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Judgment | Title: | Director of Public Prosecutions v O'Driscoll | | Neutral Citation: | [2019] IECA 79 | | Court of Appeal Record Number: | 113/2018 | | Date of Delivery: | 03/25/2019 | | Court: | Court of Appeal | | Composition of Court: | Birmingham P., Whelan J., McCarthy J. | | Judgment by: | McCarthy J. | | Status: | Approved | | Result: | Dismiss | | | |
THE COURT OF APPEAL [113/2018] Birmingham P. Whelan J. McCarthy J. THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT APPELLANT
JUDGMENT (Ex Tempore) of the Court delivered on the 25th day of March 2019 by Mr. Justice McCarthy
1 . This is an appeal against severity of sentence. The appellant entered a signed plea of guilty in the District Court, affirmed in the Circuit Court, to a count of robbery. On the 23rd November, 2017 he was sentenced to 4 years' imprisonment the final 12 months of which was suspended.
2 . On the 8th July, 2017 the appellant approached the injured party, Mr. Knightly, who, sadly, was begging outside a shop on Bridge Street, Cork. Mr. Knightly is a resident of a Simon Community hostel. The appellant emptied the contents of a paper cup that Mr. Knightly was using to collect change. After Mr. Knightly confronted the appellant about this, the appellant rifled through his pockets and threatened him. Mr. Knightly felt something sharp against his stomach and saw that the appellant was holding a Stanley blade against him. The appellant took a total of €60 from the injured party and then fled. The incident was reported to the Gardaí and following an investigation, the appellant was identified from CCTV footage.
3 . The appellant was thirty-two years of age at the time of sentencing. He had no fixed address, but is from the Mayfield area of Cork. He had also been a resident of a Simon Community hostel but was barred from it due to violent behaviour. He had been in employment for a period and he was said to be a hard worker by his employer. It was pleaded in mitigation that due to alcohol and drug issues the appellant fell into homelessness and chaotic behaviour. He has made some progress while in prison. He has been in contact with the Irish Association for the Social Integration of Offenders who will assist him on his release. As a matter of common sense, however, given his history and the difficulties under which he labours, the judge was of course right when he took the view that a shorter period of suspension was appropriate lest he fell back into his habits, and they can only be called that, of criminality notwithstanding any good intentions.
4 . The appellant says that the sentencing judge erred;
(1) in failing to have sufficient regard to the mitigating factors associated with the appellant and the offence;
(2) in placing undue emphasis on the aggravating factors associated with the appellant and the offence;
(3) by not giving sufficient weight to the appellant's signed plea of guilty;
(4) by imposing a sentence that, in all the circumstances, was unduly severe. We think that these can be dealt with together since they overlap to a significant degree. 5 . Some criticism is advanced of the judge by reason of his supposed failure to sufficiently elaborate to the extent to which he was taking into account factors relevant to the sentence, including the decision to suspend a portion of it. We do not think that this criticism is well-founded. It has been suggested that the judge failed to give sufficient weight to the fact of the signed plea but we think that it is perfectly plain that the judge, delivering judgement as he did, after hearing the submissions of counsel and the evidence and specifically referring to the fact of the plea of guilty (being aware, by definition, that this was a signed plea) made it clear that he was so taking it into consideration. It is plain also that he had regard to the nature of the offence, rightly describing it as a nasty one, involving as it did an attack on a man begging on the street with the use of a knife and the unfortunate personal circumstances of the appellant, including the need for rehabilitation when he suspended the last year of the sentence. Criticism has also been advanced of his finding that a Stanley knife was used. In particular, it was suggested that a hearing should have taken place to decide whether or not, as a fact, the appellant had used such a knife in accordance with the well-known decision of R. v. Newton [1983] 77. Cr. APP. R. 13. No application for such a hearing was made. The proposition was never pursued in cross-examination that, in fact, a Stanley knife was not used or in the course of submissions on sentence to the judge. Obviously, insofar as it is sought to be suggested that the judge was wrong to conclude that the appellant had used such a knife and that this court, on an issue of credibility which, in truth, was never contested, should overrule his finding is an untenable proposition in itself. 6 . There was ample evidence for the judge's conclusion. Needless to say any contention that the prosecution version of events was not in fact accurate undermines any signed plea. Ultimately, counsel took personal responsibility for pursuing this point on appeal and we are prepared to accept that it was not thereby intended to so undermine it. In addition, it was submitted that the judge of his own motion ought to have sought a probation report in circumstances where counsel decided to proceed, on instructions, with the hearing notwithstanding the fact that the report previously requested was unavailable. Effectively counsel left it to the judge to decide whether or not such a report was requisite making no submission either way to the court. Counsel was right of course, to say that it was a matter for the judge in principle, but the responsibility lay upon counsel to seek such a report or apply for an adjournment so that it could be obtained. 7 . Counsel for the appellant accepted that the evidence against him was strong. Obviously any plea of guilty must be weighed in the context of the strength or otherwise of the prosecution case. However, we do not doubt but that exceptional weight must be attached to signed pleas of guilty, regardless of the state of the evidence. They also indicate a higher degree of remorse to, say, a case where an accused person might be sent forward for trial and might, for example, seek extensive disclosure from the prosecution and only thereafter enter a plea of guilty. It is also true that the victim of crime benefits from knowing at an early stage whether or not, as in this case, his assailant has accepted responsibility and he will not have to attend court. 8 . The accused had a bad previous record; he was dealt with on indictment on three occasions in respect of two offences of burglary and one pursuant to s.113 of the Road Traffic Act. He has at least 30 previous offences for public order matters, theft, criminal damage, under the Misuse of Drugs Acts, possession of a knife and road traffic matters. At the time of the present offence he was on bail; such bail had been granted on the 20th June, 2017 and he was granted bail thereafter on the 23rd June of the same year in respect of further offences. The offences for which he was bailed on the 20th June were offences under the Public Order Act, for theft and under the Road Traffic Act. Those upon which he was bailed on the 23rd June were again offences of theft and under the Public Order Act. 9 . It seems to us that in his careful judgement the judge took into account all relevant factors. We note amongst other things that he had regard to the totality of principle because he was required to make the sentence consecutive on that three months imposed on the 4th November, 2017. In truth, at bottom, this case resolves itself into the issue of whether or not there was an error in principle because the sentence was excessive in all the circumstances of the case including, especially, the fact of the signed plea of guilty. 10 . We think that having regard to the nature of the offence and his many previous convictions the judge was within his margin of discretion when he imposed the prison sentence and suspended the last year. 11 . We accordingly do not think that it is a case where this court should intervene and hence we dismiss this appeal. | |
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