Court of Appeal: Man convicted of burglary and impersonating a Garda loses appeal against sentence

About this case:

• Citation:
  [2019] IECA 251
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John A. Edwards

Finding no error in principle, Mr Justice John Edwards said that the sentencing judge was correct in treating the man’s 50 previous convictions as a significant aggravating factor.

Burglary and impersonating a Garda

In December 2016, an elderly man, Padraig Boland, returned home to find Martin Conroy inside his property. Mr Conroy was wearing a high visibility jacket and stated “it’s alright Sir, I’m a Garda”. After failing to produce identification, Mr Conroy ran away from the house.

Shortly thereafter, gardaí arrived at the scene and located Mr Conroy hiding in a dog kennel at the back of a nearby property.

Mr Conroy was arrested on suspicion of burglary and detained under s. 4 of the Criminal Justice Act 1984. While being interviewed by gardaí, Mr Conroy made full admissions.

In January 2018, before the Circuit Criminal Court sitting in Castlebar, County Mayo, Mr Conroy pleaded guilty to:

• Burglary contrary to sections 12(1)(b) and 12(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001; and
• Impersonating a member of An Garda Síochána contrary to s. 60(1)(a) of the Garda Síochána Act 2005.

Sentencing

The maximum sentence for burglary is 14 years’ imprisonment, and the maximum sentence for impersonating a member of An Garda Síochána is five years’ imprisonment.

The sentencing judge took into consideration Mr Conroy’s 50 previous convictions, seven of which were for burglary. The judge also said that the fact that an elderly man came home to be met by an intruder in a hi-viz jacket was a seriously aggravating factor. While nothing of monetary value was taken during the incident, gardaí “informed the sentencing court that Mr Boland, who lived alone, was very anxious after the incident and that he continued to suffer from anxiety”.

In those circumstances, the sentencing judge said that a sentence of five years was appropriate. Mitigating factors included the early plea, the fact that Mr Conroy did not attempt to confront or affront Mr Boland, and Mr Conroy’s “deep-seated alcohol-related problems”. In light of the mitigating factors, the judge said he would suspend the final eighteen months of the sentence.

In June 2018, Mr Conroy was sentenced to five years’ imprisonment on the burglary charge, with the final 18 months suspended with conditions (including that he should undergo a residential treatment course to address his alcohol abuse). The impersonation offence was taken into consideration.

Court of Appeal

Appealing against the severity of his sentence, Mr Conroy argued that the sentencing judge:

1. Erred in law and in fact in imposing an excessive and disproportionate sentence, and failed to identify an appropriate and proportionate pre-mitigation starting point.
2. Attached too much weight to previous convictions for similar type offences.
3. Erred in law and in fact in assessing the gravity of the offence and failing to place the offence on a scale.
4. Erred in law in failing to give any or the appropriate weight to mitigating factors and failed to balance adequately the mitigating factors against the aggravating factors. In particular, the sentencing judge attached too much weight to the fact that the injured party was “confronted” in his home.
5. Erred in law and principle in failing to place adequate value on, or give adequate credit or weight to Mr Conroy pleading guilty at the first available opportunity.
6. Was excessive and/or unduly severe and/or disproportionate in imposing the sentence and erred in law in imposing a sentence solely for punitive and deterrent purposes.

Mr Justice Edwards said that the headline sentence was “towards the severe end of what was permissible” but that it was not outside the sentencing judge’s range of discretion. He then considered the guidelines set out in The People (DPP) v Michael Casey & David Casey [2018] IECA 121.

While noting that some of the more “egregious aggravating factors” in Casey were not present in Mr Conroy’s case, Mr Justice Edwards said that several of the factors were present in that it was a burglary of a residential property, occupied by a vulnerable elderly man living alone and who was traumatised by the incident.

Regarding Mr Conroy’s previous convictions, Mr Justice Edwards said this was “by far the most serious aggravating factor” – especially considering the previous convictions for the same type of offending. Mr Justice Edwards said the sentencing judge was correct to treat these as a significant aggravating factor.

Considering the discount for mitigation, Mr Justice Edwards said that a 30 per cent discount was sufficient recognition of Mr Conroy’s plea and his co-operation, and found no error in that respect. Mr Justice Edwards was also satisfied that the sentencing judge had fully considered Mr Conroy’s alcoholism by making residential treatment a specific condition of the suspension.

Finding no error in principle in the sentencing judge’s approach, Mr Justice Edwards said the sentence was appropriate and dismissed the appeal.