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Court of Appeal: Largely suspended sentence for burglar with 103 convictions was not unduly lenient

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The DPP has had its application to review the sentence given to a burglar with 103 convictions dismissed in the Court of Appeal.

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About this case:

  • Judgment:
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Delivering the judgment of the three-judge Court, Mr Justice Edwards was satisfied that the sentencing judge had not been unduly lenient in giving the man a sentence of three-years with the final two suspended; that the judge had solid evidence to justify giving the man a chance; and that the judge should not be criticised for affording a high priority to the penal objective of rehabilitation.

Background

In August 2016, Mr Martin O’Brien was interrupted while carrying out a burglary of a house in Glenageary, Dublin when the owner of the property returned to her home accompanied by her sister. A sum of US$500 and a gold coin of sentimental value were taken, neither of which were recovered.

In Dublin Circuit Criminal Court in February 2017, Mr O’Brien was convicted of burglary contrary to s.12 (1)(b) and (3) of the Criminal Justice (Theft and Fraud Offences) Act 2001, and was given a sentence of three years’ imprisonment, with the final two years thereof suspended upon conditions.

In the Court of Appeal, the Director of Public Prosecutions sought a review of the sentence on the grounds that it was unduly lenient.

Sentencing

The Court heard that Mr O’Brien had 103 previous convictions, a considerable number of which were for theft and burglary. Furthermore, this offence was committed while the respondent was already subject to a suspended sentence

The sentencing judge identified a large number of mitigating factors:

  • The guilty plea which meant that the victim did not have to give evidence in court;

  • Gardaí accepting that Mr O’Brien did not believe that there was a person in the house at the time;

  • It was an opportunistic offence;

  • Mr O’Brien had a longstanding heroin addiction;

  • A month before the offence, Mr O’Brien had attempted suicide and his mental health had deteriorated;

  • From his letter of apology, that he appeared to have insight into his offending;

  • He was attending Outreach and receiving rehabilitation/treatment for his addiction;

  • He was continuing to participate in and make positive progress in targeted programmes with Southside Travellers Action Group;

  • The chaplain to Cloverhill Prison indicated that while in custody Mr O’Brien’s behaviour and demeanour had been exemplary, and that his previous offences stem from his drug addiction;

  • Another priest indicated that there was a residential treatment available;

  • That he had a young child;

  • Mr O’Brien’s letter to the Court indicated that he took full responsibility for the offence and the effects on the injured party.

    • Court of Appeal

    The focus of the application for a review was on the appropriateness of the suspension of the final two years of the sentence. It was the DPP’s case that the two-year suspension meant that the ultimate sentence represented a substantial departure from the norm and was unduly lenient pursuant to s. 2 of the Criminal Justice Act 1993

    The DPP complained that the sentencing Court:

    1. gave insufficient weight to the aggravating factors in the case;

    2. had inadequate regard to the fact that the offence was committed during a suspended sentence for a similar offence;

    3. had inadequate regard to previous convictions for similar offences;

    4. had inadequate regard to the impact of the offence on the victim;

    5. gave excessive weight to the mitigating factors in the case;

      6. Considering DPP v. McCormack 4 IR 356; DPP v. Redmond 3 IR 390 and DPP v. Byrne 1 ILRM 279; Justice Edwards said the settled law and jurisprudence in relation to undue leniency, indicated that before a reviewing court could find the sentence to have been unduly lenient, it must be satisfied that the sentence imposed involved “a clear divergence by the court at trial from the norm” that will have been caused by “an obvious error of principle”.

      Justice Edwards also considered DPP v Stronge, IECCA 79, in which it was emphasised that “the onus of proving undue leniency is on the DPP”

      Justice Edwards was not satisfied that the DPP had discharged the required burden of proof.

      The sentencing judge “had abundant evidence to justify her decision to afford a high priority to the penal objective of rehabilitation” and “ought not to be criticised for doing so”.

      It was “clear from the transcript that the sentencing judge approached this case with great care and conscientiousness” and “was particularly impressed with the respondent’s expression of a purpose of amendment and concerning the steps that he had taken along that road”.

      In all the circumstances, Justice Edwards said that the sentencing judge had solid evidence to justify giving Mr O’Brien a chance, and “that what she did was within the legitimate margin of appreciation available”.

      Dismissing the application, Justice Edwards was satisfied that the suspension of the final two years of the three-year headline sentence was not so far outside the norm as to be regarded as unduly lenient.

      • by Seosamh Gráinséir for Irish Legal News

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