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Friday 19 October 2018

Burglars facing 10 years in jail sentence review

Court of Appeal expected to deliver landmark ruling: anyone caught burgling a home will stay in prison for up to a decade

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Ruaidhri Giblin

Burglars who target family homes face tougher sentences of not less than two years and up to more than 10 years in prison.

The Court of Appeal is expected to deliver a landmark judgment on burglary which, it is hoped, will bring consistency to sentencing and increase the tariffs for raiders who target residential homes.

In a rare move, the Director of Public Prosecutions asked the three-judge Court of Appeal to set guidelines on sentencing for burglaries and to treat residential burglary as a "special case".

Lawyers for the DPP are seeking no lower than two years in prison for anyone caught burgling a home and a two-to-10 year sentence generally for the same offence.

Irish Prison Service statistics, provided to the Court of Appeal, show that 75pc of prisoners sent to prison for burglary and related offences are serving sentences of two years or less. Most burglary offences are dealt with in the District Court where the maximum term of imprisonment is two years.

The submission was made in the case of two cousins who were jailed for a fatal burglary at the home of 62-year-old John O'Donoghue at Toomaline, Doon, Limerick, on December 15, 2016.

Michael Casey (34), with an address at Clonlong Halting Site, Southill, in Limerick, and David Casey (23), with an address at Carragh Park, Belcamp, Dublin 17, were given three-and-a-half year jail terms for that and a number of other burglaries at Limerick Circuit Criminal Court in December 2016. The Court of Appeal found the men's sentences to be too lenient and fresh sentences will be handed down on Tuesday.

In a supplemental submission, counsel for the DPP, Thomas O'Malley BL, said he was asking the court to bring consistency to sentencing for burglary offences "out of recognition of the undeniable social problem caused by residential burglaries".

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Mr O'Malley, who wrote the book considered to be the authority on sentencing in Ireland, said residential burglaries were a "serious social problem" in Ireland, particularly in isolated rural areas and where the home was occupied by the elderly, infirm or disabled.

The Irish courts have long resisted setting rules or guidelines for sentencing in specific crimes believing instead that the discretion of individual judges should not be restricted. However, in recent years guidelines have been set for serious assaults and for possession of firearms offences.

Mr O'Malley said it was already well recognised that residential burglary was "as much an offence against the person as an offence against the property" and sometimes more so.

In some instances, little or no property may be taken but, typically, the victim will continue to "endure a sense of fear and insecurity for quite a long time to come".

He said the impact on victims was "multi-faceted". A single burglary in a rural area often created a "ripple of fear" throughout that community leading other people in the area to "live in permanent fear or dread".

By their nature, he said, residential burglaries damaged entire communities and ways of life. People felt at risk in their own homes, the place they should feel most secure, and it could cause some to make life-changing decisions such as moving into sheltered accommodation.

As the courts have often acknowledged, Mr O'Malley said residential burglary amounts to an infringement of the right to the inviolability of the dwelling as protected by Article 40.5 of the Constitution.

Mr O'Malley submitted that prison sentences for residential burglaries should "never" be set at a tariff of two years or less and that in most cases, the sentence should be between two to 10 years.

Identifying four broad ranges for burglary (nought-two years, two-five years and five-10 years and more than 10 years for the most serious cases), Mr O'Malley submitted that residential burglary "by virtue of its inherent gravity and its attested impact on victims, should never fall into the lowest range" or be treated with a sentence of less than two years.

He submitted that most residential burglaries should fall into the second or third range (two-10 years) and that "those with exceptionally serious aggravating factors might fall into the fourth (range)". After all, the maximum sentence for burglary, which is set by the Oireachtas rather than the courts, is 14 years imprisonment, he said.

According to the Central Statistics Office, a total of 18,438 "burglary and related offences" were reported in 2016. The previous year (2015) there were 26,261 reported "burglary and related offences" and during the previous decade, the number always exceeded 20,000.

However, statistics on sentencing were difficult to compile because there were so many variables related to the nature of the crime but also the manner in which the offender met the charge.

For example, an unwritten rule of sentencing in Ireland is that judges generally give criminals 25pc off the sentence they would have given had the case been fought in a trial.

Mr O'Malley said a close examination of earlier judgments on burglary revealed "such a diversity of circumstances" that it was "very difficult to draw any reliable conclusions".

He said it was "extremely difficult, if not impossible" to access reliable statistical data on sentencing practices. Most official reports offer little concrete information on sentencing practices or the precise nature of the offence.

Mr O'Malley said the most helpful sources for data were Annual Reports of the Irish Prison Service which set out statistics on committals to prison.

According to the Irish Prison Service's reports, there were 319 prisoners serving sentences for burglary or related offences in Irish prisons, in 2016. This accounted for about 10pc of the total number of serving prisoners (3,077) on November 30, 2016.

Of these 110 (34.5pc) were serving sentences of less than two years. 137 (43pc) were serving sentences of two to 5 years. 55 (17pc) were serving sentences of five to 10 years and 17 (5.3pc) were serving sentences in excess of 10 years.

Between 2013 and 2016, there were 1,276 committals to Irish prisons for burglary and related offences.

Of these, 948 (74.3pc) were for periods of less than two years. 275 committals (21.5pc) were for periods of two to five years. 46 committals (3.6pc) were for periods of five to 10 years and seven committals (0.54pc) were for more than 10 years.

Mr O'Malley said about 75pc were given short prison sentences (less than two years). About 20pc received sentences of two to five years and about 4pc received sentences of five to ten years.

Sunday Independent

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