The Court of Appeal has rejected a prosecution application to increase the sentences imposed on Edward Wall and Patrick Wall for a burglary and an attempted burglary committed on the same day in 2014.
The court said the sentences were “undoubtedly lenient and possibly very lenient”, but the Director of Public Prosecutions had not proved that they were unduly lenient. To set aside a sentence under section 2 of the Criminal Justice Act 1993, the court said, it had to find a clear departure from the norm caused by an obvious error of principle.
Both men had pleaded guilty in Dublin Circuit Criminal Court. Each received four years’ imprisonment for burglary and three years for attempted burglary, to run concurrently, with the final year suspended subject to conditions. The Court of Appeal left those sentences in place. It did not order a resentencing.
The burglary took place at a home in Drogheda while its occupants were out. The house was ransacked, jewellery and other property were taken, and damage was estimated at €4,600. Most of the property was recovered, but an Armani watch was not. The court heard that the occupants had taken additional security measures and that one had become more wary and fearful at home after the break-in.
The attempted burglary was at a home in County Meath. An occupant saw a man enter the garden and heard a loud bang, which she initially feared meant her husband had been shot. The men fled. A neighbour struck their speeding car’s windscreen with an iron bar; when the vehicle was later stopped, its windscreen was damaged in a way consistent with such a blow.
The prosecution argued that the offending was planned, involved false number plates and housebreaking tools, and was aggravated by the men’s previous burglary convictions and damage to the Drogheda home. The Court of Appeal agreed that the previous burglary convictions aggravated the seriousness of the offences in this case. It also noted, however, that the record did not show whether those earlier burglaries involved homes or other premises.
The appeal court criticised the absence of sentencing comparators and the sentencing judge’s failure to state a starting sentence and the discount allowed for mitigation. But it said it could not determine from the available material whether the judge had erred in setting the starting point, allowing mitigation, or both. The prosecution bore the burden of establishing undue leniency and had not discharged it.
The judgment was delivered ex tempore on 4 November 2016 by Mr Justice Edwards. Justices Sheehan and Mahon were also members of the court.