'Experienced' burglar who targeted widow's home - while serving suspended sentence for another burglary - spared extra jail time
An 'experienced burglar' who broke into the home of a High Court judge's widow, while serving a suspended sentence for another burglary, has been spared extra jail time despite an appeal by prosecutors.
Martin O'Brien (31), from Coolevin, Ballybrack, Co Dublin, had pleaded guilty at Dublin Circuit Criminal Court to burglary at the home of Mrs Marian Shanley, widow of the late High Court judge Mr Justice Peter Shanley, at Marlborough Road, Glenageary on August 31, 2016.
O'Brien had been given a four-year suspended sentence by Judge Mary Ellen Ring for the burglary of an 85-year-old-man's home at Glenageary Woods in August, 2013. He was subject to this suspended sentence when he broke into Ms Shanley's home.
Judge Pauline Codd sentenced O'Brien to three years imprisonment with the final two suspended for the burglary of Ms Shanley's home on February 20, 2017. His four-year suspended sentence was not revoked.
The Director of Public Prosecutions had sought a review of O'Brien's sentence on grounds that it was “unduly lenient”. However, the Court of Appeal dismissed the DPP's appeal holding that O'Brien's sentence was “not so far outside the norm”.
Giving judgement in the three-judge court, Mr Justice John Edwards said Mrs Shanley had left her home of 36 years on the morning question, setting the burglar alarm as she left. Later that day, she received a telephone call from her alarm monitoring company notifying her that there had been a lot of activity detected by sensors in the house and that they were calling the Gardai.
Mrs Shanley decided to return home and called her sister asking her to meet her there. Her sister arrived first and observed evidence of a break-in. Suspecting that the intruder might still be in the house, Mrs Shanley's sister opened the door and shouted that she was there and gardaí were on their way.
O'Brien was observed running through the kitchen into the conservatory and then exiting the house running across the garden. He was pursued by Mrs Shanley and her sister.
When it seemed to him that he had no apparent means of escape from the garden, O'Brien ran back past the two ladies, re-entered the conservatory and locked the door behind him leaving the two ladies in the garden locked outside.
There was in fact a side entrance O'Brien failed to notice in his haste and Mrs Shanley went through this entrance to observe him exiting the front door and running away.
He dropped a pink shopping bag found to contain goods belonging to Mrs Shanley.
However, a missing sum of $500USD (€408 aprox) and a gold coin of sentimental value were never recovered.
O'Brien, who had 103 previous convictions including six for burglary, ordinarily lived with his parents and had a child with an estranged partner.
He was employed in the past as a groundsperson at Leopardstown Racecourse but was let go and developed a heroin addiction. He also developed mental health issues and attempted to overdose on heroin weeks before he burgled Mrs Shanley's home.
Following his remand in custody in respect of the present offence, he formed a determination to address his addiction and mental health issues. He successfully detoxified and was offered a residential drug treatment course by Fr Peter McVerry SJ indicated that a residential drug treatment course was available to him.
Counsel for the DPP, James Dwyer BL, told the Court of Appeal that O'Brien was an “experienced burglar” and his multiple previous convictions for burglary should have amounted to an aggravating factor.
He said O'Brien's guilty plea was overvalued given the strength of the evidence against him and much emphasis had been placed on the steps he had taken towards rehabilitation. However, he said, O'Brien had been given a chance before and had not taken it.
Mr Justice Edwards said the sentencing judge approached the case with great care and conscientiousness. She was particularly impressed with O'Brien's expressions of determination to mend his ways and the steps he had taken along that road.
Given his record and the fact the offence was committed while subject to a suspended sentence, Mr Justice Edwards said the sentencing judge “would not have faced ready criticism” had she approached O'Brien's expressed resolve “with considerable scepticism”.
However, she took the view that O'Brien, despite his bad record and the fact that a previous chance had not been grasped, appeared genuine in his resolve and it was in his and society's long term interests to incentivise his continued progress.
“The sentence was undoubtedly lenient, very lenient indeed,” Mr Justice Edwards said, but not so outside the norm that it represented a manifest error of principle and gross departure from the norm.
He said there were many cases in which it may be appropriate to prioritise the penal aim of rehabilitation before deterrence or retribution or incapacitation from offending. In this case, the sentencing judge had abundant evidence to justify her decision to afford a high priority to the penal aim of rehabilitation and she “ought not to be criticised for doing so”.
He said the sentencing judge was persuaded of the genuineness of O'Brien's commitment to change and she had solid evidence to justify giving him that chance. She suspended the greater part of the sentence to reflect "substantial" mitigating circumstances and to incentivise rehabilitation on a last chance basis.
Mr Justice Edwards, who sat with Mr Justice John Hedigan and Ms Justice Máire Whelan, said the suspension of the final two years of the the three year sentence was not so far outside the norm as to be regarded "unduly lenient".
The application was therefore dismissed.