The Court of Appeal has dismissed the Director of Public Prosecutions’ application to review a 28-month prison sentence for burglary on grounds of undue leniency. The court described the sentence as lenient and at the outer limit of the sentencing judge’s discretion, but said it did not justify intervention.
The judgment was delivered ex tempore on 7 May 2019 by Ms Justice Kennedy, with Mr Justice Edwards and Mr Justice McCarthy also sitting. The sentence under review had been imposed by Dublin Circuit Criminal Court on 27 April 2018.
The judgment said Darragh O’Hare stole a bicycle valued at €150 from premises in Balbriggan on 16 May 2017; it was later recovered. The following evening, he entered a house in Balbriggan and was found by an occupant, Ms Fernandez, holding her handbag. He said he had seen the bag being stolen and was returning it. The court said she asked him to leave, but he refused and tried to walk further into the house. He repeatedly asked whether she had a husband and whether a man was present. She eventually got him out and he stopped trying to enter once the door was closed. Small items worth €47 were missing from the handbag.
O’Hare admitted the bicycle theft but not the burglary when arrested, according to the judgment. He pleaded guilty to the burglary on his first arraignment date. The sentencing judge imposed 28 months’ imprisonment for burglary, with a theft count taken into consideration. The judge identified a four-year headline sentence and said the sentence would have been considerably lower had O’Hare retreated immediately.
The DPP argued that the sentencing judge had not given enough weight to the occupied home, the confrontation, the victim impact, O’Hare’s previous convictions and the fact that the offences were committed while he was on bail. The DPP also challenged the four-year headline sentence and the reduction to 28 months.
For O’Hare, counsel argued that the offending fell at the low end of the mid-range described in the Court of Appeal’s 2018 Casey decision. The defence said there was no evidence of significant planning or a consistent pattern in the previous burglary convictions, and that the reduction reflected the early guilty plea and five months spent on remand.
The Court of Appeal said the four-year pre-mitigation sentence was within the sentencing judge’s margin of appreciation. It identified the occupied dwelling, the confrontation and refusal to leave, the impact on the victim, relevant previous convictions and offending while on bail as aggravating factors. Although the sentencing judge had not specifically identified bail as an aggravating factor, the appeal court was satisfied the sentence remained within the available discretionary range. It dismissed the DPP’s application.