Community Service
Cases
Scully v. Crowley
Supreme Court, May 3, 2001, the Supreme Court
Judgment of Mr. Justice Geoghegan delivered the 3rd day of May 2001 (nem. Diss.)
1. This is an appeal from an order of the High Court (Murphy J.) refusing judicial review relief in the form of an order of certiorari quashing the convictions or orders made by the first-named respondent on the 15th of September, 1994 in the Dublin District Court in respect of alleged offences under sections 53, 106 and 107 of the Road Traffic Act, 1961, as amended, and for an order of prohibition prohibiting the said respondent from further sentencing the applicant in respect of the said alleged offences. As there is some dispute about the relevant facts I think it appropriate to set out separately the appellant’s and the respondent’s respective versions of the facts.
THE APPELLANT’S VERSION OF THE FACTS
2. The main grounding affidavit, on behalf of the applicant/appellant, was sworn by his solicitor, Mr. Frank MacGabhann, on the 20th of October, 1994. Mr. MacGabhann explains in that affidavit how he attended at the District Court to defend the appellant. One of the charges was dangerous driving, and the appellant was apparently willing to plead guilty to careless driving if the State would accept that plea and in such event to plead guilty to the other two offences. As is quite usual in the District Court, the solicitor from the Chief State’s Solicitor’s Office, Mr. Mulholland, left the matter to the District judge and when he heard the nature of the evidence he refused to accept a plea to careless driving, and in the event the appellant was convicted of all three offences.
3. In paragraph 8 of his affidavit Mr. MacGabhann goes on to describe what then happened and these facts are crucial to the issues involved in the judicial review application. I think it best to cite in full paragraphs 8 and 9 of Mr. MacGabhann’s affidavit. They read as follows:-
“8. The District judge proceeded to sentence the applicant as follows:
(1) In relation to the charge of dangerous driving contrary to section 53 of the Road Traffic Act, 1961, to 140 hours community service or six months in prison, disqualified from driving for two years, endorse particulars of the conviction of (sic) the applicant’s licence, and in the event of an appeal the applicant to furnish a £500.00 cash surety;
(2) in relation to the charge of failing to give appropriate information under section 106 of the Road Traffic Act, to 60 hours community service or six months in prison, disqualified from driving for two years, endorse particulars of the conviction on the applicant’s licence, and in the event of an appeal the applicant to furnish a £500.00 cash surety; and
(3) in relation to the charge of failing to state whether he was driving the vehicle contrary to section 107 of the Road Traffic Act, to 30 hours community service or six months in prison, disqualified from driving for two years and endorsed particulars of the conviction on the applicant’s licence, and in the event of an appeal the applicant to furnish £500.00 cash surety. In the course of pronouncing his sentence the District judge enquired of Mr. Mulholland, the State Solicitor, what the maximum permissible sentence was for the offences with which the applicant had been charged. Mr. Mulholland said that he thought the maximum permissible sentence was six months. At no stage did the District judge ask me or the applicant whether he (the applicant) consented to doing community service. The District judge then adjourned the proceedings to the 26th of October, 1994 for a probation report.
9. Following the hearing the applicant and I both left court. About ten minutes later, while talking outside the court room, we met Mr. Mulholland who informed us that the judge had changed the alternative imprisonment sentences in respect of each of the charges from periods of six months to three months.”
4. In the event the operative part of each of the orders, as drawn up, read as follows:-
“I did adjudge that he be convicted of the said offence and ordered that he be disqualified from holding a driving licence for the period of two years and that particulars of the said disqualification be endorsed on the driving licence held by the defendant and …. that the complaint be adjourned to Court No. 24 on the 26/10/94 at 10.30 a.m. for a probation report.”
5. In paragraph 12 of his said affidavit, Mr. MacGabhann says that he is advised by counsel that the convictions and sentences imposed by the first-named respondent were bad in law and were made in excess of jurisdiction or without jurisdiction and that the same should be quashed on the following grounds:-
“(a) The convictions or orders made are not in accordance with the sentences imposed by the first-named respondent in open court;
(b) having changed his mind in relation to the sentences to be imposed on the applicant, the first-named respondent did not pronounce his decision in open court and in the presence of the applicant;
(c) the first-named respondent imposed disqualifications from holding a driving licence on the applicant as a form of penalty, and not as a result of judicial consideration of evidence of his unfitness to drive;
(d) no consent was sought or obtained from the applicant to the making of a community service order in respect of the convictions entered against him.
It is the appellant’s case therefore that, notwithstanding the terms of the orders as drawn up, the actual orders pronounced by Judge Crowley included in addition to the disqualifications, periods of community service with alternative prison sentences. Under the provisions of the Criminal Justice (Community Service) Act, 1983 a community service order cannot be made without the consent of the convicted person and furthermore it can only be made following on a report from the Probation and Welfare Officer . As of the date of the impugned orders no such consent had been obtained nor was there any report or evidence before the judge from a probation and welfare officer.
THE SECOND-NAMED RESPONDENT’S VERSION OF THE FACTS
This version is essentially contained in the affidavit of Garda P.J. O’Dwyer, sworn on the 23rd of January, 1995. The first eight paragraphs of that affidavit are not really in contention or if they are, there is nothing material which is relevant to this case. But in paragraph 9, Garda O’Dwyer swore the following:-
“Having heard submissions in relation to the circumstances of the applicant, Judge Crowley imposed the disqualifications and endorsements which are set out in the District Court orders which are exhibited in the affidavit filed on behalf of the applicant. He further indicated in respect of the charge under section 53 of the Road Traffic Act that it was his intention to impose 140 hours community service or, in the alternative, six months imprisonment, in respect of the charge under section 106 of the Road Traffic Act, he proposed imposing sixty hours community service, or, in the alternative six months imprisonment, and further in respect of the charge pursuant to section 107 of the Act, he indicated that he was going to impose forty hours community service upon the applicant or in the alternative, six months imprisonment.”
6. The Garda then goes on to explain that Judge Crowley fixed a cash surety in the event of the applicant wishing to appeal. Presumably this was because the disqualification would take immediate effect unless there was an appeal in place. Garda O’Dwyer goes on to aver that:-
“ the matter was thereupon adjourned with the first-named respondent directing that a Probation Report be obtained. This Report will be a report for the purposes of section 4 of the Criminal Justice (Community Service) Act, 1983.”
7. Garda O’Dwyer goes on to comment on the affidavit of Mr. MacGabhann and the suggestion that the judge had altered his order after the applicant and his solicitor had left the court. The garda says in paragraph 11 of his affidavit that the practice when community service orders are being made in the District Court is that the District judge hearing the matter, when directing that a report be prepared, often indicates the type of order he will be making in due course should the report be favourable and should the accused consent, and he then comments that it would not be true to say that in the instant case the judge was actually imposing sentences of the type indicated. He points out that the District Court orders, as drawn up, clearly showed that the case was adjourned for the purpose of obtaining the probation report. As I read his affidavit he is making this point to back up his view that the judge was never intending to impose final sentences or community service orders, but was merely indicating his then intentions. It is also a natural inference to draw from the comments of the garda that he is arguing that the adjournment, for the purposes of the probation report would be inconsistent with any other view. Indeed, he more or less makes this point expressly in paragraph 13 of his affidavit.
8. Accordingly, it is quite clear where the battle lines are drawn between the parties. Indeed, Mr. MacGabhann swore a replying affidavit in which he said that Garda O’Dwyers’ recollection of what happened was mistaken and that sentences were imposed there and then. He went on to depose that as a result of a conversation with Mr. Mulholland who had been the solicitor from the Chief State Solicitor’s Office conducting the prosecution he believed that Mr. Mulholland supported his version of events.
THE HIGH COURT HEARING
9. When this judicial review application came before Murphy J. in the High Court some additional oral evidence was adduced. There is no agreed note of that evidence and still less a certified note, but as Murphy J. pointed out in his letter to the Supreme Court Office, dated the 2nd of November, 2000, there was very little difference between the note of the evidence taken by Mr. Buckley for the D.P.P. and Mr. MacGabhann for the appellant. From Mr. MacGabhann’s note of the evidence it is clear that Garda O’Dwyer gave oral evidence to the same effect as his affidavit already referred to. However, there was also oral evidence from Mr. Liam Mulholland, the prosecuting solicitor. Mr. MacGabhann’s note of his evidence reads as follows:-
“Mr. Liam Mulholland gave evidence that the judge asked Mr. Mulholland what was the maximum sentence and he said that he thought that is was six months. He said that the judge then asked Mr. Garrett Sheehan, solicitor, who was sitting in the court if that was right. He said that Mr. Sheehan said that he thought that six months was correct. He said that the judge was then told that the maximum was three months. The judge then reduced the sentence to three months. He said that he later met Mr. MacGabhann and told him that the judge had reduced the sentence to three months after they had left the court.”
10. Mr. Buckley’s note, which is more or less to the same effect, contains however the following addition:-
“Mr. Mulholland couldn’t recall whether the judge indicated what sentence or intention to sentence was involved, and adjourned for a community service report. There was some mention of two and a half years community service. The sentence wouldn’t be imposed until the reports were available. My notes summarise the next part of Mr. Mulholland’s evidence as follows:-
‘Sheehan said three months/six months – was changed. He told Mr. MacGabhann. Sentences were imposed.’”
11. It is clear that the learned High Court judge reviewed what actually happened in the District Court not on the basis of parsing in some literal way actual words used, but rather on what was clearly intended by the District judge and should have been understood by the parties to have been intended. It is pointed out in the judgment of the High Court that if Judge Crowley had in fact imposed the community service order with the alternative prison sentence, as alleged by Mr. MacGabhann, the orders would undoubtedly be nullities and would have to be quashed. The learned judge goes on to observe the following:-
“This would have been a surprising oversight by the District judge, the State and the garda. I do advert to the very fact that (one) of the few matters on which both parties are crystal clear is that the District judge adjourned the matter to obtain a probationary report. This demonstrates consciousness of some of the provisions of the 1983 Act.
In that context in choosing between the impression the District judge made on the applicant and his solicitor and the impression he made on the State and the garda, I am convinced that the District judge recognised that he could not process the matter further without a probationary report.”
12. Not only was it open to the learned High Court judge to take the view which he did take, it was the only rational view which he could have adopted in my opinion. It is perfectly obvious that the adjournment for the purposes of the probationary report makes no sense whatsoever unless it is in the context of the 1983 Act. It follows from that that the District Court judge could not possibly have been intending there and then to impose a community service order with an alternative prison sentence. It seems obvious that whatever unhappy wording he may possibly have used, he was merely indicating his intention subject to obtaining a probationary report.
13. I cannot accept the argument made that because there was no cross-examination of Mr. MacGabhann on his affidavits that in some way his version of events must be accepted. I am quite sure that Mr. MacGabhann believes what he said but it seems clear beyond doubt that he is mistaken in the inferences he drew from whatever was said by the District Court judge. There is only one point that could conceivably favour the appellant’s case and that is the fixing of the recognisances and the requirement of a cash surety. But in my view, that clearly arose because of the fact that the judge was imposing an immediate disqualification and that disqualification would not be suspended for the purposes of an appeal unless recognisances were fixed and an appeal brought. It would not be suspended pending the obtaining of the probationary report and the completing of the sentencing process. When properly analysed therefore I do not think that this factor in the case supports the appellant’s argument.
14. I find myself in complete agreement in every respect with the judgment of the learned High Court judge (as he then was) and I would, therefore, dismiss the appeal.
15. A further complication, however, has been introduced into this case by reason of the recent retirement of Judge Crowley. That retirement occurred some days before this appeal was heard. I want to make clear that I am expressing no views as to how the case can proceed (if at all) following on this judgment in the light of the retirement. On the face of it there might seem to be a serious problem from the point of view of the Director of Public Prosecutions in that the sentencing process had not been completed. There is also a problem from the appellant’s point of view in that the stay on the proceedings will no longer exist. This could have implications in respect of the disqualification order. I have understood, from what was said at the hearing, that there is an appeal pending to the Circuit Court and that that appeal would have had the effect of suspending the disqualification. This court cannot deal with the problems which now arise in that they are not properly before it, but I think that it would not be improper of me to express the opinion that the District Court appeal (if it is valid at all) should not be allowed to proceed by the Circuit Court unless and until the validity of the disqualification order and the appeal has been clarified in the light of the retirement of Judge Crowley. It would be a grave injustice to the appellant if he was placed in a situation where he did not know whether a disqualification order was valid or not.
16. It is possible that all these problems will be resolved by agreement with the Director of Public Prosecutions or alternatively by a separate judicial review application if the appellant is advised that that is appropriate.
17. Quite apart from the difficulties arising from Judge Crowley’s retirement, I would make a slight variation in the High Court order. I would delete the words “ and that the proceedings before the District Court do proceed ”. Where judicial review is refused and the stay becomes automatically lifted, such words are unnecessary .
Foley v. Murphy & Anor
[2005] IEHC 332 (26 October 2005)
JUDGMENT of Ms. Justice Dunne delivered on the 26th day of October, 2005
This is an application for an order of certiorari by way of judicial review to quash the conviction and sentence imposed by the first named respondent on the applicant in respect of an alleged assault on one John O’Sullivan contrary to s. 2 of the Non Fatal Offences Against the Person Act, 1997 imposed at a sitting of the Dublin Metropolitan District Court at Dun Laoghaire, County Dublin on 4th September, 2003. The grounds upon which relief is sought are as follows:-
I. That the learned District Judge convicted and sentenced the applicant in respect of, inter alia, allegations found by her to have been proven but in respect of which no criminal charge had been preferred.
II. The said order was made in excess of jurisdiction and was contrary to natural and constitutional justice and fair procedures and furthermore was made in breach of the principle that justice must not only be done but be seen to be done.
III. The penalty imposed was opposed otherwise than in accordance with the Criminal Justice (Community Service) Act, 1983, the applicant not being a person coming within the provisions of s. 2 thereof.
IV. There is an error on the face of the record.
An affidavit of Brian McLoughlin was sworn herein on 27th February, 2004, verifying the facts relied on in support of the application. There was no replying affidavit.
The events which led to the conviction and sentence imposed by the first named respondent on the applicant herein occurred on 1st December, 2001. It is not disputed that on that night the applicant who had been attending a function in the Killiney Court Hotel left the hotel in a state of “considerable intoxication and agitation” and outside the hotel proceeded to damage the headlight of a taxi which had arrived at the hotel. As a result of the applicant’s behaviour the Gardaí were called and two Gardaí arrived at the Killiney Court Hotel namely, Garda Seamus Muldowney and Garda John O’Sullivan. As a result of the incident involving the headlight and the subsequent interaction of the applicant with the Gardaí, a total of four summonses were served on the applicant. The first was in respect of criminal damage to the taxi. The second related to an assault contrary to s. 2 of the Non Fatal Offences Against the Person Act, 1997 in respect of Garda Seamus Muldowney at Killiney Court Hotel, the third summons was also in respect of a s. 2 assault, this time in respect of Garda John O’Sullivan and it was stated to have occurred at Loughlinstown Hospital and the final summons was in relation to an alleged assault causing harm contrary to s. 3 of the said Act. The last summons was ultimately struck out and it is not involved in these proceedings.
The applicant pleaded guilty to the charge in respect of criminal damage. The applicant pleaded not guilty to the two charges in respect of s. 2 assault. Accordingly a trial took place before the first named respondent and evidence was heard on 12th March, 2003, and 21st May, 2003. A verdict was delivered by the first named respondent on 10th June, 2003, and sentence was imposed at a hearing on 4th September, 2003. Somewhat unusually, a transcript was made of the hearings and the transcript was exhibited at the letter (A) in the affidavit of Brian McLoughlin.
I do not propose to refer in detail to the evidence that was given before the first named respondent in respect of the matters complained of. Suffice to say that there was a significant conflict of evidence between the evidence of the two Gardai and the evidence tendered on behalf of the applicant as to what occurred at the hotel. The applicant himself did not give evidence but a witness was called on his behalf, a Dara Gildea, did give evidence. It was alleged that excessive force was used by the Gardaí in arresting and restraining the applicant. It was not in dispute that as a result of injuries occasioned to the applicant, he was brought to Loughlinstown Hospital following his arrest for treatment. As to the events that occurred at the hospital, again there was a conflict of evidence. During the course of the evidence it transpired that Garda Muldowney had used his baton on the applicant but did not report to his superiors the use of his baton as required under regulations. This was the subject of a critical comment by the first named respondent in respect of this aspect of the case before her.
Having heard the evidence in respect of the alleged s. 2 assault on Garda Muldowney at the Killiney Court Hotel, the first named respondent acquitted the applicant in respect of that matter. In respect of the second assault charge, namely that alleged to have occurred at Loughlinstown Hospital in respect of Garda O’Sullivan the first named respondent stated as follows:-
“Now in relation to the s. 2 summons for Garda O’Sullivan, I am satisfied that Garda O’Sullivan, from the evidence was hit in the face first, in the nose and in the mouth. There was bleeding from the nose and the mouth, that he was hit again in the head in Loughlinstown Hospital and there was an attempt to bite his arm, and in relation to those matters I am convicting you of assault.”
It was submitted on behalf of the applicant herein that the reference to the hitting of Garda O’Sullivan in the nose and mouth causing bleeding was a reference to events that had occurred at Killiney Court Hotel and not at the hospital. Accordingly it is argued that as that incident in respect of Garda O’Sullivan had never been the subject of a charge the applicant could not be convicted on a non existent charge. It is further argued that the first named respondent took into account irrelevant material and took the view that the applicant was guilty of an offence with which he had not been charged. It is argued that this was also dealt with in sentencing and that the first named respondent sentenced the applicant on the basis of both alleged assaults, and not simply in respect of that with which he had been charged. It is submitted that it is a violation of the principles of natural and constitutional justice for a Judge to convict and sentence an accused person on the basis of an additional alleged assault with which he has never been charged and which was alleged to have taken place at an earlier time and in a different location to the offence with which he was charged. This is particularly so where the first named respondent had acquitted the applicant of the sole charge arising out of the events at Killiney Court Hotel in respect of the assault on Garda Muldowney. The conviction in those terms is, it is submitted, invalid.
By way of response counsel on behalf of the respondent submitted that the first named respondent had simply convicted the applicant in respect of the s. 2 assault on Garda O’Sullivan at Loughlinstown Hospital and that that was the clear interpretation of the words used by the first named Respondent in the sentencing remarks quoted above.
Having considered the submissions of both parties on this point I am satisfied that the first named respondent convicted the applicant in respect of the summons before the court namely, that he had assaulted Garda O’Sullivan at Loughlinstown Hospital contrary to s. 2 of the Non Fatal Offences Against the Person Act, 1997. In the sentencing remarks the learned Trial Judge, having referred to the various incidents that occurred, described the fact that Garda O’Sullivan had been hit in the face, the nose and the mouth. She referred to bleeding from his nose and mouth. She then went on to say “he was hit again in the head at Loughlinstown Hospital and there was an attempt to bite his arm, and in relation to those matters, I am convicting you of assault.” I am satisfied that by reference to the use of the words underlined above the learned Trial Judge was clearly limiting the conviction in respect of assault to the incidents that occurred at Loughlinstown Hospital. As I have noted already it was submitted on behalf of the applicant in this regard that the sentence was imposed on the basis of an additional assault. Following a careful reading of the transcript I can find nothing therein which could give rise to that conclusion. Accordingly, so far as any challenge based on the argument that the applicant was in effect convicted of an assault with which he had not been charged, I am not satisfied that the applicant is entitled to relief on that ground.
The second issue raised on behalf of the applicant was that the penalty imposed was imposed otherwise than in accordance with the Criminal Justice (Community Service) Act, 1983, the applicant not being a person coming within the provisions of s. 2 thereof. Section 2 of the Criminal Justice (Community Service) Act, 1983 provides as follows:-
“This Act applies to a person (in this Act referred to as an ‘offender’) who is of or over the age of 16 years and is convicted of an offence for which, in the opinion of the court, the appropriate sentence would but for this Act be one of penal servitude, of imprisonment or of detention in Saint Patrick’s Institution, but does not apply where any such sentence is fixed by law.”
On 10th June, 2003, having delivered the verdict in respect of the s. 2 assault, the first named respondent went on to deal with a number of matters relevant to the issue of sentence. Having indicated that she thought the matter would be best dealt with by a limited period of community service she said as follows:-
“Which is a way you can contribute further to the local community. To do that, I have to have a report from the probation services that you are suitable for community service. That will take approximately I think two months or thereabouts to come to hand. So I will put the matter in for a date… in September… for that report and then if that is favourable, I am not going to make a default provision today.., I don’t want to do that. So I will see to the matter myself in September.”
The matter came back before the first named respondent on 4th September, 2003. There was a satisfactory probation service report before the court and accordingly the learned Trial Judge made an order for forty hours community service to be completed by the applicant. She then fixed recognizances in the event of an appeal. No reference was made by the first named respondent to imprisonment. No provision was made in the order for any term of imprisonment. In these circumstances it was submitted on behalf of the applicant herein that a consideration of the appropriate sentence of imprisonment for a particular offence was an essential precondition to the exercise of the statutory power pursuant to the Criminal Justice (Community Service) Act, 1983 to sentence an accused to community service. Accordingly it was argued that the failure to do so deprived the first named respondent of jurisdiction in relation to the making of such an order. The applicant further argued that the failure to address the issue of a sentence of imprisonment is reflected in the order of the District Court drawn up on 24th October which recites as follows:
“That the said offence being an offence for which, in the opinion of the Court, the appropriate sentence would be one of imprisonment for the period of 0.”
In these circumstances it was argued that the terms of the order fail to address the statutory pre-condition and are in conflict with and are inconsistent with the express statutory requirement that the court be satisfied that a period of imprisonment would otherwise be appropriate for the offence. A number of authorities in support of the contention that the failure of an order to demonstrate the essential preconditions to its validity are fatal were relied on by Counsel for the applicant (State (Roche) v. Delap [1980] IR 170, State (Browne) v. Feran [1967] IR 147, D.P.P. v. Dunne [1994] 2IR 537 and Simple Imports v. Revenue Commissioners [2002] IR 243.)
Notwithstanding the matters referred to in the preceding paragraph it is further argued on behalf of the applicant that the matter is more fundamental than an error on the face of the order. It is argued that the first named respondent failed to consider the relevant issue which she was required by statute to consider in imposing sentence. Relying on the authority of the State (Holland) v. Kennedy [1977] IR 193 it is argued that a failure to consider a statutory precondition to the exercise of a jurisdiction deprives the decision maker of jurisdiction. That was a case in which there had been a failure to consider the general character of a juvenile prior to making an order certifying him as “unruly” for the purposes of imprisoning him pursuant to the provisions of Part 5 of the Children Act, 1908. It was held by the Supreme Court that the District Judge should have obtained and considered evidence of the general character of the prosecutor at the time when his sentence was being considered and that the evidence that he was of so unruly a character as described in the relevant provision of the Act was a pre-condition of the issue of certificate authorised thereby. In the circumstances, the District Judge had no jurisdiction to impose on the prosecutor a sentence of imprisonment.
Reference was also made to a further error on the face of the record namely the fact that the order of 24th October, 2003, recited that the applicant had pleaded guilty to the charge of which he was convicted when, in fact, he had pleaded not guilty. Finally it is submitted that in the circumstances referred to the first named respondent acted without jurisdiction in imposing a sentence of community service on the applicant without having first addressed the relevant statutory precondition to the making of such an order, namely that the offence of which the applicant was convicted warranted a sentence of imprisonment.
Counsel on behalf of the second named respondent referred to the fact that having heard submissions on 10th June in relation to sentence the learned Trial Judge indicated at that stage that she was minded to impose a community service order, subject of course to a favourable probation report being obtained. Thereafter on 3rd September, 2003, the requisite satisfactory probation report was before the court. A community service order providing for forty hours work was imposed as previously indicated by the first named respondent. Counsel referred to certain other preconditions required to bring into effect the possibility of a community service order. For example, the offender must be a suitable person for the making of such an order. Equally, the offender must have consented to the making of such an order.
It is conceded by counsel for the second named respondent that the first named respondent did not expressly refer to a term of imprisonment as being appropriate in the circumstances of the case. However, it is argued that it can be implied that that was a conclusion reached by the first named respondent. It is argued that when the first named respondent first indicated that she was minded to impose community service order she also stated that she would not make “a default provision” on that date. Thus it is argued that she had clearly indicated that she had determined that a prison sentence was otherwise suitable but that rather than impose a term of imprisonment she was minded to impose a community service order instead. Accordingly, she met the requirement provided by s. 2 of the Criminal Justice (Community Service) Act, 1983 namely, that the court must be satisfied that imprisonment or detention would otherwise be appropriate. The section does not require any particular term of imprisonment or detention to be specified. Counsel also referred to the fact that any term of imprisonment a judge might specify as appropriate in the circumstances that a community service order has been made does not by reason of that fact alone operate as a default provision in the sense that such provision automatically would take effect if there is a breach of the order. In that regard reference was made to the provisions of s. 7 subs. 4 of the Criminal Justice (Community Service) Act, 1983 which provides as follows:-
“An offender who fails, without reasonable excuse, to comply with a requirement of subsection (1) shall be guilty of an offence and, without prejudice to the continuance in force of the community service order, shall be liable on summary conviction to a fine not exceeding £300.”
Section 8 of the Act provides as follows:-
“8. (1) Where an offender is convicted of an offence under section 7 (4), the court, in lieu of imposing a fine under that section, may
(a) if the community service order was made by the District Court in the district of residence, either revoke the order or revoke it and deal with the offender for the offence in respect of which the order was made in any manner in which he could have been dealt with for that offence if the order had not been made, or
(b) if the community service order was made by the District Court in a district court district other than the district of residence or by another court, remand the offender to the District Court in that other district or to that other court to be dealt with in accordance with subsection (2).
(2) Where, by virtue of subsection (1) (b), an offender in respect of whom a community service order is in force is brought or appears before a court, the court shall either revoke the order or revoke it and deal with the offender for the offence in respect of which the order was made in any manner in which he could have been dealt with for that offence if the order had not been made.”
Having referred on 10th June, 2003, to the possibility of a community service order being made and referring to but not fixing a default provision at that time it is submitted that the first named respondent had clearly decided that a prison sentence was otherwise suitable but by way of alternative a community service order should be imposed instead.
Finally a number of submissions were made by counsel on behalf of the second named respondent in respect of the fact that the order of the District Court records incorrectly that the applicant had pleaded guilty when he had in fact pleaded not guilty. Counsel referred to the judgment of Finlay P. in the case of State (Sugg) v. O’Sullivan unreported, High Court, June 23rd 1980 in which he stated as follows:-
“The fundamental requirements of a good order on conviction are that it will set out in clear and unambiguous terms the precise offence by reference to statute in the case of a statutory offence and by reference to an acceptable common law definition in the case of a common law offence of which the accused was found guilty and that furthermore it will contain such material facts as will identify the manner in which the offence was committed, the date upon which it was committed and the place where it was committed so as to prevent in effect the person so convicted from ever being charged with the same offence again and so as to leave him with a record of the matter in respect of which he was convicted on which he could safely ground a plea of autrefois convict were he ever to be charged with the same offence again.”
Reference was also made to the decision of the Supreme Court, per Keane J. in the case of Murphy v. D.P.P. and McDonnell [2004] 1IR 65 which expressly approved that statement. Accordingly it is argued that none of the flaws referred to in that decision appear in the present case and it is further argued that the error is one which would readily be corrected under the slip rule of the District Court rules 1997. Finally counsel on behalf of the second named respondent referred to the discretionary nature of the remedy being sought. It is argued that the court may refuse to quash an order which is correct in substance though wrong in form. It is also argued that in the present case the applicant although represented by solicitor and counsel in the District Court did not object to any of the matters complained of in relation to the conviction or sentence imposed. Further it was submitted that the error complained of by the applicant herein was an error within jurisdiction. Reliance was placed on the statement of O’Higgins C.J. in the case of State (Abenglen) v. Dublin Corporation [1984] IR 381 where he stated:-
“The purpose of certiorari is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not available to correct errors or to review decisions or to make the High Court a Court of Appeal from the decisions complained of.”
Reliance was also placed on the judgment of Ó Caoimh J. in the case of Murray v. Linnane unreported, High Court, July 31st, 2002, in which he stated as follows:
“This court is concerned with the decision making process and not the correctness and point of law of the decision (s) of the respondent as the relief of certiorari is not concerned with the merits of the decision itself and this court cannot be constituted as a further court of appeal in relation to the charges alleged against the applicant.”
That statement was approved by the Supreme Court in delivering its judgment in the same matter on 27th April, 2005.
Conclusions
It is undoubtedly the case that there is an error on the face of the record in this case insofar as it indicates that the applicant pleaded guilty to s. 2 assault. This is not in dispute. However, as indicated above counsel on behalf of the second named respondent has urged that judicial review is not an appropriate remedy in respect of this error for a number of reasons. I have to say that I cannot disagree with his arguments. The error is one easily capable of being remedied and does not require judicial review for the purpose of correcting the error. In the circumstances I am satisfied that I should not grant relief by way of judicial review in respect of that aspect of this case.
The final issue raised in this case relates to the provisions of the Criminal Justice (Community Service) Act, 1983 and whether it is a necessary part of the order in such cases that a period of imprisonment be indicated as an alternative to the community service order. Perhaps this issue could be clarified by putting the question a different way. Can a court impose a community service order on a defendant convicted of an offence in circumstances where the court has decided not to impose a sentence of imprisonment or detention but rather is minded to impose a fine on the defendant? Clearly, that cannot be the case. Section 2 of the Act as referred to above makes it clear that the Act applies to a person who is convicted of an offence for which in the opinion of the court the appropriate sentence would be imprisonment or detention. Accordingly it is clear that a community service order is not a stand alone form of sanction apart from imprisonment or a fine for a person convicted of an offence. It is not the appropriate method of dealing with a person convicted of an offence where the appropriate sentence would be the imposition of a fine or some lesser form of penalty. Accepting that a community service order can only be imposed as an alternative to a term of imprisonment or of detention, it must be asked is it necessary for the court to specify:
(a) that a term of imprisonment for the particular offence is the appropriate sentence and
(b) the term of any such imprisonment.
Having considered the various authorities opened to me and the submissions made herein and in particular having considered the provisions of the Criminal Justice (Community Service) Act, 1983 I have come to the conclusion that in order to show that the Court has the jurisdiction to make such an order a necessary precondition to the imposition of a community service order is the provision of what has been described as a “default provision” or in other words a clear indication of what the appropriate term of imprisonment would be but for the making of a community service order. This seems to me to be the case notwithstanding the provisions of s. 7 subs. 4 of the Act or the provisions of s. 8 in relation to failure to comply with a community service order. Further, I hold this view notwithstanding that Section 2 of the Act does not expressly provide any specific term of imprisonment or detention to be specified.
Further, it seems to me that the specific term of imprisonment or detention should be recited in the court order thus demonstrating that the court has exercised its jurisdiction appropriately. I am reinforced by my view in this regard by the fact that clearly at the hearing on 10th June, 2003, the first named respondent had it in mind that a default provision was required, declined to indicate what the nature of the default provision would be on that date and unfortunately omitted to do so on the final hearing date in September, 2003. An order which recites, as the order in this case does, that “the appropriate sentence would be one of imprisonment for the period of zero” is, in my view, not a compliance with the precondition. In the circumstances I am satisfied that the applicant is entitled to have the order quashed.
Approved: Dunne J.
DPP v McAuley
[2017] IECA 325
JUDGMENT (ex tempore) of the Court delivered on the 12th day of December 2017 by Mr. Justice Mahon
1. This is an application by the appellant pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of a sentence imposed at Dublin Circuit Criminal Court on the 19th December 2016 in respect of an offence of assault contrary to s. 3 of the Non Fatal Against the Person Act 1997. The sentence was one of two hundred hours Community Service in lieu of a term of three years imprisonment.
2. Section 2 of the Criminal Justice 1993 provides as follows:-
(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the (Court of Appeal) to review the sentence.
(2) An application under this section shall be made on notice given to the convicted person within 28 days from the day on which the sentence was imposed.
(3) On such an application, the Court may either:-
(b) quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate, being a sentence which could have been imposed on him by the sentencing court concerned, or
(c) refuse the application.
3. On the 19th February Garda Sheng and Garda Moore called to an address at Kilbarrack, Dublin 5 following a telephone call seeking assistance from the appellant’s ten year old daughter. The respondent opened the door, appeared to be intoxicated, and became very aggressive when he saw the gardaí. He slammed the door. The door was then opened by his partner, Martina Masterson, who was holding her young infant son in her arms and was accompanied also by a ten year old girl. All appeared distressed. Ms. Masterson invited the two gardaí into her sitting room. The respondent came into the room and shouted at the gardaí to leave. He became increasing aggressive, both shouting at the gardaí and at Ms. Masterson. Ms. Masterson then went upstairs with her young child. The gardaí followed her upstairs to speak with her. The respondent than pursued the gardaí upstairs repeatedly shouting at them, and telling them to leave. He pushed and punched Garda Sheng in the face causing him to fall down the stairs whereupon he was rendered unconscious. The respondent proceeded to throw a mirror and a picture and a bag of clothes down the stairs, landing on Garda Sheng. Garda Power was required to deploy his OC spray on two occasions in order to subdue the respondent. Assistance from other gardaí arrived and the respondent was arrested. He was taken to the garda station but was unable to be interviewed for some time because of his level of intoxication.
4. At the time of the offence the respondent and Ms. Masterson had separated and he occasionally visited her home to spend them with his children. On the occasion in question he turned up at her home having earlier attended the funeral of the father of a close friend and was in an intoxicated state.
5. The respondent has fourteen previous convictions between 1991 and 2008. All but two were District Court convictions. None are for crimes of violent. One was a serious drugs conviction in respect of which he served a lengthy prison sentence.
Grounds of Appeal
6. The grounds of appeal are as follows:-
(i) The learned sentencing judge erred in principle in imposing an unduly lenient sentence in all the circumstances, being a sentence of two hundred hours Community Service in lieu of a term of three years imprisonment;
(ii) the learned sentencing judge erred in principle in failing to take adequate account of the evidence adduced that the offence was grave in nature;
(iii) the learned sentencing judge failed to determine where the offence fall on the scale of offending to reflect the nature of the offence and the aggravating factors before applying mitigation;
(iv) the learned sentencing judge erred in failing to attach any or any appropriate weight to the aggravating factors in the case. In particular the learned sentencing judge failed to have any or any appropriate regard to the following factors;
(a) the fact that the assault was perpetrated on a member of An Garda Síochána carrying out his duties by attending at the scene of a domestic dispute and attempting to de-escalate the situation to prevent citizens from harm including a female and a young child;
(b) the fact that the attack on a member of An Garda Síochána continued when he was lying motionless on the floor at the bottom of the stairs;
(c) the fact that serious injuries were caused to a member of An Garda Síochána which required him to undergo considerable periods of absence from work as a result of injuries sustained. The evidence was that he suffered injuries of a soft tissue nature, concussion and symptoms of PTSD. He was still out of work at the time of the sentence hearing;
(d) the fact that the respondent had previous convictions;
(e) the learned sentencing judge erred in attaching undue weight to mitigating factors in the case;
(f) the learned sentencing judge erred in failing to structure the sentence so as to adequately express the object of deterrents;
(g) the learned sentence judge erred in failing to sufficiently incorporate elements of general deterrents in this sentence, having regard to the maximum sentence proscribed by the Oireachtas for this offence.
7. The learned sentencing judge explained the basis on which he imposed his sentence of two hundred hours Community Service in lieu of three years imprisonment in the following terms:-
“..But he has come to court, he has pleaded guilty. He has expressed remorse for what he did. It seems he is trying to reform himself in the sense he is trying to retrain himself, and he is trying to make a life for himself. The big question I have to decide, is his offence so serious that I must impose upon him an immediate custodial sentence by reason of the facts of the crime and his previous history. Obviously the facts have been well-outlined by the sergeant. I must say, I must comment the sergeant has given very fair and accurate evidence. It seems he has given — he has spoken up to some degree for Mr McAuley as best he can. He has certainly put the good points of his story to the Court. Now, Mr McAuley has a record of conviction. I note most of them are for what could be termed minor offences for this Court but he has one serious fall from grace. That is that he was convicted and pleaded guilty to section 15A, for which he received a 10 year sentence and the last three were suspended.
So, I have to take all of these factors into account. Obviously the seriousness of the assault and, obviously, the mitigating factors, principally the plea of guilty, the expression of remorse and, I suppose, for the immediate past at least he has been blame free in relation to the criminal law. I have decided in this case – and it is a close-run thing – not to imprison him immediately. I think the appropriate sentence is I am going to impose upon him 200 hours community service. He is to do that within one year. And the sentence in lieu is three years.”
8. The learned sentencing judge’s decision was criticised on a number of grounds by the appellant, including his failure to rate the offence on the gravity scale before then proceeding to identify the headline sentence, and then applying any reduction for mitigation. That criticism is well made. Approaching sentence in that way is best practice and has been so deemed in a number of decisions of this Court including DPP v. Kelly [2016] IECA 204. However, it is nevertheless the case, as this Court has also stated on a number of occasions, that a failure to follow best practice will not of itself undermine the sentence imposed. The judgment of this Court delivered by Sheehan J. in DPP v. T.B. [2016] IECA 250 is relevant in this respect. It is the actual sentence imposed which will be scrutinised by this Court.
9. The other criticisms emphasised by the appellant include what her counsel described as the failure to attach sufficient weight to the aggravating factors, and what is stated to be a failure to refer to the of deterrence and to Gardai Sheng’s injuries. In DPP v. Corbett [2015] IECA 174, Edwards J., in delivering the Court’s judgment stated:-
“…Deterrence, both general and specific, is a legitimate sentencing objective. It is a matter of significant importance for the courts to support the important role being played by front line professionals in the caring professions, to quote the trial judge “whether in healthcare, education, the fire service or in criminal justice.”
10. Ultimately, the appellant’s core submission is that this offence required the imposition of an actual custodial sentence. It involved a very violent and determined assault on a garda who was engaged in doing his duty having, together with his colleague, responded to a call for assistance from the respondent’s young daughter. The fact that the request for assistance emanated from the ten year old daughter of the respondent serves to emphasise the utterly damaging consequences that flow from the respondent’s behaviour for, in particular, his children.
11. The Court is in agreement with the submission that this offence required a custodial element in the sentence imposed. It was not a suitable case for a Community Service Order given as it did, that it involved a serious assault on a member of An Garda Síochána performing his duty. It is the responsibility of the courts to do all they can to protect gardaí engaged in their day to day work from entirely unjustified violent attack and they ought to do so by imposing relatively severe sentences on those who engage in such activity. A Community Service Order could not be so described.
12. The Court is therefore satisfied that the sentence imposed in the Court below was unduly lenient, and significantly so. The identification of a three year prison term was not inappropriate although not on the basis of it being a term in lieu of community service. This Court will therefore quash the sentence imposed on the 19th December 2016 and will in its place impose a sentence of three years imprisonment.
13. Two matters then arise. Firstly, if the Court below had imposed a sentence of three years it would have be justified, indeed it would have been appropriate, to then suspend a portion of that term in respect of the mitigating factors including, and in particular, the plea of guilty, the expression of remorse and the efforts to rehabilitate. Secondly, there is the fact that the respondent has remained at liberty since being convicted almost twelve months ago and has fully honoured the requirement to do community service. To now face the prospect of a period in custody is itself an added punishment not of his making.
14. There is also now available to this Court stronger evidence that rehabilitation is underway than was available in the Court below. It does appear that the respondent has taken active steps to deal with his personal problems and to maintain employment.
15. In the circumstances, and with some degree of reluctance, the Court will suspend the entire three year term for two years from today’s date on the respondent entering into a bond in the sum of €100 to keep the peace and be of good behaviour. A particularly persuasive factor in the Court’s decision to suspend the entire sentence is the fact that the knowledge that her father had been sent to prison would likely add to the distress of the respondent’s young daughter, given the fact that she had very bravely and necessarily summoned the gardaí to her own home because of her father’s behaviour.
16. Finally, the Court would again wish to emphasise its view that a violent assault on a member of An Garda Síochána performing his or her duty should, save in exceptional circumstances, result in the imposition of a custodial sentence.