Court of Appeal quashes excessive sentences for aggravated burglary and false imprisonment, allowing partial suspension.

THE COURT OF APPEAL

Record No: 92/2016

Birmingham J.

Edwards J.

Hedigan J.

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

MARTIN STOKES

Appellant

Judgment (ex tempore) of the Court delivered on the 9th October 2017

by Mr. Justice Edwards

Introduction

1. In this case the appellant pleaded guilty on the 19th of November 2015 before Naas Circuit Criminal Court on five counts, namely

one count of aggravated burglary contrary to s. 13 of the Criminal Justice (Theft and Fraud Offences) Act 2001; two counts of false

imprisonment contrary to s.15 of the Non Fatal Offences Against the Person Act 1997 and two counts of assault with intent to

commit an indictable offence, contrary to s. 18 of the Criminal Justice (Public Order) Act 1994.

2. On the 18th of March 2016 the appellant was sentenced to eight years imprisonment on the aggravated burglary count, eight

years imprisonment on one false imprisonment count and seven years imprisonment on the other, and fours years on each of the

assault counts. All sentences were to run concurrently and to date from the 23rd of March 2015 being the date on which the

appellant went into custody.

3. The appellant now appeals against the severity of his sentences.

The circumstances of the case

4. The appellant is the estranged partner of Geraldine Cummins. The couple who were previously living together had separated in

January 2015. The incident giving rise to the charges occurred on the 9th of March 2015. At that time Geraldine Cummins, who was

pregnant at the time, and her two children was staying with her mother Anne Cummins (age 64) and aunt Kathleen Cummins (74) in

Anne Cummins’s home at 961 Maddenstown South, Co Kildare. The two children were her daughter, Lily May, who was then aged four

and a half, and Martin who was then aged two years and nine months. The appellant is the father of Martin. However, Lily is Geraldine

Cummin’s child from an earlier relationship.

5. The appellant’s separation from Ms Cummins had apparently been somewhat acrimonious and there were family law proceedings

relating to custody and access issues concerning Martin.

6. On the night in question, some time after 2.40am when Anne Cummins, who was the last person to retire, had gone to bed and was

dozing in light sleep, she was awoken by a bang, following which her bedroom window was put in. The appellant jumped in the

window. Anne Cummins screamed and in doing so woke Kathleen Cummins who also began screaming “He’s here, he’s here”. The

screaming woke Geraldine Cummins and the children in turn and Geraldine Cummins went in to the hall. The appellant immediately

grabbed Geraldine Cummins by the neck and dragged her in to the kitchen all the while pressing something sharp into her neck. Her

mother Anne then make an attempt to leave by the front door but the appellant, with his arm still around Geraldine Cummins neck and

dragging her by that means, ran towards the door and managed to grab Anne Cummins in the doorway and drag her back into the

porch. Her then placed Anne Cummins in her own bedroom, where Ms Cummins daughter Lily was already present and screaming in

distress, and locked both of them in, having first taken Anne Cummins mobile phone off her. He did not, however, remove the key from

the lock, an oversight that allowed Kathleen Cummins at a later stage to open the door so that her sister and the child could escape.

7. At this point the young boy Martin appeared on the scene and his Geraldine Cummins described him as being “terrified”. The

appellant then grabbed Geraldine Cummins from behind again, having briefly released her while dealing with her mother. He was

standing behind her and had his arm around her neck. She could see a blade in his hand and he dragged her back through the hall and

sitting room and in to the kitchen. There were various knives on open display in the kitchen and he picked up a large one and put it to

Geraldine Cummins’s throat, all the while holding her in a headlock. Geraldine Cummins then observed Kathleen Cummins escaping with

the child Lily May. The appellant then got a kitchen chair, sat down on it and pulled Geraldine Cummins down so that she was sitting

on the floor between his legs. She was pleading with him to stop. He stated that he was going to kill her because she wouldn’t get

back with him. Throughout this he continued to hold the knife to her throat.

8. The appellant then lowered the knife and began slicing his own wrists, following which he began to bleed profusely. He suggested

to Geraldine Cummins that the baby she was carrying wasn’t his, that she had been cheating on him, and he stated that “we could

have made this work”. Geraldine Cummins was crying and in great distress at this point. The appellant then said to her “Geraldine, the

Armed Response are going to come in now. I’m going to slit your throat and they are going to shoot me and we will die together”.

Geraldine Cummins said she believed he was going to do it, but before anything happened the boy Martin began to crying. Ms

Cummins went to try to pick him up to comfort him but was prevented from doing so by the appellant. She tried nonetheless to calm

her son down.

9. In the meantime, Anne Cummins, Kathleen Cummins and Lily May Cummins had made good their escape and had summoned help

from Geraldine Cummin’s cousin Aidan Doyle and her uncle John Doyle. As Ms Cummin’s was trying to calm Martin down she heard

outside the kitchen calling her name. At this the appellant attempted to block the kitchen door with his foot and hands to prevent

anyone entering. However, Aidan Doyle and John Doyle forced their way into the room and wrestled the appellant into submission. The

Gardai subsequently attended at the scene and the appellant who was continuing to bleed from the slashes to his wrists was taken to

hospital by ambulance.

10. Two weeks later, having been discharged from hospital, he presented himself to a Garda Station and he was subsequently

arrested, detained and interviewed. While little of evidential value emerged from the interviews he did explain the history of his

relationship with Ms Cummins and asserted “[a]ll I want is to see my kids” .

The impact on the victims

11. Victim impact reports were received from Geraldine Cummins and Anne Cummins.

12. Geraldine Cummins stated (inter alia):

“That night has literally scarred me and my children for the rest of our lives. I really believed, and I still do, he would

have killed me and my son. It's left me waking up at night, at that certain time, terrified, waiting for windows to come

in, and flashbacks of him holding knives to my throat and throwing me around the place when I was five months

pregnant with his son. I literally thought I was dead and there was nothing I could do. It affected me emotionally,

physically, mentally. I wouldn't go out in public for a few months. I'd be terrified if there was a knock on the door. I had

to go to counselling for a few months to try and get over what he has done. He's broke me down in every possible way

from the incident. I am literally not the same person anymore.”

13. According to Ms Cummins the person worst affected was her son Martin. She said:

“He's terrified to talk to people, men especially. He still wakes up from nightmares screaming, sweating, looking for me

because on the night he didn't get me. At the moment I have to put him in therapy. It started in September. He's like a

little lost voice since this incident. It breaks my heart to see my son like that. He's still afraid of sleeping beside windows

or if he falls out and cuts his knees he is traumatised from seeing any bit of blood. All our lives have been affected from

that night and will never be the same again. I feel like my son has been broken by the one person who he should have

been able to trust. He has been affected in so many ways it breaks my heart.”

14. Ms Anne Cummins in her victim impact statement said (inter alia):

“The impact it left on me is that I've had to go to counselling. My doctor has me on medication. I take terrible panic

attacks, anxiety attacks since that night. I'm on Prozac, one tablet a day. I have to take Xanax when I'm having a panic

attack or when I'm on my own in the house and I hear noises outside. That's when I really have to take them. It's

basically me reliving that night every time I hear noises outside. My life will never be the same again.”

The Appellant’s Circumstances

15. The appellant was born on the 29th of September 1980 and according was 34 years of age at the date of the incident. He was

unemployed at the time and had only modest educational attainments. He has worked in the past as a forklift driver.

16. He had forty one previous convictions, comprising five for road traffic matters, sixteen for public order offences, two for criminal

damage, four for s.2 assaults, three for s.3 assaults causing harm, six for threatening to kill, two for false imprisonments, one for

burglary, one for arson, and one for possession of a firearm for an unlawful purpose. Arising from these he has received various

penalties ranging from fines, to suspended sentences of various durations, to actual sentences of imprisonment including various

sentences of imprisonment to be actually served ranging from some months to four years in one instance. His most recent custodial

sentence was a sentence of three years and six months for a s.3 assault causing harm imposed in 2010.

17. The sentencing court had the benefit of a medical report following an assessment of the appellant at the Central Mental Hospital.

He was found not to have been suffering from any major mental illness, including any major affective or psychotic disorder. A

background of childhood adversity was noted and there was a history of self harm, alcohol and polysubstance abuse in response to

psychosocial stressors such as relationship and legal problems and intrusive memories of traumatic events in his childhood. He was

said to have a number of the features of emotionally unstable personality disorder, although this was not formally diagnosed and

further assessment in that regard was required. He was considered to have a number of risk factors for future violence including

previous violence, relationship instability, employment problems, substance use problems, early maladjustment and personality disorder

traits. It was considered that overall the appellant presented as a moderate risk for future violence, in terms of future risk to himself

this would be related to his capacity to manage stress and abstain from alcohol and illicit substances.

18. The appellant wrote to the sentencing court expressing remorse for what he had done and apologising to his family. In addition,

evidence was adduced at the sentencing hearing that he had been granted High Court bail but had not taken it up, that he had

attended addiction counselling after going into custody, and had successfully completed a number of courses while on remand on

anger management, alternatives to violence, and maintaining positive mental health. There was evidence that he was doing well in

prison and of a real engagement with programs to assist him in addressing his issues.

The sentencing judge’s remarks

19. The sentencing judge rehearsed in great detail the facts of the case as established in evidence. He further noted the effect on all

of the victims and identified as aggravating circumstances the violation of a dwelling, the time of night when the entry was effected,

the fact that a weapon, namely a blade, was brought to the scene, the fact that weapons, namely a blade and later a kitchen knife

obtained at the scene were used, the duration of the false imprisonment, and the proffering of threats to kill in the course of the

incident.

20. On the mitigation side, the judge noted:

“He's now aged 35 years. He's a man with limited education. There's is two children, well he's other children but there is

two children of this relationship with Geraldine Cummins. He has some history of work. He worked as a forklift driver.

When he was a young boy he was subjected to a horrific ordeal and it's not necessary to refer to the details in court but

I have referred to them and having regard to the reports. But, he was subjected to a horrific ordeal. There was a

history of suicide ideation and that was back in 2012 and there's a history of self harm and also there was a history of

alcohol abuse. In mitigation there were pleas of guilty. I'm satisfied that the pleas of guilty are of benefit to the victims

in the case, being Geraldine Cummins and her mother Anne Cummins, in that they have been saved significant trauma

and stress. Had the case gone to full trial and the case been contested they would have to had to relive the horrific

events of the night and what they were subjected to in respect of the offences and I'm satisfied they have been saved

substantial stress and trauma in respect of that aspect.

While in custody he's attended educational courses. He completed FETAC courses. He attended addiction counselling on a

one to one and he's had 26 sessions. He participated in Alternative to Violence Programme level one and two means he's

eligible to be facilitator. He has engaged with Merchant's Quay through the prison authorities. There is an expression of

remorse and overall that he has shown positive signs, indeed very positive signs of rehabilitation meaning that he has

taken very positive rehabilitation steps while in custody.”

21. The judge concluded:

“I must have regard to the seriousness of the offence and to the very substantial aggravating factors and balance them

against the mitigating and the personal circumstances. And I will have regard to the mitigating and personal

circumstances. But, the aggravating factors are very substantial in this case. I will, as I am required by law to, have

regard to the mitigating and the personal circumstances and to the progress and all the mitigation and personal

circumstances I've referred to.

In respect of count number one I'm imposing eight years custodial prison sentence. Count number two I'm imposing an

eight years custodial prison sentence. Count number three I'm imposing seven years custodial prison sentence and the

reason it's seven as against eight years in that I'm satisfied that whereas Anne Cummins was subjected to a horrific

terrifying ordeal in respect of the aggravated burglary and in respect of the false imprisonment I'm satisfied that

Geraldine Cummins was subjected to a greater level or degree by reason of the differentiation in the sentences. In

respect of count number eight I'm imposing a four years custodial prison sentence. In respect of count number nine I'm

imposing a four years custodial prison sentence. I'm satisfied that all the sentences should run concurrently, that all the

sentences should run from the date that he was taken into custody is at the 24th of March 2016. All the sentences

should run concurrently from the 24th of March 2016 and I'm satisfied that having regard to the totality of all matters

that it's not appropriate to suspend any portion in the circumstances. It could be open to me to in respect of each

count to have a higher sentence and suspend some portion on terms and I don't propose to go down that route. I'm

giving just simple sentences, not simple but a sentence in respect of each matter.”

22. The specified date of the 24th of March 2016 was erroneous and was later altered by the judge to the 23rd of March 2015, which

was the correct date on which he went into custody. All sentences were made concurrent to each other.

The grounds of appeal

23. The appeal is advanced on three main grounds. First it is complained that the sentencing judge failed to specify a headline

sentence and further failed to specify what quantum of discount he was affording to reflect mitigation in the case. Secondly, and

related to that, it is suggested that the ultimate sentence was simply too severe and that in those circumstances it is to be inferred

that the sentencing judge gave insufficient credit for mitigation. Thirdly, it is complained that the sentencing judge failed to reflect his

progress towards rehabilitation and to incentivise continuing rehabilitation.

Discussion and Decision

24. We consider that the first criticism is a legitimate one and we reiterate what we have said on previous occasions about the

desirability of sentencing judges adequately explaining their reasoning. That having been said we have also repeatedly said that the

mere fact that best practice has not been followed in the structuring of a sentencing judgment will not per se cause this Court to

interfere if the ultimate sentence appears to be correct.

25. By any standards this was an appalling incident. There were in effect five victims, including two children one of whom was the

appellant’s own child Martin, all of whom were subjected to a terrifying experience and dreadful and unnecessary trauma. The victim

impact reports illustrate this profoundly, and Geraldine Cummins’s description of how Martin in particular has been affected is heart

rending and poignant. This was a really bad case of aggravated burglary, false imprisonment and assaults with numerous aggravating

feature as correctly identified by the sentencing judge. The sentencing judge did not identify a headline sentence but he could

justifiably have started in the region of twelve years and this Court would have been unlikely to criticise him for it.

26. Again, we do not know to what degree the sentencing judge discounted for mitigation. However, we know where he ended up,

and that is at eight years for the aggravated burglary and one of the instances of false imprisonment, with somewhat lesser terms for

the other offences. If he had started in the region of twelve years and had discounted by a third for the significant mitigation in the

case, that would bring him to eight years. While it is of course entirely speculative that the sentencing judge would have approached

the matter in that way, what we can say is that any suggestion that the ultimate sentences are clearly wrong does not commend

itself to us. The judge’s sentencing remarks indicate that he was fully alive to, and intended to give appropriate credit for, all of the

substantial mitigation to which the appellant was entitled. He did not nominate headline sentences, nor did he quantify either in

percentage terms or otherwise what discount he was giving for mitigation, but it does seem to us on a process of reverse engineering

that it cannot be said that an eight year sentence for the most serious of the offences must necessarily be wrong in principle, given

the circumstances of this egregious case.

27. We do have some reservations, however, about the trial judge’s unwillingness to suspend any portion of the longer sentences in

recognition of the appellant’s progress towards rehabilitation. Whether or not in any case progress towards rehabilitation is to be

recognised by the suspension of a portion of the ultimate sentence is always a matter of judicial discretion. Nevertheless, where there

is a track record of real progress in that regard it requires to be at least seriously considered. We have previously said as much in The

People (At the suit of the Director of Public Prosecutions) v Dent [2015] IECA 169 where it was stated that:-

“While this Court readily accepts that there will always be cases where it is simply unrealistic to expect a judge to

suspend all or portion of a sentence or otherwise incentivise rehabilitation, it is an error in principle to foreclose on such

options where there is uncontroverted evidence before the court of a demonstrated track record of progress towards

rehabilitation. The possibility of incentivising continued rehabilitation should at least be considered, though having done

so a judge may in an appropriate case be justified in rejecting it as a viable option.”

28. Given the strength of the evidence concerning this appellant’s progress towards rehabilitation we consider that, on balance, the

trial judge ought to have suspended a portion of the sentence and the failure to do so was an error.

29. In the circumstances we will quash the sentences imposed by the court below and proceed to re-sentence the appellant.

30. A booklet of documents has been handed in to us which indicates that the appellant is continuing to work towards addressing his

anger management issues, substance abuse issue and propensity to violence. His engagement is real and his commitment appears to

be genuine. In the circumstances we will nominate a headline sentence of twelve years imprisonment for the aggravated burglary and

the more serious false imprisonment, eleven years imprisonment for the second false imprisonment and six years imprisonment for each

of the two assaults. To take account of mitigation we will discount by four years from the twelve year sentences leaving a net eight

years, discount by four years from the eleven year sentence leaving a net seven years and discount by two years from the six year

sentences leaving a net four years. In effect, these are the same sentences as were imposed by the court below.

31. However, in recognition of the work that the appellant has done to date towards his rehabilitation, and particularly to incentivise

his continuation along that path, we will in addition suspend the final fifteen months of the eight year sentences and the final three

months of the seven year sentence.