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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Wayne Wallace [2007] IECCA 4 (02 February 2007) URL: http://www.bailii.org/ie/cases/IECCA/2007/C4.html Cite as: [2007] IECCA 4 |
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Judgment Title: DPP -v- Wayne Wallace Composition of Court: Denham J., deValera J., McGovern J. Judgment by: Denham J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||
- 9 - THE COURT OF CRIMINAL APPEAL [C.C.A. NO: 189 of 2004] Denham J. deValera J. McGovern J. Between/ The People at the Suit of the Director of Public Prosecutions Prosecutor and Wayne Wallace Applicant Judgment of the Court delivered by Denham J. on the 2nd day of February, 2007 1. Wayne Wallace, the applicant, (hereinafter referred to as 'the applicant'), who having been convicted of the offence of robbery and sentenced to nine years imprisonment, brings this application for leave to appeal against the severity of the sentence. 2. The applicant was before the Circuit Criminal Court, Dundalk on 11th March, 2003, was arraigned, and pleaded guilty to Counts 2 and 4 on the indictment. These are:
STATEMENT OF OFFENCE Robbery contrary to Section 23 of the Larceny Act 1916 as inserted by Section 5 of the Criminal Law (Jurisdiction) Act 1976. PARTICULARS OF OFFENCE Wayne Wallace on the 3rd day of December, 2001, at Value Centre Cash and Carry, Castle Road, Dundalk, in the County of Louth, robbed one Owen Short of cash the amount of £40,438.26 in punt (€51,346), electrical goods to the value of £1,202.65 in punt (€1527.05), wine and champagne to the value of £468.02 in punt (€594.24), cigarettes and tobacco to the value of £234,478 (€297,725.65) which totals £276,589.93 in punt (€351,196.77) Count No 4 STATEMENT OF OFFENCE Robbery contrary to Section 23 of the Larceny Act 1916 as inserted by Section 5 of the Criminal Law (Jurisdiction) Act 1976. PARTICULARS OF OFFENCE Wayne Wallace on the 15th day of July, 2002, at Fergusons Caravan Park, Maddoxland, Carlingford, in the County of Louth, robbed Anthony Ferguson of property to wit cash in the sum of €20,800, sterling to the amount of £1,300, and cheques totalling €7,000. 4. The trial judge adjourned giving sentence until 6th June, 2006, when he stated:
The manager had a gun pushed into the back of his head whilst he was lying on the ground, and the description of the man who did that is a description of Mr. Wallace. I am asked to infer from the evidence that there was no other person in the gang, as it were, who met that description and it could only have been Mr. Wallace who pushed the gun into the back of the manager's head. There was a lady member of staff who was also maltreated and had a gun put to her neck. Some of those involved had to receive hospital treatment. There were two vans belonging to the Cash & Carry which were then used to take away tobacco products, cash and other items. The tobacco products having a value in punts of £234,478, cash of £40,000 odd punts, and a total value of all goods taken, including cash was £351,190. None of the cash or goods were recovered. It is clear that this offence was one which was carried out with great care, with careful planning, and was one which was performed for the purpose of robbery and netted a considerable profit. It is true to say that Mr. Wallace claims to have received only a sum of £2,5000 (punts) in respect of that robbery. Nonetheless, he was an active participant, and I will come back to that in a moment. The second robbery was carried out in July 2002. In that particular robbery, persons wearing garda uniform came to the door of the Ferguson house in Carlingford early in the morning of 15th July 2002, and by means of a ruse, they gained entry to the premises. Again, as the various members of the family were more or less mustered together, they were tied up. There were demands made for money, a rifle and a handgun was produced. The handgun was pointed at Niall Ferguson's head and he was directed not to move. Then by way of violence or threat of violence and force, the identity of the location of the monies was determined, and the key was ultimately produced and some 12,500 cash was taken from some bags in the safe and a further 3,800 (this is in euro) was taken elsewhere. The total taken in the Ferguson raid was somewhere in the order of 20,000. The Fergusons, as I have said, were tied up with plastic tie raps, and a threat was made that the raiders would return and would get one of the Fergusons if it was the case that all monies on the premises had not been surrendered. A threat was made that there was a rat working in the building. This was a threat which was of serious concern to the Fergusons. So far as the Fergusons are concerned, they themselves recovered from this ordeal, but none of the property that was stolen was recovered. So far as the victims to the Cash & Carry was concerned, they too achieved apparently a fairly full recovery, some had long sessions of counselling, but all have since recovered. There are a number of factors in this case which must be viewed as aggravating factors to robbery. Indeed it seems to me that these factors are common to both cases. The first of these is the use of garda uniforms. These were used for the purpose of gaining the trust of the various persons who were to be the victims and that was successful. Entry was gained to both premises by means of a ruse using the garda uniforms. There were firearms used on each occasion. In the instance of the Fergusons, a handgun and a rifle are referred to. In the case of the Cash & Carry, the 12 men who entered were armed. There is evidence that Mr. Wallace was armed and used his gun in the way in which I have described it, and the manager of the Cash & Carry, who had some experience in such matters, due to military training, clearly identified an ArmaLite rifle in the course of this robbery. These criminals were seriously armed with extensive weaponry which was used for the purpose of intimidation and terrorising those who were to be obedient to the wills of these criminals. The fact that the firearms were actually used, in the sense of being pointed to or being placed against the persons of the victims is another element which is common to both matters. It is also the case that the violence that was offered to the victims in both instances again was immediate and personal to them. The victims were tied up. That is altogether apart from the fact that the firearms were used in a manner in which I have described them. The amount of money or the value of goods taken in the robbery of the Cash & Carry was a very substantial figure. A figure of 351,000 euro. None of the goods or monies in either robbery were recovered and are factors with which I must have regard to. I must have regard to the fact that there was careful, extremely careful planning and pre-meditation of these offences. There is an issue in this case as to the involvement of Mr. Wallace in these robberies. He says that he was not a willing participant and was there only for the reason that he had been intimidated into co-operating. In that regard, I have been furnished with a medical report which related to an incident or a visit by Mr. Wallace to a hospital in September of 2001, and I am asked to draw the inference that that supports an element of intimidation. It does not seem to me that the connection that I am being asked to make is in anyway established by the evidence in the case. Secondly, I have the evidence of the Inspector who is of the view and has given sworn evidence to the effect, that the gardai who investigated this matter have no doubt but that Mr. Wallace had a serious involvement in this matter, was a voluntary participant and took an active part in what happened. Whatever the situation may be, and whilst I lead in favour of the Inspector's view in that regard, what is undoubtedly the case and beyond contest is that Mr. Wallace was an extremely active and vigorous participant in all that took place. I want to make clear that in my view Mr. Wallace has not established, on evidence, the connection which he seeks to make between intimation and his participation in these offence. Matters which I have identified in favour of Mr. Wallace I must say are few, but they are as follows: in his statement to the gardai he gave a frank account of his involvement in these offences, notwithstanding that the gardai do not accept his contention of intimidation. He has entered a plea before this Court at the earliest opportunity, and has therefore saved the Court and the State the time involved in prosecuting this matter to a conclusion. He has expressed remorse and I have read letters which he has addressed to the victims of his crime. It may be that a view might be that this expression of remorse is timely, at all events, I do note that there is an expression of remorse and the Probation and Welfare Report establishes that Mr. Wallace is a model prisoner who has undertaken his own rehabilitation whilst in prison. That may be a long road, but nonetheless it is one which has commenced with some vigour by Mr. Wallace. The seriousness of these offences are required to be marked by the imposition of a long term of imprisonment, that is unavoidable. I am also of the view that it is unavoidable that the sentences which I must impose are regarded to be consecutive. In respect of count number 2, the robbery of the Cash & Carry, I impose a term of 6 years imprisonment. In respect of count 4, robbery of Ferguson's caravan park, I impose a term of six years imprisonment. These sentences must be consecutive. I am required where consecutive sentences are imposed, I am required to consider the totality of the sentence and see whether or not the totality as it were constitutes or may constitute an element of excess. I look again at the Probation and Welfare Report and particularly that part which refers to this man as being a model prisoner who is anxious about his rehabilitation. I have determined in the circumstances to suspend the final three years of the second sentence which effectively means that the sentence to be served by Mr. Wallace, resulting from my order is one of nine years imprisonment. That sentence will commence from the day in which Mr. Wallace went into custody. Mr. Segrave, Mr. Smith, would you remind me of that date? MR. SMITH: 29th September 2002. JUDGE: 29th September 2002, is that correct, Mr. Segrave? MR. SEGRAVE: Yes, my Lord. JUDGE: So be it." 1. That the Learned Trial Judge erred in law and in fact. In failing to take into account that the applicant's co-accused had received a 5 year suspended sentence. In failing to afford the applicant the opportunity to call character witnesses. In failing to allow the applicant to submit a letter of apology to the trial Judge, as to the reason why he could not name any of his accomplice's In failing to take into account that the applicant had pleaded guilty at the first available opportunity in the District Court. In failing to take into account that the applicant had gave a statement of admission as soon as he was arrested (9 months after the offence) on the 27th of September, 2002. That in all the circumstances the sentence of the applicant was unfair. 6. Counsel on behalf of the applicant submitted that the trial judge had erred (a) in giving consecutive sentences, and (b) in not giving reasons for the consecutive sentences. Further he submitted that there may have been cross referencing of aggravating factors between the offences. As to the issue of consecutive sentencing per se, the Court is satisfied that there was no error in principle by the learned trial judge. As has been set out previously in this judgment, these were two very grave offences - indeed a sentence of 12 years for each with three years suspended would not have been inappropriate. The individual sentences of six years, in light of the nature of the offences, were light, and in the circumstances the giving of consecutive sentences was not an error in principle. Consequently the Court would refuse the application on this basis. As to the necessity to give reasons for consecutive sentences, the Court was referred to Hadjianastassiou v. Greece [1993] 16 EHRR 219, Ruiz Torija v. Spain [1994] 19 E.H.R.R. 553, paragraph 29; and Garcia Ruiz v. Spain [2001] 31 E.H.R.R. 22, at 589, paragraph 25. In Garcia Ruiz v. Spain, at paragraph 26, the court reiterated that according to established case law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. Further:
This Court is satisfied that it is desirable for a sentencing court to give reasons when imposing consecutive sentences. However, this Court retains its inherent jurisdiction to do justice. Thus the circumstances of each case should be considered by a court. In this case there was a careful, reserved, judgment by the trial judge, which has been set out previously in this judgment. While no express reasons for the consecutive sentences were given, express reasons for the sentences were addressed. Inherent in the judgment are the reasons for the sentences. Counsel asked the trial judge to clarify the matter stating:
In the circumstances, given the lengthy reserved judgment, and the general reasons stated therein as to the sentencing, it is clear that the word 'appropriate' should be construed in light of the particular facts of the case as set out. It is in these circumstances that the Court exercises its discretion. In exercising the discretion the court considers the facts of the case and the sentences given. The Court has considered the totality of the sentence, that is 12 years with the last 3 years suspended, a sentence of, in effect, 9 years. The Court is satisfied that such a sentence is not an error. Both offences were very serious and it would not have been inappropriate if the applicant had been given a sentence of 12 years on each, with 3 years suspended, to be served concurrently. Thus taking the totality of the sentence there was no error. Then there are the specific reasons stated for the sentences in the reserved judgment of the trial judge. These were set out in detail. In all the circumstances, the Court is satisfied that the lapse by the trial judge in not giving reasons for the consecutive sentences was not such an error in the particular circumstances of the sentencing as to require the Court to intervene in what it considers to be a proportionate sentence. Thus, in light of the terms of the reserved judgment and the total sentence of 9 years, the Court would not intervene with the sentences. Therefore, deeming the application for leave to appeal as the hearing of the appeal, the Court would dismiss the application. | ||||||||||||||
