The Court of Criminal Appeal dismissed Mark Drinkwater’s application for leave to appeal a two-year prison sentence for burglary, treating the application as the appeal. It found the sentence was not excessive and involved no error of principle.
Drinkwater had pleaded guilty to burglary under section 12(b)(3) of the Criminal Justice (Theft and Fraud Offences) Act 2001. Dublin Circuit Court imposed the sentence on 26 June 2006. The appeal court’s judgment was delivered on 31 July 2007.
Evidence at sentencing was that Drinkwater and a co-offender, Noel Blake, were arrested in the early hours of 22 January 2004 at Bloomfields Shopping Centre in Dún Laoghaire. They had entered the shopping centre’s car park cash office and tried to remove a safe that Gardaí later found contained €9,042. Drinkwater had 34 previous convictions, mostly road traffic offences. His counsel told the sentencing court that he was a heroin addict, had not offended since his arrest, and hoped to enter treatment at Asheire.
At an initial sentencing hearing on 15 June 2006, the judge asked for more information about Asheire and whether Drinkwater’s mother would fund treatment. The judge said he wanted to hear more before he would “take a chance”. At the resumed hearing, counsel said Drinkwater’s mother was present and offered to provide financial information. The judge declined to hear from her, referred to probation and welfare reports, and imposed the two-year sentence. Counsel argued that the adjournment had led Drinkwater to expect a non-custodial sentence if the requested information was supplied.
The appeal court rejected the claim that the sentencing judge had made a promise. It said the sentencing process was still incomplete when adjourned, and the judge had not ruled out custody or reached a firm decision. Evidence had also not established that Drinkwater could meet Asheire’s other admission requirements, including detoxification and drug screening.
The appeal court said a judge’s definite statement that a non-custodial sentence would follow if specified conditions were met could be relevant when assessing whether a later custodial sentence was excessive or wrong in principle. But it rejected treating an offender’s sense of grievance as decisive on its own. In this case, it found no legitimate grievance had been established. It also noted the sentencing judge had considered the offence, Drinkwater’s circumstances and mitigating factors. The appeal was dismissed.