Court of Appeal allows appeal against sentence severity, reducing terms and adding probation for theft and criminal damage.

THE COURT OF APPEAL

Record No. 195/2016

Peart J.

Birmingham J.

Mahon J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

JOSEPH BERRY

APPELLANT

JUDGMENT (ex tempore) of the Court delivered on the 13th day of November 2017 by Mr. Justice Mahon

1. At Wexford Circuit Criminal Court on the 26th June 2016 the appellant pleaded guilty and was convicted of three counts of theft

contrary to s. 4 of the Criminal Justice (Theft and Fraud Offences) Act 2001, one count of criminal damage contrary to s. 2 of the

Criminal Damage Act 1991 and one count of the unlawful taking of a motor vehicle contrary to s. 112 of the Road Traffic Act 1961 as

amended, resulting in concurrent sentences of two terms of four years, two terms of eighteen months, and one term of three years

imprisonment in respect of the counts respectively. A headline sentence of six years was identified by the learned sentencing judge

as appropriate. The appellant has appealed against severity of sentence.

2. The offences related to the theft of an ATM machine at the Mace service station at Belfield Road in Enniscorthy, Co. Wexford on

the 24th July 2009 by a gang of men, including the appellant. On the 23rd July 2009 the gang stole a motorcar in Waterford, and on

the following day, the 24th July 2009 stole a Mitsubishi Pajero in Enniscorthy. On that date also they stole an Ifor Williams trailer in

Enniscorthy which was used to convey a JCB to the crime scene. These vehicles were then used in the theft of the ATM machine and

its contents of €205,100.00 in cash. The criminal damage count related to the damage to the walls of the Mace service station

caused by the removal of the ATM machine.

3. The appellant left the jurisdiction before being charged with any of the offences. He was subsequently extradited from Germany to

this country and was in custody between Germany and this country from the 9th December 2015, some six or seven months prior to

sentencing. The learned sentencing judge directed that the sentences imposed on the appellant be backdated to the 1st February

2015 in part recognition of his time spent in custody in both countries.

Grounds of appeal

4. Four grounds of appeal have been submitted on behalf of the appellant. They are, that the learned sentencing judge:

(a) failed to take into account the sentences imposed on persons charged with the same and similar offences and in

failing to impose proportionate sentences having regard to the fact that several such persons fully contested their trials

and had several very serious previous convictions; whereas the appellant entered pleas of guilty and had no previous

convictions;

(b) refused to give credit to the appellant for time which he spent in custody on foot of an extradition warrant, which

refusal was in breach of the relevant statutory provisions;

(c) appeared to deal with the appellant erroneously on the basis that he had been a fugitive when in fact he had left the

jurisdiction without having been charged;

(d) failed to take into account the value of the plea of guilty in the particular circumstances, where the only evidence

against the appellant was that of an accomplice, and where that plea appeared to be consistent with remorse; the plea

related to a single operation and since the date of same, the appellant had not been convicted of any offences.

5. Charges arising from this joint criminal enterprise were laid against four individuals, of which the appellant was the youngest. Two,

namely Des Kavanagh and the appellant, pleaded guilty. Michael B. Berry and Thomas Berry, the appellant’s older cousins, were found

guilty after lengthy trials. Des Kavanagh received a sentence of three and three quarter years imprisonment, and he had a number of

previous convictions unlike the appellant who was conviction free. Mr Kavanagh was living abroad under the Garda Witness Protection

Programme and the necessity for him to travel to Ireland for a trial of the appellant was avoided by reason of the appellant’s plea of

guilty.

6. In the course of sentencing the appellant, the learned sentencing judge said:

“Normally, most cases that appear before the courts are one of opportunism or people being extremely reckless, not

caring; but in this case, this was a very organised crime directed by one member of a gang, and ably assisted by

others, including Joseph Berry the accused man, and it was carried out with great determination and success… Mr

Joseph Berry is along with Mr Kavanagh perhaps unique in and as much as he has entered a plea of guilty to the five

counts and that is to his credit and the Court must give him credit for that.”

7. The learned sentencing judge also specifically referred to the appellant’s youth, his lack of previous convictions and his remorse, as

demonstrated by his plea of guilty, and the positive prospects for rehabilitation. He referred to the appellant as having lived in

Germany, prior to extradition, as a fugitive.

8. The learned sentencing judge fixed the headline sentence at six years imprisonment. He acknowledged that there has to be parity,

acknowledging his age, his genuine remorse and his plea of guilty. He proceeded to impose the sentences already indicated, resulting

in, in effect, a four year term of imprisonment. He was specifically requested by his counsel Mr Ó Lideadha S.C. to consider

suspending part of the sentence, but he declined to do so. While the learned trial judge did give the appellant credit for some of the

time spent in custody before the date of sentence, he refused to backdate the sentence to the date on which the appellant went

into custody in Germany in respect of the extradition proceedings. That date was the 9th December 2015.

9. In relation to the backdating of the sentence, it is submitted that the learned sentencing judge erroneously failed to give full credit

for the time spent on remand notwithstanding the provisions of s. 36 of the European Arrest Warrant Act 2003, which states as

follows:

“36.(1) Where a person is surrendered to the State pursuant to a European arrest warrant, then any term of

imprisonment that the person is required to serve by virtue of the imposition of a sentence by a court in the State

(whether before or after the person's surrender) in respect of the offence specified in that European arrest warrant

shall be reduced by an amount equal to any period of time spent by that person in custody or detention in the executing

state in contemplation, or in consequence, of the execution of the European arrest warrant.”

10. A closer examination of information relevant to the sentences imposed on the four gang members, including the appellant, reveals

the following:-

(i) The appellant was the youngest of the four, and was the only one of them without any previous convictions. Those

previous convictions in each case were many in number and included serious convictions especially in the cases of Michael

B. Berry and Thomas Berry.

(ii) Michael B. and Thomas Berry contested their charges resulting in lengthy trials.

(iii) The appellant and Des Kavanagh both pleaded guilty within a short period of being charged. Des Kavanagh’s co-

operation with the gardaí was significant and proved crucial in the trials of Michael B. and Thomas Berry. However, it is

noteworthy that Des Kavanagh’s co-operation with the gardaí was unknown to the judge who sentenced him in 2010 and

was therefore not a feature in that sentence.

(iv) Michael B. Berry was the gang leader. The suspension of the final three months of his six year term was for a reason

unconnected to any mitigating factors.

11. The net sentences imposed on Michael B. Berry and Thomas Berry were five years and nine months, and six years, respectively.

Des Kavanagh’s net sentence was three years and nine months.

12. The appellant left the jurisdiction in the aftermath of these crimes, and after he had been questioned in relation to them, but prior

to being charged. He went to live and work in Germany and remained there until his extradition to Ireland in February 2016 having

been remanded in custody in Germany on foot of a European Arrest Warrant in early December 2015. This time line at least in part

explains his plea of guilty arising some years after Des Kavanagh’s plea. He was legally entitled to remain in Germany in those

intervening years and therefore cannot accurately be described as having been a fugitive as suggested by the learned sentencing

judge. It is also noteworthy that the appellant did not contest the surrender request and returned to this jurisdiction in early 2016.

13. It is also the case that the appellant pleaded guilty in circumstances where there was at least the potential to successfully

contest the charges.

14. The Court has been referred to the decision of the Court of Criminal Appeal in DPP v. Duffy and O’Toole [2003] 2 1.R. 192. In its

judgment, the Court stated:-

“There appear to be two reasons underlying the principle that an appellate court will interfere where there is a

significant and unjustifiable disparity between the sentences imposed on two or more persons involved in the same

criminal offence. The first, identified by Finlay C.J. in D.P.P. v. Conroy (No. 2) [1989] I.R. 160 is the substantial sense of

grievance at unfair treatment which may be caused by apparently unequal sentences. It could be added that the

appellate court should only take into account a grievance which, objectively viewed, could be reasonably entertained by

the accused person; a person who has received what appears to him/her to be a severe sentence may be unable or

unwilling to recognise that the disparity between that sentence and a lighter sentence imposed on his/her accused is, in

the particular circumstances, justifiable. The second reason is the harmful effect on public confidence in the

administration of justice resulting from a significant disparity in the sentence which seems incapable of being justified;

see R. v. Fawcett [1983] Cr. App. R. (S.) 158.

The court is satisfied that the same considerations are relevant where the co-accused are sentenced on a different

occasion or by a different judge. The feeling of grievance reasonably entertained by one accused in such circumstances

would hardly be allayed by his co-accused having received more lenient treatment when sentenced at a different time

or by a different judge. Nor would public confidence necessarily be restored because that happened to be the position.

Because the choice of a sentence is almost invariably left today by the legislature to the judge, there will inevitably be

occasions when sentences imposed in respect of similar offences by different courts will appear to the onlooker to be

inconsistent. That unavoidable disadvantage of a system of discretionary sentencing can only be exacerbated by a rule,

if such exists, preventing an appellate court from interfering where there is a significant disparity in sentences arising

out of the same offence, solely because one sentence was imposed at a different time or by a different court.”

15. The disparity in the sentences between on the one hand Michael B. and Thomas Berry, and on the other hand, the appellant, is

significant and on its face unjustifiable, and in the Court’s view warrants its intervention. Any disparity as between Des Kavanagh’s

sentence and the appellant’s sentence is less marked and indeed could be described as minimal, and certainly insufficient on its own

to justify interference.

16. The Court is satisfied that the learned sentencing judge erred in not sufficiently discounting his headline sentence to adequately

allow for the strong mitigating factors including, in particular, the appellant’s relative youth, his plea of guilty in circumstances where

he at least had some prospect of successfully contesting the charges and his previous conviction free record. The plea of guilty was

particularly valuable in a situation that had the trial proceeded the prosecution would have sought to depend on the uncorroborated

evidence of an accomplice.

17. The Court also accepts the submission, that having regard to the provisions of s. 36 of the EAW Act 2003 which provides that a

sentencing Court shall allow credit for the time spent in custody in the course of the extradition process, the appellant was entitled

to have his sentence backdated to the 9th December 2015 being the date of the commencement of his detention in Germany in

advance of his surrender to this jurisdiction.

18. In these circumstances it is necessary for this Court to re-sentence the appellant as of today. Very much to his credit is the fact

that he is now an enhanced prisoner and is utilising available training programmes in prison. The Court will therefore re-impose similar

sentences to those imposed in the Court below but will suspend the final nine months from both concurrent four year terms for a

period of two years post release on the appellant entering into a bond in the sum of €100 to keep the peace and to be of good

behaviour.

19. The Court will also backdate all sentences to the 9th December 2015.