The Court of Appeal has quashed an 18-month suspended sentence imposed on David Berney for burglary and replaced it with a three-year sentence, suspended in full for three years from his release date, subject to conditions.
In a judgment delivered on 4 March 2021, the court allowed the Director of Public Prosecutions’ application to review the sentence as unduly lenient. The court had indicated in March 2020 that the sentence was unduly lenient, but deferred resentencing for a year to allow Mr Berney to continue his rehabilitation.
The burglary took place at a Centra store on Kiltalown Way, Tallaght, on 2 March 2018. Gardaí found Mr Berney and another man hiding in the cash office after a hole had been cut in the shop shutters. He pleaded guilty on a full-facts basis. The source says he entered about a minute and a half before gardaí arrived.
The original sentencing judge set a headline sentence of two and a half years, reduced it to 18 months, and suspended that term in full. The Court of Appeal accepted the reduction for mitigation and found no error in suspending the sentence, citing Mr Berney’s rehabilitation efforts. It held, however, that the headline term did not adequately reflect the aggravating factors or provide general deterrence. The court noted that the burglary was committed while he was on bail for another burglary and that he had an earlier burglary conviction.
The court said a suspended sentence remains a sentence for the purposes of section 11 of the Criminal Justice Act 1994. It rejected the DPP’s argument that the full suspension circumvented that provision.
At resentencing, the court considered a positive probation report and evidence of progress, including training and an offer of full-time employment. It also noted that Mr Berney had not completed all counselling sessions and had not followed through with requested urinalyses. The court said he had not come to gardaí’s adverse attention during the year of deferral.
The court set a new pre-mitigation term of four years and reduced it by 12 months. It imposed the resulting three-year term consecutively and suspended it in full for three years from Mr Berney’s release date, on the conditions imposed below and a €200 condition. He must continue in employment or, if that ends, engage with probation services to seek re-employment.