The Court of Appeal has quashed a four-year sentence imposed on William Fitzgerald for a burglary in Kilkenny and resentenced him to a net 18 months in prison, with the final six months suspended subject to conditions.
In an ex tempore judgment delivered on 22 October 2018, the court said the trial judge’s six-year headline sentence was too high. It held that the offence belonged in the low range of burglary offending and that, taking account of aggravating factors, a three-year headline sentence was appropriate.
Fitzgerald had pleaded guilty to entering the Flaky Tart coffee shop at 34 Rose Street Inn, County Kilkenny, and taking about €300 from the till. The burglary took place the previous evening, according to evidence at the sentencing hearing. CCTV from a nearby premises helped identify him, and he made admissions after his arrest. The shop owner, Helen Power, did not give a victim impact statement.
The sentencing judge had set a four-year term after reducing a six-year headline sentence by one third for mitigation, then suspended the final year. The Court of Appeal left that approach to mitigation and rehabilitation undisturbed. It said the trial judge had already suspended 12 months to encourage rehabilitation and had taken account of the totality of sentences.
The appeal court accepted that custody was inevitable, citing Fitzgerald’s many previous convictions for the same or similar offending, his limited cooperation—he did not identify the third party to whom he gave the money—and the absence of restitution. It did not uphold his challenge to the mitigation reduction.
For resentencing, the court considered a letter from Merchant’s Quay Ireland dated 19 October 2018. It said Fitzgerald was receiving addiction counselling in prison, had attended ten sessions and was taking part in the prison education programme. The court imposed a three-year headline sentence, reduced it by one third, and suspended the final six months of the resulting two-year term.
The suspension is conditional on a €100 bond to keep the peace and be of good behaviour for three years after release, remaining drug- and alcohol-free during that period, and submitting to Probation Service supervision and following its directions. The sentence runs from the same date as the original sentence: the expiry of any sentences Fitzgerald was already serving when sentenced below.