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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. Melia [2008] IECCA 106 (11 July 2008) URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_106.html Cite as: [2008] IECCA 106 |
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Neutral Citation: [2008] IECCA 106
COURT OF CRIMINAL APPEAL 100CJA/07
Finnegan J.
Budd J.
Herbert J.
IN THE MATTER OF SECTION 2 CRIMINAL JUSTICE ACT 1993
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
.v.
JAMES MELIA
RESPONDENT
Judgment of the Court (ex tempore) delivered on the 11th day of July 2008 by Finnegan J.
This is an application pursuant to section 2 of the Criminal Justice Act 1993. The respondent on this application was before the Circuit Court on four separate Bills and I propose setting out each of those.
The first is Bill 308 of 2003 and there are two counts. The first count is a count of robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001, the robbery having been carried out on the 4th September 2002 at the offices of the Educational Building Society, Collins Avenue. This was a robbery in which a gun was used. The amount taken was €350. The second count was the same offence but this time carried on the day following, the 5th September 2002, at the offices of First Active Building Society at Donaghmede Shopping Centre, Dublin, and
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the amount taken was €1,025. In respect of each of these offences he pleaded guilty on his arraignment.
The second Bill is Bill 348 of 2004 and there are two counts on this but they can properly be regarded as a single offence. The first is robbery again contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act 2001 carried out on the 7th November 2003 at the offices of the Educational Building Society at Main Street, Malahide and the amount taken was €1,000. On the second count on this Bill he was charged with possession of a firearm contrary to section 27B of the Firearms Act as substituted by section 9 of the Criminal Law Jurisdiction Act 1976 amended by section 14 of the Criminal Justice Act 1984 and section 4 of the Firearms and Offensive Weapons Act 1990, on the same date that is having the weapon with intent to commit a criminal offence. Again he pleaded guilty in respect of these offences on arraignment.
The third Bill is Bill 965 of 2004 and that is for one count, a count of robbery contrary to section 14 of the Criminal Justice (Theft and Fraud Offences) Act, this offence having been carried out at the premises of Xtra-vision in Artane Castle Shopping Centre on the 14th December 2003. No weapon was used in this case. The amount taken was €130.
The fourth Bill is No. 565 of 2005 and that is for a single offence of possession of a firearm without a certificate contrary to section 2 of the Firearms Act 1925 as amended by section 15 of the Firearms Act 1964 and section 3 of the Firearms Act 1971. The offence was committed on the 17th September 2003 at Marino Mart, Fairview, Dublin. The weapon in question was an air pistol.
In this case the principal concern raised on behalf of the applicant is the manner in which the learned trial judge constructed the sentence having regard to the
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requirements of the Criminal Justice Act 1984 section 11, subsection (1), that offences committed on bail should be consecutive to the longest of any sentence which the person convicted is then serving. Secondly, but with perhaps somewhat less vigour, it is suggested that the sentences overall are unduly lenient but they are particularly lenient having regard to the manner in which the learned trial judge constructed the same.
The court is satisfied that there are two errors in the sentences imposed by the learned trial judge. The first is an error in principle and that is the manner in which section 11 of the Act of 1984 was applied. Secondly the court is of opinion that in some instances the sentences do not adequately reflect the seriousness of the offences to which the respondent pleaded guilty. However the court must overall have regard to proportionality particularly in relation to Bill 965 of 2004, this being a case where the respondent was sentenced to three years with the final year suspended where his co-accused was sentenced to a lesser term. On the information before us no distinction is discernible between the applicant and his co-accused in relation to that offence so there is that discrepancy and the court notes this. The court must also take into account the totality of the time in prison which will be served by the respondent in respect of the significant number of serious offences to which he has pleaded guilty.
Perhaps there is one further factor that should be mentioned and that is the provisions of section 10 of the Bail Act 1997 which provides that an offence if it is committed while on bail is by virtue of that circumstance aggravated. So that is something which must also be borne in mind.
In those circumstances the court is satisfied as follows. Any sentences imposed for offences subsequent to those the subject matter of Bill 308 of 2003 must
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be consecutive to the same. The court is not satisfied that the offences in Bills 965 of 2004 and 565 of 2005 can properly be dealt with by means of a concurrent sentences in that the offences were committed on dates well apart and do not appear in any way to be part of any sequence of offences which should properly have been dealt with by concurrent sentences.
There is a factor which is again somewhat unusual in that the respondent was before the Circuit Court for four years awaiting sentence while the learned trial judge did her best to ensure that he rehabilitated himself and that any efforts which he made in relation to that could be reflected in the sentence imposed. While the respondent made progress and made efforts, the court is not satisfied that it can be said that he rehabilitated himself as might have been hoped.
The respondent has a serious criminal record. He has twelve previous convictions. He had only just been released from prison after serving a three and a half year sentence when he committed the offences charged in Bill 308 of 2003. Having said that he a young man. He is in poor health. The court has regard to all that has been said in the very many reports that the learned Circuit Court judge obtained and considered in arriving at an appropriate sentence.
The court in relation to the sentences imposed on Bill 308 of 2003 has regard to the dicta of Keane C.J. in D.P.P. v Doyle, unreported, Court of Criminal Appeal, 19th February 2004. It is important that a sentencing judge should not set about structuring a sentence to avoid the consequences intended by the legislature in passing section 11 subsection 1 of the Criminal Justice Act 1984 and again the Bail Act 1997. However the court will have regard to the totality of the time to be served and will construct the sentence to achieve an appropriate result.
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That being the background to the matters with which this court has to deal the court is satisfied that there was an error of principle on the part of the sentencing judge. The sentences imposed were inappropriate and also they are unduly lenient.
In relation to the offences to which the respondent pleaded guilty on Bill 308 of 2003 the court, for the sentence of two years suspended unconditionally on each count imposed by the learned trial judge, will impose that sentence of two years but suspend the same on terms that the respondent keep the peace and be of good behaviour for a period of two years following his release from prison and that he shall submit himself to and abide by the directions of the Probation Service during that period of two years. The sentences are concurrent among themselves. On Bill 348 of 2004 this court considers the offences to be serious indeed and in the circumstances is satisfied that the sentence of three years on each count imposed was unduly lenient and would substitute for the same a sentence of five years on each count the sentences to be concurrent but will suspend the last two years of the said terms on the like conditions as the sentences on Bill 308 of 2003 are suspended. It is appropriate to deal with Bill 565 of 2005 next. In the overall scheme of things and regarding proportionality and the totality of the sentences imposed the court on this offence will impose a sentence of one year and that sentence is to be consecutive to the sentences imposed on Bill 348 of 2004. Finally on Bill 965 of 2004 the court will impose a sentence of two years imprisonment and that is to be consecutive of the last sentence to expire which will be that on Bill 565 of 2005. The effect of the foregoing is that he will serve a period of six years in prison. There are suspended portions of the sentences and should he on release from prison fail to
observe the terms upon which they are suspended he will, of course, have to serve those terms.
DPPv Melia
