A violent criminal who carried out an armed burglary, during which he locked the homeowner in a room and threatened to kill him, has had his jail time almost doubled after a successful appeal by the State.
Derek Brady, who has 89 previous convictions and has spent much of his life in custody, pleaded guilty last December at Dublin Circuit Criminal Court to aggravated burglary on June 12th 2022.
The 59-year-old, of Fr Peter McVerry Homeless Shelter, Kerdiffstown House, Naas, later pleaded guilty to the two remaining counts on the indictment namely a threat to kill or cause serious harm and false imprisonment.
On January 26th 2023, Judge Martin Nolan sentenced Brady to five years imprisonment and suspended the final 15 months.
Lenient sentence
Brady, whose previous convictions include burglary, aggravated burglary, endangerment and possession of offensive weapons, was today facing a review of his sentence on grounds that it was “unduly lenient”.
The burglary occurred on the afternoon of June 12th 2022 when Brady entered the residential home of the injured party, who was a male in his 20's.
The injured party, who was coming down the stairs at the time, believed Brady was carrying a knife when he opened the door and entered the home but no knife was found.
Brady shouted at the victim: "You fucking owe me money I'm going to get you".
Brady accepted that he was carrying an item that was sharply pointed but claimed it was a shoe horn he had picked up.
There was evidence at the sentencing hearing that Brady told the injured party to go into an ensuite bathroom and to close the door whilst he searched the house for half an hour.
Threat
He told the man if he tried to leave he would kill him. Eventually the injured party exited a window, made good his escape and contacted gardaí before identifying Brady nearby. The items that had been taken from his house were retrieved.
Counsel for the Director of Public Prosecutions (DPP), Ms Sinead McMullen BL, today told the Court of Appeal that the sentencing judge didn't nominate a headline sentence and that the sentence of five years with 15 months suspended was inadequate for the offence.
She said the victim had been locked in a bedroom and there were multiple threats to kill, and he felt he couldn't get out of the bedroom.
Mr Paul Murray SC, defending Brady, said his client had shown his remorse, made an apology and promptly entered a guilty plea that spared the occupant the trauma of a trial. He said Brady had spent a substantial portion of his life in care, detention and custody.
Brady accepted he had become institutionalised and that the assistance of the probation or other services were necessary to help him acquire the necessary coping mechanisms.
Mr Murray said there had not been a substantial departure from what would be regarded as the appropriate sentence to justify the intervention of the Court of Appeal in an undue leniency application. He said the application by the DPP should be refused and the sentence imposed by Judge Nolan should not be disturbed.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice Patrick McCarthy and Ms Justice Úna Ní Raifeartaigh, said the court had found the original sentence was “unduly lenient”.
Mr Justice Brimingham noted that the DPP had argued that no headline sentence was imposed. He said counsel for Brady had looked to do some “reverse engineering” stating that if you looked at the five-year sentence imposed as one in which a 40 per cent discount had been given then that would point to a headline sentence of eight or nine years.
He said the court had two difficulties with this, stating that the assumption the case would proceed with a discount of 40 per cent “doesn’t seem to us to be realistic”.
Mr Justice Birmingham acknowledged there was a plea in the case but said this was in circumstances where Brady was apprehended close to the scene and with items in the backpack which had been taken from the injured parties home.
He said secondly, taking the starting point of five years and working back to get a headline sentence of nine years did not address the fact that the original sentence was five years with 15 months suspended.
Mr Justice Birmingham said the court did “have sympathy” for Brady.
“He wasn’t a young man when he appeared before the court,” he said. “Almost all of his adult life was spent in custody.”
He said the court could readily see why the trial judge would also have that [sympathy].
However, Mr Justice Birmingham said it seemed to the court an “inescapable conclusion” that five years was “unduly lenient” and was a sentence which represented a substantial departure from the norm.
He said the court found the appropriate headline sentence in this case was one of 10 years.
Quashing the original sentence of five years with the final 15 months suspended, Mr Justice Birmingham said the court would apply a discount of one third to the headline sentence giving a net sentence of six years and eight months.
“We consider that generous,” he said.
Mr Justice Birmingham said the manner in which the matter came before the court was one in which Brady would not be the subject of a suspended sentence when he finished but would rather be starting a consecutive two-year sentence for robbery and attempted robbery imposed in March 2023.
He said no issue was raised by either side in respect of the robbery and attempted robbery matter and said it was a sentence that “expressly addressed the issue of totality”.
“It was one of considerable seriousness but in circumstances where it was not one which was subject to criticism we will leave it the same,” the judge said.
However, Mr Justice Birmingham said the court would restructure it by suspending the last year of the two year sentence in order to “incentivise rehabilitation”.
