The High Court has quashed the eight-month prison sentence imposed on a young mother for stealing groceries from a supermarket.
In May 2021 25-year-old Manuela Lacatus was jailed for 8 months by Naas District Court after she admitted stealing €223 worth of groceries from a Lidl store at Sallins Naas Co Kildare on April 30th 2021, contrary to Section 4 of the 2001 Criminal Justice (Theft and Fraud Offences Act.)
At the time of the offence, she was pregnant with her fifth child, and it was pleaded in mitigation that the goods, which were recovered, were taken out of necessity.
It was claimed that she had attempted to take the goods in a pram and was apprehended while paying for others. She had three previous convictions for theft and handling stolen goods.
It was claimed that she and her husband are on social welfare and two of her children have health issues.
The eight-month custodial sentence was subsequently upheld on appeal to the Circuit Court in November 2021.
A three-month stay on the commencement of the sentence due to the then very young age of her fifth child.
Lawyers for Ms Lacatus, with an address at Willowbrook Park, Celbridge, Co Kildare sought to have the Circuit Court's decision judicially reviewed by the High Court on the grounds that the sentence was extreme and out of proportion given the gravity of the offence.
It was also argued that the sentence imposed was so far outside the normal discretionary limits that it amounted to a fundamental error of law.
"It was argued that the Circuit Court seemed to be operating an impermissible "fixed policy" of sentencing shop lifters, who were described by the circuit court judge as being "parasites on society."
This fixed policy, it was submitted, invalidated the Circuit Court judge's decision to uphold the eight-month custodial sentence.
The Circuit Court, it was further argued, had failed to take into account the circumstances in respect of which the eight-month sentence had been passed, namely that they had been taken by a young mother with modest previous convictions.
The DPP had opposed the challenge.
Mrs Lacatus obtained a stay on the sentence pending the outcome of the High Court action.
In her judgement quashing the sentence Ms Justice Niamh Hyland said the lower court's decision to incarcerate Mrs Lacatus "was based on a fixed approach." which is not permissible.
The Circuit Court judge had stated that all persons with previous convictions for theft, will face jail subject to exceptions, she said.
This, Ms Justice Hyland said, amounts to "a failure to analyse on an individual basis the extent to which it should increase the sentence."
The application of that fixed policy resulted in a decision to incarcerate Ms Lacatus, exclusively due to her previous convictions, and a failure to come within the stated exceptions.
In a case such as this, where a judge has several options, a policy to move directly to incarceration without considering other options "demonstrates a failure to exercise any discretion, having taken all relevant considerations into account, Ms Justice Hyland added.
The judge added that comments made by the Circuit Court judge during the hearing of the appeal about those who repeatedly steal from shops, however, did not form part of her basis to quash the sentence imposed on Mrs Lacatus.
Ms Justice Hyland also rejected the arguments that Ms Lacatus' constitutional right to be treated with dignity had been breached.
The Judge also rejected claims that the sentence-imposed excessive to the degree it amounted to an error of law.
The matter will return before the High Court later this month.
*This article was amended at 11.30am on Wednesday, June 14th, 2023
