THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
134/15
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court (ex tempore) delivered on the 12th day of February 2016, by
Mr. Justice Sheehan
1. This is an appeal against severity of sentence.
2. At the Dublin Circuit Criminal Court on the 9th September, 2014, the appellant pleaded guilty to attempted robbery at a shop on Amiens Street, Dublin, in November 2012. She was subsequently sentenced to three years imprisonment on the 20th May, 2015.
3. Counsel for the appellant submits that the sentencing judge erred in two respects. The first complaint is that the gravity of the crime was such that it did not warrant a three year prison sentence and the second complaint is that by failing to suspend the final part of the appellant’s sentence the trial judge failed to factor into her sentence a rehabilitative element in order to incentivise her future good behaviour.
4. In order to consider these grounds of appeal it is necessary to set out the background to the offence, the appellant’s personal circumstances and the sentencing judge’s approach.
Background
5. At 12.30 pm on the 29th November, the appellant entered a shop in Amiens Street which at the time was being managed by a woman on her own. The appellant produced a syringe to her and demanded that the till be opened. The injured party retreated to a lower level of the premises and the appellant left. The appellant was subsequently identified in CCTV footage that was obtained from the shop and it emerged that she had in fact been detained earlier that day by the gardaí for a drugs search.
6. She was arrested and interviewed about this matter. At first she did not accept that she was the person in the CCTV footage and then later told the gardaí that she had no recollection of these events.
Personal circumstances of the appellant
7. At the time of sentence the appellant was a 41 year old single woman with one adult child. While she gave a permanent address to the gardaí, at the time of sentence accommodation in her mother’s one bedroom apartment was no longer available to her. The court was told that she had 46 previous convictions including 10 for theft, 4 for drug related offences and 2 for assault.
8. The appellant has a long history of heroin and cocaine abuse and began intravenous drug abuse in 1995. She has a prosthetic leg as a result of a below the knee amputation arising from her drug abuse. She has been diagnosed as suffering from bi-polar affective disorder although the psychiatric report before the court is uncertain about the reliability of this diagnosis. The appellant at the time of sentence was on a methadone programme.
9. Counsel for the appellant relies on these personal circumstances as well as the background facts in submitting that the sentence was excessive. In support of his submissions on behalf of the appellant counsel relies on People (DPP) v. C. (W) (Unreported judgment of Flood J. 14th July, 1993): People (DPP) v. O.D. (R) [2000] 4 I.R. 361 and the written submissions also rely on two extracts from O’Malley Sentencing Law and Practice (Roundhall 2nd Ed.) 2006, p. 160 and pp. 401 to 408.
10. Counsel for the respondent in opposing this appeal points out that it was the trial judge himself who had sought the assistance of the Probation Service prior to imposing sentence and that he was justified in failing to incentivise the appellant’s rehabilitation by partially suspending the final part of her sentence in view of her failure to engage in a meaningful way with the Probation Service.
11. Counsel for the respondent further submitted that the sentencing judge did not over assess the seriousness of the case and that he imposed a sentence that was just and reasonable in all the circumstances. In support of her submissions counsel on behalf of the Director relied on two recent judgments of this Court namely, DPP v. Flynn [2015] IECA 290, DPP v. Gill [2015] IECA 2402. Counsel also drew attention to the passage in the transcript which refers to the learned sentencing judge’s remarks prior to the imposition of sentence. The judge having first noted that the appellant was before the court to answer a charge which was very serious said that the evidence against her was convincing, but that she had realised this at a very late stage. He noted that the court had come to the deal in mid 2015 with an offence that dated back to November 2012 and he also noted the previous convictions of the appellant. He said that the seriousness of these previous convictions was reflected in the fact that sentences of imprisonment ranging between four months imprisonment and eighteen months imprisonment had previously been imposed on this appellant. He also noted that she had been convicted for offences under the Misuse of Drugs Act. Prior to sentence he stated the following:-
“I have listened carefully to everything that was said on behalf of Ms. Connors. She is in one of those unfortunate positions that because of her addiction and her need to feed that addiction, she represents a serious risk to the community. This is underlined in the Probation Officer’s report where she was considered to be at a high risk of re-offending. So nonetheless I put matters back to see if there could be put in place a reasonable scheme of supervision, of rehabilitation that would allow me to give Ms. Connors some latitude and allow perhaps the basis to be put in place for a different future, one in which she will not represent a threat to the community as she presently does.
Regretfully there was no engagement by Ms. Connors with the Probation Service and that is well documented in the report. It says Ms. Connors did not engage meaningfully with the Probation Service during the adjournment which is indicative of a lack of readiness to adhere to a period of probation supervision. She is not engaging with any support services in the prison and as a result the Probation Service could offer no prospects for her. That leaves me back then to decide what to do. The only thing I can do is to sentence Ms. Connors in the hope that her time in custody will be put to good use to deal with some of her issues and learn some skills and certainly then to be out of circulation so that she does not, for the next three years represent the threat that she otherwise does to the community at large.”
12. The production of a syringe in the course of an attempted robbery is a clear and serious aggravating factor. The fact that the appellant was undoubtedly under the influence of drugs at the time she committed this offence is no excuse.
13. We believe that the judge had no realistic option but to impose a prison sentence given the lack of any realistic alternative and we consider that a sentence of three years imprisonment in the particular circumstances of this case was not excessive given the nature of the offence and the appellant’s personal circumstances.
14. Notwithstanding the submission of counsel that the appellant’s interview with the Probation Service had taken place at a difficult time for her, we take the view that this was not a case in which it would have been appropriate to suspend the final part of the sentence in order to incentivise the appellant’s future good behaviour. We take this view because of the appellant’s failure to engage with the Probation Service in a meaningful way. Accordingly, we dismiss the appeal.
