Neutral Citation no. (2002) NICA 47	Ref:     	WEAC 3510	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	19.10.01	
(subject to editorial corrections)	 	 	

 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
________ 
 
THE QUEEN
 
V 
 
PAUL GABRIEL DEVENNEY
 
________ 
 
WEATHERUP J
 
1.         The Application.
This is an application for leave to appeal against the sentence imposed by His Honour Judge Burgess at Londonderry Crown Court at 3 April 2001.  The applicant was sentenced as follows –
(1)               On two counts of false imprisonment contrary to common law – a custody probation order of 10 years’ imprisonment and 12 months’ probation on each count both concurrent.
(2)               Robbery contrary to section 8(1) of the Theft Act (Northern Ireland) 1969 – 2 years’ imprisonment concurrent.
(3)               A further count of robbery – a custody probation order of 10 years’ imprisonment and 12 months’ probation concurrent.
(4)               Possession of a firearm with intent to cause fear of violence contrary to Article 17 of the Firearms (Northern Ireland) Order 1981 – 8 years’ imprisonment concurrent.
The overall sentence was 10 years’ imprisonment and 12 months’ probation.  Leave to appeal against sentence was refused by Sheil J.  
2.         The Offences.
The offences were committed in the early hours of Friday 10 March 2000 at a dwelling house at Drumahoe, Londonderry and later at a jewellers shop in Londonderry.  The occupiers of the dwelling house were the owners of the jewellers shop and during the hours of darkness the applicant and two other men forced their way into the house and detained the husband and wife on the premises.  The intruders were wearing blue boiler suits with knitted balaclavas over their heads and were armed with a spade and a firearm.  The occupiers were bound and threatened over a period of some six hours.  Shortly before 8.00am the husband was forced to drive the three intruders from the home to the jewellery shop while the wife was placed in a cupboard under the stairway.  She was told that her husband’s shotgun would be trained on the cupboard door so that if she opened the door the shotgun would discharge.  With remarkable courage the wife cut a hole in the cupboard door with a cheese knife, and being unable to see the shotgun she forced open the cupboard door and made good her escape.  Meanwhile her husband and the three intruders had entered the jewellery shop and while the contents of the safe in the strong room were being removed by the intruders the husband was able to press the alarm.  The intruders were apprehended on the premises by the police.  

3.         The Applicant’s Grounds.
Mr Donaldson QC and Mr Hill who appeared for the applicant relied in effect on two grounds.  The first was that  the Recorder intended to impose a sentence of 10 years imprisonment but the sentence imposed was in reality one of 11 years’ imprisonment which in all the circumstances was manifestly excessive.  The second ground was that there was material in relation to post release supervision which warranted a period of probation longer than 12 months.  
4.         The Period of Imprisonment.
In relation to the first ground it is clear from the sentencing remarks that the Recorder considered the commensurate sentence in the applicant’s case to be one of 11 years’ imprisonment.  The transcript states –
“I have determined that the appropriate sentence, if I were not to go down the road of Article 24 (being a reference to the Criminal Justice (Northern Ireland) Order 1996), is in the case of each defendant to impose a period of imprisonment of eleven years.  In the case of each defendant, however, I am prepared to reduce that to a period of ten years to be followed by a period of 12 months’ probation…”
Accordingly this Court rejects the suggestion made on behalf of the applicant that the Recorder  intended to impose a sentence of 10 years’ imprisonment and “tacked on” a period of 12 months’ probation.
This Court considered the sentence to be imposed for these types of offences in   R v McKeown Loyal & Glasgow (Unreported  19 September 1997) which concerned an appeal against a sentence of 12 years’ imprisonment on a plea of guilty to a charge of conspiracy to rob and two counts of false imprisonment.  The circumstances were similar to those arising in the present case and involved a gang breaking into a family home as a preliminary to carrying out a robbery at a post office.  MacDermott LJ reviewed the authorities and concluded –
“As we have already sought to make clear this case had two particularly serious aspects.  Firstly the conspiracy to rob a post office of a substantial sum of money in a planned operation and secondly the holding hostage of a family in its own home.  Individually each offence would warrant a sentence in excess of 10 years and in combination that figure must rise to 15 years or thereabouts.”
 
In the present case the Recorder reviewed all the circumstances and arrived at the commensurate sentence of 11 years’ imprisonment.  Such a sentence could not be said to be manifestly excessive.
5.         The Period of Probation.
The applicant’s second ground related to the length of the probation period to be included in the custody probation order which the Recorder determined at 12 months.  Article 24(1) of the Criminal Justice (Northern Ireland) Order 1996 requires a court which has formed the opinion that a custodial sentence of 12 months or more would be justified for the offence to consider whether it would be appropriate to make a custody probation order.  Article 24(2) of the 1996 Order requires that the custodial sentence which would otherwise have been passed on the offender shall be reduced to take account of the effect of the post release probation “in protecting the public from harm from him or from preventing the commission by him of further offences.”  
·        In considering a custody probation order  the court should look for some material which indicates that there will be a need, after the offender’s release, to protect the public from harm from the offender or to prevent the commission by him of further offences. Attorney General’s Reference (No.1 of 1998) (McElwee) [1988] NI 232 at 238j.  
·        Further, probationary supervision is intended to have a rehabilitative purpose and the court considering a custody probation order should be satisfied that the offender would meaningfully respond to the supervision of a probation officer for the period being considered.  R v Lunney [1999] NI 158 at 163c.
·        As to considerations relating to the respective lengths of, and the relationship between, the custody period and the probation period this Court refers to the five principles set out by Carswell LCJ in R v Donnell [2000] NI 168 at 172.
            The applicant relied on R v Conway [2001] NIJB 26 which was an appeal from a custody probation order consisting of 2½ years’ imprisonment and 12 months’ probation.  The pre-sentence report noted that the offender was motivated to effect necessary changes in his lifestyle and would benefit from professional support provided by a 36-day  “ Stop, Think and Change Programme” at the probation centre.  The Court concluded that the probation period should be substantial in order to give the offender the opportunity to face up to the realities of life and attain a degree of self-discipline.  Accordingly the Court varied the custody probation order to a period of 12 months’ custody and 2 years’ probation during which the offender was required to attend the programme at the probation centre.  
            In the present case the pre-sentence report noted that the applicant had lived with his wife in their privately owned dwelling in Letterkenny, County Donegal and that he planned to return there when circumstances allowed.  The probation officer considered that the applicant’s plans to live outside the jurisdiction precluded probation intervention.  This Court was informed by counsel that the applicant’s relationship with his wife had broken down and that upon his release the applicant proposed to live with his brother in Londonderry.  In general this Court does not consider it to be appropriate to impose a custody probation order in circumstances where the offender will be resident outside the jurisdiction upon his release as the supervisory role of the Probation Service will be of little or no effect in those circumstances.  
Further, Dr Bownes, Consultant Forensic Psychiatrist, reported on the applicant and gave evidence to the Recorder to the effect that the applicant would benefit from professional guidance and support on his return to the community.  No doubt every prisoner could benefit from such engagement upon his release but the court must be satisfied as to the rehabilitative effect of probationary supervision.  When the circumstances are such that a lengthy period of imprisonment is required it may be more difficult to assess the more distant effects of probation.  
In any event the applicant’s co-accused received the same sentence and there does not appear to be any basis for distinguishing between the applicant and the co-accused in the composition of the custody probation order.  
This court considers that the period of 12 months’ probation is appropriate in all the circumstances of this case.  
Accordingly the application for leave to appeal is refused. The overall sentence remains, namely a custody probation order comprising 10 years’ imprisonment and 12 months’ probation.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
________ 

 
THE QUEEN

V 

PAUL GABRIEL DEVENNEY

 
________ 
 
J U D G M E N T   O F 
WEATHERUP J
________