Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Mark Drinkwater

Neutral Citation: [2007] IECCA 84


Court of Criminal Appeal Record Number: 140/06

Date of Delivery: 31 July 2007

Court: Court of Criminal Appeal

This is an application for leave to appeal against a sentence of imprisonment for two years for the offence of burglary contrary to s. 12(b)(3) of the Criminal Justice (Theft and Fraud Offences) Act, 2001 which was imposed by the Dublin Circuit Court on 26th June, 2006 the applicant having first pleaded to the offence on 22nd February, 2005.

Facts relating to the offence

On 15th June, 2006 evidence was given before the Circuit Court by investigating Garda to the effect that the applicant along with his co-offender, Noel Blake, was arrested in the early hours of the morning of 22nd January, 2004 in Bloomfields Shopping Centre, Dun Laoghaire. The evidence was that they had entered the cash office in the car park of the shopping centre. They had attempted to remove a safe in the office which was subsequently ascertained by the Gardaí to have contained €9,042.00.

Evidence was given that the applicant, at the time of the Circuit Court hearing, was 33 years of age with a partner and a 14 year old girl and that he was unemployed. He had 34 previous convictions. Most of the convictions were road traffic offences. On 5th October, 2001 the applicant was convicted of assault, “threatening, abusive and insulting behaviour; hit and run; failure to remain at the scene of a road traffic accident; driving without reasonable consideration” and for that he received one month imprisonment, one month imprisonment and two fines of €63.49. He was not on bail when he committed the offence in this case.

The case put by counsel for the applicant was that he had not been convicted of any offence since he was arrested in 2004. It was also stated that he was a heroin addict.

It was further stated on behalf of the applicant that he had reached intermediate certificate level at school and on leaving school took up apprenticeship as a carpenter and that continued for a period of approximately 3½ years. At the age of 19 he began abusing drugs and that for a long period throughout his 20’s and into his early 30’s “he struggled with a heroin addiction”. Counsel for the applicant relied on the applicant’s plea of guilty, the absence of any further offences in the two years since he was arrested in 2004 and that he was registered with the relevant authorities in Bray as actively seeking work.

Particular emphasis was placed by counsel for the applicant, when addressing the learned trial Judge, that the applicant appeared to have taken steps to overcome his heroin addiction by contacting authorities at an establishment called Asheire which treats such addicts. It was stated that he may be on a waiting list but that there were a number of preconditions, 1. that the criminal proceedings would have to be behind him and 2. that he provide a urine analysis clear of drugs. It was acknowledged that he was not providing a urine analysis to anybody but he intended to address this.

Some documentation was handed in in connection with the Asheire establishment and the learned trial Judge pointed out that the pre-admission requirements were that firstly that he detoxify completely, secondly undergo drug screening, thirdly the pending criminal case would have to be resolved before a bed was offered to him, fourthly that he make contact with the establishment the following Friday and fifthly that he bring a deposit of €2,500.00 and pay the balance of fees through his account. The trial Court raised the question as to how he intended to foot the cost of any treatment at the centre.

The applicant gave evidence that the treatment would cost initially €2,500.00 and then €30.00 a week for two years. His evidence was to the effect that his mother would pay for the treatment. The learned trial Judge indicated that it was easy for someone to say that their mother was going to give them the money but the person to give such evidence was the mother herself. The learned trial Judge also indicated that he was not familiar with Asheire and its activities.

Counsel for the applicant then said “Well if the Court wishes to put it back for reasons which may be twofold, one his mother and two is information from Asheire?”, to which the learned trial Judge replied, “I would like to hear a little more about Asheire and a little more from his mother before I take, as you put it, take a chance.”

A probation report on the applicant, which had been sought at an earlier time, was before the learned trial Judge on this date but apart from a brief reference to that fact there was no other reference made to it by the learned trial Judge or counsel for the applicant on that occasion.

The sentencing of the applicant was adjourned to 26th June. Evidence had been given to the Court concerning the applicant’s co-accused, Noel Blake, who was before the Court on a similar charge plus other charges on other bills of indictment and that too was adjourned until 26th June.

On the resumed date on 26th June the trial Judge stated that he had had an opportunity to look back over his notes of the evidence in the case and to read the probation and welfare reports in relation to both the accused, that is to say, the applicant and Noel Blake. The learned trial Judge then proceeded to make reference to the charges to which the accused Noel Blake pleaded guilty other than that on which he was jointly indicted with the applicant. When he came to the indictment on foot of which the applicant and Mr. Noel Blake were jointly charged counsel for the applicant intervened in the following terms:

“Sorry to interrupt the Court at this point, Mr. Drinkwater’s mother is in Court and the Court asked that she be here to tell the Court if she is going to fund Mr. Drinkwater’s treatment in Asheire and you asked for more information about Asheire if that was available to the Court and I can tell the Court that Mrs. Drinkwater is in a financial position, I have seen a Credit Union statement, as if (sic) the Courts want to formally hear from her.”

“No, that is not going to be necessary, I have read through everything over the weekend and this is a question of burglary at Bloomfields Shopping Centre when the Gardaí – the Gardaí had previously been at the shopping centre, two men having been seen hopping over a fence.”

After some discussion with counsel for Mr. Blake concerning the date from which his sentence should run having regard to the fact that he had been in custody for 10 months the learned trial Judge inquired as to what was the situation in relation to the applicant.

Counsel for the applicant then said that the applicant had come into Court and “…on your directions there is information from Asheire and his mother is in Court to say she was going to pay the €2,500.00 and the Court had indicated that the Court was thinking about taking a chance on Mr. Drinkwater.” The learned trial Judge replied, “Yes, well I have read the probation and welfare reports and the probation and welfare reports, as you know, are not hopeful.” Counsel for the applicant responded by saying that the applicant’s difficulties were centred on his addiction which he had taken some steps to address and “…that the Court gave certain directions which have been fulfilled this morning by the presence of Mrs. Drinkwater and my solicitor has the additional information that was requested and I am somewhat taken aback by the course that events have now taken, that he has gone into custody for two years … where the Court had given an indication to Mr. Drinkwater that the Court was prepared to take a chance on him and all that was required that this additional information was to be provided to the Court and the Court had the probation and welfare report and had an opportunity to consider it before giving those directions and putting the matter back to today.”

The learned trial Judge indicated that he would not vary the sentence which he had imposed.

Submissions on behalf of the applicant

The ground of appeal against sentence, which counsel for the applicant described as his primary ground, is based on the contention that the applicant, and his counsel, had a legitimate sense of grievance by reason of the failure of the trial Judge to impose a non-custodial sentence on 26th June having regard to the circumstances and purpose of adjournment of the initial hearing on sentence which took place on 15th June. The essence of counsel’s submission was that the learned trial Judge, having adjourned the initial sentencing hearing for the purpose of hearing evidence from the applicant’s mother as to her willingness to pay for any course of treatment at Asheire and further information concerning the nature of the Asheire Centre and the courses of treatment which it provided, sentenced the applicant to a term of imprisonment without hearing evidence from the mother or having any or sufficient regard to the information provided in connection with Asheire. In particular it was contended that the applicant and his Counsel had, in the circumstances, been led to believe that a non-custodial sentence would in fact be imposed once the additional sentence and information was satisfactory. This, it was submitted was such as to leave the applicant with a genuine sense of grievance, a sense of injustice. It was submitted, as a matter of law, that this Court was obliged to remove that sense of grievance, legitimately felt by the applicant, even if, and this is the important principle, the sentence itself could not be considered too severe or wrong in principle. For this proposition counsel relied on a number of United Kingdom authorities, specifically decisions of the Courts in England and Wales. He referred to Blackstone’s Criminal Practice (2006 at p.1850) which, under the heading ‘Sense of Grievance’, the principle, based on that case-law, in particular R v. Gillam 1980 2 Cr. APP. R(S) 267, was set out in the following terms:

“If the sequence of events prior to a sentence being passed, taken in conjunction with the actual sentence, leaves the offender with a justifiable sense of grievance, then the court of appeal would feel obliged to remove that sense of grievance, notwithstanding that the sentence is not in itself too severe. The principle has been applied especially in the context of the lower Court ordering reports and thereby raising in the offender’s mind an expectation that, if the reports are satisfactory, he will be dealt with by non-custodial means. If the reports are good but the Court nonetheless passes a custodial sentence, the court of appeal will intervene. However, it is necessary to show that the offender’s hopes of a non-custodial sentence were legitimately raised. Thus, if the Court, on adjourning for reports, made it clear that it was making no promises as to the eventual outcome, the eventual sentencer is at liberty to ignore a recommendation in the report for a non-custodial sentence, and the court of appeal will concern itself solely with whether the sentence passed was appropriate in all the circumstances.”

Among the English authorities referred to by Counsel for the Plaintiff was R –v- Millwood 1982 4 Cr. App. R (S) 281. In that case the English Court summed up the policy which it felt it was appropriate to follow in the circumstances of the case before it in the following terms –

“Where a Court decides to request a report upon an offender’s suitability for community service thereby creates in the offender’s mind the expectation of a community service order if the report is favourable. If the report proved to be favourable then such an order is recommended the Court ought to act upon it.”

The effect of the English authorities is that a custodial sentence imposed in such circumstances, even if otherwise appropriate to the offence, should be set aside in order to remove the offender’s sense of grievance. The English authorities essentially referred to cases where the sentencing Court had made a clear statement that a community service order would be made on receipt of a satisfactory probation report and the sentencing was adjourned soley or mainly for that purpose.

Broadly speaking the duty of a Judge in this country when sentencing an offender is to impose a sentence whether custodial or otherwise, which is fair and proportionate to the offence having regard to its gravity (which includes its impact on any victim) and the circumstances of the accused including any mitigating factors.

Where the offender appeals against the sentence imposed by the trial Judge it is well settled law that this Court will not interfere with the sentence imposed unless it finds that the trial Judge erred in principle when imposing that sentence. That summarises the jurisdiction of this Court on appeals by offenders against severity of sentence.

The D.P.P. may also, of course, apply to this Court for the purpose of having the said sentence reviewed and increased on the grounds that it was unduly lenient. The position initially adopted by the D.P.P. in this case was to accept that the policy expressed in the English cases referred to should be followed here but seemed to retreat from that position when asked if that would mean that a custodial sentence imposed for a serious offence such as rape or sexual assault should always be set aside in order to eliminate the offender’s sense of grievance if at some point he had been led to believe that a non-custodial or lesser sentence might be imposed even though the actual sentence imposed was correct in principle. The D.P.P. also did not seem to feel that the policy referred to should apply in a case where the D.P.P. had in any event appealed on the ground that the sentence was unduly lenient. In this context that could arise where an offender had been led to believe that he would get a non-custodial sentence but in the event received a sentence of six or twelve months imprisonment which the D.P.P. sought to review before this Court on the grounds of undue leniency. In the end it was not quite clear where the D.P.P. stood on this issue which was not altogether helpful to the Court.

While the sentencing of offenders is governed by a range of legal principles, some of which have already been referred to by the Court, it may also be influenced by policy considerations such as the prevalence of a particular kind of offence, generally or locally and the need to deter it, or the special gravity which should be attached to an offence as indicated by the Oireachtas by way of statute. In short there may be societal factors to be taken into account when sentencing for a particular offence as well as general principles of law. Needless to say such societal factors are indigenous. In England and Wales there is a statutory body which sets out sentencing guidelines which may or may not include a range of societal considerations such as, perhaps, the need to favour non-custodial sentences where at all reasonably possible in order to avoid prison overcrowding. There may be a need to avoid the mischief of one Judge or Court giving an offender reason to believe that the ultimate sentence would be non-custodial only to find that at the end of the process he is being dealt with by a different Judge or a differently composed Court which imposes a custodial sentence. That happened in at least two of the English cases referred to by Counsel for the applicant and the involvement of different Judges or courts in the same sentencing process is something which would rarely arise in this country and then only in very exceptional circumstances. The foregoing observations are made for the limited but important purpose of stating that one must be wary of transposing sentencing policy of one country to another country.

Turning to the merits of the question raised, that concerns a legitimate grievance which it is submitted an offender may harbour if an earlier promise, expressed or implied, made by the sentencing Judge to impose a non-custodial sentence is not respected at an adjourned hearing, but a custodial sentence imposed instead. For this purpose it was submitted that where, in the course of sentencing, a Judge makes an express statement that a non-custodial sentence will be imposed if, at an adjourned sentence hearing, certain conditions are fulfilled, but nonetheless , notwithstanding the fulfilment of those conditions, imposes a custodial sentence at the adjourned hearing, then that custodial sentence should be set aside on appeal in favour of the non-custodial one in order to alleviate the offender’s sense of grievance. This, it was submitted, is the policy that should apply in all such cases, including this case, even if the sentence actually imposed is proportionate to the gravity of the offence and is otherwise correct in principle.

It would undoubtedly be very unsatisfactory should a Judge in the course of a sentencing process, having considered all the relevant facts then available to him, adjourn final sentencing pending the availability of such a matter as a probation officer’s report, with the declared intention that he or she would impose a non-custodial sentence in the event of the report being satisfactory but nonetheless imposed, at the adjourned hearing, a custodial sentence notwithstanding a satisfactory report. It may well be in this hypothetical case that a Judge on further reflection concluded that a custodial sentence was the only proper sentence that should be imposed notwithstanding a satisfactory probation officer’s report. In all probability the offender would have a legitimate sense of grievance of the manner in which the Judge had approached the sentencing.
According to Counsel for the applicant in such a case the offender may then appeal and expect his sentence to be set aside in all such cases, not because it was wrong in principle, but because he should be spared his sense of grievance at the manner in which the trial Judge dealt with it.

The Court does not consider that it would be sound either in principle or policy to treat the offenders “sense of grievance” as the sole and determinative factor in such an appeal.

Prosecutions are brought in pursuit of the public interest and the maintenance of the rule of law so that when the prosecution proves its case criminals are convicted and duly sentenced in accordance with law. While it might be inexact to refer to a public sense of grievance the fact is that when a person commits a criminal offence he or she has committed an offence against society, sometimes of the gravest nature, and they have full responsibility for finding themselves convicted before the Courts. That is one reason why public policy and the law requires the punishment of offenders according to the circumstances of each case. Victims and the public generally also have a legitimate expectation that those who have been convicted of a criminal offence should be subject to judicially imposed sentence, which may be a custodial sentence, as is appropriate for the crime, its gravity and the circumstances of the case. That is the task of the Judge who imposes sentence and this Court, in an appeal, thus confines itself to considering whether the sentencing Court erred in principle as regards the sentence imposed. In the view of the Court it would be wrong and disproportionate to allow a criminal offender’s sense of grievance in the sense referred to above to outweigh all these other considerations in every case.

Certainly, if a trial Judge in the course of the sentencing process, having considered all the circumstances of the case then before him, expressed a definite view that a non-custodial sentence would be imposed if certain conditions were fulfilled, such as the availability of a satisfactory probation report, but yet proceeded ultimately on quite a different basis and imposed a custodial sentence that would be a factor which this Court would be entitled to take into account in determining whether, in all the circumstances of the case, the sentence imposed was excessive or wrong in principle. In a case where this Court considered that the non-custodial sentence as originally and expressly envisaged would not have been wrong in principle or unduly lenient the offender’s legitimate sense of grievance at the manner in which he was sentenced could be considered as a ground for considering the custodial sentence as excessive or wrong in principle in all the circumstances.

The Court feels it should add that as a general rule all parties to sentencing hearing should bear in mind that a sentence is not final until the trial Judge has pronounced his or her final determination. Even then it may not be final in the sense that the Director of Public Prosecutions may have that sentence set aside in a successful application to this Court on the grounds of undue leniency. Furthermore in the course of the sentencing process a trial Judge, having heard the evidence offered but concerned that additional evidence should be adduced or wishing to give further consideration to what sentence should be imposed, may adjourn the making of his or her final order on sentence while leaving open a range of options as to what form the sentence may take. As already indicated, this, the parties should assume as being generally the position in the absence of a clear and unambiguous statement to the contrary by the sentencing Judge.

Although it should not be strictly necessary, it would be good practice, in order to minimise the risk of any misunderstanding if the sentencing Judge, when adjourning the question of sentence, was to state that the actual form or nature of the sentence is not yet decided and will not be so decided until the final hearing on sentence.

Circumstances of the Present Case

The next question is whether the applicant has shown that in this case it is legitimate for him to feel a sense of grievance, in the light of the sentencing procedure followed by the trial Judge, which this Court should take into account in deciding this application. To recall, the applicant, for the purpose of establishing that he had a legitimate sense of grievance, claims that what the trial Judge said must be interpreted as clearly stating that he would not impose a custodial sentence if the applicant simply provided proof from his mother that she would pay for his detoxification programme and further information on the Asheire Centre.

It was submitted on behalf of the D.P.P. that the trial Judge’s approach to sentencing and the words which he used could not be interpreted as an express or implied promise that the applicant would receive a non-custodial sentence on the basis of pursuing a residential course in the institution known as Asheire. In substance it was submitted on behalf of the D.P.P. that not only had the applicant not discharged an onus of proof on him to establish that he had a legitimate sense of grievance at the final sentence imposed by the trial Judge but that any reasonable construction of the trial Judge’s words were that he had not yet made up his mind finally on the course of action which he was going to take.

Counsel for the applicant submitted that the trial Judge, following submissions from the applicant’s Counsel that he receive a chance, clearly stated that he would like the further information on Asheire and hear from the applicant’s mother before he would “take a chance” and not before he would ‘consider taking a chance’. On this basis the applicant, it was asserted, was entitled to understand or expect that he would receive a non-custodial sentence. The fact that this did not happen left him, it was submitted, with a legitimate sense of grievance.

This matter falls to be considered in the context of the sentencing hearings as a whole that is to say the transcript of 15th June 2006 when the case was part heard and adjourned and 26th June 2006 when the final order was made.

At the hearing of 15th June 2006 the trial Judge first of all heard Garda evidence concerning the circumstances of the burglary offence and background information on the applicant including that he had 34 previous convictions. There followed a plea of mitigation on behalf of the applicant in the course of which Counsel pointed out, inter alia, that most of the applicant’s previous convictions were road traffic convictions and that he had not re-offended since June 2004. He went on to say that the applicant “had taken steps to engage with authorities in Asheire although he was not in a position to fulfil at least one of the pre-conditions for receiving treatment in Asheire that is to say to provide a drug free urine analysis but this was something which he was going to have to address. He wanted to ask the Court to give the applicant a chance or to “take a chance” on the basis that he would enter a detoxing programme in Asheire.” It was at this point that the trial Judge pointed out to the applicant’s Counsel the pre-admission requirements of Asheire namely (a) that detoxification be completed, (b) that he undergo drugs screening, (c) that the court case needs to be resolved before accommodation is offered (d) that he ring the following Friday and (d) on admission he bring a deposit of €2,500 and pay the balance through his account. He then raised the question with Counsel as to whether he wished to say anything about how the accused was going to finance this in any case. Counsel for the applicant, it will be recalled, responded by saying he could call the applicant who then gave evidence that his mother would pay the deposit amount and the amount of €30 per week for two years. He gave evidence that he was not estranged from his parents and that they were prepared to support him. The Judge then observed that the person who should really be telling him about how any programme was going to be financed was the mother herself whom he was then informed was on holidays. The Judge then indicated that he would have to know whether the mother was going to pay. He also stated that he was not familiar with the Asheire Centre. Counsel for the applicant at that point stated “Well if the Court wishes to put it back for reasons which may be twofold, (1) his mother and (2) his information from Asheire?” To which the Judge replied “I’d like to hear a little more about Asheire and a little more from his mother before I take, as you put it, a chance. The learned trial Judge then proceeded to adjourn the sentence hearing in the applicant’s case along with that of his co-accused to June 26th.

It is quite clear that from the course of the hearing on June 15th that the sentencing process in which the Judge was engaged was far from complete when he adjourned it and that it cannot be inferred that the phraseology used by the Judge either taken on its own, or particularly in its overall context, amounted to a definitive statement that he was going to impose a non-custodial sentence simply if the applicant could satisfy him that he could pay for the course at Asheire and provide some unspecified additional information on Asheire. He did not, of course, exclude that possibility. Indeed the words of Counsel for the applicant at the resumed hearing on June 26, when he sought to take issue with a custodial sentence being imposed by the trial Judge were “Well Mr. Drinkwater came into court, Judge, and on your directions there is information from Asherie and his mother is in court to say that she is going to pay €2,500 and the Court indicated that the Court was thinking about taking a chance on Mr. Drinkwater.” (emphasis added). Undoubtedly the Judge at the point of adjournment had not excluded the possibility of a non-custodial sentence from his thoughts but it has not in any sense been established by the applicant that the trial Judge had stated he would definitely approach it on that basis. Moreover, the question of interrupting and adjourning the sentencing process first arose at the suggestion of Counsel for the applicant after the Judge had queried the soundness of Counsel’s grounds in favour of a lenient sentence and it was really on that narrow aspect of the case that the matter was adjourned. At that point the applicant’s probation report had not been referred to in any detail although it was before the Court.

Counsel for the applicant had himself earlier adverted to the fact that even if the money was available the applicant would have to satisfy the pre-conditions laid down by Ashiere for entry on the course and in particular provide a drug free urine sample. These issues were also raised and pointed out to him by the trial Judge. There was no evidence put before the sentencing Court at any stage that the applicant was in a position to fulfil that and the other stringent pre-conditions for being admitted to Asheire, other than the payment of the fees, and it was unreal for the applicant to treat the Judge’s words as a definitive decision to impose a suspended sentence on the basis only of the applicant providing the evidence that his mother would pay for the course and some further information about the role of Asheire as an institution. The whole question as to whether he could in any event be admitted at all to Asheire had not been addressed by the defence. Consequently it is clear that, apart from considering matters in their totality, the trial Judge would have to have been satisfied on a number of matters before he came to a firm decision on the form of the sentence, which he clearly had not and could not have been at the time when the sentencing hearing was adjourned to June 26th.

On the resumption of the sentencing hearing on June 26th undoubtedly the applicant and his Counsel may have carried a hope that they might be able to persuade the trial Judge to take the lenient course. That is what convicted persons often hope and in this case there was perhaps some basis for such a hope in the light of what the trial Judge had said but no more than that. At the resumed hearing the sentencing process had moved on and the sentencing Judge went on to make specific reference to the probationary report that had been prepared in respect of the applicant, the effect of which has been referred to above, and clearly concluded that in the light of the negative nature of that report that relying on the applicant, to voluntarily pursue a course of treatment was not a reasonable option for him to adopt having regard to the record of the accused and the offence for which he was convicted and his history of drug addiction. That he was entitled to do. If the trial Judge had not been so quick to allow Counsel for the applicant to mend his hand, so to speak, as regards the point he was making at the time concerning the payment of fees, and considered fully the probationary report at that time, even though he obviously had a busy list, he might well have avoided the necessity for an adjournment but that is the most for which the learned trial Judge could be criticised. It does not, in the view of the Court, affect the principles upon which the learned trial Judge sentenced the applicant nor could it be said to have given rise to a legitimate sense of grievance of the kind alleged. In short the applicant has not established any basis from which this Court could conclude that he had a legitimate sense of grievance for receiving a custodial sentence.

In sentencing the applicant the learned trial Judge had regard to all the matters which he was required to have regard namely the nature of the offence, the circumstances of the accused and the mitigating factors in his favour. He has not been criticised in that respect in this appeal.

Being satisfied that the applicant has not established that he is entitled to claim a legitimate sense of grievance arising from the failure of the trial Judge to impose a non-custodial sentence that question does not further arise for consideration by the Court.

Having regard to the nature of the offence, the circumstances of the accused including his previous convictions and the mitigating circumstances, all of which were taken into account by the trial Judge, the Court is satisfied that the sentence imposed was not excessive and it involved no error of principle.

Accordingly, this application being treated as the appeal, the appeal is dismissed.