The Court of Criminal Appeal reduced Francis Cunningham’s sentence for theft from seven years’ imprisonment, with two years suspended, to five years, with two years suspended. It also dismissed his appeal against a conviction for unauthorised use of a vehicle but allowed his appeal against a 10-year driving disqualification.
In a judgment delivered on 27 March 2015, the court said the theft sentence was too severe in light of the disparity with the sentence imposed on Aaron O’Driscoll, who pleaded guilty to robbery arising from the same incident and received four years, with two and a half years suspended.
The jury had found Cunningham guilty of theft as an alternative offence, but not robbery. The appeal court said the verdict indicated that jurors were satisfied he took part in an unlawful enterprise, while not being satisfied beyond reasonable doubt that he or others used violence or threatened violence. That distinction had to be reflected in sentencing.
The court noted that Cunningham and O’Driscoll had met the case differently: O’Driscoll pleaded guilty, while there was no suggestion Cunningham had offered a plea to theft. It also said the sentencing judge was entitled to consider their respective roles and Cunningham’s previous convictions. But the court found those factors did not justify the degree of difference between their sentences. It concluded that five years, with two years suspended, was not unduly lenient and substituted that term for the original sentence.
The court rejected Cunningham’s appeal against his conviction under section 112 of the Road Traffic Act 1961 for unauthorised use of a mechanically propelled vehicle. It said there was evidence from which the jury could find he was part of a joint enterprise involving the vehicle, even though he had not been physically in it. The jury had also been directed that it could convict only if it was not satisfied he had reasonable grounds to believe the vehicle’s use was lawful.
However, the court set aside the 10-year driving disqualification. It said such a disqualification must rest on a judicial determination of unfitness to drive, rather than operate primarily as punishment. The offence did not itself involve driving, and the judgment found no separate inquiry into whether Cunningham was fit to hold a licence. The court therefore allowed that part of his appeal.