Director of Public Prosecutions v Conroy [2019] IECA 251 (14 October 2019)

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JUDGMENT of the Court (ex tempore) delivered on the 14th day of October 2019 by

1. The appellant came before the Circuit Criminal Court sitting in Castlebar, County Mayo, on

the 30th January, 2018, and pleaded guilty to both counts on an Indictment laid against

him; the first being an offence of burglary contrary to s. 12(1)(b) and 12(3) of the

Criminal Justice (Theft and Fraud Offences) Act 2001; and the second being the offence of

impersonating a member of An Garda Síochána contrary to s. 60(1)(a) of the Garda

Síochána Act, 2005. The maximum sentences which can be imposed for such offences are

imprisonment for up to 14 years and for up to 5 years, respectively.

2. On the 12th June, 2018, the trial judge imposed a sentence of five years imprisonment on

Count No 1, with the final eighteen months suspended for a period of eighteen months on

condition that the appellant should, upon his release, undergo a residential treatment

course, to be arranged by the Probation Service, to address his alcohol abuse, and further

that he should submit to the supervision of the Probation Service for the duration of the

3. The appellant now appeals against the severity of the sentence imposed on him.

4. On the 12th December, 2016, Mr Padraig Boland, a man in his seventies and the sole

occupant of a residential property 104 Chestnut Grove, Castlebar, County Mayo, arrived

home at around 6 p.m. to find the front door ajar and a sitting room window pane

shattered. Mr Boland could see the appellant through the window, wearing a high visibility

jacket. The appellant stated: “It’s alright Sir, I’m a Garda”. After asking for identification

which was not produced, Mr Boland repaired to a neighbour’s house to request that the

real gardaí be telephoned. Mr Boland then witnessed the appellant walking away from the

house and attempted to follow him but was unsuccessful in pursuing him as the appellant

5. Gardai quickly arrived on the scene, and the investigating member, Garda Noelle Barrett,

spoke to Mr Boland on their arrival. It appeared that nothing of monetary value had been

taken from the property. Gardai ascertained that an independent eye witness had

observed the appellant leaving the scene, followed initially by Mr Boland, and that this

witness had recognised the appellant as being her friend’s father’s friend.

6. Gardai then went to a dwelling house at a nearby address and searched the property with

the consent of the occupant. During this search Garda Barrett located the appellant hiding

in a dog kennel at the rear of the house. The appellant was arrested on suspicion of

burglary and was taken to Castlebar Garda Station where he was detained under s. 4 of

the Criminal Justice Act 1984 for the proper investigation of the offence for which he had

been arrested. He was interviewed while in detention and made full admissions to the

offences with which he was subsequently charged and to which he ultimately pleaded

7. While nothing of monetary value was taken during the incident, Garda Barrett informed

the sentencing court that Mr Boland, who lived alone, was very anxious after the incident

8. The appellant was born in England on the 28th October 1973, and moved to Ireland in

2003, sometime after the deaths of his parents. The appellant has been a heavy drinker

since he was in his early twenties. He is now in his mid-forties and unfortunately he

suffers from Cirrhosis of the liver. He is estranged from his wife due to his alcohol issues

9. As regards the appellant’s previous convictions, the sentencing judge was informed that

he had 50 various convictions relating to burglary, public order, disorderly conduct, failing

to appear in court, theft, trespassing, dangerous driving, criminal damage, and drink

driving, all of which were dealt with in the District Court. His most recent convictions were

at Castlebar District Court on 15/11/2017 in respect of four burglaries to business

premises. He received sentences of three months on each, with the second third and

fourth sentences, all to be served consecutively. The appellant was also sentenced for

three burglary offences on the 26th September 2013 for which he received sentences of

six months imprisonment, four months imprisonment and four months imprisonment to

be served consecutively. However, the present case represents his first time before the

10. It is apparent that much of the appellant’s past criminality can be attributed to some

extent to his alcoholism, a condition which began in his early twenties and steadily

worsened after the age of 28, aggravated by the death of his mother. Although he

acknowledges that he has a problem and has in the past made some attempts at

11. The sentencing court was in receipt of a Probation Report concerning the appellant, which

categorised him as being at high risk of re-offending should he not address his risk

factors, namely homelessness, unemployment, family factors and alcohol addiction. He

was not suitable for Community Service as his issues with alcohol had not been

addressed. He had previously been the subject of a Community Service Order but had

failed to adhere to the conditions on which it was granted. The report indicated that while

probation supervision could support him, for it to be successful would necessitate a

serious effort on his part to address his drinking. This could only be gained through a

period of time in residential treatment. He had been referred to the Addiction Services

within the prison where he was serving his sentences for the four burglaries in respect of

which he was sentenced on 15/11/2017, for assistance and with a view to eventually

accessing a place in residential treatment. The report records that the appellant has

expressed readiness to address his drinking through a residential treatment program and

that it is his hope that he will be offered the opportunity to do so following his release. It

“He is also concerned due to health issues, that unless he addresses his use of

alcohol he will not get to see his daughter grow up. He mentioned that he has been

diagnosed with Cirrhosis of the liver and this has been an eye-opener to him in

12. A Prison Governor’s report handed in to the sentencing judge indicated that he was

receiving enhanced privileges, had not been the subject of any negative reports and was

13. In passing sentence on the appellant, the sentencing judge commented:

“In my view all burglaries are serious and they're particularly serious when the

occupier, the owner, the inhabitant is at home or comes home as was the case in

this situation. This elderly man whether he was at home or came home to be

confronted by this man, the accused in his high vis jacket that is a seriously

aggravating fact in and about the circumstances of this case. And it wasn't Mr

Conroy's first effort at burglary. He has a considerable history and it's not to be

undermined or gainsaid in any way by the fact that those convictions were in the

District Court. He's 44 years of age and he has a history of going into premises

that he shouldn't be on and that has to stop. And his response since he's been in

prison, he may be an excellent prisoner but his response to the Probation Service

either now or previously has been poor and he seems to lack, whether it's because

of the drinking or otherwise, I don't know, he seems to lack real insight into his

own situation. I mean for him to suggest that the way out at this stage would be to

go to England and live with is sober uncle suggests that he's really not at the pitch

of the game at all. So, there is a serious lack of understanding, lack of insight

which is undoubtedly inhibiting the man's ability to rehabilitate himself. That may

all be due to his alcohol abuse or it just may be due to general attitude to life. I

don't know. But, this is a serious matter and his response to the Probation Service

has been poor. So, I would measure a sentence in view of the aggravating factors

of the person being present and having to meet, now admittedly there was no

confrontation, but to be in your own house and to be met by an intruder is an

appalling fact and it shouldn't happen to anybody. So, on those factors I would

measure a sentence of five years. Now, the mitigating factors are there has been a

plea, there was no effort to confront or affront the householder and the accused

has certain deep seated alcohol related problems which will have to be sorted out

and he is resistant so far to having them sorted out. He hasn't really completed

any of the courses he was sent on. He's moved, when he was sent to one centre

he moved on. He never really stuck the course up to date. So, what I'll do is I will

suspend the final 18 months of the sentence on condition that on his release he will

be placed by the Probation Service in a suitable residential treatment facility for

alcohol abuse and he will remain there until he completes the course otherwise he

will be under the care of the Probation Service for that 18 months, keep the peace

and be of good behaviour. And the sentence is backdated to the 17th of January

i. The sentencing judge erred in law and in fact in imposing a sentence which in all

circumstances is excessive and disproportionate. The sentencing judge failed to

identify an appropriate and proportionate pre-mitigation starting point in sentencing

ii. The sentencing judge attached too much weight to the fact that the appellant has

iii. The sentencing judge erred in law and in fact in assessing the gravity of the offence

iv. The sentencing judge erred in law in failing to give any or the appropriate weight to

the mitigation put forward on the appellant’s behalf 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

v. The sentencing judge erred in law and principle in failing to place adequate value

on, or give adequate credit or weight to the appellant pleading guilty at the first

vi. The sentencing judge was excessive and/or unduly severe and/or disproportionate

in imposing the sentence that he did. The sentencing judge erred in law in imposing

15. The Court has received detailed written submissions from both sides for which it is

16. The appellant has submitted that the sentence he received is disproportionate considering

the gravity of the offence and his personal circumstances. We do not agree that the

17. To deal first with the assessment of gravity, we are inclined to accept that the headline

sentence of five years was towards the severe end of what was permissible in terms of

the sentencing judge’s legitimate range of discretion, but we do not believe that it was

18. It is accepted on behalf of the appellant that any burglary of a home is a serious offence.

However, he submits that the court over-assessed the gravity of the offence. Although

the court did not specify where on the range of offences this case would fall, the headline

sentence nominated indicates that the sentencing judge placed it towards the lower end

19. Counsel for the appellant has referred us to a great many comparators, of which we have

taken note, and has also sought to distinguish the appellant’s case from the main

guideline judgment on sentencing in burglary cases, namely The People (DPP) v. Michael

Casey & David Casey [2018] IECA 121. It bears commenting upon that almost all the

numerous cases put forward as comparators predate the Casey judgment, which served,

in offering the guidance which it does, to recalibrate the approach to the sentencing of

burglars prosecuted on indictment. To that extent, we regard the usefulness of the

20. In The People (DPP) v. Michael Casey & David Casey [2018] IECA 121 we stated that the

“. . . factors that would put a burglary in mid-range, and more often than not at the

(iii) targeting residential properties, particularly in rural areas;

(iv) targeting a residential property because the occupant was known to be

(v) taking or damaging property which had a high monetary value or high

She identifies factors as would tend to place a burglary in the highest range of

(ii) entering during the night a dwelling which was known to be occupied,

(iii) violence used or threatened against any person, whether the occupier or

(iv) significant injury, whether physical or psychological, or serious trauma

“If a number of the factors to which reference is made are present, this will place

the offence in the middle range at least, and usually above the mid-point in that

range. The presence of a considerable number of these factors or, if individual

factors are present in a particularly grave form, will raise the offences to the

highest category. Cases in this category will attract sentences, pre-application of

mitigation, above the midpoint of the available scale, i.e. above seven years

imprisonment and often significantly above the midpoint. In considering the

significance of a particular aggravating factor identified as present, it is necessary

to view the significance of that matter in the context of the particular case”.

22. The appellant submits that none of the factors cited in Casey are present in the current

offence; there was no degree of planning, the appellant was acting alone, it was not a

targeted property in rural Ireland, the residence was not targeted as it was known the

occupier was vulnerable, nothing of monetary or sentimental value was taken (although a

window was broken). The dwelling was not ransacked, the dwelling was not entered

knowing there was an occupant in the building and there was no violence threatened

against the occupant. Counsel has submitted that in the absence of such aggravating

factors to have selected a headline sentence of five years imprisonment was an error. It

was submitted that this case involved offending conduct that was in the low range, and

that, but for the appellant's previous convictions, it was one that could have been

23. We do not agree. Yes, it is true that many of the more egregious aggravating factors

mentioned in the Casey judgment were not present in this case. However, there were

several aggravating factors, as counsel for the respondent has pointed out. This was a

burglary of a dwelling house, not of a business premises or a storage facility or other type

of non-residental premises. One’s dwelling is expressed in Article 40.5 of the Constitution

as being “inviolable”, and that it shall not be forcibly entered save in accordance with law.

The premises were occupied in the sense that it was Mr Boland’s residence, and the

occupier was vulnerable elderly man living alone. While the break-in occurred during Mr

Boland’s temporary absence from the premises, it was ongoing when Mr Boland returned,

and he was subjected to the traumatic and upsetting experience of finding that his

dwelling was in the course of being violated. This gentleman is left with continuing anxiety

and a sense of insecurity. It is true that nothing was stolen, presumably because the

appellant was disturbed while effecting this burglary, but damage was caused to a

window. While it is also true that there was no threatening confrontation, there was

nevertheless an interaction between the occupier and the intruder. A serious aspect of the

matter was that the intruder was wearing a hi-vis jacket and purported to claim that he

was a Garda. This itself was a criminal offence and was the subject of Count No 2 on the

Indictment. It was taken into consideration. For it to have been meaningfully taken into

consideration would have meant that the offender would not get a free ride but would

receive a sentence somewhat higher than he might otherwise have received for the

principle offence. This most likely explains why the headline sentence in this case was

24. By far the most serious aggravating factor, however, was the appellant’s numerous

previous convictions for burglary, seven in all, coupled with his conviction for other crimes

of dishonesty such as theft. His record apart from that would have meant that he was not

entitled to put forward previous good character as a mitigating factor. With 50 previous

convictions he would have lost any entitlement to mitigation for being of good character

by application of the progressive loss of mitigation principle. However, it is by now well

established that previous convictions for the same or a similar/related type of offending

should be treated as an aggravating factor. In so far as burglary is concerned this

offender is a recidivist with three previous convictions going back to 2013, and a further

four previous convictions in 2017. He also has a previous conviction for theft. The

sentencing judge was correct to treat these as a significant aggravating factor.

25. Taking the circumstances of the crime, including the aggravating factors that we have

listed, and the fact that Count No 2 was going to be taken into consideration, we do not

consider that a headline sentence of five years was inappropriate, and we find no error of

26. The appellant also complains that he did not receive a sufficient discount for mitigation

and, in particular, there was insufficient recognition of his resolve to reform and of his

27. It was suggested that given the positive aspects of the Probation Report and the

appellant’s progress in prison indicating genuine reformative effort, that the sentencing

judge should have more effectively facilitated his continued rehabilitation. It was

submitted that the sentencing judge erred in law and in fact insofar as he failed to

sufficiently recognise the efforts made by the appellant towards rehabilitation, as well as

28. Whilst the appellant concedes that his previous attempts at rehabilitation were lacklustre,

he disagrees with the conclusions reached as regards the extent of his failures. He claims

that after attending one AA meeting he concluded that it was not right for him, and that

his residential treatment in White Oaks in Donegal on a previous occasion was

complicated due to his lack of medical card. It was submitted that the sentencing judge

was wholly mistaken in inferring that the appellant had not completed any of his courses,

and that he moved after being sent to a centre. On this basis the appellant has submitted

that the sentencing judge took matters into account which were not before the court.

29. It was further submitted that the sentencing judge failed to acknowledge that the

appellant had felt pressured by his health issues to seek treatment, and that the

sentencing judge erred in principle in disregarding the punitive and rehabilitative nature

of a larger suspended sentence, as well as failing to have adequate regard to the

influence a residential treatment programme would have on the appellant in the

30. It is also suggested that the appellant received insufficient discount for his plea. The

appellant entered a plea at the earliest opportunity in accordance with s. 29(1)(a) of the

Criminal Justice Act 1999, thus preventing any waste of State resources and of Garda

time. The appellant gave no indication that he would ever be seeking a trial date, thus

ensuring that his case would be dealt with as expeditiously as possible. The early guilty

plea saved the injured party the anxiety, stress and experience of the criminal process in

giving evidence, of having to come to court to face the appellant and of being subjected

to cross examination. The injured party would have been aware from an early stage that

the appellant had taken responsibility for his actions and had expressed remorse for his

actions through his plea of guilty. The prosecuting Garda under cross examination

confirmed the appellant’s plea of admission of guilt on the day of the incident. The

appellant accepts the plea was offered in circumstances where he had in effect been

caught red-handed and there was a strong case against him but says that those factors

should not have operated to negative the other considerations that have been mentioned.

31. The discounting for mitigation in the case, including incentivisation of continued

rehabilitation was reflected by the suspension of the final eighteen months of the

sentence. In practical terms this represented a 30% discount on the time which the

appellant would have to serve, providing he adhered to the conditions on which his

sentence was being partially suspended. We do not accept that there was insufficient

recognition of the plea and his co-operation and find no error in that respect. In so far as

rehabilitation is concerned, the extent to which a trial judge may see fit to reward

progress to date and incentivise future rehabilitation is entirely within his discretion.

However, we have said on several occasions that there must be a sound evidential basis

for prioritising rehabilitation over the other recognised objectives of sentencing. In this

case while there was some hopeful signs that the appellant may have finally resolved to

address his behaviour, and to do so by seeking treatment for his underlying alcoholism,

his track record in terms of actual progress to date was slight and the Probation Report

was not very favourable in that he was not recommended for Community Service for the

reasons stated therein, and it was indicated that he remains a person assessed as being

at high risk of re-offending by reason of not yet having addressed his alcohol abuse. We

do not accept that the trial judge took into account matters that were not before the

Court. Rather, he considered in the round the full picture with respect to the appellant’s

alcoholism, his efforts to rehabilitate to date which on any view were limited and his

stated desire to go into residential treatment. The evidence was that he has been referred

to the Addiction Services within the prison system, and that he hopes to undertake a

residential alcoholism treatment course on his release. The sentencing judge

acknowledged this but felt he needed structure in his heretofore chaotic life, and we

completely agree. Far from ignoring the recommendation of the Probation Service that he

undergo residential treatment, and the appellant’s express desire to do so, the sentencing

judge, in suspending the final eighteen months of the sentence, made it a specific

condition of the suspension that he should undergo residential treatment. We find no

error of principle in the sentencing judge’s approach and consider that it was the

32. In conclusion, we are satisfied that this appeal should be dismissed.

Result: Dismiss

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