The Court of Appeal has replaced a three-month sentence for a Dublin burglary with a term of two years and six months, after finding the original sentence significantly unduly lenient.
The court delivered its judgment on 8 May 2018 in a review brought by the Director of Public Prosecutions under section 2 of the Criminal Justice Act 1993. The review concerned only the burglary sentence imposed on Richard Evans. The Court of Appeal said the test required a substantial or gross departure from the appropriate sentence, amounting to an error of principle.
Evans had pleaded guilty to burglary and was convicted at Dublin Circuit Criminal Court on 18 January 2017. The offence took place on 18 February 2015 at Coke Lane, Dublin 7. The judgment said Laurent Malmus encountered Evans near his home carrying two bags belonging to him. Malmus tackled him and recovered the bags, but other items taken from the home, including cigarettes and a pouch containing £150 sterling, were not recovered. Gardaí identified Evans on CCTV footage, and Malmus later identified him at an identification parade.
The sentencing judge imposed three months’ imprisonment for the burglary, concurrent with a 12-month term for two criminal damage charges, the final six months of which were suspended. The DPP argued that the burglary sentence failed to reflect the offence’s seriousness, the confrontation, Evans’s previous convictions and the limited mitigation. The Court of Appeal noted that the sentencing judge had not assessed the burglary’s gravity as best practice required, but said the sentence had to be considered alongside the criminal damage sentences imposed at the same time.
The court said the burglary involved a forcible entry into a home and a serious invasion of its occupants’ security. Although Evans did not initiate the physical altercation and Malmus was not injured, the court said a confrontation with an occupant was within an offender’s contemplation. It also cited Evans’s 127 previous convictions, including 17 burglaries, and said previous efforts at rehabilitation had failed. The court rejected the apparent assumption that the absence of a victim impact statement meant little distress had been caused.
The Court of Appeal resentenced Evans to two years and six months’ imprisonment, backdated to 1 January 2017. It suspended the final nine months for two years after release, subject to entering a €100 bond to keep the peace and be of good behaviour. The court proceeded on the presumption that Evans had behaved well in prison, although prison authorities had not expressly confirmed this.
The judgment does not alter the separate criminal damage sentences, which were not under review.