Court of Appeal: Sentence reduced for defendant after “clear indication” of leniency by judge at earlier hearing

Killian Flood BL

About this case:

• Citation:
  [2021] IECA 73
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Woulfe

The decision was notable as the first written judgment delivered by Mr Justice Woulfe, who had not sat in judgment since his appointment to the Supreme Court last summer. The other members of the court, Mr Justice George Birmingham (President) and Mr Justice Patrick McCarthy agreed that there was an “error in principle” in the sentence and held that the defendant was entitled to a reduced sentence.

Background

In 2016, the victim entered an internet café in Limerick. He sat down at his assigned desk and left some items on the counter. Two men approached him and, following an aggressive conversation, the victim was held by the arms and punched in the face. The victim’s car keys were stolen and his car was subsequently found to be burned out in the Prospect area. All the items in the car were also destroyed.

The defendant, Mr Keith O’Donoghue, was arrested by gardaí and fully admitted the charges, although he denied that he had burned out the vehicle.

The victim was a particularly bad candidate for the assault and robbery. Although he had minor physical injuries to his face, arm and ribs, he had underlying medical difficulties and suffered psychological damage from the incident. In his victim impact statement, the victim indicated that he was afraid to go out at night and he had been placed on psychiatric medicines. He also was without a car for weeks and had lost a number of valuables in the car without compensation.

At a sentence hearing in March 2019 in the Circuit Court, counsel for Mr O’Donoghue outlined the mitigating factors in the case. It was said that the early plea of guilt meant that the vulnerable victim did not have to give evidence and the gardaí were spared what would have been a difficult investigation. It was also said that the crimes were not pre-meditated and events simply “snowballed out of control.” The defendant had a drug and alcohol addiction, with 35 previous convictions for drugs and theft-related charges.

Critically, counsel said that the defendant had engaged with the Saor Programme in Waterford, which was a rehabilitation programme for addiction recovery focused on training and re-integration into society. The defendant had made significant progress under the programme. He had a volunteer work placement and was doing a training and fitness course. Further, he was engaging in addiction counselling and had stayed away from associates who had addictions. Finally, a doctor’s letter was handed in outlining some long-term medical conditions with which the defendant was dealing.

At the conclusion of the sentence hearing, the judge stated that he would not pass sentence at that time. The matter was adjourned to allow for a probation report. The court also opined that “some compensation should be available” in the case. The court said that “some time has passed and matters seem to be progressing in the right direction, but I’m keeping all my options open in that respect.”

At the return date in February 2020, the probation report indicated that the defendant had made substantial progress under the Saor scheme and was very remorseful for his actions. He had not used drugs in a year despite being addicted since age 17 and was downgraded from a high risk of reoffending to a moderate risk. Further, although he had limited means, he had put together €1000 in compensation for the victim.

Taking into account all of the aggravating and mitigating factors in the case, the judge provided a headline sentence of five years and six months. The court then imposed a sentence of four years for the robbery charge and 2 years for the vehicle theft charge, which were to run concurrently. In reaching the decision, the court noted that the robbery offence was a very serious charge which had a huge impact on the victim. The defendant appealed against the severity of the sentence.

Court of Appeal

In the Court of Appeal, the defendant argued that the sentencing judge had indicated at the March 2019 hearing that he would deal with the case in a lenient manner. It was submitted that the trial judge had given “signals and indications” that if compensation was paid, there was engagement with the Probation Service and no further crimes were committed, then a less harsh sentence would apply. In this regard, the defendant relied on The People (Director of Public Prosecutions) v Drinkwater [2008] 1 I.R. 527. This case said that, if a sentencing judge gave a definite view that a non-custodial sentence would apply, but subsequently applied a custodial sentence, then an offender’s sense of grievance could be taken into account when reviewing the sentence.

The court determined that there was an “error in principle” with the sentence of the trial judge, who had given a “clear indication” that there would be a positive benefit to the defendant if he continued to rehabilitate and provide compensation. Mr Justice Woulfe held that the judge did not give adequate weight to the significant progress made by the defendant, who had “turned his life around.” As such, the judge “was wrong in not affording a greater degree of leniency, when it appeared that he had held out that prospect,” the court said.

Conclusion

The court allowed the appeal. It was determined that the final two years of the four-year sentence should be suspended, on condition that the defendant entered a €100 bond to keep the peace, comply with Probation Service requirements and continue to engage in the Saor Programme.