About this case:

• Citation:
  [2024] IECA 79
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Úna Ní Raifeartaigh

Delivering judgment for the Court of Appeal, Ms Justice Úna Ní Raifeartaigh commented that there are “some unusual cases where a sentencing judge is entitled… to allow rehabilitation to become the predominant aspect of the sentence imposed” and found that the sentencing judge was entitled to “take a chance” on the respondent having formed the view that his was an exceptional case.

Background

On 22 March 2020, a robbery took place at a Circle K filling station in Trim. Two individuals, one of which was the respondent, entered the garage with their faces covered. The respondent approached the cashier with a wheel brace, and demanded that the cashier open the tills.

The respondent took the till’s contents, cigarettes, and said “sorry about the robbery, give me five minutes before you ring it in”. The total loss was around €200. The second individual took trays of Heineken and another individual who was waiting outside with a “getaway” car had filled it with petrol. The three individuals left the scene in the car at speed.

The gardaí, having reviewed CCTV of the incident, located the vehicle from its registration number. As a result, the respondent was arrested at 8pm that evening. At first, the respondent denied his involvement, but later admitted that he was under pressure with drug debts and apologised.

On 9 June 2020, while the respondent was on bail for the robbery offence, the respondent along with three other men burgled a B&B in Navan, shouting for ‘Graham’. In the course of the burglary, Mr M, a resident staying at the B&B, was punched in the face. The four men fled, but were identified by gardaí who had stopped them shortly prior to the incident.

The respondent was arrested later that day. He told gardaí that the purpose of entering the premises was to find a person with whom one of the men had a grievance. The respondent entered a guilty plea in respect of the burglary on 11 September 2020 and in respect of the robbery on 30 April 2021.

Two victim impact reports from the employees in the Circle K at the time of the robbery were considered by the court, both of which described their anxiety surrounding the incident. A victim impact report from Mr M described his life following the burglary as “a little disturbed”, stating that he gets irritated and scared when he hears loud or unusual sounds.

At the time of sentencing in February 2023, the respondent had been employed for six weeks as a labourer.

The Circuit Court

The sentencing judge had regard to the probation report in respect of the respondent, which set out inter alia that the respondent was 37 and a member of the Traveller community. The report described the respondent as having abused drugs from a young age and suffering with long-standing addiction problems. The report placed him at a high risk of re-offending, but indicated that the probation service would work with him should the court consider suspending his sentence.

The personal circumstances of the respondent were also taken into account by the sentencing judge — it was established that he had 31 previous convictions at the time of the first bill and 33 at the time of the second, including convictions for burglary, assault, road traffic offences and criminal damage.

In respect of the burglary, the sentencing judge noted that four men had been present in a small location, that there was a confrontation and that it was a home. In light of the victim impact reports, the damage to the front door lock, and the injury to Mr M, the court nominated the offence as being mid-range, warranting seven years in prison, with a discount for inter alia the respondent’s drug addiction, his guilty plea and his engaging in employment.

In respect of the robbery, the sentencing judge took into consideration factors such as the respondent being on bail at the time of the offence, and nominated a six-year sentence. The judge had regard to his guilty plea in respect of both offences.

Ultimately, the sentencing judge imposed consecutive sentences of three years in respect of the robbery, with possession of an article taken into consideration, and three years and six months in respect of the burglary, both of which were suspended in full. The Director of Public Prosecutions (DPP) appealed on the basis that the sentences were unduly lenient.

The Court of Appeal

Ms Justice Ní Raifeartaigh emphasised that the DPP took no issue with the headline sentences nor the reductions made to them, but appealed the suspension of the entirety of both sentences imposed upon the respondent, setting “at nought the provisions of s.11 of the Criminal Justice Act 1984 concerning consecutive sentences”.

Agreeing that the sentences handed down by the sentencing judge were appropriate, the Court of Appeal considered that: “The nub of the issue for this Court is whether or not it was appropriate to fully suspend both sentences.”

Ms Justice Ní Raifeartaigh considered that: “There is no doubt that it was a very unusual step for the judge to take and one which would be warranted only in the most exceptional of circumstances given the gravity of the offences.”

The court had regard to the respondent’s attendance at a Coolmine residential treatment course, and his subsequent completion of the programme, highlighting: “The completion of the residential treatment programme is no small matter for a person who has had a long-standing polysubstance addiction difficulty.”

Emphasising the experience of the sentencing judge, Ms Justice Ní Raifeartaigh continued:

The Court of Appeal concluded that the sentencing judge was entitled to take the view that the respondent’s was an exceptional case “where the interests of society would be better served by suspending the sentence and allowing the offender to continue progress towards a crime-free life” and that, while it was lenient, “it was rational and grounded on the evidence”.

Conclusion

Accordingly, the Court of Appeal dismissed the appeal.

Director of Public Prosecutions v. Power [2024] IECA 79