Court of Appeal: Burglar who caused over €20,000 damage to a garage has sentence increased

About this case:

• Citation:
  [2018] IECA 391
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Finding that the overall sentence was outside the norm, Mr Justice George Birmingham, President of the Court of Appeal resentenced the man to five years imprisonment with the final year suspended.

The Circuit Court

In February 2018, Mr Luke Foran was sentenced to three years and three months imprisonment with the final nine months suspended.

Mr Foran had entered pleas of guilty in respect of counts that had appeared on three Bills of Indictment:

1. Counts of burglary, unauthorised taking of a vehicle, criminal damage to three vehicles, theft of a watch, criminal damage to a garage, theft of tools, and the theft of a ring – all in relation to a family-owned garage in Fairview in Dublin. The court heard that Mr Foran entered the garage and proceeded to ransack the premises, including discharging a dry-powder fire extinguisher covering everything in the garage, before attempting to use a BMW from the garage to make his getaway. Mr Foran crashed the BMW into a pole outside the garage and proceeded to steel a Hyundai car instead – driving into other cars in the garage in the process. The damage caused amounted to €20,300.
2. A count of arson for setting fire to the Hyundai which he had stolen from the garage earlier that same day.
3. A count of burglary committed while he was on bail for the earlier incidents. The Court heard that Mr Foran ransacked the home of an eighty-year-old woman while she was out at Sunday Mass, pulling mattresses off beds, emptying drawers, taking pictures from walls and proceeding to steel her purse containing her bank cards and €150 cash. A further €1,480 was withdrawn from the lady’s account using the stolen bank cards.

The sentencing judge said that the appropriate headline sentences were all three years. Having regard to the mitigating circumstances, including the fact that Mr Foran was attending a drug rehabilitation programme, the judge imposed concurrent sentences of two years on each of the various counts relating to the garage, a further two years for the arson offence (to run concurrently), and fifteen months for the domestic burglary (to run consecutively).

The judge said that Mr Foran’s 33 previous convictions were not aggravating factors – and Mr Justice Birmingham noted that the Judge was “provided with little information” apart from the number of convictions and the fact that they were dealt with in the District Court.

Undue leniency

The Director of Public Prosecutions sought to review the sentences on grounds of undue leniency pursuant to the provisions of s. 2 of the Criminal Justice Act 1993.

Mr Justice Birmingham said that the principles to be applied had not changed since DPP v Byrne [1995] 1 ILRM 279, and it was not in dispute that the onus was on the DPP to establish that the sentence was not merely lenient, but unduly lenient – involving a substantial departure from the norm for there to be an intervention.

Mr Justice Birmingham commented that the serious offences were committed by someone with a significant prior criminal record

At the garage, Mr Foran had gone over and above a normal burglary, having spent an hour and a half at the garage “just wrecking the place”, to the extent that the garage owner was “astounded by the damage that was caused”. Considering the arson offence, Mr Justice Birmingham said that the damage to the Hyundai car taken from the garage had to be seen against the background of all the damage caused at the garage earlier.

Mr Justice Birmingham also commented that the domestic burglary also involved a number of aggravating factors, including the fact that the victim was an elderly lady who was severely impacted by the shock of returning from Mass to find her home ransacked. Mr Justice Birmingham said that the money taken from the lady’s account added “an additional dimension of seriousness”.

In the circumstances, the Court was satisfied that the overall sentence was outside the norm and unduly lenient.

Resentencing

Resentencing Mr Foran, Mr Justice Birmingham said that the pre-mitigation headline sentence was five years for the garage burglary and criminal damage, two years for the arson offence (to be served concurrently), and four years for the domestic burglary.

The Court considered that the early plea of guilty, Mr Foran’s youth, and his engagement with rehabilitation services to be mitigating factors meriting a reduction of the headline sentences by one-third. The Court also considered evidence in relation to Mr Foran’s engagement with the Solas Project and RASP, warranting suspension of the final year of the aggregate sentence.

The Court said that the aggregate sentence it regarded as appropriate was therefore six years imprisonment with the final year suspended. However, conscious of the fact that having his sentence substantially increased at this stage would be difficult for Mr Foran, the Court limited its intervention to provide for an aggregate sentence of five years with the final year suspended.

• by Seosamh Gráinséir for Irish Legal News