Court of Appeal: Man who robbed 16-year-old boy while in possession of a weapon has sentence increased

About this case:

• Judgment:
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Delivering the judgment of the three-judge Court of Appeal, Mr Justice Hedigan found that the trial judge had made an error in principle by suspending the entirety of the man’s sentence, given the number of aggravating factors that should have been taken into account.

Appeal

The Director of Public Prosecutions brought an appeal against the sentence imposed upon Mr Patrick Casey in respect of a charge of robbery, on the basis that it was unduly lenient.

In February, 2016 Mr Casey was sentenced to three years which was suspended in full for a period of six years subject to certain conditions.

This sentence was consecutive to a sentence of three years and six months imposed for an earlier robbery.

Mr Casey was convicted by a jury for the robbery of €15 cash, and burglary of an inhabited caravan. Mr Casey had earlier pleaded guilty to possession of a knife at the time of the robbery, and criminal damage in a Garda station.

Circumstances of the offence

In March 2015, Edward Quinlivan, who was 16 years old, was walking with two friends when he was approached by Mr Casey who said he had a knife and demanded money. Mr. Quinlivan having been put in fear handed him €15.

The Gardai were informed and located Mr Casey, and on being searched he was found in possession of €15, a Stanley knife with a retractable blade, and a ladies ring which was stolen from the inhabited caravan.

At the time that the offences were committed Mr Casey was on bail in respect of two earlier offences; a robbery in which the handbag was stolen from a pregnant woman, which was committed while he was on bail for possession of a weapon.

Sentence

In relation to the robbery of €15, the trial judge found the aggravating factors were that the offence was opportunistic, menacing, and intimidating; and that it was committed while the accused was on bail for two other charges including one of robbery.

In mitigation the judge found that there was no actual violence, and the accused had a difficult and tragic family background.

He sentenced Mr Casey to three years, consecutive to concurrent sentences of three years and six months imposed in respect of the other offences of robbery and possession of a weapon. The judge suspended the sentence in full for a period of six years from the date of the sentence.

Court of Appeal

The DPP submitted that the sentence imposed failed to reflect a significant aggravating factor, namely, the commission of an offence involving violence or the threat of violence when on bail in respect of similar offences.

It was submitted that the sentencing judge failed to reflect aggravating factors in identifying the appropriate headline starting point, and that “only in exceptional circumstances should a sentence which must be consecutive due to being committed while on bail be suspended in its entirety”. As such, the DPP argued that the suspended sentence constituted a substantial departure from the appropriate punishment.

Decision

Justice Hedigan stated that the clear legislative policy expressed in s. 11 of the Criminal Justice Act 1984 (as amended by s. 10 of the Bail Act 1997) and substituted in part by the Criminal Justice Act 2007, was that where an offence is committed while the offender is on bail, two consequences should follow automatically:

Although the knife was not produced during the robbery, it was a clear and present threat to a victim who was of a nervous disposition.

Although the absence of violence was a factor fairly considered, it raised little by way of an exceptional nature. Furthermore, while Mr Casey’s tragic family background was “very sad to read”, it could not be described as wholly exceptional in the context of a repetitive offender with serious addiction problems.

Justice Hedigan emphasised that the Court considers that exceptional means exceptional.

Where offenders use violence or the threat of violence involving the use of a weapon, the practice is that a custodial sentence should invariably follow.

Where there exists strong mitigating factors, the practice is that a partly custodial, partly suspended sentence should be imposed as per The People (Director of Public Prosecutions) v. O’Leary IECA 128.

Taking all these factors into account, the Court found that there were insufficiently exceptional circumstances to justify the suspension of the whole sentence.

On this basis the Court held that an error of principle was made by the trial judge.

Resentencing Mr Casey, the Court stated that it had considered additional material outlining “even further recent tragic events in the life of the accused”.

Taking these into account, the Court imposed the same sentence of three years, suspending the last two years for a period of six years on the same terms.