The Court of Appeal has dismissed a prosecution application to review as unduly lenient a three-year sentence imposed on Martin O’Brien for burglary, with the final two years suspended on conditions.
The court said the sentence was “undoubtedly lenient, very lenient indeed”, but the prosecution had not shown that it fell so far outside the proper range as to involve an error of principle. The appeal judges upheld the Circuit Court’s decision to suspend most of the sentence and dismissed the application. They did not change the sentence.
The burglary took place on 31 August 2016 at a house on Marlborough Road in Glenageary, owned and occupied by Marian Shanley. The judgment records that O’Brien entered while she was away. When Shanley and her sister arrived, he ran through the house and garden, at one point locking them out of the conservatory. He escaped, leaving behind a bag containing goods belonging to Shanley. US$500 and a gold coin were also taken and were never recovered.
O’Brien pleaded guilty at the earliest opportunity, according to the judgment, although the prosecution said the case against him was strong. At sentencing, the Circuit Court judge identified a three-year custodial sentence as appropriate for the offence. She backdated it to 21 September 2016, when he entered custody, and suspended the final two years for three years, subject to probation supervision, remaining drug free, undertaking residential drug treatment as directed and complying with urinalysis and other probation directions.
The prosecution did not challenge the three-year headline sentence on appeal. Its case focused on the suspension of two years, arguing that the reduction was excessive given O’Brien’s 103 previous convictions, including six for burglary, and that the offence was committed while a previous four-year suspended sentence was in force. The Circuit Court had declined a separate application to revoke that earlier suspended sentence; the Court of Appeal noted there was no appeal against that refusal.
The sentencing judge had considered evidence of O’Brien’s heroin addiction and mental health difficulties, his guilty plea and remorse, and steps he had taken in custody and in rehabilitation programmes. She concluded he appeared committed to change and that the sentence could encourage continued rehabilitation while retaining a custodial element.
The Court of Appeal said the judge had heard the evidence and assessed O’Brien first hand, and was entitled to give rehabilitation high priority in the circumstances. It concluded that suspending the final two years remained within her sentencing discretion and was not unduly lenient under the applicable review test.