation and the need to incentivize

rehabilitation we would question whether the overall effective discount was in fact adequate in the circumstances of the case. On

balance, we are satisfied that there was insufficient discount on the mitigation side of the sentencing equation, and accordingly we

find an error of principle in that respect.

29. Having found an error of principle this Court will proceed to quash the sentence of seven years imprisonment with the final two

years suspended imposed by the court below and proceed to re-sentence the appellant. In accordance with established jurisprudence

the Court invited the parties to submit to it on a contingent basis any materials that they might wish to have taken into account in

the event of the court finding an error of principle and setting aside the sentence that was imposed by the Circuit Court judge.

30. In response to that a number of additional documents have been submitted on behalf of the appellant. These included a letter

from the appellant’s partner, Ms Jessica McNamara, and a number of reports and documents relating to the appellant’s young son who

himself has some medical issues and who has recently been referred to a number of services in the HSE West area, and the Court has

taken cognisance of all of those materials and has taken them into account.

31. In proceeding then to resentence the appellant this Court will follow the lead of the sentencing judge in the Circuit Court and

determine the headline sentence in this case as being appropriately measured at seven years imprisonment. However, to reflect

actual mitigation in the case we will give a straight discount in respect of that seven year period of two years thereby reducing the

sentence to one of five years imprisonment. The Court is also going to take the step of separately dealing with the need to

incentivize rehabilitation. In order to do so this Court will in addition suspend the last year of that five year term for a period of two

years from the date of the appellant’s release from custody, subject to his entering into a bond in the sum of €100 to keep the peace

and be of good behaviour, and also to submit to the supervision of the Probation Service during the period of the suspension of his

sentence and to comply with any requirements that they may have.

32. In summary, therefore, the final sentence is to be one of five years imprisonment with the final year thereof suspended.