Court of Appeal reduced robbery sentence from six years to six years fully suspended due to mitigating factors.

THE COURT OF APPEAL

Peart J.

Birmingham J.

Mahon J.

168/2016

The People at the Suit of the Director of Public Prosecutions

Respondent

V

Christopher Higgins

Appellant

JUDGMENT of the Court delivered on the 23rd day of October 2017 by Mr. Justice Peart

Introduction

1. This is an appeal against severity of sentence. The appellant entered a guilty plea on the 14th December, 2015, to the offence of

robbery contrary to s. 14 of the Criminal Justice (Theft and Fraud) Offence Act 2001, in Limerick Circuit Court. The facts were heard

on the 7th March, 2016. The matter was put back to allow the sentencing judge to consider it. On the 3rd May, 2016, he was

sentenced to six years imprisonment with the final two suspended for six years.

2. The suspension was on the condition that he enters into a bond of €100 and that he keep the peace and be of good behaviour for

the period of the suspension. The sentence was backdated to the 21st May, 2015, when the appellant first went into custody despite

the fact that he was serving another sentence between the 29th June and the 26th September, 2015. He was also charged with

producing an article capable of inflicting serious injury contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. A nolle

prosequi was entered in relation to this charge.

The circumstances of the offence

3. The offence occurred a little after 12.50 am on the 17th March, 2015, when the appellant with another man, in Limerick, robbed

Mr. Patrick Long of €80 in cash and an 02 WiFi dongle. Detective Garda John Keane described the offence. The injured party had been

parked on a square attempting to make a phone call when the front and rear passenger doors were opened whereupon two men

suddenly entered the vehicle. They each had their hoods up and faces covered. The man in the back held a knife to the left side of

the injured party’s neck and brought his right hand across the injured party’s throat. The blade was described as being a rusty six or

seven inch blade.

4. The appellant was the man in the front seat. They both shouted at the injured party demanding to know where the money was.

The injured party reported being in a state of shock. He pointed out the drawer on the dash where the cash was located. The

appellant took the cash, and the dongle which was in the centre console. The man in the back continued shouting for the money, and

told him to make sure he gave it up. The appellant went through the glove box but did not find anything. He was attempting to take

the injured party’s wristwatch when the man in the back said to go. As he was leaving the appellant told the injured party to “keep

his fucking mouth shut”.

5. The injured party described the man in the back as wearing a cream sweatshirt and dark jeans. The man in the front was wearing

all dark clothing. He then proceeded to the Garda station and reported the offence. He was taken back to the scene in a patrol car

but no one was located.

6. CCTV was taken from premises in the area. At 12.50 am the injured party is seen parking his car and two men are seen leaving the

appellant’s apartment. One man was wearing a dark jacket and light coloured bottoms. The other was wearing dark bottoms and a

light or bright jacket with the hood up. They are followed on various CCTVs to and from the location of the offence. The appellant is

seen wearing a black hat, black puffy jacket, grey tracksuit bottoms and black runners and has a cigarette in his mouth. He was

identifiable from the footage. The other man is not clearly identifiable.

7. They are seen entering the square where the injured party was parked. One passenger door can be seen opening. There was also a

woman seen in the vicinity. The three people are then seen walking back to the appellant’s apartment where he uses his key to gain

entry. He left again shortly afterwards in different clothes and is clearly identifiable from CCTV.

8. The clearer CCTV shots were those closer to the appellant’s apartment. The appellant was arrested and questioned on the 1st

April, 2015. The appellant made clear admissions in custody although he was somewhat reticent initially. It was accepted by D/Garda

Keane that these admissions greatly helped the prosecution case. He stated he was put under pressure by the other man. This was

not accepted by D/Garda Keane who said that there was nothing in the CCTV to indicate duress. He denied taking the dongle or

attempting to take the wristwatch. He knew the other man had a knife. He entered a very early plea of guilty.

9. A victim impact statement was handed into the Court. The injured party described being threatened with violence and stated that

he has lost confidence while driving at night. He is always afraid now, and has changed his security system so that his car doors lock

automatically. Before this offence he would regularly stop and help people on the roadside but is now afraid to do so. He feels guilty

about not stopping. He had nightmares for weeks afterwards. He constantly checks to make sure that windows and doors are locked.

He travels a long distance twice a week to visit his mother. This causes her and his family to be nervous. He described how it is not a

nice way to live and that he is being supported by a doctor and medication.

The appellant’s personal circumstances

10. The appellant was aged 18 at the time of the offence. The co-accused was 32. He was in care from a young age. He has limited

education, and has spent time in juvenile detention. He has a history of confrontational behaviour and of being approached by the Gardaiì. He has an issue with

prescription tablets.

11. The appellant has a number of previous convictions including in respect of offences of criminal damage, road traffic offences,

theft, unauthorised taking, unauthorised carriage, possession of an article, s. 2 assault, public order offences and burglary. Until the

present offence the appellant has been involved in what may be described as relatively minor offending. He does not have a history of

serious violence in the community.

12. A parish priest, Fr. O’Riordan, gave evidence on the appellant’s behalf. He has known the appellant for a number of years. He

arranged a trial of employment for him and agreed that the appellant could reside with him under strict conditions until more long term

accommodation could be found. The appellant’s care worker supported this proposal. The appellant had previously stayed with the Fr.

O’Riordan for six or seven weeks until Focus Ireland arranged accommodation for him. However, he had ended up homeless.

Sentence

13. The aggravating factors in relation to the offences were identified by the trial judge were that they had involved violence, were

very frightening for the injured party, there was an element of premeditation, the appellant changed his clothes post robbery, and

that the appellant had previous convictions although none for robbery.

14. The mitigating factors were his early admissions following his arrest which were of material assistance to the Gardai, his early

guilty plea which was of benefit to the injured party, his expression of remorse, his difficult family circumstances, his young age, lack

of a serious conviction history, his prospect of employment, and the fact that he had been in custody for some time.

15. The sentencing judge noted that robbery is a serious offence, and that this particular one was an extremely frightening

experience for the injured party who has suffered greatly as a result. The trial judge concluded that in all the circumstances the

appropriate sentence was six years’ imprisonment, and that in order to take account of the mitigating factors identified, the final two

years of which would be suspended for a period of six years on his entering into the usual bond.

Appellant’s submissions

16. It is submitted that the judge failed to structure the sentence appropriately by indicating firstly the tariff for the offence, and

then reducing the sentence to take account of the mitigating factors. Counsel has referred the Court to The People (DPP) v. Scanlon

[2016] IECA 189 at para. 11 where Sheehan J. referred to an earlier judgment of this Court stating that best practice involves first of

all determining the range of penalties available, the gravity of the offence, where the offence lies in that range, and the appropriate

punishment. Having done so, the sentencing judge should consider the convicted person’s circumstances including the mitigating

factors, and then make appropriate reductions to properly reflect those. It is submitted that in the instant case the trial judge, having

referred to the aggravating and mitigating factors then stated the tariff, and that while he suspended the final two years to reflect

the mitigating factors, the approach adopted by the trial judge is not in accordance with what is stated in Scanlon. It is submitted

that if the correct approach had been adopted by identifying the headline sentence, and then reducing it to reflect the mitigating

factors in order to arrive at the appropriate sentence for the offences committed by this particular offender, it would have resulted in

a lower overall sentence.

17. It is submitted also that the judge erred in setting the tariff at six years in circumstances where the appellant was the younger of

the two men involved, and, as acknowledged by the trial judge, may have been under the influence of the older man, and in

circumstances where he was at no point in possession of the knife. Counsel has referred also to the fact that when arrested the older

co-accused had refused to answer questions during four interviews, before making admissions in the fifth. This is in contrast to the

appellant who made early admissions. In addition, counsel has referred to the fact that the co-accused had a more significant history

of previous convictions. On the 27th July, 2016, this older co-accused received a sentence of six years with the final year suspended.

The Court has been referred to O’Malley, Sentencing Law and Practice, 2nd Ed., (Dublin, 2006) where the author notes that each

offender must be considered individually with the sentence imposed being appropriate to their level of involvement, circumstances and

previous convictions. It is submitted that in addition to the appellant’s sentence being too long, there is a lack of proportion between

the sentence imposed on the appellant compared to that imposed on the co-accused, given the difference in his level of involvement

and age.

18. It is submitted that the total sentence imposed has failed to have proper regard for the real prospect of rehabilitation presented

to the Court and/or the general desirable objective of rehabilitation. In this regard, counsel referred to the evidence of support

available to him such as the aftercare and assistance of Fr. O’Riordan. It is submitted that the goal of rehabilitation is a well-

recognised important aim of sentencing. In The People (DPP) v. O’Brien (Unreported, Supreme Court, 6th October, 2016) it was held

that in sentencing a judge must have regard to the potential for rehabilitation.

19. It is submitted that the sentencing judge referred only to “the job prospect” when making reference to the mitigating factors in

the case, and that it is not apparent from the sentencing remarks by the trial judge that the objective of and prospects for

rehabilitation were given due consideration. It is submitted that the failure to expressly address and deal with this issue, given the

evidence led in that regard, is a further error in principle in the approach of the sentencing judge.

Respondent’s submissions

20. The DPP has submitted that the sentencing judge correctly identified the aggravating factors, including that the injured party had

a knife put to his throat and was put in fear of immediate injury. There was also an element of premeditation. It is submitted also that

the judge set out in detail the mitigating factors, and acknowledged the admissions made at interview and his early plea. He referred

in detail to the evidence of Fr. O’Riordan.

21. It is submitted that the sentencing judge correctly identified six years as being the tariff for the offence, before taking account of

the mitigating factors by suspending the final two years. The DPP accepts that a different route to sentence could have been

adopted by the trial judge, but submits that the sentencing process does not involve the automatic following of set mathematical

formulae, and that by whichever route the sentence was arrived at, it is an appropriate sentence reflecting properly both the

aggravating and the mitigating factors involved.

Decision

22. 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 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.”

23. In the Court’s view the trial judge did not follow precisely this step by step method of arriving at the appropriate sentence which

is so clearly articulated in the judgment of Edwards J. Nevertheless, this Court would not disagree with the headline sentence of six

years for the appellant’s offence. He was party to a serious offence of robbery, and while he may have been the younger participant

he nevertheless allowed himself to become involved and participated fully. However, this Court considers that there is considerable

force to the submissions made by counsel for the appellant that insufficient credit was afforded to the significant mitigating features

in this case. The age of the accused, his personal history, his early admissions, and the plea of guilty were all matters which of

themselves would have justified a reduction in the sentence from the headline sentence, whether by way of reduction in the

sentence itself from that of six years, or by way of partial suspension.

24. However, in the present case there was an additional mitigating element in the form of significant and impressive evidence from

Fr. O’Riordan to which I have already referred, which indicated a very real prospect of rehabilitation. Rehabilitation is an important

principle to be reflected in the sentence ultimately arrived at, and particularly so where there is specific and cogent evidence given to

the Court such as that of Fr. O’Riordan.

25. In the Court’s view an error of principle occurred in relation to the sentence of six years with two years suspended. It appears to

this Court that suspending the final two years of the six year sentence does not sufficiently reflect the significant mitigating factors

present in this case. Appropriate credit for those mitigating factors might have been reflected by a reduction in the headline sentence

down from the starting point of six years, or by imposing the sentence of six years, but with a very significant period of suspension

sufficient to reflect these significant mitigating factors.

26. Taking all these matters into account, and the fact, as the Court has been informed, that the appellant’s expected release date is

the 15th May 2018, and the good conduct of the appellant while in prison (of which the Court has been informed), this Court will

vacate the sentence imposed by the trial judge, and in its place, sentence the appellant to a period of six years imprisonment

backdated to the 21st May 2015 and will suspend the entire of the balance of that sentence to be served, as and from 14th

November 2017.

27. The period between now and the 14th November 2017 is in order to enable practical arrangements to be put in place so as to

ensure as far as possible that having turned the corner, it is hoped, from his previous pattern of behaviour, the appellant can

continue on a straight road ahead which Fr. O’Riordan considered him capable of if given a chance.