Court of Appeal allows appeal against unduly lenient suspended sentence for robbery and assault, resentencing to four years.

THE COURT OF APPEAL

Birmingham J.

Edwards J.

Hedigan J.

292/CJA/16

In The Matter of An Application Pursuant to Section 2 of the Criminal Justice Act 1993

The People at the Suit of the Director of Public Prosecutions

Appellant

V

Patrick Whelan

Respondent

JUDGMENT of the Court delivered on the 22nd day of June 2017 by Mr. Justice Hedigan

Introduction

1. This is an appeal by the Director of Public Prosecutions on the basis that the sentence imposed was unduly lenient. The respondent

entered a guilty plea to three offences in the Dublin Circuit Criminal Court. On the 24th June, 2016, the first mention date in the

Circuit Court, he entered a plea to the offence of robbery and on the 24th October, 2016, to assault causing harm and s. 112 of the

Road Traffic Act. A nolle prosequi was entered in relation to two counts of possession of knives.

2. He was sentenced on the 24th October, 2016, to three years imprisonment for the robbery and two years for the assault causing

harm, to run concurrently. The s. 112 was taken into account. The sentence was suspended in its entirety for four years on the

condition that he be of good behaviour, adhere to probation and welfare supervision and within the period of suspension pay to the

victim the sum of €4,000, half to be paid in the first two years. Further he is to engage with anger awareness/anger management and

drug and alcohol awareness programmes, with a training and employment officer and complete a victim awareness programme.

The circumstances of the offence

3. The offences occurred at about 5 pm on the 27th July, 2015, when Mr. Singh, the injured party, was working serving customers in

a store in Blanchardstown. The respondent ran in and shouted at the injured party to open the till. He had a weapon in his hand and

either before or at the same time as demanding the till be opened he struck the injured party on the right side of the head causing

him to bleed. The respondent then picked up a sweeping brush from behind the counter so that he had a weapon in each hand. He

threatened the injured party, caused him to fear for his life and shouted at him to open the till. The respondent took €600 from the

opened till and left the shop. At this stage the injured party was able to set off the panic alarm. €150 was recovered when the

respondent was arrested shortly after the incident.

4. The injured party was conveyed to hospital by ambulance where he received stitches to his head. The injury caused him to be out

of work for three weeks. He could not sleep on his right side and had recurring nightmares. He had to cut his hair and often wore a

hat. This had a psychological effect on him due to his religious beliefs. He was unable to do evening work as he no longer felt safe. He

lost his second job and incurred loss of earnings of just over €2,000 and medical expenses of €400.

5. Gardaiì arrived on the scene and spoke with the injured party and an elderly customer who described the car involved. Identification information was circulated. It was

observed from the CCTV footage that the respondent was not wearing gloves. Fingerprint lifts were taken which matched the right forefinger

and palm of the respondent.

6. Garda O'Carroll was in his patrol car and alerted to the robbery. He stopped a vehicle with registration 02LH5503 in which the

respondent was a passenger. A registration check revealed the vehicle was the subject of an unauthorised taking between the

evening of the 20th and the morning of the 21st July, 2015, from outside the owner’s house. The respondent and the driver were

searched. €150 was found in the respondent’s pocket along with a saw blade partially wrapped in tape in his trouser leg and a meat

cleaver in his waistband. He was arrested, brought to Ronanstown Garda station and detained. Nothing of probative value arose from

his detention. He was later released, re-arrested and charged.

The respondent’s personal circumstances

7. The respondent had no previous convictions. A probation report placed the respondent at a moderate risk of re-offending due to

his history of illicit drug use, his negative associations and his lack of involvement in pro social activities and poor thinking skills. It

noted that he fully accepted responsibility, indicated he had other matters outstanding and that he had reduced his cannabis use. He

had recently secured work in a local tyre company. He is unfortunately no longer in employment. He has recently completed courses

in anger awareness and alcohol awareness.

8. In the psychologist’s report he is described as “[a] quiet, reserved, well spoken young man who feels remorse and guilt and is

anxious and apprehensive as regards his future”. It notes that he has cleared his drug debt and reduced his cannabis intake

considerably. It evaluates him as presenting with low to moderate risk of re-offending.

9. There was recreational drug use from an early age which led to a drug debt, paid by family members. There followed further drug

debts and a period living away from the family home. He has a supportive family. There were no difficulties until he began to be bullied

in secondary school and started to act out. His counsel noted to the sentencing judge that he didn't come to the attention of the Gardaiì or the courts, didn't go to the

juvenile court and didn't go through that whole process of familiarisation with the criminal justice system. He found himself in the company of another

person needing money for a drug debt.

Sentence

10. In sentencing the learned judge listed the aggravating factors in relation to the robbery as the level of violence. These were the

fact that the respondent came into the shop armed with weapons and, without giving the shop assistant any opportunity to defend

himself or to empty the till, struck him in the head. This blow with a weapon inflicted an injury that required stitching of the wound.

The Court also referred to the psychological effect on the injured party. The offence was placed at the higher end of the low range.

It was noted that had the matter gone to full hearing a sentence of four years imprisonment in respect of the robbery would have

been imposed. The assault was also placed within the upper end of the middle range in that it was completely unjustified. The

aggravating factor was the blow to the victim and resulting significant injury. Had this gone to full hearing the Court would have

imposed a sentence of three years.

11. The mitigating factors identified were the respondent’s plea of guilty, at the first opportunity on the robbery count, and that he

fully accepts responsibility. Remorse and guilt were expressed to the probation officer and psychologist. He had some degree of

insight and acknowledged the victim’s loss and trauma. Significant weight was given to his lack of previous convictions.

12. The judge noted that his drug use and the influence of his peer group Had a negative effect upon him. He came from a hard

working family who were standing by him and significant weight was given to this support. The Court took account of the fact he

obtained employment. Account was taken of his youth; he was 20 years old at the time of sentencing. It was noted that there should

be room for rehabilitation. All this had to be balanceed with the seriousness of the offence which the Court must mark with a

significant sentence. To this end the Court imposed a sentence of three years for the robbery and two for the assault causing harm,

to run concurrently and the s.112 was taken into account. This sentence was then fully suspended for four years on conditions which

have been set out above.

Appellant’s submissions

13. It was submitted that there was a substantial departure from the appropriate sentence. Insufficient weight was given to the

aggravating factors and undue weight to the mitigating factors.

14. The appellant referred the Court to the general principles of undue leniency. The onus of proof is on the appellant. The sentencing

judge’s reasons should be given great weight. It must be a substantial departure from the appropriate sentence. There must be an

obvious error of principle. An appropriate sentence is one for the particular crime committed by the particular offender. These factors

determine the appropriate sentencing range and only a sentence below that range will raise the question of undue leniency. See The

Director of Public Prosecutions v. Byrne [1995] 1 ILRM 279 at 287 and The People (DPP) v. McCormack [2000] 4 I.R. 356 at 359.

15. It was submitted that given the serious nature of the offences there were two main errors of principle with the sentence imposed

which make it unduly lenient. First, the sentencing judge failed to give due weight to the violence and that the respondent had other

matters pending of an anti-social nature. Second, she placed undue weight on the respondent’s progress. At the time of sentencing

he was still using illicit drugs, a factor which was connected to his offending. She gave him credit for being categorised as a moderate

risk of re-offending.

16. It was submitted that the sentencing judge erred in suspending the entirety of the respondent’s sentence as the probation report

placed him at a moderate risk of re-offending and listed the risk factors. The respondent has not adequately addressed these factors

so as to warrant a suspended sentence. A suspended sentence was also a concern given the unexplained and gratuitous level of

violence.

17. It was accepted that all relevant aggravating and mitigating factors were taken into consideration but submitted that the

sentence was unduly lenient given the violence used and threatened. Whilst the effect of this on the victim was specifically noted by

the sentencing judge, the suspended sentence did not give sufficient weight to the aggravating factors which the judge identified.

The sentencing judge erred in not giving sufficient or adequate weight to the effect on the victim.

18. Undue weight was placed on the guilty plea in the circumstances of the offence. The respondent was captured on CCTV, there

was fingerprint evidence and he was arrested shortly afterwards in a stolen car with two concealed weapons and only €150 of the

stolen cash was recovered. The appropriate sentence should the matter have been contested was analysed by the judge who then

went on to impose a wholly suspended sentence which did not reflect the level of violence.

19. It was an error to categorise the robbery as being at the higher end of the lower range. There was an unnecessary assault with

the meat cleaver brought to the scene and the acquiring of a further weapon at the scene. Further the witness described that the

respondent kept hammering at the victim. He was not given time to respond to the demands. This highlights the ferocity of the

attack.

20. The wholly suspended sentence could not be seen as a deterrent to the respondent or anyone else. It was an error in principle to

give significant weight to the respondent’s support from his family. The probation report noted the respondent’s remarks about tension

and strain with his parents, his efforts to address this which were not elaborated on and his paying back the money they gave to a

drug dealer. Undue weight was attached to the evidence given the probation officer’s reservations and the respondent’s continued

use of drugs.

21. The error in principle was compounded by the lack of explanation in the psychologist’s report and the probation report for why the

offence was committed. This fact was accepted in mitigation. Given his reduced but continued drug use and pending matters he had

not demonstrated sufficient rehabilitation to warrant a completely suspended sentence.

22. It was an error in law and fact to prematurely finalise the sentence by imposing a wholly suspended one where the respondent

had not addressed the risks and his counsel had sought time for him to continue working and reducing his drug dependency to get a

clearer picture of his rehabilitation.

Respondent’s submissions

23. The respondent also referred the Court to the principles set out in Byrne and McCormack. In The People (DPP) v. Redmond [2001]

3 I.R. 390 the Court reaffirmed the basic principle that a sentence should not be disturbed just because the Court may have imposed

a different sentence at first instant.

24. A suspended sentence has a punitive nature. In The People (DPP) v. Clohessy [2016] IECA 356 it was noted that a suspended

sentence is a punishment as it is capable of activation. It would hang over the respondent and rehabilitation will be incentivised by

the supervision.

25. In The People (DDP) v. Kelly [2005] 2 I.R. 321 it was held that previous good character should be given very considerable weight.

The lack of previous convictions was considered the best mitigating factor in The People (DPP) v. Perry [2009] IECCA 161. In The

People (AG) v. O’Driscoll [1972] 1 Frewen 351 it was held that the sentence should be appropriate for the crime and the criminal. Also

that it should deter them from a life of crime and induce a turn to an honest life.

26. It was submitted that in The People (DPP) v. Casey [2017] IECA 47 this Court did not suggest that a wholly suspended sentence

for robbery would always be an error in principle. In that case a three year suspended sentence, which was consecutive to a three

and a half year sentence for an earlier robbery was replaced with a sentence where the last two years were suspended. It was found

that there were insufficiently exceptional circumstances. The facts of this case are in contrast with that case in that Casey was

convicted by a jury and not entitled to a reduction for pleading guilty. He had previous convictions and was on bail for another

robbery and possession of a weapon.

27. This Court refused an undue leniency application for a three year fully suspended sentence for assault causing harm in The People

(DPP) v. Memery [2015] IECA 83. That case involved six wounds that required stitching and a probation report that showed a lack of

insight into the gravity of the offence. In refusing the application the Court referenced the respondent’s difficult background

circumstances, that his previous convictions were for non-violent offences and that he had not been in trouble for seven years.

28. It was accepted that this sentence is lenient but more than leniency must be shown. The sentence is not a substantial

departure. It properly took account of the importance of the lack of previous convictions.

Decision

29. In The People (DPP) v. Byrne [2017] IECA 97 at paras. 26 and 27 Edwards J. helpfully set out the process which should be

undertaken by a court when sentencing:-

“...the exercise of sentencing generally involves a two stage process. The first stage involves assessing the gravity of

the offence, with reference to culpability (including aggravating factors tending to increase culpability and mitigating

factors tending to reduce culpability), and the harm done, and determining where on the scale of available penalties the

offence should be located before account is taken of any mitigating factors not already taken into account as bearing on

culpability. In this way the sentencing judge determines on a headline sentence in the first instance.

The second stage involves discounting from the headline sentence arrived at in the first stage for any mitigating factors

not already taken into account, such as a plea, previous good character, age, remorse, co-operation, restitution, a good

work record, adversities in the accused’s person’s life and life history, public service or positive contributions to society,

good works, efforts at rehabilitation and any other relevant circumstances capable of going to mitigation. In this way the

Court endeavours to arrive at a just and proportionate ultimate sentence.”

30. In The People (DPP) v. Stronge [2011] IECCA 79 McKechnie J. stated that:-

“From the cases cited at the end of this paragraph, the following principles can be said to apply in an application for review under s. 2

of the 1993 Act. These are:-

(i) the onus of proving undue leniency is on the D.P.P.:

(ii) to establish undue leniency it must be proved that the sentence imposed constituted a substantial or gross departure

from what would be the appropriate sentence in the circumstances. There must be a clear divergence and discernible

difference between the latter and the former:

(iii) in the absence of guidelines or specified tariffs for individual offences, such departure will not be established unless

the sentence imposed falls outside the ambit or scope of sentence which is within the judge's discretion to impose:

sentencing is not capable of mathematical structuring and the trial judge must have a margin within which to operate:

(iv) this task is not enhanced by the application of principles appropriate to an appeal against severity of sentence. The

test under s. 2 is not the converse to the test on such appeal:

(v) the fact that the appellate court disagrees with the sentence imposed is not sufficient to justify intervention. Nor is

the fact that if such court was the trial court a more severe sentence would have been imposed. The function of each

court is quite different: on a s. 2 application it is truly one of review and not otherwise:

(vi) it is necessary for the divergence between that imposed and that which ought to have been imposed to amount to an

error of principle, before intervention is justified: and finally

(vii) due and proper regard must be accorded to the trial judge's reasons for the imposition of sentence, as it is that

judge who receives, evaluates and considers at first hand the evidence and submissions so made.

The relevant cases are The People (D.P.P.) v. Byrne [1995] 1 ILRM 279, The People (D.P.P.) v. McCormack [2000] 4 I.R.

356 and The People (D.P.P.) v. Redmond [2001] 3 I.R. 390.”

31. Taking into account the above case law and the principles outlined by McKechnie J it seems to us that there has been an error of

principle by the learned trial judge. The DPP has accepted the judge’s placing of the offence as one requiring a sentence of four years

in the absence of a plea for the robbery and three years in the absence of a plea for the assault. The DPP argues that not sufficient

weight was given to the violence of the assault and the effect on the victim by suspending the entirety of the sentence. We agree.

The respondent engaged in a planned offence in that he came in a stolen car armed with a meat cleaver and a saw blade. He barged

into the shop where the victim worked and shouted at and threatened him. Before the victim could open the till as ordered by the

respondent, he struck him on the head inflicting a wound that required multiple stitches. He held the meat cleaver above his head

waving it in a threatening manner. He armed himself with another weapon whilst in the shop albeit one less threatening than a meat

cleaver. A witness said that he continued “hammering at him” meaning the victim. The victim not only suffered shock and injury at the

time but also was out of work for over three weeks and suffered 2076 Euro in lost earnings. He could not sleep, had recurring

nightmares and, as a Sikh, suffered the humiliation of having his hair cut. This was a well planned offence of a violent and threatening

nature. We consider that the imposition of a non custodial sentence was an error in principle and the court will thus proceed to

resentence.

32. The DPP has accepted that four years without a plea would have been the appropriate sentence. We consider that credit has to

be given for the early plea and account must be taken of the respondent’s lack of previous convictions. We also take account of his

remorse and of his acceptance of responsibility. We also take account of the fact that he is going to be going into prison when he

has for some time thought he had escaped with a suspended sentence. In all the circumstances allowing for these mitigating factors,

we will impose a sentence of four years with the last two years and six months suspended subject to the same conditions.