Suspended sentence for burglary not wrong in principle

 

DPP-v-Cuan de Paor and Wojciech Zdanowski

Court of Criminal Appeal

Judgment was delivered on December 19th, 2008, by Mr Justice Hardiman.

Composition of Court

Mr Justice Hardiman, Mr Justice Budd, Mr Justice McCarthy

Judgment

An application by the Director of Public Prosecutions to review the suspended sentence of five years for robbery and false imprisonment imposed on Cuan de Paor – on the grounds that it was unduly lenient – was refused.

Background

The offences were committed on December 17th, 2006, when a house in a Cork suburb was broken into about 7.30am on a Sunday. Three people broke into the house, including the two accused and a third person sought on warrant, who, according to the evidence of the gardaí, has the highest level of culpability.

The occupants of the house were a married couple and their 15-year-old son. The applicants were wearing Halloween masks and gloves. The man was tied up by a masked man armed with a gun, and his wife was held by another intruder. The son was woken up by de Paor, who told him to be quiet and stay lying down. He was tied up and gagged, though very lightly. Eventually he was put into a hot-press.

The applicant was told by one of the other intruders to kick him in the head, but did not do so. A threat was made by one of the other intruders to kill the father. The intruders obtained the pin numbers of bank cards, along with the cards, and took €2,400, a laptop, a mobile phone and some Christmas presents.

Special features of the case included the fact that the accused was not convicted of either aggravated burglary or of a threat to kill, his not guilty pleas having been accepted by the State, which accepted he was not responsible for the possession of the gun or the threat to kill.

Further, the principal Garda witness in the case endorsed the contents of a probation report on de Paor, and said that his participation in the offence was lesser than that of the other two.

The probation report established that he was 19 at the time of the offence, the second of five children of a very respectable family. However, in his later teenage years his behaviour deteriorated, involving abuse of alcohol and drugs, to the extent that his parents could not cope and he left home.

He had been sharing a house with the two involved in the robbery, had been out drinking earlier that night and had gone home to bed. He heard the other two downstairs and went down to join them, hoping for more drink. They told him of their plans for the robbery, inviting him to join them, which he did.

He said he was unaware they had a gun and of the full extent of the plans, and that he was afraid to pull out. He was instructed to “look after the boy”, whom, according to the prosecution, he treated with some consideration.

He had co-operated fully with the gardaí, and his evidence was of help to them. He was remorseful, as evidenced by his offer of €10,000 to his victims.

Since charged, he appeared to have taken a number of constructive steps, having returned to Galway and completed an information technology course. He is now attending an advanced course in computerised accounts. He also commenced counselling with a HSE counsellor for his addictions, and was working with his parents to bring some structure and stability to his life.

The trial judge had taken all this into account in sentencing.

Decision

The principles involved included that the onus of proof rests on the DPP to show that the sentence in question was “unduly lenient”; that the court should always afford great weight to the trials judge’s reasons for imposing the sentence called into question; that it is unlikely to be of help to consider whether a more severe sentence would have been upheld on appeal; and that nothing but a substantial departure from what would be regarded as the appropriate sentence would justify intervention of the court.

“Applying these principles, it seems clear that there was ample basis on which the learned trial judge might have decided to do what he did, that is, to take an unduly lenient course,” Mr Justice Hardiman said. The accused was very young at the time of the offence and had no previous convictions, which was of great importance.

The learned trial judge took the view that both the accused and society at large would be best served by the structured programme which was having a good effect for the accused and gave the best hope for his rehabilitation.

This was an exercise of judgment by a learned judge in the Circuit Court with considerable experience in this area. Although of unusual leniency, it was not one which the court could stigmatise as wrong in principle in the circumstances of this offender. For all these reasons, the application was refused.

The full judgment is on www.courts.ie

Tom Creed SC and Niall Nolan BL, instructed by Comyn, Kelleher Tobin, Cork for de Paor; Donal T McCarthy BL, instructed by Chief Prosecution Solicitor, for the DPP.